Request Filed by Newspapers : Court Refuses to Release Penn Documents

The 4th District Court of Appeal on Thursday rejected a motion to release transcripts of closed hearings and other secret documents in the murder trial of Sagon Penn.

The court said it was unable to determine whether trial transcripts were properly sealed because Superior Court Judge Ben W. Hamrick did not give any reasons for his decision to close the hearings, as required by case law, according to acting Presiding Justice Howard B. Wiener.

“It seems to me that the Court of Appeal properly noted that the Superior Court had utterly failed to announce on the record the basis for its rulings,” said Jeffrey S. Klein, senior staff counsel for the Los Angeles Times. “But the remedy for that failure should have been a reversal of the closure order.”

On June 16, The Times and the San Diego Union asked the appellate court to order Hamrick to allow the public to attend future hearings and to unseal transcripts of numerous closed sessions held during the four-month trial.

Klein said The Times plans to ask Hamrick next week to release the documents.

Penn was acquitted of murder and attempted murder last week in the March 31, 1985, shooting death of San Diego Police Agent Thomas Riggs and the shooting of Police Agent Donovan Jacobs. The jury was deadlocked, 11-1, in favor of acquitting Penn of attempted murder for shooting civilian ride-along Sarah Pina-Ruiz.

San Diego County Dist. Atty. Edwin Miller is expected to announce next week whether his office will retry Penn. A second trial has been formally scheduled to begin Aug. 25.

During the first trial, Hamrick repeatedly excluded the public and the media from court hearings. The judge continued to hold closed proceedings while the jury deliberated, despite objections by defense attorney Milton J. Silverman that Penn was entitled to a public trial.

Of particular interest to the media is a sealed 11-page transcript of a recorded conversation between Jacobs and three of his training instructors in 1978, when the officer attended the Police Academy. The transcript, which surfaced after jury deliberations began, contains statements by Jacobs that he supported the use of aggression and epithets when confronting minorities.

On June 10, Hamrick denied a defense motion to reopen the testimony phase of the trial and introduce the transcript to jurors.

Jacobs is accused of provoking Penn by beating him repeatedly and using racial slurs, according to testimony by numerous defense witnesses. In an interview this week, Jacobs said the academy incident would have a “relatively harmless” effect on a possible second Penn trial.

However, Silverman insists that Penn would have been cleared of all charges had he been able to introduce the transcript to the jury. The defense attorney said the documents support his portrayal of Jacobs as a “Doberman pinscher” who initiated a racial attack on Penn, a 24-year-old black man.

In its five-page opinion issued Thursday, the appellate court said it reviewed sealed transcripts of hearings held during jury deliberations. Wiener divided the material into three areas--jury instructions issued after jurors reached a guilty verdict that was later set aside; charges of possible juror misconduct that led Hamrick to sequester the jury, and new evidence in the form of the Jacobs transcript.

Wiener suggested that the newspapers take their appeal before Hamrick. Should the trial judge rule that certain items are to remain sealed, the newspapers could request the appellate court review the case again, Wiener wrote.

Hamrick has refused to release any records of the trial, even though both Silverman and Deputy Dist. Atty. Michael Carpenter said this week that they do not object to any documents being released now that the verdicts have been announced.

Hamrick’s clerk, LaRue Slaugh, said last week that the judge decided not to unseal the records because the case may be retried.