Grim Detail Is Daily Fare at Penn Trial
Rarely a day goes by in the murder trial of Sagon Penn without Milton Silverman lying on the courtroom floor, swinging a police night stick or throwing a karate punch.
While the flamboyant defense attorney has snared the attention of photographers, spectators and jurors with his courtroom antics, his counterpart has worked diligently to capture attention in another way, by vividly and repeatedly portraying the bloody March 31, 1985, shootings of two police officers and a civilian ride-along.
Deputy Dist. Atty. Michael Carpenter has asked prosecution witnesses to recall every detail of the tragic shootings, which lasted less than six seconds. The jury has heard numerous versions of how Penn took San Diego Police Agent Donovan Jacobs’ service revolver and shot him once in the neck; how Agent Thomas Riggs never had a chance before he was shot three times and killed, and how Sarah Pina-Ruiz watched all this in terror from inside a police car before Penn turned the weapon on her.
Over strenuous defense objections, Carpenter has twice played a pair of tape recordings that depict the bloodshed and horror of the shootings. One is a videotape of paramedics pounding on Riggs’ chest in a desperate attempt to revive him, then giving up to scurry to the other two victims and check their vital signs. The other tape is a police radio transmission of Pina-Ruiz crying for medical assistance after she was shot.
“We need help! We need help!” Pina-Ruiz shouted into the police radio. “Two officers down. I’m a ride-along and I’ve been shot . . . the officers . . . I can hear them moaning.”
Carpenter said that re-creating the shootings in so vivid a manner is an integral part of his method.
“I’m trying to let the jury know in decent ways that there was blood and there was gore and there was tragedy out there,” Carpenter said.
Carpenter expects to wrap up his questioning of prosecution witnesses today with testimony from homicide detectives, Jacobs’ attorney and a karate expert. The prosecutor has devoted much of his energy over the past five weeks to portraying Jacobs and Riggs as victims, policemen who properly conducted a routine traffic stop that unexpectedly turned into tragedy.
Penn, who is charged with one count of murder and three counts of attempted murder, claims he acted in self-defense. The 24-year-old Southeast San Diego resident and other defense witnesses allege that Jacobs beat Penn repeatedly and used racial slurs, including “nigger” and “boy.”
Carpenter emphasized during a telephone interview Friday that not one prosecution witness has testified that Jacobs said the word “nigger.” Silverman is expected to begin calling defense witnesses Tuesday.
Throughout the five weeks of prosecution testimony, Carpenter has focused the jury’s attention on the events of a year ago.
“What happened March 31, 1985, was a gruesome, emotional tragedy for everybody involved,” Carpenter said. “To bring it into a courtroom without showing the gruesomeness, without showing the emotion, without showing the tragedy, would not be doing my job.
“You have to make it be real for the jury, and there are limits to that. They don’t want to see blood rushing out of Donovan Jacobs’ neck, because they would be too inflamed by that.”
But at times Carpenter seems to be stretching the limits toward gruesomeness. On several occasions, for instance, he held blood-stained clothes worn by the victims in plain view of jurors.
Carpenter wanted Dr. Joseph Devin to confirm that efforts to revive Jacobs at the scene were aided by the fact that Riggs had already been pronounced dead. He asked that Dr. Robert Jacobs describe the medical procedures used to “re-establish Donovan Jacobs’ colon.” And one day after Pina-Ruiz recalled how it felt to be gunned down, the prosecutor asked her: “Why did you know you were going to be the next one shot?”
In all three cases, Judge Ben W. Hamrick refused to let the witnesses respond. He ruled the answers by the physicians would not be relevant to the trial and that Pina-Ruiz had “adequately described her emotions of being shot.”
By injecting so much blood and gore into the trial, Carpenter runs the potential risk of losing the shock value of such evidence and at the same time offending jurors.
“I think that the jury has an inherent sense of what’s fair and foul,” Silverman said. “And when you strike a foul blow, in my experience they don’t like it.”
Silverman said Carpenter went too far last Wednesday when he played the tape of Pina-Ruiz begging for help over a police radio. As Pina-Ruiz listened to the tape on the witness stand, several jurors had tears in their eyes and Riggs’ wife, Colleen, wept softly in the back of the courtroom.
“The tape was played for its demonstrable impact on the jury,” Silverman told Hamrick on Thursday. “It was played for no reason other than arousing passion and prejudice” against Penn.
The defense attorney later described the tape as “good opera.”
But the judge disagreed, saying that the Pina-Ruiz recording was no more inflammatory than the police emergency tape Silverman has played repeatedly of a woman who complained of “police brutality” as the officers struck Penn with batons.
“It’s improper to play to emotions,” Carpenter said. “I’m not trying to do that. I’m simply trying to make the tragedy be relived in the courtroom so (the jurors) can understand what went on.
“Otherwise, they’ll say two police officers with batons were beating up a poor guy and he simply reacted to that, and that’s simply not the case.”
The jury has thus far seen Carpenter call prosecution witnesses in an attempt to minimize the extent of any injuries Penn received from the alleged beatings.
Two witnesses, Dr. Barbara Groves and nurse Elaine Hilliard, testified that based on their medical examination of Penn’s injuries, he was not the victim of a severe beating.
Carpenter said he called nearly a dozen witnesses to question the authenticity of defense photos taken April 2, 1985, depicting an injury to the back of Penn’s head. All of the witnesses said they observed Penn within 24 hours of the shootings and did not see any blood in the area of the wound.
In presenting evidence and questioning witnesses, Carpenter has relied on a no-nonsense approach without raising his voice, leaving his feet or removing his suit jacket.
Early in the trial, for example, Carpenter wanted to show witness Ricky Clipper how Jacobs fell to the ground, but decided against it.
“I don’t want to get on my knees,” Carpenter said. “I’ll ruin my wool suit.”
Silverman, on the other hand, refuses to let any obstacle get in the way of a good show. The spunky attorney appears most comfortable on the courtroom floor imitating Jacobs slugging Penn or with a baton in his hand slamming a weathered brief case to show jurors just how hard the officers hit his client.
Silverman displayed these skills during Thursday’s court session. The day began with Silverman, dressed in a dark green jump suit, playing the role of Jacobs as he straddled an aide on the floor of a county parking garage. The defense attorney had arranged for Pina-Ruiz to sit in the same squad car in which she was shot and show the jury her view of the shootings.
At the end of the day, Silverman swung a police baton as hard as he could at a karate expert’s head to show the jury how Penn fended off repeated blows from Jacobs and Riggs. The jurors were so impressed by the demonstration in front of the court’s fourth-floor elevators that they applauded James A. Wilson, Penn’s taekwondo instructor.
“The jury has to know what happened and the best way to do that is to demonstrate,” Silverman said. “I feel it is my duty to present the evidence to the jury in its most understandable form. Lawyers unfortunately for years have had the idea that words are capable of doing that, and words often fail.”
Carpenter said he is always concerned that an acrobatic attorney can influence jurors, and he considers it his job to make sure it doesn’t occur.
“That’s why I asked every juror if they would judge the case based on the evidence or the showmanship of an attorney on either side,” Carpenter said. “If the jury is going to be taken in by theatrics, then I did a bad job in picking them.”
The prosecutor added, “A lot of books have been written by successful defense attorneys bragging about how they did this, that and the other thing. That’s not something a prosecutor can do. A prosecutor kind of has to hang it out there and present the evidence. A defense attorney sits there and takes pot shots.”
Performing stunts in the courtroom, however, does not always work.
Silverman intended to ram the butt of a police baton against a corkboard to suggest to Dr. David Katsuyama how Penn may have incurred red spots on his forehead. But he missed the chalkboard.
Judge Hamrick studied the dent on his courtroom wall and warned a red-faced Silverman: “Next time do that to your own file cabinet!”