Proper Prosecution

Having reflected this past week on your editorial of July 13 concerning the conduct of my office during the Sagon Penn trial, my initial aggravation has given way to a sense of exasperation at your sanctimonious tub-thumping.

You do, to be sure, give me credit for earning a reputation for fairness and reserve. I thank you for that.

I am criticized for two things. First, for taking 12 days to hand over to the court the now-much-ballyhooed transcript of a police academy counseling session with Donovan Jacobs eight years ago. Second, for having the temerity to investigate allegations that a juror had, contrary to her responses during the jury selection process, expressed statements of bias about the defendant and, contrary to the admonition given by the court, freely and extensively talked about the case publicly while it was under way. This, you say, is somehow “unconscionable.” That’s so much flapdoodle.

To begin with, five of the 12 were weekend days--fully 40% of the days in question were days we and the courts were closed. Second, one does not take a document that lopes in under strange circumstances and simply run to the court with it, lickety-split. First, we must read it. Then we have to evaluate its relevance, if any. Then, assuming we believe it should be given to the court, even if only out of an abundance of caution, we must ascertain as best we can its origin and method of delivery, prepare an affidavit of submittal to the court in support of our position as to its nature and discoverable status.

This orderly process requires thought and effort and time. It may have satisfied your sense of drama had we run into court with an unread document in our hands, but that is the only purpose it would have served.

As to the juror investigation which seems to unsettle you so, I must say that I’m getting weary of the mushy-headed debate about its propriety.

If the allegations we heard were true, there was every reason to believe we had a ringer on the jury and our right to a fair trial was abridged. Is the public interest served by sticking our heads in the sand, or is it our duty to find the facts--one way or the other--to bring to the attention of the court? That is what we tried to do, in as speedy and unobtrusive a fashion as possible.

We were not, contrary to what has been reported, “embarrassed” by our investigation.

Deputy Dist. Atty. Robert Phillips told the court he was embarrassed, but not by the fact we were looking into these substantial allegations. His remarks, in context, are part of the court record and I believe demonstrate his embarrassment was due to his being the target of baseless allegations of misconduct before he had even been able to explain what we did and why we did it. We all would have preferred to complete our final interview and bring all our material to the judge on our own, without first being asked and without having our motives questioned. That was not to be. But were we embarrassed by conducting an inquiry we felt duty compelled us to make? No way.

And what did we find out in that inquiry?

Well, the press succeeded in getting a whole bunch of reports of interviews unsealed by the court, with our active support I might add. They were unsealed because of “the public’s right to know.” As far as I can tell, they are yet unread and unreported on. That seems to indicate the public has the right to know only that there was an investigation and that the defense attorney and certain editorial writers think it’s awful.

EDWIN L. MILLER JR.

District attorney

San Diego