Reap the Whirlwind, page 26
Silverman’s criminologist Rich Whalley had conducted the distance testing using soles taken from the exact same brand of boot worn by Riggs. “I shot into the sole at that angle at various distances from zero inches, or contact; three inches; six inches; and twelve inches,” he said.
“Did you form an opinion as to how far away the muzzle of the Jacobs gun was from the boot of Officer Riggs when it hit him?” Silverman asked.
“About three inches,” the criminalist answered with confidence.
David Katsuyama had also analyzed the quantity and quality of the gunpowder reside and concluded that the barrel of the gun had been within several inches of the sole of Riggs’s boot when fired.
Several explanations were offered for how the underside of Riggs’s boot might have become exposed to the barrel of the gun at such a close distance. One, Riggs could have raised his foot while recoiling or falling back after being struck by the first or second bullet. Or two, he could have intentionally lifted it, in a manner consistent with a motion intended to stomp directly down at the gun in Penn’s hand. But for that to be true, the bullet that passed through the boot would almost certainly have to be the first to strike Riggs. Even with their substantial expertise and sophisticated testing, neither Sharon Lynch, Gene Wolberg, nor Rich Whalley felt they had enough information to venture an opinion on the order of the three shots that struck Tom Riggs. But the man currently standing before Clarence the mannequin was confident he did.
“OKAY, LET’S GET down to the sequence of these shots,” Silverman said.
Katsuyama said the shot that killed Riggs by severing his abdominal aorta was the third and final shot. He explained that the perpendicular trajectory of the bullet into Riggs’s abdomen was probably due to Riggs being bent over by the force of a previous bullet when Penn fired at him from his position on the ground. After bisecting the aorta, the bullet impacted the backbone and penetrated the spinal canal. The damage to the nerves would have instantly rendered Riggs paralyzed from the waist down and unable to straighten up. Based on their sharp, upward trajectory, neither of the other two bullets could have entered his body while he was in that position.
The second bullet fired by Sagon Penn, he said, struck Riggs in the upper right thigh in an acute upward trajectory, with fragments traveling into the pelvic area. The force of that impact would have pushed him backward and possibly caused him to double over. The impact of this bullet along with the fatal bullet would have been enough to propel him over the retaining wall, Katsuyama said.
By process of elimination, Katsuyama concluded that the first shot must have been the one that went through the sole of Riggs’s boot. The wooden dowel in Clarence told the story of a bullet that struck the sole of a shoe positioned almost directly above the gun from which it was fired. The trajectory indicated that Riggs must have been standing immediately adjacent to Penn’s head with his foot lifted at the moment the shot was fired. He felt it was unlikely that Riggs could have been in such a position had he been struck by a previous bullet, nor did he believe this bullet would have caused Riggs to double over into the position in which the fatal bullet struck him.
Silverman would argue the combined findings of Wolberg, Whalley, and Katsuyama indicated Riggs was in the act of kicking at the gun. A first kick, he alleged, had caused the accidental initial discharge that stuck Jacobs. Riggs was in the process of a second kick when Penn fired the first shot that went through the sole of the boot.
BUT NONE OF that adequately explained why Penn was justified in firing the shot at Riggs at all. The answer to that, Silverman said, went back to that single comment made by Sarah Pina-Ruiz to Detective Dave Ayers on the night of the incident: “As the gunshot went off, Officer Riggs reached for his gun.” The problem was, Pina-Ruiz was now denying she ever said it, insisting instead that Riggs was holding a baton in one hand and his portable radio in the other when he was shot, leaving no available hand with which to reach for a gun.
To support Pina-Ruiz’s claim, Carpenter argued that the two radio transmissions by Riggs and additional unidentified mic clicks on the radio-traffic recording strongly suggested Riggs kept the radio in his hand the entire time. Additionally, Officer Gerry Kramer recalled finding Riggs’s radio out of its holster, suggesting it had been in his hand. “I remember seeing it lying next to him. I picked it up,” Kramer said.
Silverman and his team spent the weekend searching for anything they might have missed that would indicate Riggs’s radio was in its holster when he was shot. They went through crime scene photos and diagrams looking for any sign of a notation, image, or statement that would place the radio in Riggs’s holster at some point following the shooting.
Silverman brought home a box of VHS tapes containing hours of television news footage, all of which had been combed over before for evidence related to a number of issues. That night, he and Maria sat in front of the television popping tapes in and out of a VCR, playing, rewinding, and replaying any footage that might contain a clue. They came to the graphic footage taken by a Channel 39 News cameraman of paramedics and officers conducting CPR on Tom Riggs.
Silverman had seen it many times, but he let the video run anyhow. It begins with shadowy figures moving hastily within the frame. Officer Kramer becomes visible. “Can you turn on your light, please,” he asks breathlessly. “Sure,” the cameraman says, and the scene becomes bathed in white light revealing the body of Tom Riggs, his shirt torn open and a fire department medic performing chest compressions. In the foreground, Kramer kneels in the dirt near the area of Riggs’s legs. He leans forward to pull Riggs’s legs out from under the black Chevelle. In that flash of a moment, Silverman saw it. He sat up in his chair, pointed the remote at the VCR, and pressed rewind and then play. And there it was again, just for an instant. Riggs’s duty belt had been unbuckled, but it was still around his waist. On his right hip was the radio holster with the handy-talkie portable radio firmly inside, its stubby little black antenna giving it away.
ON TUESDAY MORNING, April 22, Silverman introduced the video into evidence during the testimony of pathologist Werner Spitz. “Now, I would like to show briefly a video tape to the jury and ask the doctor’s opinion based upon the showing of the video tape,” he announced. Mike Carpenter sat expressionless in his seat as Mike Rodelo wheeled the television monitor cart in front of the jury box. Spitz stepped down and stood several feet back from the monitor. The five-second clip was played, freezing on the frame showing the radio on Riggs’s hip. “Dr. Spitz, are you taking note of this right here?” Silverman asked, circling his finger around the image of the radio.
Spitz leaned in and squinted. “Yes, I see this,” he said in his thick German accent.
“Is it your opinion that if Agent Riggs had in fact been holding this handy-talkie in his right hand at the time that he sustained those bullet wounds, that it is unlikely that he would have gotten it back into the position that it is depicted there?”
Spitz considered it for a moment. “I think it is more likely that he would have dropped it, particularly since the minute he sustained the injury to his spine, his legs were cut off and he collapsed. So,” the doctor concluded, “he wouldn’t have had much time to put it into his belt.”
Silverman stared for a few moments at the image of Tom Riggs on the monitor before turning it off. “All right,” he said softly. “Thank you. That is all.”
25
“THE QUESTION OF WHETHER PENN COULD SEE INTO RIGGS’S patrol car when he shot [Sarah] Pina-Ruiz would haunt the courtroom until the end of the trial,” San Diego Magazine journalist Maribeth Mellin, who attended every day of the trial, wrote weeks after its completion. But that question had begun haunting investigators from both sides within days of the incident itself.
On April 2, 1985, forty-eight hours after Sagon Penn fired two shots at Sarah Pina-Ruiz, Detective Gary Murphy drove his unmarked department sedan up the driveway at 6564 Brooklyn Avenue and brought it to a stop. Murphy and fellow Team IV detective Larry Lindstrom walked around until they arrived at the bloodstains in the dirt, the break in the bushes along the retaining wall, and several sets of tire tracks. Gone were Riggs’s 785 vehicle and Allen Cepeda’s black Chevelle. Operating on memory, Murphy and Lindstrom picked the spot where they believed the Ford LTD patrol unit had been parked two days before. Murphy pulled his car up to the spot on the driveway, threw it in park, rolled up the driver’s side window, and got out.
The kids playing and roughhousing in Carlton Smith’s front yard paused for a moment and then went on with their fun. After two days of cops and reporters crawling all over their neighborhood, a couple of old guys in suits wasn’t all that interesting.
Murphy positioned himself about six feet back from the driver’s side door. The big, round-shouldered detective checked his watch; it was 6:00 p.m. He looked at the driver’s side window and then turned around and looked west. Beyond the oleander bushes and eucalyptus trees in the foreground, and past the steeple of the Apostolic church, the sun hung low in the sky.
At 6:08 p.m., the sun disappeared behind the church and then fell beneath the hillside behind. As daylight turned to twilight, the yellow and orange tones of a Pacific sunset spread out above an area of intense white light. Murphy looked at the side window and took a few steps in each direction, studying it from different angles. He did so again at 6:11 p.m., the time forty-eight hours earlier Tom Riggs had requested a “cover now.” He continued watching past the 6:13 mark, the time they estimated the shooting took place. At 6:15 p.m., Murphy and Lindstrom got back in their sedan and drove off.
“I could see that there was no glare from the sun. I could see the sky reflected behind me in the glass, but this in no way stopped me from seeing the interior of the front seat of my vehicle and the inside portion of the passenger’s door,” the detective concluded in his report of the window-glare investigation.
BY COMPARISON, THE work that Jim Gripp, Rich Whalley, and Al Arnson put into recreating the exact conditions for their own window-glare investigation and photo shoot had been exhaustive. Using his land survey conducted a little over three months earlier, surveyor Al Arnson had calculated their location relative to the earth, sun, and heavenly bodies in space. He then applied astronomical data to adjust those calculations to determine the position of the sun relative to the side window of Riggs’s vehicle at the precise moment of the shooting.
To determine Penn’s line of sight to the side window of Riggs’s vehicle, Whalley began by analyzing tiny fractures spiderwebbed through a portion of what little glass remained in the window. “Those are fractures that radiate from an impact point,” he later explained on the witness stand. “You can project back along those radii, and where they intersect is very close to the [first] bullet hole.” Having plotted the impact point of the first bullet, he established a trajectory using the impact points of the bullets in the interior of the vehicle and physical measurements of Penn to identify with a reasonable degree of certainty the position of Penn’s eyes in relation to the window at the time he fired the first shot at Sarah Pina-Ruiz.
The defense team then set their sights on the anniversary of the shooting, when the earth and sky would be precisely as they had been one year before. But when the three men arrived on the morning of March 31, 1986, they were dumbfounded. “You got to be fucking kidding me,” Jim Gripp said as they stood at the end of the driveway. Sometime between their last visit and now, the owner decided to make improvements to the property, leveling the surface and raising the height of the driveway at points ranging from six inches to a foot. Considering the precision of their other calculations, it might as well have been miles.
Arnson hurriedly scribbled new calculations. “If we are going to get the correct angle, we’re going to need a piece of equipment to dig up this guy’s driveway,” he concluded.
“How the hell are we going to get that done in six hours?” said Gripp, who had conceived and planned the whole operation.
Rich Whalley knocked on the homeowner’s door and tried to explain to the baffled man why he should let them tear up his new driveway. One hundred dollars later and a promise to put it back the way they found it, they had a deal. Now it was a race against time to return the terrain back to its original configuration, set up their equipment, and begin photographing by 6:00 p.m.
By late afternoon, Rich Whalley had used a rented tractor to scrape away the layer of decomposed granite and dump it into a six-foot-high pile in the Paraderos’ front yard. When Arnson declared the land back to its original configuration, Gripp pulled a rented 1985 Ford LTD, the same make, model, and year as Riggs’s unit, and positioned its front wheels within an inch of their location at the time of the shootings. In the passenger seat was Audrey Acosta, Gripp’s office manager, chosen because of her similar hair color and skin complexion to that of Sarah Pina-Ruiz. The ivory-colored knit sweater she wore, bought at a local thrift store, had been matched to Pina-Ruiz’s using a color chip. Whalley studied a photograph of the crime scene, noticed the branches of a nearby oleander bush had grown out, and clipped them back.
Professional photographer Charlie Colladay set up his tripod and Hasselblad camera with an 80-millimeter lens, which provided the most accurate approximation of what is seen by the human eye. Gripp set up next to him with a Canon F1 and 50-millimeter zoom lens to shoot color slides as a control image. Videographer Roger Holtzen aimed his camera at the window, prepared to hit “record” and to let it run throughout the whole process.
But as the time approached, a cloud cover moved in, and the team was forced to pack up their equipment, leaving the rented skip loader and a pile of dirt and crushed granite. It was not until April 3 that the weather cleared. Al Arnson calculated the simple two-minute adjustment to the time of sunset and location of the sun to match that of March 31.
With the Smith children and other neighborhood kids playing in the next yard, the team prepared to snap a set of photos at one-minute intervals leading up to the adjusted 6:15:45 time of the shooting and for several minutes thereafter. When the sun set at 6:10 p.m., the 6500 block of Brooklyn Avenue entered what astronomers call “civil twilight,” the twenty-to-thirty-minute period when “Earth’s atmosphere scatters the sun’s rays to create the colors of twilight.”
“Fifteen seconds,” Rich Whalley alerted the team and then counted down: “fourteen, thirteen, twelve . . .” The cameras began clicking two shots a second for ten seconds straight. “The time now is 6:11 and forty-five seconds,” Whalley announced to mark the time on the video recording. In the window was the reflection of a pale western sky in the background and the dark silhouettes of the oleander, trees, and roof of the Apostolic church in the foreground. But the stand-in for Sarah Pina-Ruiz remained sufficiently visible through the reflection. Periodically, Whalley instructed her to lean forward and reach out toward the center of the dashboard as though grabbing for something—a radio mic perhaps. The movement had the strange effect of making her more visible yet harder to identify.
“The time now is 6:13 and forty-five seconds,” Whalley called out two minutes later. During that time, an orange glow formed behind the shadow of a tree at the bottom left edge of the reflection, along with a swath of bright white that made it increasingly difficult to identify Audrey Acosta’s white sweater. “Looks brighter,” someone commented. “The white here is really white.” But from the neck up, Acosta remained visible and identifiable.
Charlie Colladay viewed the glass through the lens of the Hasselblad and then dropped one f-stop to adjust for the changing light. “Ten, nine, eight . . .” Whalley counted down until there was the flurry of camera clicks again. The reflection of the western sky and objects in the foreground were becoming even more pronounced each minute. The silhouettes of the objects reflected in the window—which one year earlier included Sagon Penn himself—darkened significantly. “It’s now 6:14 and 45 seconds,” Whalley remarked.
“The next minute is the critical one,” he said, the urgency in his voice noticeable over the sounds of children playing in the background. There was the sharp sound of someone banging on what sounded like the hood of a car. “Okay, fifteen seconds. Ten, nine, eight, seven . . .” The cameras clicked rapidly. “The time is 6:15 and 45 seconds,” he called out, marking the exact moment Sagon Penn fired two shots through the side window of Thomas Riggs’s police car.
They paused, silently staring at the window. In the final seconds of Rich Whalley’s countdown, it had completed a final metamorphosis into a glass canvass crowded with darkened objects, the orange glow of light refracting off the atmosphere, and a swath of sky above the horizon bathed in bright white. The woman in the passenger seat had become a ghostly image moving behind the light and shadow. “Holy shit,” said videographer Roger Holtzen.
Two weeks later, Milt Silverman called Al Arnson, Jim Gripp, and Rich Whalley to the witness stand to explain the lengths they had gone to recreate the exact environmental conditions that existed at the moment of the shooting on March 31, 1985. The difference between their scientific calculations and the guesstimates and lack of photographs by Lindstrom and Murphy was stark. Over the protests of Mike Carpenter, Milt Silverman presented a single photo representing the results of their effort to prove their contention that Sagon Penn would have had a very difficult time identifying Sarah Pina-Ruiz before shooting into the vehicle. He motioned to the photographic image he had projected onto a movie screen. “Ladies and gentlemen,” he said, “we charted the heavens and moved the earth.”
ON THE DRIVEWAY at 6564 Brooklyn Avenue, a young Black man in a white long-sleeve, button-down shirt and blue jeans lies on his back in the dirt. Straddling him is a blond-haired uniformed police officer, a .38-caliber revolver holstered on his right hip. Standing above them, just to the right of the young man’s head, is a black-haired uniformed officer holding a PR-24 police baton. With the children at school on a Tuesday afternoon, the neighborhood is uncharacteristically quiet. The adults who are home stay inside; few of them want to see this again. “Ready?” says a voice outside the frame of the video camera. The blond officer cocks his arm back and makes a fist. He waits. “Three, two, one . . .” The scene is over seconds later. “Getting very close,” the voice says encouragingly. “Let’s do it again.”
