Reap the Whirlwind, page 32
Hamrick said he hoped it would not be too much of an inconvenience for them all, but the looks of dismay told him otherwise. One by one they raised their hands to voice their concerns: “I am supposed to pick up my kids today.” “I am supposed to sign papers at the car dealership tonight.” “I have nobody to pick up my daughter from school every day.” “I did want to visit my mother Friday.” Then Vernell Hardy began to sob uncontrollably. Mike Rodelo escorted her to the rear of the courtroom while fellow juror Kimberly McGee tried to comfort her. Hardy’s whole body began to shake. “Why don’t you ladies and gentlemen stay right there,” Hamrick said to the other jurors. “Give us ten minutes to work out some details.”
In chambers with Hardy and the two attorneys, Hamrick tried desperately to accommodate the woman whose presence on the jury he had preserved only a half day earlier. He told her she could have the baby with her at the hotel overnight. Or part of the night. Or whatever she wanted. “I have made the decision, and I am going to live with it,” Hamrick said. “But the sequestration, if it is an unbearable burden, the choice is yours. If you tell me you can’t continue to serve as a juror under these circumstances, then we will just have to excuse you and put an alternate in.” A few minutes later, Hardy had calmed down somewhat. “I have to do what I can do,” she said optimistically. As the jurors filed out of the courtroom, some glared accusingly at members of the media, assuming they were to blame for their impending hotel incarceration.
With the courtroom cleared of jury and spectators, Silverman was as livid as he had been earlier. If Hardy could not continue due to sequestration caused by the prosecution’s actions, it would be a case of “the prosecution by its malfeasance achieving indirectly what it could not achieve by its unconscionable jury tampering,” he said. “What we have here is a conspiracy.”
WHEN HE ARRIVED at the courthouse on the morning of Monday, June 9, just four days into the sequestration, Judge Hamrick got broadsided by a written request from Vernell Hardy and Kimberly McGee to speak with him. The two women had finally had it. “Your Honor, I have given a lot of consideration to everything that is going on,” Hardy told the judge. “I am scared, and I feel bad, but I can’t live with it. I can’t live with what has been requested. It is too much of a hardship on me and my family. I cannot go on.”
“I feel pretty much the same way,” McGee said. “I can’t function. I go to bed at night with knots. I wake up with knots. I come here and I cry. I am wondering if I am going to make it to my wedding.”
With the choice between losing the only two Black jurors or lifting the sequestration, Hamrick took the only option he could. He summoned the jury to the courtroom and announced his decision to end the sequestration, along with a firm admonishment not to discuss the case or expose themselves to news reports or reporters. “We’re not going to try this case in the newspaper,” he said. “We’re going to try it with the evidence right here in the courtroom.”
With the sequestration issue seemingly under control, Hamrick turned his attention to a new crisis, one that would soon make everyone forget about Vernell Hardy.
32
June 2, 1986
The Honorable Ben W. Hamrick
Judge of the Superior Court
Department 25
Dear Judge Hamrick:
Please find a document that was found in the manner described in Officer Castro’s attached declaration. We received it on May 21, 1986. After discussions with supervisors in this office we have decided to forward it to you so you can decide whether it’s discoverable or not. We think it is not discoverable for the reasons listed below but recognize the possibility of reasonable minds differing, ethical considerations, and difficulties which may arise if a court disagrees with us . . .
Respectfully,
Michael G. Carpenter
Deputy District Attorney
MILT SILVERMAN SET THE COVER LETTER ASIDE AND READ the header on the document provided to him by Judge Hamrick. It was a San Diego Police Department “Officers Report” issued by three sergeants at the police training academy, dated August 4, 1978. The text of the document was a transcript titled “Interview with Donovan Jacobs.”
Silverman would later learn the circumstances of what turned out to be a counseling session of Jacobs by the three training sergeants, Tom Hall, Dave Hall, and Dick Bennett, while he was a cadet at the academy. Cadet Jacobs had been asked to critique the actions of two officers in a simulated interaction with two gay men in a car parked in an area of a public park where men frequently came to engage in sex. In the simulation film titled Protecting Rights & Dignities, the officers were aggressive and disrespectful, using anti-gay slurs while ordering the men to leave the area. Tom Hall, the training sergeant leading the exercise, found Jacobs’s assessment of the scenario made before the class worrisome enough to call for an immediate counseling session and took the highly unusual step of tape-recording it. What Milt Silverman had before him was a raw, eleven-page verbatim transcript of the session.
“What is your first name, Jacobs?” Tom Hall asked to start the session.
“Donovan.”
“They call you Don?”
“Yes.”
“Okay, Don. I am very much concerned, as we all are, about some of the comments you made in class today. What I would first like to do is for you to explain to me why you feel that scenario was proper on the part of the officers, okay, the discussion we just had in class.”
“You mean the way the homosexuals were handled?” Jacobs said.
“Yes.”
“Okay. As far as I know, the point of the stop was to keep them out of that area. The way that was handled by that officer gave such a, I guess, a negative effect on the homosexuals that they were not going to return. And, if that was the purpose of the stop for them not to come back, then I think he got his point across very well.”
“Do you believe in the methods the officer used, the profanity, calling people ‘faggots’ and things like that?” Hall asked.
“Okay, in reality, no. I personally wouldn’t use that. Like you said, it’s degrading. I didn’t bring that out when I was up in front of the class but, like I said, he got his point across . . .”
“Okay, but what you said was as long as he got the job done then it was okay, as long as he didn’t stimulate complaints . . .”
“Well, sometimes you’ve got to resort to that, I feel, if that’s the way the job can get done. Like I said, I personally wouldn’t do it. And I really don’t agree with it, but if [it] does the job.”
“Okay, the same with the question that was raised to you about minorities: What if you are using derogatory terms against minorities? Your same response was?”
“That they got the job done . . . Okay, I know of situations where . . . ‘professional profanity’ is used in order to get the point across. Like, you got a crowd of people and you’re asking them to disperse and they’ve got a negative attitude toward you and they are not moving. If you came across with some professional profanity and they started to move, I think that’s very effective.” He was asked for an example. “I would say something like, ‘Listen, God damn it, I’m going to tell you one more time . . .’” Jacobs paused. “Am I shooting myself downhill or what?”
“Well, I am very concerned,” Tom Hall said. “We have talked a lot of hours about the type of professional conduct that we want from our officers. And then you come right back at us here and you’re talking about using profanity, using derogatory terms or, as you say, whatever is necessary to get the job done. Now, don’t you feel that you’re maybe a little bit different than the rest of your classmates?”
“I don’t think I’m that different than anybody else, it’s just that I’m saying it.”
“Okay, what you’re saying is that you’re being more honest than the others?” Hall asked.
“I feel I am. If you can do that by using foul language then I can’t see anything wrong with that.”
“What if you had a group of Blacks, do you think you could use the word nigger or some word like that, a trigger word?”
“No. Like you said, it’s a trigger word. Maybe I was wrong in saying that using derogatory remarks, like racist remarks, stuff like that, maybe that would be wrong. But I don’t know, maybe there would be a situation where it wouldn’t be, but I doubt it.”
“However, if all else fails do you think it would be something that would be resorted to?” Hall asked.
“If all else failed and I thought that it would be effective, yes.”
Hall asked if the reason Jacobs was not opposed to the treatment of the gay men in the video was because “homosexuality” conflicted with his “personal feelings and values.”
“I personally don’t accept it,” Jacob said.
“Well, nobody is asking you to accept homosexuality,” Hall said.
“I know I would not use the term faggot,” Jacobs responded. “I just know I wouldn’t because I know, like I said, I know I wouldn’t do it. I don’t do that; I don’t usually use racial—” Hall inadvertently cut Jacobs off with another question before he completed the sentence.
Jacobs said perhaps he was not expressing himself correctly in class and felt he would be “perceived differently on the street.”
“The problem with that, Don, is that if you are doing that here in the academy, you’re going to do that very same thing in the street,” Hall replied.
The three trainers informed Jacobs how they felt about his answers, his attitude, and his chances of graduating from the academy. “Professional conduct is our number one priority, and you’re standing out as not accepting that, Don. I wonder just how much thought you’ve really put into what it takes to be a police officer on the San Diego Police Department?”
“If you can’t deal with it,” another said, “you’re only going to cause yourself some harm as well as other people . . . It’s going to manifest itself somewhere, in stress, in a fight, or in a situation that really ticks you off and the next thing you’re going to have the community coming all over you as well as the department.”
Sergeant Dick Bennett issued cadet Donovan Jacobs a final warning: “Unless you show some considerable changes or at least some more consideration for others and can change your behavior along those same lines, we don’t want you because you are going to do nothing but create problems for yourself, for the public, and for the department.”
“I HAVE BEEN, since the day I got on this case, without pause, without stopping, trying to find this very thing, and here it is,” Milt Silverman said, jabbing a finger at the front page of what would become known as “the academy transcript.” Silverman was standing before Ben Hamrick, pleading with the judge to pause jury deliberations and admit the academy transcript into evidence for the jurors. “This report is the most significant thing that there could conceivably be in this entire case. It is a devastating document. A devastating document. This document establishes the very heart of the prosecution’s case is founded on a lie. It shows that when Donovan Jacobs was in that academy, he held these racial attitudes. It shows that he lied under oath on the stand.” He singled out Bennett’s final warning. “The prophecies in here are chilling,” he said emphatically.
“The community isn’t going to stand for it,” he continued. “If Mr. Penn is convicted, and the jury doesn’t know about this document, no right-minded citizen is going to like it, and no right-minded person is going to abide it. It will put a blemish on our justice system. It will never go away. It will never go away.”
If at all possible, there was something about the academy transcript that outraged Silverman even more than its contents, and it had to do with the third document referenced in the cover letter and contained in the file given to Silverman. The two-page document was dated May 30, 1986, and titled “Declaration of Jenny Castro.” It read:
I am a police officer employed by the city of San Diego. I have been so employed for over seven years. My present assignment is service coordinator at the San Diego Police Academy.
Eight or nine months ago I was cleaning out an unused office at the academy when I came across the transcript mentioning Donovan Jacobs from August 4, 1978. This transcript was in an old basket with numerous other unrelated papers which I threw out.
I kept this transcript because I wondered whether it was standard operating procedure to record such scenarios, and did Jacobs know it was being recorded.
I put it in my desk at that time with intentions of reading it later.
About a month ago I cleaned out my desk and found the transcript.
I put the transcript in my car in order to give it to Chief Kolender because Donovan Jacobs was mentioned and because of his connection to the Sagon Penn case.
I thereafter gave the transcript to Assistant Chief Bob Burgreen on May 20, 1986.
Silverman checked the dates referenced in the cover letter to form a quick timeline of the document’s journey from discovery to his desk. “Son of a bitch,” he thought.
“How does Jenny Castro have this for eight months and not mention it to anybody?” he said to Hamrick with utter dismay. “It must have been in the newspapers night and day that the defense was claiming that Donovan Jacobs had the very character traits that are in these eleven pages that the police department had. She says the reason she held on to it, she wanted to know if in 1978, which is seven years earlier, it was standard routine practice to tape-record these sessions. She wanted to find out if Jacobs knew he was being tape-recorded. It is so preposterous and absurd.”
“Do you know when she finally gets around to giving it to Chief Kolender?” he continued, noting the significance of May 20. “The very day the jury returns a verdict [on the ADW (assault with a deadly weapon) charge] in this case, which would have precluded me forever from making a motion with respect to this document. Of course, what happens on May 21 is Mrs. Hardy says, ‘No, that is not my verdict.’ So now we are back at the point in time where I could then make this motion [to reopen].” He held up the cover letter, which stated the DA’s office received the transcript on the same day as Hardy’s decision, May 21. “They had this document!” he boomed. “What do they do on the twenty-second? Do they come down and say, ‘Judge Hamrick, we don’t know if you have this, but here it is. We think you ought to look at it right quick’? No, sir. They waited until June second . . . until they knew that you were leaving and wouldn’t be back until the fourth. They wait, and they wait, and they wait, and they wait. And why do they wait? They were holding on to that thing because they wanted the jury to come back and say, ‘Guilty,’ and [then] say, ‘By the way, here is this other thing; and now [it] doesn’t matter anyway.’ I think that what we have here is deliberate suppression of evidence.”
“I know I am arguing uphill, but it burns my soul that they can get away with this stuff,” Silverman said in his final plea for the document to be entered into evidence. “Judge, you have to right this wrong. I am asking, give them the document. Give them the document. I want this jury to hear this. I ask you to take it in your hands and to do justice in this case. Do the right thing. I plead with you to do that.”
“Your Honor,” Mike Carpenter responded, “Milt Silverman has this case exactly where he wants it to be: somewhere between a rock and a hard place. And if you do anything else he requests you to do, it’s going to get in deeper.”
Hamrick allowed the prosecution overnight to write a response to Silverman’s motion to pause deliberations and reopen the trial. When they returned the next day, they found Hamrick had ordered the bailiff to cover the courtroom windows and duct tape the cracks in the doors so reporters could not eavesdrop on what was going on inside. Still, the arguments became so heated that marshals had to move members of the media down the corridor so they would not overhear.
Despite “grave reluctance,” Hamrick said, “I am inclined to grant a motion to reopen.” As long as both attorneys stipulated to the authenticity of the transcript, he would have it read to the jury by the court reporter.
“No, Your Honor, we will not stipulate,” Carpenter said flatly. “We will never stipulate to this going in front of the jury at this time. You have to take into consideration where this was taking place. This was a session at the academy—”
“I have heard all the argument,” Hamrick interrupted. “I don’t want to hear the merits. I am going to reopen the case for that limited purpose. It is a question of how we do it with the least possible disruption.”
If Carpenter refused to stipulate the authenticity, Hamrick said he would do whatever necessary to bring in the academy trainers who were in the counseling session to do it. By the end of the day, Hamrick had done just that. Tom Hall and Dave Hall both took the witness stand, but, under questioning from Hamrick, each said they had no recollection of the counseling session and could not authenticate the transcript. Now it was Carpenter who had Hamrick “somewhere between a rock and a hard place.” With a jury already in near mutiny and on its way to the longest deliberation in San Diego history, allowing witnesses and arguments to authenticate the transcript would take days more of their time. After considering his options, Hamrick made his ruling. “The prejudicial effect and problems created by its introduction far outweigh the probative value. Accordingly, the motion to reopen is denied.”
BY THAT TIME, reporters were able to piece together enough shards of information to determine the controversy involved the counseling of Jacobs at the academy over his behavior in a training exercise of some sort. “I have no idea what you’re talking about,” Donovan Jacobs said when told of the possible existence of the evidence. “I didn’t get in any trouble while I was at the academy. I’m as clean as a newborn babe, just what the prosecution showed you.”
On Wednesday, June 11, the day after Silverman’s motion was denied, the original declaration by Jenny Castro, with her name redacted, was released, revealing to reporters the shocking news that the mysterious transcript had been discovered eight months earlier. Mike Carpenter downplayed the delay by his own office in handling the transcript, telling reporters they had “acted with what we believe to be reasonable diligence and speed.” He pointed out that the twelve-day gap included two weekends. “I’m not like Milt Silverman,” he said. “I don’t work on weekends.”
