Crucial Phase in Hedgecock Trial: Instructions to Jurors

Jury instructions are an 11th-hour stage of a criminal trial that, in the words of Assistant Dist. Atty. Richard D. Huffman, often are “tedious enough to even bore the lawyers.”

Yet the process--in which a judge instructs jurors on general points of law and specific evidence in a case--also is one of the most critical facets of any criminal trial. For that reason, when Huffman and defense attorney Michael Pancer present Superior Court Judge William L. Todd Jr. with separate lists of proposed instructions today in the trial of Mayor Roger Hedgecock, the proposals are expected to touch off a lengthy display of legal and verbal pyrotechnics that could have a significant impact on the case’s outcome.

“It’s absolutely critical,” Pancer said. “This is a lot more than two lawyers just arguing . . . over legal points. A lot is at stake here.”

“Instructions are always important, but they’re especially so this time because of the nature of this case,” Huffman added. Because there have been so few previous prosecutions under the state’s Political Reform Act, he said, “We’re sort of blazing new trails in this area. That makes the instructions more subject to interpretation and, therefore, more complex.”

Indeed, Todd’s instructions on how to define terms such as “contribution,” “political purposes” and “volunteerism”--concepts that go to the heart of the felony perjury and conspiracy charges facing Hedgecock--will significantly shape how the six-man, six-woman jury views the evidence in the case.

“Jurors tend to treat what the two lawyers say with a grain of salt,” Pancer noted. “But they take what the judge says very seriously.”

Robert L. Simmons, a University of San Diego law professor and a former Ohio judge, points out that jury instructions are “vital because they help to focus jurors’ perspective.”

“After weeks of testimony in a complex case such as this one, the jury is adrift,” Simmons said. “They’ve heard dozens of witnesses give conflicting testimony, and they’ve heard the two attorneys’ different viewpoints on the law and the evidence.

“It’s the judge’s responsibility to get the jury back on course by simplifying and laying out the central questions that they must answer,” Simmons explained. “Handled properly, the instructions can provide the legal and common sense standard by which the jury . . . should examine the case. The instructions allow the judge to tell the jury, ‘This is what is important.’ ”

Under state law Todd could, if he chose to, go so far as to specifically discuss the evidence in the case and offer his opinions on the credibility--or lack thereof--of particular witnesses. However, judges rarely do so, Simmons said, because “they realize they’re dealing . . . with dynamite” and generally prefer to allow juries to draw their own conclusions.

Prosecutors contend that Hedgecock conspired with former J. David & Co. principals Nancy Hoover and J. David (Jerry) Dominelli to funnel tens of thousands of dollars in allegedly illegal donations to Hedgecock’s 1983 mayoral campaign via a political consulting firm owned by Tom Shepard, a close friend of the mayor. Hedgecock also is accused of intentionally falsifying personal and campaign financial disclosure statements to disguise his ties to Hoover and Dominelli.

In response, Hedgecock and Pancer argue that the more than $360,000 that the two former J. David executives invested in Tom Shepard & Associates was intended primarily to help Shepard start his own business, not to get Hedgecock elected mayor. The mayor also contends that errors and omissions on his financial statements were inadvertent mistakes that he corrected through amendments to the reports.

With the jurors out of the courtroom, Huffman and Pancer are expected to spend most of today and possibly Tuesday debating--with Todd playing the role of mediator--the proposed instructions. Huffman has prepared 66 proposed instructions, and Sheldon Sherman, Pancer’s co-counsel, who spent most of the weekend working on the defense’s counterparts, said he expects to submit about 50 proposals.

Although Todd occasionally pushed both Huffman and Pancer to expedite the nearly 4 1/2 weeks of testimony in the trial, the judge emphasized that he intends to be particularly cautious and deliberate in his review of the proposed jury instructions.

“We’re not going to rush this process, I assure you,” Todd told Huffman and Pancer last week. That statement not only illustrates the instructions’ importance, but also reflects Todd’s awareness that improper jury instructions are one of the most common grounds cited by appellate courts in overturning lower courts’ verdicts.

There is considerable common ground between the prosecution’s and defense’s proposals, mostly concerning general areas of the law such as how a defendant’s guilt must be proved beyond a reasonable doubt, witnesses’ credibility and how jurors should not regard the opposing lawyers’ statements as evidence. The two sides also are in general agreement over conspiracy and perjury laws, though they differ in the specific phrases from the California Jury Instruction Criminal form book that they would like Todd to emphasize in his remarks to jurors before they retire to ponder their verdict. The case is expected to go to the jury later this week.

However, because both sides will, in essence, seek to persuade Todd to frame his instructions in a manner most beneficial to their respective cases, Huffman and the Pancer-Sherman team also are likely to clash over a handful of major issues, including:

- Interpretations of the Political Reform Act and definitions of terms used in the act or related campaign laws. Todd’s instructions on those points will be crucial, because Pancer argues that much of what Huffman has characterized as illegal contributions by Shepard’s firm to Hedgecock’s campaign actually involved volunteer efforts or certain expenses that, under state law, are not considered political contributions and therefore do not need to be reported.

- The manner in which Todd instructs the jurors on how to treat circumstantial evidence--the linchpin of the prosecution’s case. Although no witness has testified about actually hearing Hedgecock and his three alleged co-conspirators conspire to circumvent the city’s $250-per-person contribution limit, Huffman argues that various financial transactions, conversations and other events provide sufficient circumstantial evidence for jurors to infer that there was such a conspiracy.

- Pancer’s planned attempt, in the face of strong opposition from Huffman, to convince Todd to include so-called defense “theory arguments” in his instructions to the jury. In short, those proposed instructions specifically detail what findings the defense believes that the jury must make in regard to various charges in order to convict Hedgecock.

The dearth of previous prosecutions under the Political Reform Act complicates the task facing Todd in determining how to properly instruct jurors in the Hedgecock case.

Huffman has proposed more than a dozen instructions relating to local and state campaign laws. However, his list does not include two specific provisions of the state law that Pancer will encourage Todd to read to jurors.

One of those passages states that “overhead or normal operating expenses (made) by an agent or independent contractor . . . on behalf of or for the benefit of any candidate” usually are not considered contributions; the second specifies that “salary . . . paid to an employee by an employer who has contracted to provide services to a candidate . . . are not contributions or expenditures by the employer.”

Both points bolster the defense’s position, because Huffman has charged that Hedgecock received illegal donations from Shepard’s consulting firm in the form of free staff time and unreimbursed overhead costs. Pancer, though, has consistently argued that the Hedgecock campaign’s contract with Shepard’s firm--which resulted in a payment of about $30,000--was a valid one.

Todd’s instructions concerning circumstantial evidence could play a similarly pivotal role in the jury’s ultimate decision. The jury instruction guidelines state that circumstantial evidence may be sufficient to convict a defendant if it is both “consistent with the theory that he had the required specific intent (and) cannot be reconciled with any other rational conclusion.”

Huffman is expected to argue that Hedgecock’s extensive personal and political dealings with Hoover, Dominelli and Shepard make it reasonable to assume that the mayor was aware of the allegedly illegal financial aid.

However, the guidelines also emphasize that if circumstantial evidence “is susceptible of two reasonable explanations, one of which points to the defendant’s guilt and the other to his innocence, it is (the jury’s) duty to adopt that interpretation which points to . . . innocence.” And, according to Pancer, Hedgecock has provided reasonable explanations to each of Huffman’s allegations.

The defense’s proposed “theory arguments” likely will incite some of the most heated debates between Pancer and Huffman.

“Basically we say that, in order to convict, you must find A, B, C and D,” said Hedgecock co-counsel Sherman. Pancer added that such instructions “help clarify the jury’s job (by) relating the specific facts of the case to the law.”

Responded Huffman, “It’s awfully generous of Mr. Pancer to want to help the jury. Of course, what he really wants to do is to help the jury see things his way by having the judge intone his theory of the case in the instructions. I don’t think he’s entitled to that. But if I were in his shoes, I might try to peddle that idea, too.”

Huffman argues, for example, that the judge’s instructions should simply state the law relating to what items public officials must report on their financial disclosure statements, leaving it up to the jury to decide whether the evidence in the case shows that Hedgecock committed perjury by knowingly falsifying the reports.

“It would be a very unusual event . . . to say to the jury, in order to find the defendant guilty, you must first find facts one through 26,” Huffman said. “Hedgecock is charged with failure to report various holdings and contributions. The nature of the crime is the failure to report. It’s not necessary for us to go into how exactly much in dollars and cents was unreported. If the jury decides that there were (unreported) holdings and contributions, and that Roger Hedgecock knew of them . . . when he signed the forms, that makes him a liar.”

The two sides’ diametrically opposed positions on the propriety of “theory arguments” can be illustrated by the defense’s proposed instruction relating to a controversial $16,000 promissory note, secured by a trust deed on an El Cajon house, that Hedgecock sold to Hoover in late 1982.

Although Hoover paid Hedgecock for the note in December, 1982, she agreed, at his request, to postpone the public recording of the transaction until June, 1983--a delay that Huffman argues was designed to conceal their financial ties until after the May, 1983, mayoral election. The transaction was not reported on Hedgecock’s 1982 financial disclosure statement, and is the subject of one of the perjury counts facing the mayor.

Hedgecock, however, testified that the delay was motivated by tax considerations--a contention supported by the testimony of two other defense witnesses but called into question by a former IRS official who testified for the prosecution. In an effort to prove that he did not attempt to conceal the transaction, Hedgecock also has pointed out that the note was listed on his 1981 financial statement and a 1984 amendment, and argued that he derived no income from the sale because it was sold for the amount he had invested in it.

Hoping to put what the defense clearly views as mitigating factors before the jury, Sherman has prepared a “theory argument” that states:

“In order, therefore, to find the defendant guilty of count seven, you must unanimously conclude that the evidence has proved beyond a reasonable doubt that Roger Hedgecock intentionally failed to disclose on his 1982 annual statement the $16,000 received from Nancy Hoover for the sale of the . . . note, and that he did so willfully, knowingly and with the specific intent to deceive . . .

“In making this determination, you must consider that Roger Hedgecock reported the value of the . . . note on his 1981 annual statement and the amendment thereto; that he received no income from the sale of the note; that a deed of trust was not considered an interest in real property by the Fair Political Practices Commission until 1984, and that Roger Hedgecock amended his 1982 annual statement to show the $16,000 six months prior to the filing of the indictment.”

Sherman argues that the proposed instruction “is clearly a proper one . . . that states the facts in an unbiased way.”

Huffman, however, contends that such instructions are “little more than advocacy arguments for the defense” and said he intends to “fight vigorously” against their inclusion in Todd’s remarks to the jury.

“Mr. Pancer is attempting to have the judge make all of his arguments for him and give it legal imprimatur,” the prosecutor said. “I’d just as soon not have Mr. Pancer sitting in the jury room when the jury deliberates, which is about what he’s trying to do through these arguments.”

Pancer, though, counters by charging that Huffman wants to keep the jury instructions “as general as possible . . . because he’s not been able to prove one specific intentional instance” of wrongdoing by Hedgecock.

“It’s up to the jury to decide what’s been proved,” Huffman responded. “To the extent that these instructions can affect that (decision), I expect we’re going to see quite a bit of pushing and shoving over the next few days.”