Hedgecock Retrial Date Is Questioned

In a decision that appeared to raise more questions than it answered, Superior Court Judge James Malkus on Thursday set May 8 as the date for Mayor Roger Hedgecock’s retrial on felony conspiracy and perjury charges--a timetable that virtually everyone involved with the case regards as unrealistic.

Both prosecutors and defense attorneys said after Thursday’s hearing that uncertainty over Hedgecock’s legal representation and other procedural questions likely will push back the start of the mayor’s retrial until the fall. Hedgecock’s current attorney, Michael Pancer, said that it would be “physically impossible” for him to handle the trial in May because of his work on other cases, and any new lawyer selected by Hedgecock would need months to prepare for the trial.

“I really have no idea what we’re doing now,” Assistant Dist. Atty. Richard D. Huffman said glumly, adding that Thursday’s court action means that Hedgecock’s case may not be completed until the end of this year.

At the conclusion of the hearing, it was unclear not only when Hedgecock’s retrial will begin, but also who will represent the mayor. Pancer said late Thursday that he plans to file a motion next week asking to be relieved of the case because of his schedule conflicts.

Hedgecock, who contends that he cannot afford to pay any attorney because of a city attorney’s ruling limiting contributions to his legal defense fund, added that he has “no idea . . . at all” who will handle his retrial.

“My understanding of case law is that until I’ve been retained, I can’t be required to serve,” Pancer said. “The U.S. Constitution prevents involuntary servitude. That amendment should apply to lawyers.” Pancer emphasized, however, that he could continue to serve as Hedgecock’s criminal attorney, provided that the trial does not start until fall and that the mayor finds a way to pay for his services.

Hedgecock’s first trial on the charges, which stem from allegations of illegal contributions in his 1983 mayoral campaign, ended in a mistrial on Feb. 13, with the jury deadlocked 11-1 in favor of conviction.

Malkus’ ruling, made after he repeatedly upbraided Pancer for seeking to delay the trial, infuriated Hedgecock, who angrily stalked out of the courthouse and briskly walked several blocks back to City Hall with a cluster of reporters in tow.

“I think the public ought to really stand up and scream over this,” Hedgecock said. “It’s a violation of basic fairness. I think it’s pretty obvious on the face of it I’m being deprived of the right to a counsel of my choice, I’m being deprived of the right to raise money for the counsel of my choice.

“I think all of this just speaks for itself,” Hedgecock added. “It confirms the reason why this trial is going on, while I will be retried infinitely until the political purposes are served.”

Both Pancer and Huffman also were displeased with Malkus’ timetable for the trial, though for opposite reasons. Pancer argued that May 8 is too early to start the mayor’s second trial, while Huffman complained that it was not early enough.

“I would have preferred to proceed in April,” said Huffman, who prosecuted the first trial. “Once we put it . . . into May, chances are it’s going to (be delayed) until the fall” because of the doubts over whether Pancer or any attorney could handle the case in May.

“If (Hedgecock) changes counsel, I don’t see any realistic way in the world that we could start before probably this fall,” Huffman said. “The problem you have is that you’ve got a serious charge pending against a public official . . . going unresolved. Our responsibility is to get the thing resolved . . . as soon as we can so that local government can go ahead.”

Malkus originally intended to schedule Hedgecock’s retrial for March 18, despite Pancer’s protests about his commitments to other clients and his contention that the mayor needs more time to raise funds to pay for his defense.

“Why should that be a matter of concern to this court in (scheduling) a trial date?” Malkus asked.

“Because . . . I’d be forced into the position of having to abandon other clients,” Pancer responded. “I have at least five other cases . . . between now and the end of May.” Noting that he would then need time to prepare for the retrial, Pancer said he could not handle Hedgecock’s case “until the end of summer or fall.”

Pancer also stressed that he is not even certain whether he will be Hedgecock’s attorney for the retrial. Malkus, however, told Pancer that he regarded him as the “attorney of record” in the case because of his court appearance Thursday.

As Pancer recited some of his other impending cases, Malkus abruptly cut him off, saying that trials are scheduled “for the convenience of the courts, not for the convenience of (lawyers).”

“What about the rights of my five or six other clients?” Pancer asked. One of those other clients, Pancer added, is in jail in Baltimore and urgently needs representation.

“The problem is trying to be in more than one place at one time,” Malkus responded.

Saying that Hedgecock “depleted his resources to pay for the first trial,” Pancer contended that the mayor also needs more time to legally challenge San Diego City Atty. John W. Witt’s ruling this week that money that Hedgecock raises for his defense is subject to the city’s $250-per-person political contribution limit.

In a lawsuit aimed at overturning Witt’s ruling, Hedgecock argues that the $250 limit applies only to elections, not to defense funds for public officeholders. Hedgecock also contends that Witt’s interpretation of the local election law undermines his constitutional rights by preventing him from hiring a criminal attorney of his choice.

Seeking to convince the judge to delay the case until late summer or fall, Pancer also noted that such a postponement could make it possible for the mayor’s trial to be consolidated with that of the mayor’s three co-defendants--former J. David & Co. principals Nancy Hoover and J. David (Jerry) Dominelli and political consultant Tom Shepard. Hedgecock and his three supporters are accused of conspiring in a scheme to funnel tens of thousands of dollars in illegal contributions into his 1983 campaign via Shepard’s consulting firm.

“The court might have some concern about trying this case three or four times,” Pancer said.

Huffman, however, said that he is “concerned with this case only,” and that the district attorney’s office wants to retry Hedgecock separately because of uncertainties concerning the timing of the case against Hoover, Dominelli and Shepard.

“The outcome of this (Hedgecock) case has, I think, a greater interest to the community than the outcome of the case against the others, however important those are,” Huffman said. “We ought to try this defendant and get it taken care of.”

The prosecutor told Malkus, though, that transcripts from Hedgecock’s first trial--which will be essential in both sides’ preparation for the retrial--will not be prepared until at least late March. That fact, combined with Pancer’s repeated reminders about his other cases, finally persuaded Malkus to schedule the May 8 date.

Hedgecock’s next appearance in court, however, will be on March 14, when he faces a preliminary hearing on two felony perjury counts and a misdemeanor conflict of interest charge not at issue in his first trial. When the mayor is later arraigned in Superior Court on those charges, prosecutors will ask to try the additional counts at the same time as the retrial on the 13 felony counts involved in the first trial, Huffman said.