Court Asked to Keep Mayor’s Attorney on Job : Prosecutors Claim Hedgecock Stalling on 2nd Trial

Charging that Mayor Roger Hedgecock’s plan to replace his attorney is “a mere ploy to delay (his) case indefinitely,” prosecutors filed a motion in Superior Court on Wednesday asking that defense attorney Michael Pancer be kept on the mayor’s felony case in order to speed its resolution.

In the 18-page motion, prosecutors argued that Pancer’s removal from the case could produce an “intolerable” delay in Hedgecock’s retrial on felony conspiracy and perjury charges, and could result in the case being “consigned to a legal limbo” for months or even years.

A Superior Court judge last month set May 8 as the date for the mayor’s retrial.

Prosecutors contend in the motion that Hedgecock “has no desire for a retrial . . . because he came within an eyelash of being convicted in the first trial” and, therefore, is seeking to use the uncertainty surrounding his legal representation to postpone the retrial. Hedgecock’s first trial ended in a mistrial last month with the jury deadlocked 11-1 in favor of conviction.

“One must wonder . . . why . . . Hedgecock appears so willing to let attorney Pancer withdraw from the case,” the prosecutors’ motion stated. “The reason is crystal clear: Hedgecock has no desire to go to trial on May 8 or any other date in the near future. This case will go to trial on May 8, 1985, if--and only if --Pancer continues to represent Hedgecock.”

Pancer has asked to be relieved as Hedgecock’s attorney because of schedule conflicts and the mayor’s limited ability to pay for legal representation--explanations that prosecutors caustically characterized in the motion as “spurious reasoning” and “a feeble excuse for attempting to abandon a client.” A decision on Pancer’s request to be removed from the case, as well as on other questions relating to the timing of the retrial, is expected to be made at a court hearing next Monday.

Hedgecock is out of town on vacation and was unavailable for comment Wednesday. However, the mayor’s chief of staff, J. Michael McDade, dismissed the prosecutors’ contention that Hedgecock is intentionally dragging his feet on the timing of a retrial as “absolutely wrong.”

“There has never been a desire to delay the retrial just for the sake of delaying it,” McDade said. “If we could get the questions about finances and (lawyers’) availability settled today, we’d probably be ready to start next week.”

Hedgecock has been charged with conspiring with former J. David & Co. principals Nancy Hoover and J. David (Jerry) Dominelli in a scheme to funnel tens of thousands of dollars in allegedly illegal contributions into his 1983 campaign through a political consulting firm owned by Tom Shepard, a close friend of the mayor. To conceal that scheme, Hedgecock intentionally falsified various financial disclosure statements, prosecutors charge.

Hedgecock, however, contends that Hoover and Dominelli invested more than $360,000 in Tom Shepard & Associates primarily to help Shepard start his own business, not to get Hedgecock elected mayor. The omissions and mistakes on his financial reports, Hedgecock says, were inadvertent errors.

In Wednesday’s motion, prosecutors offered a two-pronged argument as to why Pancer should be kept on the case. On the one hand, prosecutors castigated Hedgecock for allegedly delaying his decision on whether he will retain Pancer or another lawyer in an attempt to indefinitely postpone the retrial. At the same time, prosecutors also criticized Pancer, arguing that his efforts to be removed from the mayor’s case imply that Hedgecock “is less deserving of his commitment” than his other clients.

“Hedgecock is in a particularly desperate position,” the prosecutors’ legal brief said. “He faces not only the potential loss of liberty which is common to all criminal defendants, but also the loss of his unique position as mayor of the City of San Diego and the loss of his license to practice law . . . Pancer makes no claim any of his other clients has a comparably desperate position.”

Noting that Pancer is “intimately familiar” with the case, prosecutors argued that keeping him on the case produces the best likelihood that the retrial will indeed begin on May 8.

Pancer, however, has said that it is “physically impossible” for him to handle the mayor’s retrial this spring because he is scheduled to try other cases then. Pancer reiterated Wednesday that his reasons for asking to be relieved as Hedgecock’s attorney are “proper and appropriate,” and that he expects the court to grant his request next week.

Prosecutors argued that Pancer’s “decision to represent various clients” created the schedule conflict and that the lawyer should not be “permitted to shift his problem onto the court’s calendar.”

A recurring argument in the motion was the prosecutors’ contention that Hedgecock’s narrow avoidance of conviction in the first trial has left him leery of a retrial.

“Hedgecock’s attempt to jettison his present attorney must be seen for what it is: a mere ploy to delay this case indefinitely, and ultimately to avoid a retrial, or at least to lessen the chance of conviction,” prosecutors wrote. “Hedgecock has no realistic prospect of any profit, political or otherwise, in a retrial.”

Hedgecock, who says he lacks the personal resources to pay for his attorneys’ fees in his criminal and related civil cases, has begun soliciting public contributions for his legal defense fund.

That fund-raising effort has been hampered, however, by a ruling by City Atty. John W. Witt stating that donations to Hedgecock’s defense fund are subject to the city’s $250-per-person campaign contribution limit. Arguing that the city’s campaign law was never intended to apply to defense funds for incumbent public officials, Hedgecock has sued the city in an attempt to have Witt’s ruling overturned.

If Pancer is removed from the case, prosecutors warned, Hedgecock may request that his retrial be delayed until after a court rules on his challenge to Witt’s ruling--a decision that might not be made for several years.

“Delay of such magnitude is intolerable,” the motion said. “Given the defendant’s political position, the residents of . . . San Diego have a unique and compelling interest in the speedy determination of their mayor’s fate.”

In order to prevent such a lengthy delay, prosecutors asked that, if a court does decide to allow Pancer to withdraw from the case, Hedgecock should first be required to make “firm provisions for representation at the retrial.” McDade said Wednesday that Hedgecock has interviewed about half a dozen lawyers, but had not come to an agreement with any of them before leaving on his one-week vacation.

Prosecutors also vigorously disputed Hedgecock’s contention that he currently is unable to pay for legal representation.

In his own motion asking to be removed from the case, Pancer noted that Hedgecock still owes him “considerable funds for expenditures” in the first trial and referred to the mayor’s “inability to pay the legal fees for his defense.” However, in the lawsuit challenging Witt’s ruling, Leo Sullivan, the mayor’s civil attorney, pointed out that Hedgecock “chooses not to exhaust his personal resources” to pay for his legal fees.

That argument in the civil lawsuit implies, prosecutors said, not that Hedgecock lacks the ability to pay his legal bills, but rather that he is “either unable or unwilling to spend the money necessary” to hire an attorney--presumably because he wants to delay the retrial or is simply unwilling to personally assume the huge financial burden.

Hedgecock earns a $46,000 annual salary, owns “a large home, vehicles and other assets,” the motion said. And, despite Witt’s ruling, Hedgecock can solicit $250 contributions for his defense fund and accept loans in unlimited amounts.

“It must be concluded Hedgecock can either pay his just debts now or . . . in the immediately foreseeable future,” the motion said. Furthermore, the mayor does not have the option of choosing “not to exhaust his personal finances” to help pay his legal fees, prosecutors added.

“(We) are confident Mr. Hedgecock, an attorney himself, will upon reflection recognize his very limited choices in this matter and also his legal duty to pay his lawyer,” the motion concluded.