Judge Plans to Stay on Hedgecock Trial : Mayor’s Attorney, Worried About ‘Preconceived Notions,’ Plans Appeal

Rejecting a request from Mayor Roger Hedgecock’s attorney to allow a new judge to handle the mayor’s retrial so that the case could “start off with a clean slate,” Superior Court Judge William L. Todd Jr. on Wednesday refused to remove himself from the mayor’s felony conspiracy and perjury trial.

Oscar Goodman, Hedgecock’s attorney, said he intends to appeal Todd’s ruling to the 4th District Court of Appeal by Monday. Goodman said he would rather try the case before a judge who has “no preconceived notions about issues” involved in the case.

Because of that appeal, Todd postponed until July 1 a hearing on the prosecution’s request to consolidate three additional charges filed against Hedgecock with the 13 felony counts at issue in the mayor’s first trial.

Todd presided over that seven-week trial, which ended in February in a mistrial with the jury deadlocked 11-1 in favor of conviction on the one conspiracy charge and 12 perjury counts facing the mayor.

In asking for a new judge, Goodman noted that new lawyers will handle both the prosecution and defense in Hedgecock’s second trial, scheduled to start Aug. 22.

Goodman replaced Michael Pancer, who represented Hedgecock in the first case but withdrew from the retrial because of schedule conflicts stemming from commitments to other legal clients. Deputy Dist. Atty. Charles Wickersham will prosecute the case, replacing former Assistant Dist. Atty. Richard D. Huffman, who was appointed to a Superior Court judgeship this spring.

During Wednesday’s court hearing, Goodman did not specify why he wanted Todd removed from the case; indeed, Goodman’s motion was a peremptory challenge, in which a lawyer is not required to give a reason for asking that a judge or juror be removed from a trial.

However, in an interview, Goodman emphasized that he did not want the “retrial to be affected . . . by what happened during the first” trial.

“My feeling is that we’re going to have a whole new ballgame here, and that should include the judge,” Goodman said. “Judge Todd has heard the evidence and, being an intelligent jurist, must have formed some preconceived notions. . . .

“We wanted the opportunity to start off with a clean slate, which should be every defendant’s right on the retrial. You don’t have to look much past the von Bulow case to see that,” Goodman added. Claus von Bulow is the Danish-born socialite who this week was acquitted in Rhode Island during a retrial on charges that he twice tried to kill his wife with insulin injections. Von Bulow had been convicted once, but that verdict was overturned on appeal, prompting the retrial.

Although Goodman did not specifically criticize Todd’s handling of the first trial, the pro-prosecution slant of some of Todd’s crucial rulings in the case undoubtedly influenced the defense attorney to seek a new judge for the retrial.

For example, Todd refused to allow defense testimony from San Diego City Clerk Charles G. Abdelnour and other local election officials about the frequency of errors on public officials’ personal and campaign financial disclosure statements. That testimony was needed, Pancer argued, to put some of the charges facing Hedgecock in proper context.

The perjury charges facing Hedgecock allege that he intentionally falsified his financial disclosure statements to conceal tens of thousands of dollars in illegal 1983 campaign contributions, as well as improper personal financial aid, from former J. David & Co. principals J. David (Jerry) Dominelli and Nancy Hoover. Hedgecock, however, contends that the errors and omissions on his disclosure forms were inadvertent mistakes not unlike those that commonly appear on other public officials’ financial statements.

Todd, however, rejected Pancer’s contention that local election officials should be allowed to testify about the frequency of such errors to demonstrate to the jury that “Roger Hedgecock isn’t the first and won’t be the last politician to have mistakes” on his disclosure forms. Rather, Todd sided with prosecutor Huffman, who argued that “what other politicians did or didn’t do” was irrelevant to the case.

The prosecution also won three important procedural victories via Todd’s rulings on jury instructions, which concern points of law and evidence that are read to the jurors by the judge just before their deliberations begin. Those victories stem from decisions in which Todd:

- Sided with Huffman on the key question of how perjury should be defined in the case. Todd concurred with the prosecutors’ contention that, to prove that Hedgecock committed perjury, it need only be shown that he knowingly signed an inaccurate campaign financial disclosure statement. Defense attorneys had argued that jurors needed to unanimously agree on which particular campaign contributions were omitted from the forms.

- Agreed to deliver a controversial instruction proposed by the prosecution relating to other offenses alleged to have been committed by Hedgecock which were not at issue in the trial, but which Huffman wanted jurors to consider as evidence that the mayor had a propensity toward covering up illegal political behavior. Those other allegations included conflicts of interest and perjuries not covered by the 13 felony counts.

- Denied the defense’s request for an instruction based on a state law specifying that the “overhead or normal operating expenses” of a political consulting firm made on behalf of a candidate should not be considered political contributions --an argument that was the cornerstone of the defense’s case in the first trial.

Prosecutors have charged that illegal donations from Dominelli and Hoover were funneled to Hedgecock’s 1983 campaign through a political consulting firm owned by Tom Shepard, a close friend of the mayor, in the form of free staff time and other unreimbursed services. The defense, however, argued that those expenses involved Shepard’s overhead costs, which, under state law, should not be construed as contributions.

Hedgecock’s attorneys consistently grumbled--albeit privately--about Todd’s rulings throughout the first trial. One day, after being on the losing end of a series of major procedural rulings by Todd, a member of Hedgecock’s legal team, who was fuming as he left the courthouse, complained that the judge “might as well be sitting next to Huffman.”

After Wednesday’s hearing, Wickersham characterized Goodman’s motion as an “attempt to re-litigate every legal issue all over again.”

“On those issues where (the defense) lost the first time, I’m sure they’d like to be allowed to make their arguments to a new judge who might rule differently,” said Wickersham, who assisted Huffman during the first trial.

Wickersham argued, however, that the “most efficient manner to arrange the retrial” would be for Todd to remain on the case. A change in judges, the prosecutor said, likely would delay the scheduled August start.

“Because of the complexity of this case, it makes good sense to keep a judge who’s already familiar with the law,” Wickersham said. “A new judge would have to start over from scratch and read all of the grand jury transcripts and all of the trial transcripts.”

The postponed hearing on consolidation of the charges facing Hedgecock involves two additional perjury counts and a misdemeanor conflict-of-interest charge that prosecutors filed against the mayor after the first trial ended in a hung jury. Those new charges allege that Hedgecock failed to report a $3,000 check that he received from Dominelli in December, 1981, and that Hedgecock, while still a county supervisor, voted on a development proposed by businessman Harvey Schuster after Schuster had paid a $500 legal bill for Hedgecock in late 1981.

In legal briefs filed earlier, Goodman contended that the additional charges were illustrative of the district attorney’s “malicious and vindictive” prosecution of Hedgecock.