Saying that there is "just no evidence . . . at all" that Dist. Atty. Edwin Miller's prosecution of Mayor Roger Hedgecock's felony case would prevent the mayor from getting a fair retrial, Superior Court Judge William L. Todd Jr. on Monday refused to remove Miller's office from the case.
Todd's ruling, which eliminated one of the last potential obstacles to the scheduled Aug. 22 opening of the mayor's retrial, came during a court hearing on a request by Hedgecock's attorney, Oscar Goodman, that Miller's office be removed from the case because the district attorney himself may testify and because Miller has been a "strident and persistent foe" of then mayor.
"An issue has been made from the inception of the case . . . of the personal vendetta . . . between Mr. Miller and Mayor Hedgecock," Goodman said. "When you couple that with (Miller) actually taking the stand . . . the court is faced with a serious decision as to whether or not the integrity of the process is in any way compromised."
In response, Deputy Dist. Atty. Paul Morley argued that the mere fact that Miller may testify "is not, of itself, a conflict of interest," and cited rulings in several other cases to support that contention.
Morley also dismissed Goodman's allegation that Miller's prosecution of Hedgecock stems from a political vendetta as "the same collection of misinformation put together by the defense" in the mayor's first trial, which ended in a mistrial in February with the jury deadlocked 11-1 in favor of conviction on all 13 felony conspiracy and perjury charges.
Morley conceded that Miller and Hedgecock frequently clashed during the latter's years as a county supervisor, but he characterized those public disputes as occurring "in the normal nature of county government."
"You had a situation where two senior county officials . . . took positions contrary to each other," Morley said. Such disagreements are "routine . . . occurrences" in public office, not evidence of impropriety on Miller's behalf, Morley added.
Siding with the prosecution, Todd said he believes that the district attorney's office prosecution of the case poses "no conflict in any respect whatsoever" and creates "no ethical violation."
"There is no likelihood that the defendant will not receive a fair trial," said Todd, who presided over Hedgecock's first seven-week trial and is scheduled to hear the retrial. Last week, the judge decided to combine two new perjury charges and a misdemeanor conflict-of-interest charge with the 13 felony counts contested in the first trial.
Although both the 4th District Court of Appeal and the state Supreme Court have rejected Goodman's earlier attempts to have Miller's office removed from the case, the defense attorney said after Monday's hearing that he intends to appeal Todd's ruling.
A handful of other motions filed earlier by Goodman--aimed at, among other things, removing Todd from the case and trying the three new charges facing Hedgecock in a separate trial--are still pending before appeals courts. A favorable ruling on any of those appeals could delay the retrial's scheduled opening next month. However, courts at various levels have previously rejected each of the defense motions involved in the appeals.
During Monday's hearing, Goodman argued that because both Miller and Deputy Dist. Atty. Allan J. Preckel are considered possible witnesses in Hedgecock's retrial, Todd should use "an abundance of caution" and remove the district attorney's office from the case to eliminate any "potential or real conflicts" of interest.
The district attorney's office notified Goodman last month that Miller might testify at the retrial about a March, 1982, meeting at which Miller reportedly advised Hedgecock to amend his financial disclosure statements to reveal his interest in a condominium development partnership.
Prosecutors have since revealed that they do not expect to call Miller as a witness, unless his testimony is needed to rebut Hedgecock's own description of the 1982 meeting. Goodman, however, said Monday that he plans to call the district attorney to the stand to explain his motivation and basis for seeking the meeting. Such testimony, Goodman explained, would "open up the vista of the personal relationship" between Hedgecock and Miller.
However, Janelle Davis, a deputy state attorney general, argued that because Miller's testimony would focus on "an uncontroversial, uncontested conversation" with Hedgecock, his testimony would "make no difference as to the issue of fairness" in the trial. If Miller's office were removed from the trial, the state attorney general's office would prosecute the case.
Miller's testimony about the 1982 meeting conceivably could be used by prosecutors to attempt to explain why Hedgecock did not accept a $24,000 check from real estate developer Harvey Schuster in the spring of 1982--a key piece of evidence in the first trial.
Hedgecock, who sought the loan because of financial difficulties connected with the failure of the condominium partnership, testified that he never picked up the check because Schuster made it out to a property management firm run by Hedgecock's wife. At the time, Schuster was a bidder on a multimillion-dollar county project before then-county Supervisor Hedgecock. But Hedgecock testified that he told Schuster that, if he accepted the loan, he would be forced to disqualify himself from voting on the project, which ultimately was awarded to another bidder.
Prosecutors, however, argued that Hedgecock had no intention of not voting on the major project, realizing that by not voting he would create the risk of being publicly embarrassed by having his personal financial difficulties exposed. In accordance with that theory, prosecutors could use Miller's testimony in an attempt to persuade a jury that Hedgecock never consummated the loan with Schuster because he realized that the district attorney's office was scrutinizing his financial disclosure forms.
On the other hand, the defense could use the same testimony in an effort to persuade jurors to draw a diametrically opposed conclusion--notably, that Hedgecock, knowing that his disclosure forms were being closely watched, would have been foolish to, as prosecutors claim, intentionally falsify the financial reports to conceal an alleged conspiracy to funnel illegal contributions to his 1983 mayoral campaign.
Preckel, the other district attorney's office staffer considered a potential witness in the case, might testify about a May, 1982, conversation he had with Hedgecock aide Tamara O'Brien, Goodman said. In that telephone conversation, O'Brien reportedly asked Preckel, chief of the district attorney's special operations division, whether he would be willing to head Hedgecock's mayoral campaign in the Rancho Penasquitos area.
In a memo to prosecutor Charles Wickersham, Preckel said he turned down the request, believing that his involvement in Hedgecock's campaign would be a conflict of interest.