Quiz of Jury Gives Clue to Strategies in Mayor’s Trial

The process of selecting a jury is an inexact science that Oscar Goodman, the defense attorney in the felony retrial of San Diego Mayor Roger Hedgecock, compares to building the foundation for a house.

“The ironic thing is that it is a very critical process, yet there are no rules to follow,” said Goodman, a Las Vegas lawyer with a reputation as one of the best criminal attorneys in the West. “It’s comparable to a builder constructing a foundation for a house or a skyscraper--if you don’t get that first step right you’re in trouble.”

After spending nine days screening nearly 150 prospective jurors before agreeing on an eight-woman, four-man panel, both Goodman and Deputy Dist. Atty. Charles Wickersham hope that they have laid a proper foundation for their prospective positions in Hedgecock’s retrial on felony conspiracy and perjury charges.

However, as the two attorneys prepare to deliver opening arguments in the case Tuesday, they also confront the somewhat discomforting notion that their selection of jurors, in Goodman’s words, turned more on “gut feelings . . . than absolutes.”

“There is no theorem--you have to judge each juror individually,” Goodman said. “It comes down to impressions, feelings. I’m basing my jury selections on my 20 years’ experience.”

Wickersham, who was assisted by a psychologist during his questioning of jurors, added that the process involves “a lot of guesswork.”

“There are plenty of theories about whether it’s better to have young or old jurors, college educated or not, white collar workers or laborers and so forth,” Wickersham said. “But it’s difficult to generalize. For every theory, there is an individual who can come along who can throw those theories out the window.”

The jury impaneled for the retrial is younger and less ethnically balanced than the six-man, six-woman panel that heard the first case--a situation that is as much a result of the luck of the draw in the countywide jury pool called for possible service on the case as the attorneys’ exercise of the peremptory challenges they use to remove a juror without specifying a reason.

All 12 members of the current jury, as well as the four alternates, are white, while Hedgecock’s first jury included two blacks and one Latino. While most members of the first jury were middle aged, the ages of the jurors selected last week range from 18 to the early 60s, with half of the jurors under 30.

Included among the jurors are four college students, a bank executive, a housewife, a project manager for a computer system outfit, a retired Air Force recruiter, a staff administrator at Convair, a radiation testing engineer, a receptionist at Gemco and a Navy court reporter.

The fact that it took nine days to select the jury--much longer than the period normally required even in major cases--is to a large degree a reflection of the difficulty involved in finding 12 people in San Diego whose impartiality had not been impaired by the extensive publicity surrounding the mayor’s case. Many of the potential jurors excused by Superior Court Judge William L. Todd Jr. conceded that because of what they had read or heard about the case, they would enter the trial leaning toward either conviction or acquittal.

However, the length of the process also is a measure of both attorneys’ awareness of the critical role that jury selection played in the outcome of Hedgecock’s first trial, which ended last February in a mistrial with the jury deadlocked 11-1 in favor of conviction. The prosecutor in the first trial, former assistant district attorney, now Superior Court Judge Richard D. Huffman, later admitted that he had erred in not eliminating juror Leon Crowder, a city sanitation employee who was the lone holdout siding with Hedgecock.

Hedgecock faces 15 felony charges alleging that he conspired with former principals of the bankrupt La Jolla investment firm of J. David and Co. to funnel illegal donations to his 1983 mayoral campaign via a political consulting firm owned by Tom Shepard, a close friend of the mayor.

Prosecutors have also accused Hedgecock of intentionally falsifying public disclosure statements to conceal those transactions, as well as allegedly receiving illegal personal financial aid from former J. David executive J. David (Jerry) Dominelli and Nancy Hoover. The mayor also faces a single misdemeanor conflict of interest charge.

A conviction on any of the felony charges likely would force Hedgecock from office.

Neither Wickersham nor Goodman is inclined to discuss publicly his jury selection strategy or to reveal the ideal juror profile that each thought would strengthen his side. However, the attorneys’ questions to potential jurors, in addition to their decision to accept or eliminate individual jurors, yield insight into their respective strategies.

Furthermore, during their questioning of the jurors, both attorneys provided glimpses of the central arguments that each will use throughout the trial.

Goodman spent a much longer time questioning the jurors than did Wickersham, and frequently invoked the importance of the process while apologizing for asking the same questions dozens of times. For example, Goodman spent more than one day questioning the first 12 prospective jurors selected at random to sit in the jury box during general voir dire , while Wickersham completed the same process in less than two hours. As a rule, Goodman spent two to three times longer than Wickersham questioning each juror.

Clearly, Wickersham’s brevity stems largely from the fact that many of Goodman’s questions covered subjects about which the prosecutor also would have inquired. However, the wide time discrepancy also is illustrative of what appeared to be the two attorneys’ differing philosophies and techniques.

One of the major differences between Goodman’s and Wickersham’s approach was the kind of questions that each asked of the prospective jurors.

Goodman repeatedly posed open-ended questions that encouraged the jurors to formulate extensive answers on subjects ranging from their jobs and personal backgrounds to major legal principles and specifics about the Hedgecock case. In contrast, many of Wickersham’s questions were structured in such a way that yes-no answers sufficed.

Wickersham, for instance, often asked jurors, “Do you understand that there is a difference between reasonable doubt and possible doubt?” The prosecutor also usually received simple affirmative answers when he asked jurors whether they believed that “circumstantial evidence is a valid means of proving something.”

Meanwhile, Goodman received longer and occasionally more revealing responses when he repeatedly asked jurors, “Tell me what you like about our system of justice.”

“I like to get jurors talking about themselves and their thoughts, because you learn a lot more about them that way,” Goodman explained.

“If you just ask somebody, ‘Do you believe a defendant is innocent until proven guilty?’, you’re going to get an automatic yes answer. But if you ask that another way . . . you might find out a little bit more about what the person really thinks.” In addition, Goodman treated this voir dire process as an opportunity to begin establishing a personal rapport with the jurors--thereby largely preempting a gambit that Huffman used masterfully during Hedgecock’s first trial.

Seeking both to learn more about the jurors, as well as to try to form a bond with them, Goodman asked them, with an apparent show of genuine interest in their responses, about their hobbies, families, their jobs, reading habits, political activities, what they like most about San Diego and myriad other particulars about their personal lives and beliefs.

Those questions, posed in Goodman’s unfailingly polite and casual talking-over-the-fence manner, yielded anecdotes ranging from the fact that three of the younger jurors are surfers--a hobby shared by Hedgecock--to the revelation that the favorite television program of many of the potential jurors is “The Bill Cosby Show.”

Goodman, who joked often with the jurors, recognized the frequent mention of the Cosby program as the opening for a line that got one of the biggest laughs in the courtroom during the often tedious nine-day proceedings. Late one Thursday afternoon, Goodman smiled widely as he remarked, “I can promise everyone they’ll be home in time for the Cosby show.”

“I’m always comfortable with my juries,” Goodman said. “I like to think they’re mine.”

On the other hand, Wickersham points out that “you can go overboard sometimes” by asking too many questions.

“People can get bored hearing the same questions over and over again, and some people think you’re prying into their personal lives,” the prosecutor said.

So, did Goodman cross the thin line that separates thoroughness and effective repartee from intrusive, repetitious prying? Responded Wickersham: “That is not for me to say.”

However, Wickersham also prompted loud laughter when, after Goodman’s lengthy examination of the first 12 jurors, he asked, “Will anybody here be upset if I don’t ask as many questions or take as long as Mr. Goodman? . . . I don’t see any hands.”

Nevertheless, Wickersham recognizes that Goodman, a stocky six-footer with an imposing voice, has a strong courtroom presence, and frequently reminded the jurors that the case should be decided on the substance of the evidence, not the style of its competing attorneys.

“You understand that this isn’t a personality contest, don’t you?” Wickersham asked one juror. While questioning another he remarked, “This is not really a debate. We’re not talking about the style of the attorneys. We’re talking about the evidence.”

During his questioning, Goodman repeatedly sought assurances from the jurors that Hedgecock’s narrow avoidance of convictions in his first trial would not affect their judgment in a second. He asked the jurors, for example, whether the earlier 11-1 vote would cause Hedgecock to start the retrial with “a strike against him,” and whether what the defense termed the first trial’s “almost verdict” would “creep into the deliberative process” in this case. All of the jurors, however, promised Goodman that they would approach the retrial as, in his words, “another trial, another day.”

Goodman also spent considerably longer discussing legal points with the jurors than Michael Pancer, Hedgecock’s former attorney, did in the first trial.

The lengthy indictment listing the charges against Hedgecock served as a frequent prop for Goodman, who waved the papers around while telling the jurors, “This should have no influence at all on your decision.”

“This document, which is voluminous, to say the least . . . is simply the formal paper that brings the mayor into this courtroom,” Goodman told the jurors. “This is not evidence. The evidence comes from up there,” he added, gesturing to the witness stand.

Following Hedgecock’s first trial, jurors said they believed the mayor had hurt his own case by testifying personally. While any defendant has the right not to testify, Hedgecock has so loudly and publicly proclaimed his own innocence that many courtroom observers argued that it would be at least a major political embarrassment if he were not to take the stand again in his own behalf.

Goodman, however, asked the jurors so many questions about whether they might “read something . . . negative” into Hedgecock’s failure to testify that he succeeded in at least raising questions about one facet of the case once thought to be a foregone conclusion.

“Would you want the mayor to take the stand as a predicate to your returning a verdict of not guilty?” Goodman asked juror Karon Dyer, the project manager for the computer systems outfit, who lives in East County. The defense attorney later asked Kathy Faxton-Calderwood, a student in San Diego State University’s master of public administration program: “Don’t you think there’s kind of a natural tendency to want to have someone accused of something to deny it?”

“Perhaps,” Faxton-Calderwood answered, adding, as other jurors, that she realized, however, that that natural inclination should not affect her decision.

Driving home his point, Goodman told the jurors, “Mayor Hedgecock’s plea of not guilty is as eloquent a denial as is possible under our system . . . by pleading not guilty Mayor Hedgecock has thrown the gauntlet, so to speak, over to the prosecution and said, ‘If you’re big enough, go ahead and . . . try to prove me guilty.’ ” One potential juror, who revealed her misunderstanding of that basic legal principle by saying that she believed that Hedgecock “would have to prove he’s innocent,” was removed from the panel via one of Goodman’s peremptory challenges.

Wickersham, too, spent considerable time discussing legal points with the jury. But, as might be expected, they were not the same ones covered by Goodman.

The prosecutor was more interested, for example, in ensuring that jurors understood that there is a difference between the legal standard of “reasonable doubt” and “any possible doubt.”

“All things related to human affairs are subject to some doubt,” Wickersham said. “But reasonable doubt is based . . . on the evidence. You can’t just say, ‘Well, he didn’t do it.’ ”

Because much of the prosecution’s evidence in the case, particularly with regard to the conspiracy charge, is circumstantial, Wickersham also sought--and received--the jurors’ assurances that they believe circumstantial evidence is sufficient to prove some crimes.

“It’s impossible to know what’s going on in a person’s mind . . . but we can draw inferences from circumstantial evidence,” Wickersham explained. “The only way to prove (Hedgecock’s) state of mind is through circumstantial evidence.”

Hoping to prevent another hung jury, Wickersham also asked some of the potential jurors whether they would “look forward to being holdouts.” Most of the jurors responded that they would not intentionally seek that status, but also emphasized that they would not alter their convictions simply to conform to the other jurors’ views. However, one potential juror, Leo Bodin, a retired Lockheed official, explained that he would “relish the situation . . . if I were voting one against 11,” and thereby became the target of Wickersham’s first peremptory challenge.

Much of what the two attorneys discussed with the jurors could more properly be termed argument than questioning, and revealed focal points of their respective cases.

Wickersham asked jurors whether they believed it “justifiable to cut corners” if a politician bound by the city’s $250-per-person campaign contribution limit were running against a wealthy opponent with unlimited personal finances. That “question” is in accordance with the prosecution’s theory that Hedgecock did just that by relying on illegal donations from Dominelli and Hoover in an attempt to neutralize the personal wealth of his 1983 opponent, former San Diego City Councilman Maureen F. O’Connor, the wife of wealthy businessman Robert O. Peterson, founder of the Jack in the Box fast-food chain.

Hedgecock, who has denied that he received any illegal contributions, concedes that there were errors and omissions on some of his public reports, but characterized those mistakes as unintentional oversights or the result of conflicting interpretations of election and disclosure laws.

Goodman reiterated that theme by asking jurors, “He (Hedgecock) may not have dotted every ‘i’ and crossed every ‘t’, but if the prosecution didn’t prove its case beyond a reasonable doubt, would you have any hesitation in returning a verdict of not guilty?” Again, most jurors said they would not punish Hedgecock for “honest mistakes.”

Despite the considerable differences in both the content and style of the two attorneys’ remarks to the jury, even prosecutor Wickersham probably would agree with defense attorney Goodman’s description of what jurors should expect--and, more importantly, not expect--from the complex Hedgecock case.

“Don’t expect this to be like TV or Perry Mason,” Goodman told the jurors. “Don’t expect someone to stand in the back of the room and say, ‘I did it!’ . . . It’s not going to be that easy.”