Mitrovich’s Role at Issue : Procedural Ruling Won by Hedgecock

In a key procedural victory for San Diego Mayor Roger Hedgecock, the judge in the mayor’s felony retrial on Tuesday blocked the prosecution’s attempt to treat former J. David & Co. publicist George Mitrovich as one of the alleged conspirators in a purported scheme to funnel illegal contributions to Hedgecock’s successful 1983 campaign.

Calling the request by Deputy Dist. Atty. Charles Wickersham “untimely,” Superior Court Judge William L. Todd Jr. ruled that Mitrovich could not be grouped with the alleged conspirators in the case--a decision that could limit Wickersham’s inquiries about activities that the prosecution claims were part of the alleged conspiracy.

Wickersham, who on Monday called Mitrovich “a facilitator, a bag man” among Hedgecock and former J. David & Co. principals J. David (Jerry) Dominelli and Nancy Hoover, on Tuesday referred to Mitrovich as “a key player in the conspiracy” in seeking Todd’s approval to delve more deeply into Mitrovich’s purported role in the alleged conspiracy. Mitrovich, the founder and head of the San Diego City Club, served as the public affairs director for the now-bankrupt La Jolla investment firm headed by Dominelli.

A favorable ruling by Todd would have allowed Wickersham to question witnesses about comments that Mitrovich made to them in regard to activities that the prosecution characterizes as being part of a scheme in which Hedgecock allegedly conspired with Hoover and Dominelli to funnel tens of thousands of dollars in illegal donations to Hedgecock’s 1983 campaign through a political consulting firm owned by Tom Shepard, a close friend of the mayor.

Such so-called “hearsay” evidence normally is inadmissible in a trial. However, hearsay evidence can be admitted in conspiracy cases if the comments were made by a co-conspirator in furtherance of the conspiracy.

However, Hedgecock’s attorney, Oscar Goodman, objected to Wickersham’s request, arguing that it was unfair for the prosecution to seek to change Mitrovich’s status--a change that could substantially affect the defense’s strategy--after the mayor’s retrial had already begun. Such a change, Goodman contended, would place the defense at a disadvantage by forcing him to expand his case beyond the scope of the original indictment against Hedgecock.

Wickersham emphasized that he was not seeking to have Todd formally declare Mitrovich as an unindicted co-conspirator in the case, but rather simply wanted to pursue a “theory of evidence” that would have given him broader latitude in questioning witnesses about Mitrovich’s actions and comments.

Goodman, though, countered by telling Todd, “What the district attorney is attempting to do without doing it is to amend the indictment . . . causing us to be in a position of surprise.” Legal rulings in other California cases state that defendants in conspiracy trials should not be “deprived of notice” about such major changes in their cases, Goodman added.

Noting that the grand jury that indicted Hedgecock did not name Mitrovich as part of the alleged conspiracy, Goodman added, “Every day we could be forced . . . to fight the ghost just because the prosecution and not the grand jury says . . . someone is part of the conspiracy.”

After listening to the two attorneys’ arguments for about 40 minutes, Todd sided with Goodman, saying of Wickersham’s request, “It’s untimely to do this at this point in time.” The eight-woman, four-man jury was not in the courtroom during the hearing on the issue.

Wickersham said later that he was disappointed by Todd’s ruling but added, “I don’t think it’s a big loss, because I think I’ll be able to get the evidence (admitted) under other theories. I think the judge is just saying, we didn’t take that position in the last trial so we can’t take it this time.”

Goodman, who on Monday labeled Wickersham’s comments “a cheap shot” that unfairly “besmirched” Mitrovich’s name, said after Tuesday’s court session that he was “delighted” by Todd’s decision.

Mitrovich, meanwhile, said he was pleased with Todd’s ruling, but expressed strong displeasure that Wickersham’s unsuccessful tactical gambit had made him the target of “devastating headlines” over the past two days.

“I’m relieved by the judge’s ruling, but I don’t think it undoes the damage that was done in court (Monday) by Mr. Wickersham,” Mitrovich said.

Hedgecock faces 15 felony conspiracy and perjury charges alleging that he intentionally falsified financial disclosure reports to conceal the alleged illegal 1983 campaign donations as well as personal financial aid from Hoover and Dominelli. The mayor, who faces likely expulsion from office if convicted on any of the felony counts, also faces a single misdemeanor conflict-of-interest charge.

Wickersham has argued that Mitrovich was involved in many of the crucial activities that the prosecution cites as circumstantial evidence of the alleged conspiracy to use Tom Shepard & Associates as a vehicle to circumvent the city’s $250-per-person campaign contribution limit.

Arguably the major piece of evidence involving Mitrovich concerns a November, 1981, luncheon at which he encouraged Hedgecock to mend his relationship with Hoover--who had embittered Hedgecock by leaving her husband to live with Dominelli. Former J. David Mercantile President Alfred O’Brien testified earlier that Mitrovich told Hedgecock at the luncheon that, if he hoped to become mayor, he “ought to smoke the peace pipe” and stop bad-mouthing Hoover. The subsequent reconciliation between Hoover and Hedgecock, prosecutors charge, was one of the cornerstones of the alleged conspiracy.

Despite Todd’s decision, Wickersham professed confidence that he “will be able to establish what we want to establish with Mr. Mitrovich.”

The prosecutor also took heart from Todd’s decision to allow him to question several of the six witnesses who testified Tuesday about conversations that they had with Tamara O’Brien, the daughter of the former J. David Mercantile president and an employee at Shepard’s firm from January through May of 1982.

Hedgecock’s campaign committee did not have a contract with Shepard’s firm until August, 1982--two months after former Mayor Pete Wilson’s victory in the Republican U.S. senatorial primary increased the likelihood of a vacancy at City Hall. Wilson’s victory in the November, 1982, U.S. Senate general election led to the special May, 1983, mayoral race won by Hedgecock.

Prosecutors, however, contend that Shepard’s firm was already working on Hedgecock’s behalf during the first half of 1982--work that Wickersham characterizes as unreimbursed staff expenses that constitute an illegal campaign contribution.

In an attempt to bolster that contention, Wickersham elicited testimony Tuesday from two witnesses who said they had been contacted by Tamara O’Brien in early 1982 about the possibility of becoming involved in Hedgecock’s potential mayoral campaign.

Alan Preckel, a deputy district attorney, testified that he had been asked in May, 1982, to head Hedgecock’s possible campaign in the Rancho Penasquitos area--a role he turned down because of concern over the appearance of a possible conflict of interest stemming from the fact that then-county Supervisor Hedgecock had authority over county employees’ salaries and the budget for the district attorney’s office. Eugene McElroy, a consumer services representative for San Diego Gas & Electric Co., said that a month earlier, O’Brien invited him to “an exploratory-type meeting” at Shepard’s firm at which he was asked, and agreed, to coordinate the race in University City.

Such testimony, Wickersham argues, demonstrates that Shepard’s firm was “rendering services” for which the Hedgecock campaign did not pay.

Reponded Goodman: “What Tom Shepard does doesn’t bind Roger Hedgecock. Roger Hedgecock only began to pay Tom Shepard & Associates after they entered into a formal contract after the mayoral race was a reality. Before that time, Tom Shepard was starting up a business. There’s no question he was getting financial help from Nancy Hoover. That’s not even going to be an issue. The way he spent his time was up to Tom Shepard.”