Resting Mayor’s Case Called Gamble That May Backfire

The surprise move by Mayor Roger Hedgecock’s attorney to rest his case without calling witnesses is a “gutsy” gamble designed to shift jurors’ attention from the sometimes-acerbic Hedgecock to the performance of the prosecutors in the trial, three San Diego defense attorneys said Tuesday.

The rare tactic taken by Oscar Goodman, they say, will require jurors in the mayor’s felony conspiracy and perjury trial to focus on one simple question: Have prosecutors been able to do their homework and make the case against the mayor on their own?

By keeping Hedgecock off the stand, the defense attorneys said, Goodman has robbed the district attorney’s office of any courtroom confrontation with the mayor, who during his first trial made such a bad impression on jurors that some said it convinced them of his guilt and one called him a “buffoon” after the case ended in a hung jury. Goodman has also used psychology and the publicity generated by the case to turn the tables on the state and, essentially, put the district attorney’s office on trial, they said.

“It can be an extremely gutsy tactic in a way, and a very effective means of underscoring a basic principle in our criminal law--guilt must be established beyond a reasonable doubt, and to the point of moral certainty based upon the prosecution evidence alone,” said defense attorney C. Bradley Hallen.

Hallen, a prosecutor for 11 years before becoming a defense attorney in 1981, said Goodman’s move was a bold one for several reasons.

First, it shuts the door on a powerful part of the government’s case by depriving prosecutors the opportunity to cross-examine Hedgecock, the kind of courtroom drama that district attorneys relish.

“It’s usually the highlight of the trial,” said Hallen. “The case usually stands or falls on how the prosecutor does versus the defendant. From the prosecutor’s point of view, it has to be extremely frustrating not to have his crack, so to speak, at the defendant.”

At the same time, Hallen said, Goodman is hoping that the amount of publicity surrounding the mayor’s legal woes will mean that his client will enjoy a sort of phantom defense, even if Hedgecock never opens his mouth in court.

“There’s no substantial question in anybody’s mind what he would say if he does testify, is there?” Hallen said. “Hasn’t he been saying the same thing through the election, the first trial? His position has been constant.

“Everybody in this community knows what Hedgecock’s defense is. He doesn’t need to say it again. That’s not evidence, but it is there. The jury knows it.”

But the move may backfire, said Hallen, who usually counsels his client to take the stand and face the jury. In Hedgecock’s case, there could be a backlash among the jurors who were waiting eagerly to see how the mayor would personally defend himself in court.

“There are many jurors who have the feeling that ‘If I weren’t guilty, wild horses couldn’t keep me off the witness stand,’ ” Hallen said.

Elisabeth Semel, president of the San Diego Criminal Defense Lawyer’s Club, agreed that Goodman’s tactic could prove to be a “huge risk.”

“You’re always fighting against the human emotion that says in day-to-day life, when you have a conflict situation, you expect both sides to tell you their sides of the story,” she said. “It’s a natural reaction. You tell me your side, and he tells me his side, and I make a decision.”

“Sometimes when you put on an elaborate defense, you can distract from the issue the key question,” she said. Jurors will be so caught up in the personalities involved that “they start comparing cases. There is the prosecution case against the defense case. That’s not what a criminal trial is all about. It is only, and all, about whether the prosecution has proved it (the case).”

During his first trial, which ended in a hung jury in February, Hedgecock testified over three days in his own defense. Many of the jurors who voted to convict him on every count said it was his testimony that tipped the scales toward guilt in their minds. One said he came off as a “buffoon” and another said his testimony made him seem “dishonest” because the “answers to the questions . . . didn’t match up with the evidence.”

City employee Leon Crowder, the lone juror to hold out for Hedgecock’s innocence, said it was the mayor’s testimony that persuaded him to stick to his position.

Now, without allowing Hedgecock to testify in the second trial, Goodman has created a “clean” case by throwing the focus on the performance of the district attorney’s office, said defense attorney John J. Cleary.

Since the case has high visibility, and the stakes are high, Goodman knows jurors will be extra careful to make sure the government must prove its case without a reasonable doubt. The stage is set, he said, for Hedgecock’s defense attorney to “use a confrontational tactic” with the jury and essentially put the prosecutors on trial.

“If there are any weaknesses in the prosecution’s case, jurors will have to wrestle with that,” Cleary said.