In a dramatic turn of events that could result in the reversal of Mayor Roger Hedgecock's felony conviction, one juror and the attorney for another have signed sworn statements alleging that a court bailiff tampered with Hedgecock's jury during its deliberations, The Times has learned.
In a letter delivered Tuesday night to San Diego County Dist. Atty. Edwin Miller and Hedgecock attorney Oscar Goodman, San Diego lawyer John N. Learnard, who represents one of the jurors, detailed a series of alleged incidents in which bailiff Al Burroughs Jr., in violation of court rules, purportedly talked on numerous occasions with jurors about the case and the progress in their deliberations. A sworn declaration by a second juror corroborates many of the details in Learnard's letter.
Hedgecock could not be reached for comment Wednesday on whether the allegations--which Goodman predicted would "without a doubt" result in a reversal of the mayor's conviction--might change his plan to resign on Friday. However, some of the mayor's closest aides have encouraged Hedgecock to reevaluate that planned resignation, announced last week two days after his conviction on one count of conspiracy and 12 counts of perjury.
Contents of Statement
According to the sworn statements from Learnard and the juror, Superior Court Judge William L. Todd Jr.'s bailiff helped the jurors to define the crucial legal term of "reasonable doubt," and persistently pressed them during the latter stages of their 6 1/2-day deliberations to reach a verdict, rather than deadlocking as did the jury in Hedgecock's first trial.
In addition, Burroughs, a San Diego County deputy marshal, asked one juror to give him the names of other jurors who were slowing down the deliberations by "holding out," and referred to one juror as "trouble" after the juror complained to another bailiff about Burroughs, according to the sworn documents. On other occasions, Burroughs allegedly drank "hard drinks" with some jurors at the conclusion of their daily deliberations.
Learnard emphasized in his initial letter to Miller and Goodman that the juror he represents "felt (the bailiff's) explanation of reasonable doubt and the explanation of the law helped him in arriving at his verdict."
"The . . . juror indicated that on several counts, he . . . may have voted for an acquittal, but did not do so because of the pressure to reach a unanimous verdict so that there would not be another hung jury," Learnard's letter said.
Burroughs, contacted at his Tierrasanta home late Wednesday, said he was "absolutely" surprised by the jurors' allegations, but refused to comment further until he discusses the matter with Todd this morning.
"I know nothing about it and I want to talk to my judge about it," Burroughs said.
Calling the sworn declarations "evidence that the jury system has been abused and perverted," Goodman said late Wednesday that he intends to file a motion for a mistrial today and that the two jurors have agreed to repeat their allegations under oath in court. He suggested the tampering might even result in dismissal of all charges against Hedgecock. Goodman agreed to discuss the sworn statements Wednesday on the condition that the jurors not be named.
Legal System 'Cheated'
"The mayor was cheated, the people of San Diego were cheated and our legal system has been cheated," Goodman said. "All we can be thankful for is that it's not too late for the wrong to be righted."
Steve Casey, a spokesman for the district attorney's office, confirmed that Miller received the hand-delivered letter detailing the allegations, but declined to say whether Miller intends to conduct an independent investigation of the charges.
"All I can say at this point is that the district attorney received a letter from a private attorney concerning jury deliberations and allegations of misconduct," Casey said. "We assume that any allegations will be incorporated in defense post-trial motions and will be fully litigated."
Contacted at his home late Wednesday night, Todd said he was unaware of the charges of possible jury tampering.
"Astounding," Todd said, adding, "I can't say anything pertaining to the trial . . . until it appears before me."
Unaware of Allegations
Deputy Dist. Atty. Charles Wickersham, who prosecuted the case, was unaware of the allegations until contacted by The Times at his home Wednesday.
"Oh, my God, no!" Wickersham exclaimed. "I can't believe that's true. This hits me like a giant block of cement falling right out of the sky. This is the kind of strange, quirky case where you keep looking for ghosts to come out of the closet, and here they come."
Five jurors contacted by The Times on Wednesday denied knowledge of the alleged improprieties, while four others refused to comment. The remaining three members of the jury could not be reached.
The two jurors who made the allegations painted a picture of frequent improper contacts between Burroughs and the jury, beginning on the jury's fourth day of deliberations.
For example, Learnard's client said that, at that point in the jury's deliberations, Burroughs "gave an example of reasonable doubt to several members of the jury," the lawyer's letter says. The bailiff's illustration, which concerned another case involving a juror remembering evidence of "a green hat," according to Goodman, was confirmed by the second juror's sworn statement.
In his own sworn statement, Learnard explained that his client--who volunteered the information about the bailiff's possible misconduct while meeting with Learnard on another legal matter--"asked me not to disclose (his) name at this time because (he) is fearful of pressure and recrimination." Learnard said the juror contacted him about 11 a.m. Friday.
Promises to Testify
However, Learnard's statement adds: "The juror has promised me in the presence of . . . two attorneys . . . that if subpoenaed and called to testify under oath, the juror would do so in a full, complete and truthful manner."
Under court procedures, bailiffs are forbidden to discuss cases with deliberating jurors. Instead, during a jury's deliberations, bailiffs act as a conduit of information between the jury and the judge, most often by relaying jurors' questions about legal points to the judge. However, bailiffs are "never, absolutely never, supposed to try to help" juries by defining legal terms or inquiring about their progress toward a possible verdict, Goodman said.
In the motion to be filed today, Goodman will seek a Nov. 6 hearing on his request for a mistrial based on the two jurors' allegations. Goodman also plans to request that that motion be heard by a judge other than Todd, who presided over both Hedgecock's first trial and retrial. Hedgecock faces a maximum sentence of eight years in prison and is currently scheduled for sentencing Nov. 6.
Guilty or Innocent
According to Goodman, the sworn statements show that Burroughs repeatedly told jurors that they had to find Hedgecock either guilty or innocent, and could not end their deliberations in the same inconclusive manner as the first jury, which deadlocked last February 11 to 1 in favor of conviction.
"Al stated to the jury members on various occasions throughout the deliberations that they had to reach a unanimous verdict and vote one way or the other so that the matter could be resolved," Learnard's letter said. "The juror remembers Al saying, 'Come on, we have to agree on something.' "
Learnard said in his sworn statment that his client also alleged that Burroughs once told him that "Todd and Al had made up their minds, having sat through both trials." The juror took that to mean that the jury should come to the same conclusion.
Moreover, the bailiff also purportedly told jurors that it was costing the county a lot of money to sequester them at a Mission Valley hotel and suggested they owed it to the county to come back with a unanimous verdict, according to the sworn statement.
During the deliberations, some of the jurors apparently expressed confusion over the precise legal definition of "reasonable doubt." At that point, the juror's sworn statement says, Burroughs told jurors about another case involving "evidence regarding a man with a green hat, which the other jurors (in the other case) did not recall or agree with, but which caused that juror to find the defendant not guilty. The hold-out juror was viewed to be unreasonable."
The juror interpreted Burroughs' recitation of that anecdote, as well as the other comments purportedly made by the bailiff, as "implying that some of us, including myself, were being unreasonable, as we were in the minority opinion at the time." In interviews after the verdict, jurors explained that when the jury took its first straw vote on the conspiracy charge, at least two jurors believed that Hedgecock should be acquitted. However, after two more days of deliberations, those jurors switched their votes to guilty.
Interviewed Wednesday, the jury's foreman, bank executive Richard Stark, said that he would "throw (the bailiffs) out" when the jury's daily deliberations began and insisted that the bailiffs gave no advice to the full jury. Stark acknowledged that individuals were sometimes alone with bailiffs and that he couldn't be sure what was discussed then.
When the juror complained to a second bailiff about Burroughs' behavior, the second bailiff relayed that information to Burroughs himself. Subsequently, Burroughs told another juror to "watch out" for the juror, describing that juror as "trouble."
Also contributing to this report were Times staff writers Ralph Frammolino, Daniel M. Weintraub, Janny Scott, Jim Schachter, Glenn F. Bunting and Armando Acuna.