Won’t Be Easy to Overturn Verdict, Lawyers Say : Judges Reluctant to Throw Out Rulings, Say Attorneys Asked About Mayor’s Case

Lawyers for Mayor Roger Hedgecock may have a difficult time persuading a judge to throw out the jury verdict convicting the mayor, even if they can prove that a bailiff tampered with the jury during its deliberations, lawyers and legal authorities versed in criminal law said Thursday.

Hedgecock’s lawyers must convince a judge not only that the deliberations were tainted by outside interference, but that the interference made a difference in the outcome of the case, lawyers said.

And in making those decisions, California law says that the judge cannot consider the jurors’ own claims that they were influenced by outside forces, such as a bailiff’s comments. The judge must rule solely on the basis of the jurors’ descriptions of the alleged tampering, lawyers explained.

The high standard of proof and the near-absolute discretion of the judge make tampering a hard case to sell, said John Cleary, a San Diego trial lawyer with extensive criminal defense experience.

“I find courts hellbent on preserving the verdict at all costs,” Cleary said. “My bet is that the institutional bias is so powerful, I can almost next to guarantee there won’t be a retrial.”

However, Cleary and other lawyers contacted by The Times said that the alleged interference with the jury by bailiff Al Burroughs appeared to be a clear-cut case of tampering. Some lawyers went further, saying that a judge, if satisfied that the tampering occurred, would have no choice but to throw out the jury’s verdicts.

“Once you’ve established that the kind of incidents described happened, you’ve got a real problem,” said Gerald Uelman, professor of law at Loyola Law School in Los Angeles. “There’s really no excuse for the bailiff not realizing the seriousness of his charge, in terms of respecting the deliberative process and not interfering with it.”

Burroughs could be found in criminal contempt if a judge decides that he failed to abide by the oath he swore before the jurors retired to deliberate, criminal lawyers said. Bailiffs swear “not to permit any person to speak to or communicate with (the jurors), nor to do so himself,” unless instructed to talk to the jurors by the judge.

Further, the bailiff could be subject to prosecution for jury tampering, a felony, lawyers said. The penal code prohibits anyone from “corruptly” attempting to influence jurors, including efforts to influence them by “intimidation, persuasion or entreaty.”

However, Hedgecock’s attorney, Oscar Goodman, said Thursday that he hoped Burroughs would be granted immunity from prosecution if he testifies about his actions during the Hedgecock jury’s deliberations.

Lawyers interviewed Thursday agreed that Hedgecock’s attorneys have turned to the appropriate body of law for the basis of their move to have the mayor’s conviction thrown out of court.

The argument, grounded in the constitutional right to a trial by jury, is founded upon decisions by the U.S. and California supreme courts that create a presumption that any tampering with a jury is harmful to the defendant.

In one 1969 case, the California Supreme Court reversed a man’s conviction on a charge of possessing marijuana, in part because it concluded that a bailiff had put undue pressure on the jurors by angrily warning them they would be “locked up overnight” if they did not reach a verdict.

Goodman contends that that remark was “far less inflammatory” than Burroughs’ alleged admonitions to the Hedgecock jurors against coming in with a hung verdict in the mayor’s retrial.

Pursuant to Goodman’s motion for a new trial, San Diego Superior Court Judge William L. Todd Jr.--or another judge, if Todd excuses himself from hearing the motion--first will have to decide if the alleged incidents of tampering occurred, said Paul Bell, a San Diego attorney who represents defendants in appeals.

If so, the judge then must determine if the interference affected the jurors’ verdict, Bell said. That review cannot take into account the jurors’ opinions on the impact of the tampering on their deliberations, because those discussions are sacrosanct--exempt from second guessing, Bell said.

Though by law the judge must start out presuming that any tampering prejudiced the jurors against Hedgecock, “it’s pretty easy to rebut that presumption,” Bell said. Cleary added that a judge simply can decide that the outside agent’s comments had no significant effect on the jurors’ decision.

“The presumption the verdict is correctly arrived at is a quite powerful one,” added Henry McGee, a professor of criminal law and procedure at the UCLA School of Law.

Goodman said Thursday that he believed it was possible that the charges against Hedgecock could be dismissed altogether if it could be established that Burroughs, an officer of the court, had tampered with the jury. But other lawyers said that only misconduct by prosecutors, not wrongdoing by other court officials, could result in the case being dismissed.

Several legal authorities, though, said Hedgecock’s lawyers have a strong case for insisting on a new trial for the mayor.

Miguel Mendez, a professor of law at Stanford University Law School, noted that a 1977 California Supreme Court decision established strong legal barriers against exposing jurors to the sort of pressure to reach a verdict that Burroughs allegedly brought to bear.

In that case, the court prohibited use of a time-honored jury instruction--known as the “Allen instruction”--that urged reluctant members of a split jury to reconsider siding with the majority and thus reach a decision. The instruction constituted “excessive pressure on dissenting jurors to acquiesce in a verdict,” the Supreme Court ruled.

Mendez said Burroughs’ alleged urgings to the Hedgecock jurors to reach a verdict might be “tantamount to giving the Allen instruction to the jury,” and thus could be a basis for throwing out the conviction.

The alleged assistance provided to the jurors in understanding the legal concept of “reasonable doubt” may have been the most serious undermining of the deliberative process, Mendez added.

The California Supreme Court threw out a Monterey County woman’s murder conviction on the grounds that the trial judge, in instructing the jury before its deliberations, deviated from the commonly used instructions on reasonable doubt, Mendez noted. Hedgecock’s lawyers could argue that Burroughs’ alleged comments about reasonable doubt were the equivalent of fresh, unauthorized instructions on that key element of law, he said.

Influencing the jurors’ understanding of reasonable doubt could taint the essence of their deliberations, Uelman agreed.

“If they’re getting impressions from outside the jury room on what that means, you’re getting to the very heart of the whole deliberative process,” he said.