Goodman Wants All Local Judges Off Hedgecock Appeal

Saying that San Diego judges cannot fairly judge the credibility of one of their colleagues, Mayor Roger Hedgecock’s attorney on Thursday asked that his motion seeking reversal of the mayor’s felony conviction be heard by an out-of-county judge.

A spokesman for the San Diego County district attorney’s office, however, characterized attorney Oscar Goodman’s request as “presumptuous and arrogant,” and said prosecutors would “vigorously oppose” the request.

In addition, in court papers to be filed today, prosecutors urged rejection of earlier defense motions calling for the removal of Superior Court Judge William L. Todd Jr. and the district attorney’s office from next month’s hearing on jury-tampering allegations that could overturn Hedgecock’s 13-count felony conviction. Those defense requests, prosecutors argue in the documents, are “totally lacking in merit” and would, if approved, “work great mischief to a fair consideration” of the motion for a new trial.

Goodman’s request that not only Todd, but all local judges, be disqualified from the case came in a letter that was hand-delivered to Superior Court Presiding Judge Donald W. Smith late Thursday afternoon. In the letter, Goodman argued that no local judge should hear his motion for a new trial because Todd, who presided over both of the mayor’s trials, will be a witness at the Nov. 4 hearing.

“This letter is written to inform you I intend to (move to) disqualify any judge who currently sits on the San Diego Superior Court from hearing our motion for a new trial,” Goodman wrote.

“The grounds for disqualification will be that since Judge Todd is a witness at the motion, his credibility cannot be fairly judged by his fellow judges,” the letter added. Todd and Deputy Dist. Atty. Charles Wickersham, who prosecuted Hedgecock’s retrial, also received copies of the one-page letter.

A non-local judge should hear the motion for a new trial, Goodman said, to ensure that “there is both the appearance of fairness as well as actual fairness” at the court proceeding.

In response, Steve Casey, a spokesman for Dist. Atty. Edwin Miller, called Goodman’s request “absolutely preposterous.”

“First of all, there’s no showing at all that Judge Todd . . . should not hear this,” Casey said. “But if, for the sake of argument, we accept their silly position, to then suggest that all of the other Superior Court judges are incompetent to hear this is utterly absurd. That’s just crazy.”

Smith could not be reached for comment Thursday.

However, in a speech Thursday night, before the San Diego Trial Lawyers Assn., Goodman vehemently denounced the district attorney’s response to his motions. Ironically, the group’s meeting was held at the Hanalei Hotel, the same Mission Valley hotel where Hedgecock’s jury was sequestered.

“That shows the type of sickness and depravity on the part of that office,” said Goodman, whose caustic remark drew some applause.

Later, Goodman angrily pointed out that prosecutors have not yet approved his request that the two bailffs who supervised Hedgecock’s jury receive immunity in order to testify about the jury-tampering allegations. Unless the bailiffs and possibly some of the jurors are granted immunity, Goodman said, “The truth . . . may not come out.”

“This district attorney’s office is trying to make this into a Hanalei-gate,” Goodman said.

Earlier Thursday, Goodman contended that it would be impossible for any San Diego judge “to sit in judgment of a fellow judge” whose testimony could be a “a very important factor” in the outcome of the hearing. Earlier this week, defense attorneys subpoenaed Todd to testify about sworn allegations by one juror and the lawyer for another that bailiff Al Burroughs Jr. tampered with Hedgecock’s jury during its deliberations.

The mayor’s attorneys have argued that Todd should not preside over any hearing in which he will also be a witness. A further reason why Todd should disqualify himself from the case, Hedgecock’s attorneys said, is that Burroughs worked “under the direct supervision” of the judge.

According to the defense documents, jurors will testify at the hearing that Burroughs’ “improper actions usually took place after he had a telephone conversation with the court.” However, Goodman and Hedgecock’s other attorney, Michael Pancer, have emphasized that there is no evidence that Burroughs’ alleged improper contact with the jury resulted from instructions from Todd.

If the two sides in the case are unable to agree on who should hear the case, Goodman said, the matter ultimately could be decided by the California Judicial Council.

Goodman was involved in one of the cases that he cited as a precedent for his request that a non-San Diego judge preside over the hearing. Goodman represented U.S. District Judge Harry Claiborne, who last year became the first sitting federal judge convicted of a crime. At the direction of Chief Justice Warren Burger, all of Claiborne’s fellow 9th Circuit judges were disqualified from hearing his tax-evasion case, Goodman’s letter noted.

“It makes sense--it’s the fair thing to do . . . to eliminate any questions of conflict,” Goodman said.

Meanwhile, in a 12-page document to be filed in court this morning, prosecutors provide their rebuttal to Goodman’s requests that both Todd and the district attorney’s office be disqualified from the case.

“Obviously, the granting of such a motion would leave (Hedgecock) and his counsel in the enviable situation of being the only persons present at the hearing of his motion for a new trial with any knowledge of the case,” the district attorney’s brief said. The document, which does not address the larger question of whether the jury-tampering allegations necessitate a new trial, was prepared by Deputy Dist. Atty. Paul M. Morley.

In the brief, prosecutors argue that Todd need not disqualify himself from the case simply because he has been subpoenaed by the defense to testify about his purported conversations with Burroughs during the jury’s 6 1/2-day sequestration.

“If all it took to disqualify a judge were to issue such a subpoena on such a far-fetched theory, the scope of disqualification would be greatly expanded to the detriment of respect for the legal system,” the brief says. Furthermore, Morley argues that because “the only knowledge (Todd) . . . could possibly have” of any improper contact between Burroughs and the jurors “could only have come second-hand” from the bailiff himself, any testimony by Todd on that point “would constitute only inadmissible hearsay.”

Sworn declarations by juror Kathy Saxton-Calderwood and John Learnard, the attorney for juror Stanley J. Bohensky, say that Burroughs, in violation of court rules, helped the jurors define the crucial legal term of “reasonable doubt” and persistently pressed them to reach a verdict, rather than deadlocking, as did the jury in Hedgecock’s first trial. The bailiff is also accused of asking one juror for the names of others who were “holding up” deliberations and of drinking “hard drinks” with some jurors at night.

In defense briefs filed earlier this week, Goodman and Pancer argued that the district attorney’s office should not be involved in the hearing on the jury-tampering allegations because local prosecutors might be “biased or partial.” According to the defense, the fact that the jury-tampering charges “could potentially nullify months of effort by the district attorney’s office” to convict Hedgecock “may well cloud the impartiality” of the office’s investigation.

However, in the papers to be filed today, prosecutors dismissed that claim as “even more groundless” than Goodman’s earlier, unsuccessful attempts to remove the district attorney’s office from the case. Describing the defense request as “illogical and unsupported,” prosecutors urged the court to simply deny the motion without a hearing.