10 Jurors in Hedgecock Trial Deny the Claims of Tampering by Bailiff

Ten of the jurors who convicted Mayor Roger Hedgecock have signed sworn affidavits denying allegations by the other two jurors that a court bailiff tampered with the jury during deliberations, according to papers filed in court Monday by Dist. Atty. Edwin Miller Jr.

The 10 jurors’ sworn statements, which accompanied briefs filed by the district attorney recommending that Hedgecock’s motion for a new trial be rejected at a Nov. 4 hearing, were cited by Miller as proof that “there was not anything even remotely approaching jury tampering.”

The sworn statements confirm, however, that there apparently was occasional contact between the jurors and bailiff Al Burroughs Jr.--contact that Hedgecock attorney Oscar Goodman argues “simply should not have occurred” and that justifies a new trial for the mayor.

For example, some of the jurors mentioned that the bailiff told them an anecdote about jurors in another case getting into a fistfight as a result of a dispute over evidence. Most of the 10 jurors whose statements were released Monday said that they regarded Burroughs’ remarks about that incident--which they referred to as “the green hat story”--as a joke. Several jurors, however, have said that they believed that Burroughs’ story dealt with the crucial legal term of “reasonable doubt.”

Saying that the key question is “simply whether the conversation occurred, not what (jurors) thought (Burroughs) meant,” Goodman cited those revelations as confirmation “that something improper occurred” during the jury’s deliberations.

Miller countered by arguing that the bailiff made only “innocuous” comments to jurors that had no impact on deliberations.

At a news conference Monday, Miller described the jury-tampering allegations as “practically a zero,” and added, “I have found nothing . . . in these specious accusations of jury-tampering that causes me any concern at all. Frankly, we eagerly await the hearing on Nov. 4.”

Dismissing the jury-tampering allegations detailed in earlier sworn statements from one juror and the attorney for another as “inadmissible evidence and hearsay,” Miller argued that “absent additional” proof from the defense, “the judge in this case has the right to reject this matter out of hand without even holding a hearing.”

Goodman, however, denounced Miller’s court filings as “just another tactic by that office to mislead the public by continuing their outrageous whitewash.” Goodman added that he was particularly “angry and amazed” by Miller’s disclosure that prosecutors will oppose granting immunity to two bailiffs who supervised Hedgecock’s jury during its sequestration, and that the district attorney’s office will attempt to prevent jurors from testifying at next week’s hearing.

“If they were interested in the truth, they’d welcome a full hearing with testimony . . . so that everything could come out in the open and let the chips fall where they may,” Goodman said. “But they’re not interested in the truth. They’re interested in covering up and casting shadows to protect their victory, even though it’s a tainted victory.”

The attorney for one of the bailiffs has said that his client will not testify unless she is granted immunity, a legal position that Goodman says he expects that Burroughs’ attorney also will adopt.

Miller said Monday that neither bailiff’s attorney has formally requested immunity for his client, adding, “We have seen no evidence at all of misconduct by either bailiff, and it is not my practice to grant immunity when I don’t see evidence of wrongdoing.”

The district attorney acknowledged, however, that prosecutors have not yet interviewed either bailiff. Asked why neither bailiff has been questioned, Miller answered, “ . . . Those (10 jurors’) declarations have to do with their communications with the bailiff during the course of their deliberations. And those declarations speak for themselves.”

The briefs and affidavits filed Monday marked the district attorney’s formal response to Goodman’s request that Hedgecock’s 13-count felony conviction be reversed as a result of jury-tampering allegations that surfaced nearly two weeks ago.

Hedgecock was convicted of falsifying financial disclosure statements to conceal a purported scheme to funnel illegal donations to his 1983 mayoral race through a political consulting firm owned by a close friend of the mayor. If his conviction is not reversed, Hedgecock, who faces a maximum sentence of eight years’ imprisonment, could be ousted from office as early as Nov. 6, when he is scheduled to be sentenced by Superior Court Judge William L. Todd Jr.

The state attorney general’s office also is investigating the jury-tampering allegations at the request of Miller and San Diego County Marshal Michael Sgobba. Chief Assistant Atty. Gen. Steve White has said that he expects his department’s investigation to be be completed by the end of this week.

According to the sworn statements filed Oct. 17 by juror Kathy Saxton-Calderwood and by lawyer John Learnard, the attorney for juror Stanley J. Bohensky, bailiff Burroughs, a San Diego County deputy marshal, purportedly talked on numerous occasions with jurors about the case and the progress in their deliberations, in violation of court rules. The charges included in those sworn declarations include allegations that Burroughs helped the jurors to define “reasonable doubt” and persistently pressed them during their 6 1/2-day deliberations to reach a verdict, rather than deadlocking, as did the jury in Hedgecock’s first trial.

Under court procedures, 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.

Most of the 10 jurors’ statements released Monday provide laudatory descriptions of the behavior of Burroughs and bailiff Holly Murlin. For example, juror Bryce Bulman declared, “I do not recall (the bailiff) bringing up anything about reasonable doubt. At no time was pressure applied to any juror to come to a decision or to rush their decision.”

Similarly, juror Karon Dyer wrote that Burroughs’ “conduct was always above-board and highly professional.”

“Mr. Burroughs did not explain or express any opinions regarding reasonable doubt,” Dyer said in her 3 1/2-page statement. “I never heard Al discuss the verdict alternatives with any juror.”

However, Saxton-Calderwood and Bohensky have specified that some of Burroughs’ alleged improprieties occurred out of the presence of most of the jurors. In addition, Goodman emphasized that even if the 10 other jurors dispute their two colleagues’ version of events, Hedgecock still would deserve a new trial if the two jurors’ allegations are proved.

“Roger Hedgecock is entitled to 12 impartial jurors,” Goodman said. “If even only one juror shows that Al Burroughs did something wrong, that’s enough for a new trial.”

One of the major topics covered in the jurors’ statements concerns Burroughs’ recitation of the so-called “green hat story.” In her earlier sworn declaration, Saxton-Calderwood stated that the story involved “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.”

Saxton-Calderwood explained that she interpreted Burroughs’ anecdote, as well as 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 favor of acquittal.

Most of the other jurors, however, disputed Saxton-Calderwood’s explanation of the “green hat story,” with several of them going even further to say that she was out of earshot when the story was first told by Burroughs. Dyer, for instance, pointed out that when Burroughs told the story to a group of about six jurors, Saxton-Calderwood “was at the opposite end of the room . . . and was not in a position to overhear what Mr. Burroughs was saying.”

“The gist of the story of the green hat related to a previous situation in which two jurors in another case got into a fistfight over whether a green hat was worn by the defendant,” Dyer wrote. “The story was insignificant and was not about a point of law, but to help us appreciate not being shut up in a small deliberation room in the courthouse.”

Added juror Marian J. Pierce: “During this discussion, Mr. Burroughs did not give a definition of reasonable doubt, nor in any way did he elaborate on reasonable doubt after the telling of that story. In my opinion, this story was not an explanation of reasonable doubt; it was a story about people getting along.”

Statements by some of the jurors, however, suggest that while they did not regard Burroughs’ story as an explanation of reasonable doubt, the anecdote clearly was related to that subject.

In her comments on the much-discussed anecdote, juror Leslie Doherty said that she recalled Burroughs telling a story about two jurors in another case getting “into an argument about reasonable doubt.” However, Doherty added, “Al Burroughs was not explaining reasonable doubt, he was not defining reasonable doubt . . . The sole purpose was to illustrate that the Hedgecock jury had excellent accommodations” in a Mission Valley hotel during its deliberations.

Juror Ann Rogers, meanwhile, explained that Burroughs “mentioned the ‘green hat’ had something to do with reasonable doubt.” However, Rogers, like Doherty, added that Burroughs’ story “was not told in response to a question regarding reasonable doubt; it was in response to a question as to whether there had ever been violence among jurors.”

Pierce pointed out that the “green hat story” was discussed by Hedgecock’s jurors when tempers occasionally flared during deliberations.

“We would say, ‘Let’s not have any green hats in this jury,’ in reference to losing tempers and beating up on each other,” Pierce’s statement said. “The green hat story was not about a point of law. I thought it was (a) funny story, a joke.”

Goodman, however, has persistently argued that Burroughs’ mere discussion of reasonable doubt with the jurors is sufficient grounds for reversal of Hedgecock’s conviction, regardless of how jurors interpreted the incident.

“There just isn’t supposed to be that sort of contact between a bailiff and a jury,” Goodman said. “If there is, the process has been tainted.”

Miller argued that none of the evidence that has come to light to date “demonstrates . . . misconduct on the part of the bailiffs.”

“What we’re talking about is accusations that there was pressure or undue influence or some sort of corrupt activity on the part of the bailiffs,” Miller said. “The fact that you say hello in the morning and discuss something socially as innocuous as we have found in the declarations . . . doesn’t amount to anything.”

In the briefs filed Monday, prosecutors also suggested that the initial jury-tampering claims from Saxton-Calderwood and Bohensky stemmed from defense investigators’ harassment of jurors.

“Defendant’s agents have so thoroughly hounded and harassed some members of the jury that the product of their efforts must be viewed with distrust,” the briefs said. “ . . . Under such circumstances, it is hardly surprising that (Hedgecock’s attorneys) could find some imagined defects in the deliberative process which could become exaggerated out of proportion in the mind of a more vulnerable juror.”

Responded Goodman: “That’s absolutely ridiculous. I’m sick of hearing this stupidity from this district attorney . . . I’m ready to go to court and win this thing.”

While Goodman said that testimony by the jurors and bailiffs is needed “to produce the full picture of what happened,” Miller argued that the jurors’ sworn affidavits would be “sufficient” because new trial hearings “are handled in a very limited fashion (without) full-blown cross-examination . . . “

Hedgecock’s attorneys, however, contend that prosecutors oppose a full hearing on the jury-tampering allegations because, in Goodman’s words, “they want to hide, not find, the truth.”

“If I didn’t want the truth to come out, that’s what I’d try to do, too--I’d try to have no witnesses called,” said Michael Pancer, Hedgecock’s other attorney.