Hedgecock, Kreutzer Cases Put Jury Probes in a Harsh Spotlight

It was “a lawless jury” in Hayward, Calif., that convicted Juan Corona in a 1982 retrial on charges he killed 25 itinerant farm workers a decade earlier, defense attorneys contend.

Many mornings during the eight-month trial, jurors admitted in later statements, they circulated the day’s newspaper stories about the case.

When they were removed from the courtroom so Judge Richard Patton could hear attorneys’ arguments outside the jury’s earshot, some jurors listened through keyholes anyway, they acknowledged.

Some jurors discussed the case before deliberations began and reached conclusions about Corona’s guilt while testimony was still under way, jurors said. One juror brought a bullet into the jury room and discoursed on technical ballistics issues. The foreman, it turns out, had failed to reveal that his girlfriend had worked for the district attorney’s office.

Yet when defense lawyers Terence Hallinan and Michael Mendelson asked Patton to order a new trial for Corona on the grounds that jury misconduct had denied him a fair hearing, Patton refused. Though the judge agreed that the jurors had acted improperly, he ruled that their misdeeds did not prejudice them against Corona.

“It’s a tough road to travel, jury misconduct,” Mendelson said last week as he continued work on Corona’s appeal. “Most judges don’t want to see something they’ve crafted basically go down the tubes when the court’s not the one responsible for the error.”

Trial lawyers in California uniformly agree that jury misconduct, even in cases far less notorious than Corona’s, is hard to prove and even harder to make the basis of a successful effort to set aside a jury’s verdict.

Yet allegations of jury misconduct are at the heart of defense moves to toss out two of the most celebrated verdicts in recent San Diego legal history--the conspiracy and perjury conviction of Mayor Roger Hedgecock and the murder conviction of Big Oak Ranch owner Herman (Rock) Kreutzer.

Moreover, some trial lawyers say the publicity given the Hedgecock and Kreutzer cases means that inquiries into possible jury wrongdoing, and the resulting allegations of misconduct and motions for new trials, can only become more common in San Diego courts--a prospect that alarms observers who think jurors and verdicts should be safe from second-guessing.

“Our awareness has been sort of low about the possibilities. Maybe we’re just not asking enough,” said Dan Krinsky, president of the San Diego Trial Lawyers Assn. “But to my way of thinking, now there’s no such thing as a sacred jury verdict.”

What is jury misconduct? Within the evolving guidelines of case law, attorneys say, it seems to be something very much in the eye of the beholder.

“If you cut all the hyperbole from around it, it boils down to did they do something they shouldn’t have done that affected the verdict?” said C. Logan McKechnie, one of the attorneys for Kreutzer, who was convicted in September of killing his son-in-law. “If they did something they shouldn’t have that affected the verdict, you’re going to get a new trial. If it didn’t affect the verdict, you’re not going to get one.”

Earlier this month, McKechnie and lawyer Stephen Perrello argued in San Diego County Superior Court that jurors in the Kreutzer case had engaged in classic forms of misconduct during their deliberations.

One juror used his car during an overnight break to test a witness’ statement that he could see the crime scene at Big Oak Ranch by shining his car’s headlights into a garage, the lawyers said. Another juror went home and shot a gun to test a witness’ claim that he could hear words shouted over the noise, they said. Further, the jury foreman looked up the words “malice” and “aforethought” in a dictionary and reported the definitions to the other jurors.

Prosecutors called the claims a “shabby” basis on which to seek a new trial. Superior Court Judge J. Perry Langford postponed sentencing in the case until Dec. 6 so prosecutors can respond more fully to the allegations.

Then Langford, like whichever judge eventually hears Hedgecock’s request for a new trial, will have two basic decisions to make, according to legal authorities: Did the jurors do something wrong? And if so, was the wrongdoing so severe that it affected the fairness of the trial?

“If he finds these things happened, then he has to find the evidence of guilt was so overwhelming (that) no reasonable person could have been influenced by what occurred,” said Barbara Babcock, who is Ernest W. McFarland Professor of Law at Stanford University. Otherwise, she said, a judge must conclude that misconduct took place and order a new trial.

The precedent in such cases--and thus the standard for establishing the existence of jury misconduct--seems anything but conclusive:

- In a 1980 civil case, California’s 3rd District Court of Appeal ruled that it was misconduct for one juror to use the example of his own back problems to undermine a plaintiff’s claim for damages from an injury-causing auto accident.

- In a 1978 death penalty case, the 5th District Court of Appeal said it was not misconduct for a jury foreman to bring three maps into the jury room that had not been presented as evidence. The maps did not contradict evidence in the case, the court ruled, but merely brought it into better focus.

- The Appeal Court ruled that there was misconduct in a 1963 case when a juror brought a copy of the vehicle code into the jury room to read laws he thought were more relevant to the case than those in the judge’s instructions.

- The California Supreme Court in 1982, meanwhile, upheld a $9.2-million verdict against Ford Motor Co. in an auto accident case, even though there was evidence that one juror had read a novel during the trial and others had worked crossword puzzles.

“Retrials are to be avoided unless necessitated by a more substantial dereliction of duties than was evident in this case,” the court ruled.

The justices went on to quote the finding in an earlier case: “Society has a manifest interest in avoiding needless retrials: they cause hardship to the litigants, delay the administration of justice and result in social and economic waste.”

Ellis Horvitz, the Encino lawyer who represented the accident victim before the Supreme Court, said such rulings have kept the standard high for establishing jury misconduct.

“You must show the trial judge something pretty horrendous happened--and rightly so,” said Horvitz, a founder and past president of the Academy of Appellate Lawyers. “We see (such allegations) all the time now, and most of them just don’t cut it.”

Hedgecock’s lawyers insist their case for a new trial will prevail against the stiffest standards.

Based on statements from two of the jurors whose guilty verdict placed Hedgecock on the brink of losing office, they have accused a court bailiff of tampering with the jury--a kind of misconduct that lawyers say is as difficult to prove as wrongdoing by jurors themselves, but which more readily leads to new trials when it can be demonstrated.

Hedgecock’s attorneys contend that bailiff Al Burroughs Jr. pressured the jury to reach a verdict during a week of sequestered deliberations and helped jurors interpret the key legal doctrine of reasonable doubt.

To bolster their move to have Hedgecock’s conviction thrown out, the lawyers rely on a line of cases whose facts they claim parallel those in the mayor’s trial:

- In a 1977 ruling, the California Supreme Court reversed Henry Honeycutt’s conviction by a San Diego County jury on a charge of first-degree murder. During deliberations, the jury foreman had called a friend who was an attorney and asked whether involuntary manslaughter--one of the possible verdicts--was a felony or a misdemeanor. He also asked for a definition of “diminished capacity.”

The court ruled that the foreman’s misconduct may have altered his thinking about the case, and that it thus denied Honeycutt a fair trial. Goodman argues that bailiff Burroughs’ alleged coaching of the Hedgecock jurors on the concept of “reasonable doubt” was a comparable misstep.

- The Supreme Court in 1979 reversed the murder conviction of Lawrence Pierce, an El Cajon gas station owner charged with bludgeoning to death one of his employees. Ignoring the trial judge’s admonitions, the jury foreman in Pierce’s trial held a discussion about the evidence with one of his neighbors--a police officer who testified in the case.

Though the foreman did not tell the other jurors about the discussion, the court ruled that he cost Pierce a fair trial.

“A defendant charged with a crime has a right to the unanimous verdict of 12 impartial jurors,” the Supreme Court said, “and thus a conviction cannot stand if even a single juror has been improperly influenced.” Hedgecock’s lawyers contend that Burroughs’ alleged comments colored at least one juror’s thinking.

- A decade earlier, the Supreme Court set aside a decision denying a new trial to a Los Angeles area man convicted of possession of marijuana. After the trial, one of the jurors said the bailiff had rushed the deliberations, at one point angrily warning the jury, “If you knew what was going on out there, you would be shivering in your boots.”

Hedgecock’s lawyers say the Los Angeles bailiff’s comments were “far less inflammatory” than Burroughs’ alleged pressuring of jurors to reach a verdict.

Prosecutors, though, also have drawn from a deep well of precedent to counter the defense request for a new trial. They say the courts have placed imposing obstacles in the way of misconduct allegations to prevent the wholesale second-guessing of jury verdicts.

In court filings, the district attorney’s office cites the standard spelled out in the 1978 Appeal Court decision that said there was no misconduct when jurors brought maps into the jury room.

A new trial is required, the court said, only if the jury’s impartiality is affected by misconduct, the prosecution’s burden of proof is lightened or a defense is undermined. Prosecutors say none of those requirements was met in the Hedgecock case.

They argue, too, that court procedure and rules limiting the evidence that can be presented to demonstrate misconduct strengthen their case for leaving the jury’s verdict intact.

Under California’s evidence code, only objective statements of fact about events during the trial can be used as proof of misconduct. Jurors’ opinions about whether their attitudes toward a case were affected by outside influence or fellow jurors’ actions are barred.

On that ground, Superior Court Judge William Todd has ruled that much of the written testimony given by jurors Stanley Bohensky and Kathy Saxton-Calderwood in support of the defense request for a new trial is inadmissible.

“He has to make his own determination about whether the remarks made by the bailiff influenced the juror,” said Hank McGee, a professor of criminal law at the UCLA School of Law. “It’s not up for the juror to say. It’s for the judge to say.”

The complexity and uncertainty inherent in pressing a claim of jury misconduct have not slowed attorneys in their search for juror wrongdoing.

Many San Diego trial lawyers--like the attorneys for Kreutzer and Hedgecock--hire investigators to question jurors after an unfavorable verdict. Others conduct the questioning themselves, hoping to learn, if nothing else, how they can do a better job in future trials.

In either case, the questions tend to be general, rather than a direct grilling about possible misconduct.

“Usually, you want to find out what made them vote the way they did, whether anything influenced their decision, and it comes out from that,” said Juan Lopez, a private investigator whose firm questioned jurors on behalf of Hedgecock’s lawyers after the mayor’s conviction. “You don’t usually go in there hoping for some kind of tampering.”

Krinsky, the trial lawyers’ president, takes his inquiries a step beyond the norm. At the end of major trials, Krinsky said, he sometimes will post his entire office staff near the courtroom in hopes of catching the jurors for a few minutes of conversation. He also hands jurors a questionnaire--accompanied by a postage-paid envelope--geared to uncovering missteps in the deliberative process.

The full-court press has paid off with information about possible misconduct, Krinsky said. “It’s incredible how many times they go out and do experiments on their own, view the scene, make measurements, look things up, or talk to the attorney who lives down the street and has been their golfing buddy for years,” he said.

Krinsky said such findings recently helped him win a new trial for an accident victim in a San Bernardino County civil case involving a truck crash.

One of the issues was the speed a 67,000-pound truck could develop from a dead stop, traveling one-third of a mile and crossing several railroad tracks. Testimony in the case said the truck could have reached a maximum speed of 32 miles per hour, Krinsky said.

But the jury foreman went home one evening during the deliberations, cranked up his pickup truck, drove to the scene and discovered he could speed up to 65 miles per hour over the same stretch of road, Krinsky said.

Three jurors who voted in favor of Krinsky’s client told his co-counsel about the experiment during a casual hallway conversation after the verdict was returned. “I don’t think the guy was intentionally trying to do something wrong,” Krinsky said. “He really wanted to know. He was just terribly misguided.”

Lawyers insist that they treat jurors with courtesy in post-trial questioning. “We all need to be careful not to put the jurors under attack, because they are the saving grace of our system no matter what,” said Steven Feldman, a criminal defense attorney.

Nonetheless, some jurors in both the Hedgecock and Kreutzer cases have complained about the performance of defense investigators, citing harassment and rudeness. San Diego prosecutors have criticized defense teams’ zeal in both instances.

“I personally think it’s inappropriate to visit jurors in homes, to conduct post hoc, after-the-fact background investigations, to do all the things we’ve seen recently being done,” said Deputy Dist. Atty. Peter Lehman.

The desire to protect jurors from harassment has prompted some jurisdictions, including federal courts in Chicago and in the South, to allow post-trial questioning only with an explicit court order--or to prohibit it altogether.

“There is obviously a danger that if a juror is not immune or protected from investigations that it does tarnish the process,” said Jerold Solovy, a Chicago defense attorney who is chairman of the trial practices committee of the American Bar Assn.

“That goes both ways,” Solovy noted. “If the defense can do it, the prosecution can do it.”

In fact, Hedgecock’s attorneys have complained about the attention prosecutors drew to juror Bohensky’s 12-year-old conviction on a drug charge. Bohensky also has faced the embarrassment of a female bailiff’s claim in written testimony that he made sexually suggestive comments to her while the jury was sequestered.

Underlying the concerns about post-trial contact with jurors is worry that citizens will shy away from jury service if they expect mistreatment. “If we harass jurors post verdict, a lot of jurors won’t serve,” Lehman said.

The rancorous debate over the Hedgecock verdict may cause prospective jurors to question the advisability of serving, said William Pierce, executive officer and jury commissioner of the San Diego Superior Court.

Other court officials, however, say such doubts have yet to be voiced during juror orientation sessions. “To me, it’s pretty encouraging,” said Geraldine Stevens, coordinator of jury services. “People in San Diego must be pretty confident in their court system.”

San Diego lawyers, meanwhile, are more alert than ever to the possibility that jurors will stray from their duty.

“Lawyers who’ve been reading about the Hedgecock case, because of the wide dissemination and intense coverage it’s getting, probably are learning a little bit about the law,” criminal defense attorney Robert Baxley said.

Feldman said the recent allegations of jury misconduct will make him more careful to assure, in questioning prospective jurors before they are seated in a case, that they “understand they can’t look at dictionaries, conduct experiments, talk with the court personnel, and things of that sort.”

Krinsky takes the strongest stand. “When a case is lost, it almost approaches malpractice when an attorney does not at least think of the possibility of something going wrong in that jury room that wasn’t supposed to,” he said.

But no amount of questioning, either pretrial or after a verdict is reached, will weed out citizens with the urge to do their duty as jurors just a little bit better than the next guy, Krinsky said.

“Most of these jurors want to do what is right,” he said. “But in their zealousness to do right, sometimes they’re frustrated by this system of law we have that doesn’t allow them to consider anything other than what was presented in the courtroom.”