Mayor’s Bid to Remove Todd Fails : High Court’s Refusal Clears Way for New-Trial Hearing

Setting back Mayor Roger Hedgecock’s bid to reverse his felony conviction, the California Supreme Court on Thursday refused to hear the mayor’s request that Superior Court Judge William L. Todd Jr. be removed from the case.

Without comment, the Supreme Court unanimously decided that it would not consider the mayor’s motion to disqualify Todd from ruling on whether Hedgecock’s 13-count conviction should be overturned because of jury-tampering allegations in his second trial.

The high court’s ruling clears the way for Todd, who presided over both of Hedgecock’s trials--the first of which ended in February in a hung jury--to schedule a hearing on the mayor’s new-trial motion, probably next week. If Todd denies the new-trial motion, a sentencing hearing would be scheduled, at which time Hedgecock, who faces eight years’ imprisonment, would be forced from office.

Hedgecock’s attorney, Charles Sevilla, perhaps searching for a silver lining in the legal cloud, stressed that Thursday’s ruling “had nothing to do with the merits” of the mayor’s request that his conviction be reversed because of allegations that a court bailiff tampered with his jury during its deliberations. Rather, he said, the high court simply declined to grant a hearing on Hedgecock’s motion to disqualify Todd from presiding over the new-trial hearing.

“This is a disappointment . . . but the mayor’s had enough setbacks that this isn’t going to be that disturbing,” Sevilla said. “This is not a binding decision in terms of the legal issues we’ve raised. We still think we have very strong grounds for a new trial.”

Sevilla added that he does not expect the defense to file further appeals aimed at replacing Todd before the new-trial hearing.

“Theoretically, you can always go to the U.S. Supreme Court, but that’s more of a hypothetical than realistic possibility at this point,” Sevilla said. “I think it’s a safe assumption . . . that the next step is going to be the hearing before Judge Todd.”

If Hedgecock should be forced from office, he would not be reinstated in the post that he has held since May, 1983, even if his conviction is overturned on appeal.

Deputy Dist. Atty. Charles Wickersham, who prosecuted the case, expressed pleasure with the Supreme Court’s decision. However, wary of the possibility of yet another strange turn in a case that the mayor himself characterizes as “the country’s longest-running political soap opera,” Wickersham emphasized that “one more round”--the new-trial hearing--remains before the case is concluded.

“I’m very happy and . . . feel more confident now than before,” Wickersham said. “The fear of the unknown is the only caveat.”

Hedgecock declined to comment on the high court’s decision. However, in an interview in his City Hall office shortly before the ruling, Hedgecock, looking tired and somewhat drawn, conceded that he was “getting a little impatient” with the monthlong wait for the high court’s decision.

“I have to admit that I don’t enjoy the waiting and the uncertainty any more than anyone else, and probably a lot less than most people,” Hedgecock said. “I feel very good about our chances of reversing the verdict and getting a new trial. My attitude is . . . ‘Let’s get on with it!’ ”

Todd’s clerk said late Thursday that the judge had not decided when to schedule the new-trial hearing. However, both sides’ attorneys said that because of the importance of the case--and, more specifically, the awkwardness of having a felony conviction hanging over the mayor’s head--they expect the hearing to be held next week.

The hearing had originally been scheduled for Nov. 4. However, three days earlier, Chief Justice Rose Elizabeth Bird--acting only hours after the 4th District Court of Appeal had rejected Hedgecock’s appeal--ordered Todd to postpone the hearing to give the justices more time to consider Hedgecock’s request that a judge other than Todd rule on the defense motion for a new trial.

Thursday’s ruling vacating that stay marked the latest twist in the roller-coaster path that Hedgecock’s case has followed in the nearly two months since he was convicted on conspiracy and perjury charges stemming from allegations of illegal contributions to his 1983 campaign.

Two days after his Oct. 9 conviction, Hedgecock, conceding that he could “no longer offer leadership,” announced plans to resign. However, two days before Hedgecock’s planned departure from City Hall, one juror and the attorney for another signed sworn statements alleging that a court bailiff had tampered with the jury during its deliberations. That disclosure led the mayor to decide to remain in office pending resolution of the charges and his new-trial motion.

Since then, the mayor’s attorneys have waged a vigorous legal battle to remove Todd from the case, arguing that his continuation would create “the appearance . . . of possible impropriety” because the accused bailiff, Al Burroughs Jr., works under Todd’s supervision. Todd, however, has adamantly refused to remove himself on several occasions, setting the stage for the legal showdown before the state’s highest court.

Describing Todd as “both the employer . . . and friend” of Burroughs, Sevilla argued in legal briefs that allowing Todd to preside over the new-trial hearing would be comparable “to having (Los Angeles Dodger manager) Tommy Lasorda umpire all the Dodger-Padre games next year.” In addition, the defense contended that because the judge had been in frequent contact with the bailiff during the jury’s 6 1/2-day deliberations, Todd should be a witness, not a judge, at the hearing.

In response, prosecutors urged the high court not to review Hedgecock’s appeal for a new trial, characterizing the defense’s effort to remove Todd as “a witch’s brew concocted in a caldron of untruths, half-truths and misrepresentations.”

The Supreme Court’s intervention in the case, Deputy Dist. Atty. Paul Morley argued, “will only result in a lengthy delay of proceedings properly before the Superior Court.” Attorneys on both sides had said earlier that if the high court did decide to hear Hedgecock’s appeal, a final ruling probably would not be handed down for months.

Sevilla, in fact, speculated Thursday that the justices’ recognition that their review of Hedgecock’s appeal would produce a long delay in resolving the narrow question of which judge should hear the new-trial motion figured heavily in the high court’s decision.

“The problem they had is that they knew that if they granted a hearing, the matter would have been stayed for a minimum of six months,” Sevilla said. “I think they felt that they certainly couldn’t leave the case pending for that long.”

Wickersham, though, said that he interprets the high court’s action as reinforcing prosecutors’ contention that “there just isn’t any merit” to the defense attempts to disqualify Todd.

Noting that Todd’s disqualification would put the case into the hands of a judge unfamiliar with the complex trial, Morley had contended in his legal brief that such a shift would “cause disrespect for the judicial system” and “work great mischief to a fair consideration” of the new-trial motion.

“Where a judge who is completely unfamiliar with the evidence and relative strength of the evidence is substituted, it will become impractical, if not impossible, to resolve conflicting inferences to be drawn from evidence,” the district attorney’s brief said. Hedgecock’s attorneys, though, have argued that a judge does not need to be familiar with the specifics of the case to determine whether jury tampering occurred during deliberations.

The Supreme Court’s decision means that, barring any further bizarre 11th-hour developments, Hedgecock’s legal and political fate now hinges on whether Todd decides that the mayor’s verdict was tainted by the jury-tampering allegations included in sworn statements signed by jurors Stanley J. Bohensky and Kathy Saxton-Calderwood.

According to the two jurors, Burroughs, in violation of court rules, talked with jurors on numerous occasions about the case and the progress in their deliberations. However, both Burroughs and bailiff Holly Murlin, who also helped supervise the jury while it was sequestered, have signed sworn affidavits of their own denying the allegations.

In addition, sworn statements from the 10 other jurors defended the bailiffs’ actions and have been cited by Dist. Atty. Edwin Miller as proof that “there was nothing even remotely approaching jury tampering.”

Inherent in their attempt to remove Todd from the case is the abiding sense that Hedgecock’s attorneys feel that they cannot get a truly impartial hearing on the new-trial motion from the judge--partly because the allegations involve his bailiff, but also because Todd’s key procedural rulings to date have generally favored the prosecution.

Moreover, Hedgecock’s attorneys believe that Todd, through his decision to remain on the case, has already tipped his hand as to his ultimate ruling on the new-trial motion. In a four-page order issued in October, Todd dismissed most of the defense’s jury-tampering evidence as “conclusionary . . . and inadmissible hearsay.”

Those comments from Todd, defense attorney Oscar Goodman said at the time, “don’t leave much doubt in my mind” about the judge’s impression of the defense’s new-trial motion. Let’s say (Todd’s remarks) aren’t something that encourages me,” Goodman said.

On Thursday, Goodman, Hedgecock’s lead attorney, was en route to his Las Vegas home from Florida and could not be reached for comment.

However, Hedgecock--speaking Thursday before he knew that his case would remain in Todd’s hands--professed confidence that the jury-tampering evidence “is so convincing and overwhelming” that he will be awarded a new trial, regardless of whether “Todd or someone else” hears the case.

“Even if Judge Todd still is sitting there when this (new-trial) motion is finally heard, there’s so much evidence there that there’s just no way the motion can be denied,” Hedgecock said. “I’m confident that any judge, once he hears all of the evidence, will agree that this verdict was attained through pressure and tampering. All this waiting isn’t helping my peace of mind, but I have faith in how this thing’s eventually going to turn out.”