Jury Tampering Cited as Hedgecock Appeals Felony Convictions

Citing two dozen reasons why former San Diego Mayor Roger Hedgecock allegedly did not receive a fair trial on campaign-law violation charges, Hedgecock’s attorneys filed appeal briefs Monday requesting that his 13-count felony conviction be overturned.

In two briefs totaling 323 pages, attorney Charles Sevilla argued that the 4th District Court of Appeal should reverse Hedgecock’s October, 1985, conviction for reasons that range from jury tampering charges involving a court bailiff to alleged legal errors by a Superior Court judge and prosecutors.

The state attorney general’s office, which will handle the appeal even though the San Diego County district attorney’s office prosecuted the case, has 90 days to respond to Sevilla’s brief, according to Steve Kelly, chief deputy clerk of the appeal court. Hedgecock’s attorneys then will have a month to respond to the prosecution’s filings.

A three-judge panel is expected to hear oral arguments in the case this summer, and a ruling is unlikely to come until late this year.

Hedgecock, who was sentenced to one year in local custody and fined $1,000 for receiving illegal contributions to his 1983 mayoral campaign from former J. David & Co. principals J. David (Jerry) Dominelli and Nancy Hoover, is free pending the outcome of his appeal. If the 4th District judges rule against Hedgecock, the former mayor, now a San Diego radio talk-show host, could appeal to the state Supreme Court.

In the briefs filed Monday, Sevilla reiterated and expanded upon arguments that Hedgecock’s attorneys had raised without success before, during and after his two felony trials. The first trial ended in a mistrial in February, 1985. A retrial later that year resulted in Hedgecock’s conviction on 13 felony conspiracy and perjury charges stemming from the illegal donations to his 1983 race.

One of the major arguments offered by Sevilla as justification for a new trial involves alleged misconduct by jurors and bailiff Al Burroughs Jr.

Shortly after Hedgecock’s conviction, two jurors charged that Burroughs improperly discussed the case and the progress of their deliberations with the jurors while they were sequestered. In sworn affidavits, the two jurors also alleged that Burroughs had helped some jurors to define the crucial legal term of “reasonable doubt” and pressured the jury to reach a verdict expeditiously. The 10 other jurors, however, denied that the bailiff had behaved improperly.

In December, 1985, then-Superior Court Judge William L. Todd Jr. rejected Hedgecock’s attorneys’ contention that Burroughs’ alleged misconduct tainted the jury’s verdict. However, Sevilla argued Monday that Todd erred in that ruling, saying that the jury was “goaded into producing a guilty verdict by . . . an unmistakable case of gross jury tampering” by the bailiff.

“Given the obvious stress in a sequestration context, jurors are liable to be most influenced by comments of court personnel,” Sevilla wrote in the brief. “This is particularly true of a marshal-bailiff who carries the imprimatur of both state law enforcement and the court.”

Sevilla further charged that Burroughs’ “outrageous and prejudicial” conduct stemmed from the bailiff’s animosity toward Hedgecock. Burroughs purportedly made derogatory comments about Hedgecock during the trials, Sevilla wrote, including one instance in which the bailiff allegedly remarked to a lawyer in another case that Hedgecock was “guilty as hell.”

In addition, Sevilla argued that Todd erred in not disqualifying himself from ruling on the merits of the allegations against Burroughs, contending that the judge could not be impartial in a matter involving his own bailiff.

“It is human nature that the judge would want to protect his bailiff and friend,” Sevilla wrote.

Sevilla also repeated allegations, first raised in an unsuccessful new-trial motion last summer, that some jurors’ “deliberative ability” was impaired by their “excessive drinking” of alcoholic beverages provided by Burroughs during deliberations.

“It is one thing for a juror to surreptitiously bring in liquor during the sequestration process, but far more terrible when done by the bailiff who is sworn to keep the jurors in a safe place and in a condition to permit sober reflection and deliberation,” Sevilla wrote.

Superior Court Judge David Gill rejected the defense’s request for a new trial because of the drinking allegations last July. Gill, though, did not rule on the merits of the issue, but rather simply stated that the proper time to raise it was during Hedgecock’s appeal before the 4th District Court of Appeal, not in a new-trial motion.

Monday’s briefs also include other previously offered defense arguments that:

- Dist. Atty. Edwin Miller’s office should have been removed from the case because of Miller’s alleged “long-standing bias and retaliatory action” against Hedgecock. During his trials, Hedgecock, noting that he and Miller were longtime political foes, frequently argued that the case against him was politically motivated.

- Errors on Hedgecock’s personal and campaign disclosure reports--the subject of the perjury charges against him--were inadvertent ones later corrected by amendments and not, as prosecutors charged, intentional attempts to conceal illegal donations. Hedgecock’s “lack of criminal intent” is illustrated by his “good-faith” reliance upon campaign aides, including experts on campaign law, in filling out the reports, Sevilla argued.

- Hedgecock should have been charged only with misdemeanor counts, not felonies, because of the inaccuracies on his disclosure forms. While violations of the Political Reform Act, which requires candidates to file the financial disclosure reports, are misdemeanors, “prosecutorial creativity” resulted in Hedgecock being charged with the more serious felony counts that ultimately resulted in his forced resignation in December, 1985, in the wake of his conviction, Sevilla charged.

- Prosecutors and Judge Todd misinterpreted state election laws by allowing overhead expenses at Tom Shepard & Associates, the now-defunct political consulting agency that ran Hedgecock’s 1983 race, to be characterized as illegal donations to Hedgecock’s campaign.

Shepard’s agency, in prosecutors’ eyes, was little more than a conduit through which tens of thousands of dollars in illegal donations from Dominelli and Hoover were funneled to Hedgecock’s campaign. Although Hedgecock’s campaign paid Shepard’s agency a $20,000-plus fee, prosecutors emphasized that the payment did not cover Shepard’s overhead expenses attributable to Hedgecock’s mayoral campaign. Those unreimbursed overhead expenses, prosecutors say, were, for all practical purposes, campaign contributions that Hedgecock should have reported.

Sevilla, though, pointed out that state election laws state that a consulting agency’s routine overhead expenses need not be reported, either by candidates or by the agencies themselves. The defense attorney also repeated Hedgecock’s oft-stated contention that Dominelli’s and Hoover’s underwriting of Shepard’s consulting agency was a routine business investment, not a disguised campaign contribution.