Hedgecock Defense Tactics in Seeking New Trial Called ‘Trifling’

Saying that former San Diego Mayor Roger Hedgecock’s attorneys have “bent and twisted” legal arguments, the state attorney general’s office urged an appellate court Friday to uphold Hedgecock’s 13-count felony conviction.

In a 294-page brief, Supervising Deputy Atty. Gen. Robert Foster argued that the “evidence unmistakably shows” Hedgecock’s guilt on charges stemming from illegal contributions to his 1983 mayoral race, and asked the 4th District Court of Appeal to reject Hedgecock’s request for a new trial.

Foster, who worked on the brief in the complex case for five months, meticulously sought to refute the two dozen reasons cited by Hedgecock’s attorneys for a new trial. In January, defense attorney Charles Sevilla filed appeal briefs contending that Hedgecock’s October, 1985, conviction should be overturned for reasons that range from jury-tampering charges to alleged legal errors by a Superior Court judge and prosecutors.

Using descriptions such as “trifling,” “nit-picking” and “red herring,” Foster dismissed those defense arguments as legally insignificant, and argued that none interfered with Hedgecock’s right to a fair trial.

Legal Timetable

Although it has taken 20 months to reach this preliminary stage of the appeal process, Friday’s filing by the attorney general’s office--which will handle the appeal even though the San Diego County district attorney’s office prosecuted the case--will begin to accelerate the legal timetable in Hedgecock’s case.

Hedgecock’s attorneys are expected to respond to the prosecution’s filing this summer, after which a three-judge panel will schedule oral arguments in the case, probably late this year or early in 1988. If the 4th District judges rule against Hedgecock, the former mayor, now a radio talk-show host and land-use consultant, could appeal to the state Supreme Court.

“While the public probably thinks this is taking a long time, this case is actually on a very fast track for a case of this complexity,” Foster said in an interview.

Hedgecock, who was sentenced to one year in local custody and fined $1,000 for receiving illegal campaign donations from former J. David & Co. principals J. David (Jerry) Dominelli and Nancy Hoover, is free pending the outcome of his appeal.

In the brief filed Friday, Foster characterized the arguments offered by Sevilla as justification for a new trial as a combination of misstatements of fact, legal misinterpretations and wishful--though legally invalid--attempts to retry the case’s basic evidence. Many of the defense’s objections, Foster wrote, should not even be considered by the court because they were not raised in a “timely fashion” during the trial, while the remainder are “without merit.”

A major portion of Foster’s brief addresses one of the defense’s chief hopes for a new trial--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, jurors Kathy Saxton-Calderwood and Joe Bohensky 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, signed affidavits denying that the bailiff had behaved improperly.

Argument Rejected

In denying Hedgecock a new trial in December, 1985, then-Superior Court Judge William L. Todd Jr. rejected the defense’s contention that Burroughs’ alleged misconduct tainted the jury’s verdict.

In a sweeping assertion aimed at cutting the heart out of Hedgecock’s appeal, Foster argues that the jury-tampering allegations are now moot, simply because of the manner in which Todd rejected them.

The basis for that contention, Foster notes, is a California Supreme Court decision that states: “Where an issue is tried on affidavits . . . and where there is substantial conflict in the facts stated, a determination of the controverted facts by the trial court will not be disturbed.” That decision, Foster argues, means that Todd’s ruling--based on the conflicting evidence in the jurors’ affidavits--is binding on the appeal court.

Foster also attacked the specifics contained in the allegations against Burroughs and vigorously defended his behavior.

“Bailiff Al Burroughs was painstakingly careful to avoid any discussion or mention of the legal and factual matters before the jury,” Foster wrote.

Foster found no greater substance to any of the defense’s other legal arguments. However, he reserved some of his most caustic commentary for one of Hedgecock’s key legal contentions--that he displayed “good faith” in his handling of his campaign and personal financial statements, and, for that reason, should have been found innocent, despite the reports’ inaccuracy.

Errors Claimed

From the outset, Hedgecock has contended that the numerous errors on his financial 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 reliance on campaign aides, including experts in campaign law, in filling out the reports, is further proof, defense lawyer Sevilla argues, of his “good-faith effort” to comply with political disclosure laws.

Foster, however, argued that Hedgecock filed the amendments only after the collapse of the J. David empire threatened to uncover the conspiracy to illegally funnel money to his campaign. Furthermore, even some of the amendments were false and therefore simply “continued the earlier perjuries,” Foster noted.

“Adoption of (Hedgecock’s) position would be a blessing to crooked politicians throughout this state,” Foster wrote. “They would have carte blanche to file false reports and . . . to correct them only when the falsity of their lies were discovered, and then be allowed to argue ‘good faith’ to a jury. Such an absurdity . . . only seems to frustrate the democratic process. . . . There is something fiercely repugnant about allowing a criminal to use further false swearings as a basis for arguing good faith.”

Rejecting other major components of Hedgecock’s appeal, Friday’s prosecution brief also argued that:

- Todd acted properly in not granting Hedgecock’s request that Dist. Atty. Edwin Miller’s office be removed from the case because of what Sevilla described as Miller’s “long-standing bias and retaliatory action” against Hedgecock. The history of the sometimes contentious relationship between Miller and Hedgecock, Foster said, “showed nothing but official action, properly exercised.”

- Hedgecock had a legal obligation to personally insure the accuracy of his campaign disclosure statements. The former mayor’s claim that his responsibility was limited to insuring only that his campaign treasurer “used all reasonable diligence” in preparing the reports, Foster argued, “would again create a loophole that would be every crooked politician’s dream.”

- Contrary to defense claims, the jurors’ “deliberative ability” was not impaired by their drinking of alcoholic beverages provided by Burroughs during deliberations.

- Prosecutors and Judge Todd accurately interpreted state election laws by allowing internal 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, and not simply overhead costs that Hedgecock contends he had no responsibility to report.

Shepard’s agency, in prosecutors’ eyes, was essentially a conduit through which tens of thousands of dollars in illegal donations from Hoover and Dominelli were funneled to Hedgecock’s 1983 campaign. Although Hedgecock’s campaign paid Shepard’s agency a $20,000-plus fee, prosecutors emphasized that the payment did not cover Shepard’s staff salaries and other overhead expenses attributable to Hedgecock’s mayoral race. Those unreimbursed overhead expenses, prosecutors argue, were, for all practical purposes, campaign contributions that Hedgecock should have reported--but did not disclose because he knew that they violated the city’s $250-per-person contribution limit and ban on corporate donations.

Sevilla has pointed out that state election laws specify that a consulting agency’s routine overhead expenses need not be reported, either by candidates or the agencies themselves.

Foster, though, contends that there was nothing routine about the overhead expenses at Tom Shepard & Associates, adding that Hedgecock’s version of events would seriously undermine the purpose of campaign disclosure laws.

Hedgecock’s “construction of this statute would violate many of its prime purposes, including the prevention of subterfuge and full disclosure of who was financially supporting what candidates,” Foster’s brief concludes.