Justices’ Questions Enliven Hedgecock Appeal Hearing; Decision Due in March

Prosecutors urged an appellate court on Friday to uphold former San Diego Mayor Roger Hedgecock’s 13-count felony conviction, while Hedgecock’s attorney told the justices that a court bailiff’s “outrageous comments and behavior” deprived Hedgecock of a fair trial.

Two years to the week after Hedgecock was forced from office by the felony conspiracy and perjury conviction, attorneys on both sides in the case appeared before a three-judge panel of the 4th District Court of Appeal to contest Hedgecock’s bid to overturn the verdict.

The court is expected to issue its ruling by mid-March, but whichever side loses likely will appeal to the state Supreme Court, where a decision to hear the case could again postpone its resolution. Meanwhile, Hedgecock, who faces a year in local custody and now is a radio talk-show host, is free pending the outcome of his appeal.

With Friday’s 80-minute hearing enlivened by pointed questions from the justices for attorneys on both sides and by occasional moments of humor, most of the legal debate focused on whether alleged jury tampering by a court bailiff tainted Hedgecock’s verdict, entitling the former mayor to a new trial. Hedgecock did not attend Friday’s hearing.

In hundreds of pages of briefs previously filed with the appeal court, Hedgecock attorney Charles Sevilla offered two dozen legal arguments why Hedgecock deserves a new trial, ranging from insufficient evidence to legal errors by a Superior Court judge and prosecutors.

After the hearing, Sevilla explained that he decided to focus on the jury-tampering allegations both because he views it as perhaps the defense’s strongest argument for a new trial and because “it lent itself to oral argument.”

“From my client’s perspective, if we win (on the jury-tampering allegations), he gets a new trial, period,” Sevilla said. “Plus, some of those other points are just too complex to present orally. You need the written backup to really understand them.”

Intrigued by Questions

Although Deputy Atty. Gen. Robert Foster cautioned against “trying to read the tea leaves,” both he and Sevilla acknowledged after the hearing that they were intrigued by the justices’ numerous questions on a potential middle-ground ruling that would be less conclusive than either upholding or overturning the verdict.

In queries to both attorneys, the justices repeatedly pondered the advisability of ordering a complete hearing on the jury-tampering allegations, in contrast to the limited review held by a Superior Court judge two years ago. Those questions appeared to at least raise the possibility of a ruling that would completely satisfy neither side, and that could initiate a new round of legal jousting.

“They certainly did ask a lot about that,” said Foster, who is handling the appeal even though the San Diego County District Attorney’s office prosecuted the case. “But what it means, if anything, is difficult to say.”

The jury-tampering allegations stem from alleged misconduct by bailiff Al Burroughs Jr. during the October, 1985, deliberations of Hedgecock’s Superior Court jury.

Shortly after Hedgecock’s conviction on campaign-law violations related to his 1983 mayoral race, two jurors charged that Burroughs improperly discussed the case and the progress of their deliberations with the jurors while they were sequestered.

Pressure on Jury Claimed

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, in part because of the county’s expense to house them in a Mission Valley hotel during their deliberations. In addition, Burroughs also provided the jurors, including one minor, with alcoholic beverages, and occasionally drank with them in the evenings after their deliberations.

The 10 other jurors, however, signed affidavits denying that the bailiff had behaved improperly. 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 helped sway the jury toward its guilty verdict.

Todd, who since has been elevated to the appeal court, refused to allow the jurors or the bailiffs to be questioned in court, relying solely on their affidavits to establish the facts--a procedure that Sevilla argues provided an incomplete picture of what actually occurred during the jury’s deliberations.

Burroughs’ actions, Sevilla argued Friday, “coerced a verdict in this case,” producing a “rush to judgment . . . that strikes to the heart of the judicial process.”

“This jury was basically deadlocked . . . and it was the pressure of this bailiff which turned the tide and brought in the verdict,” Sevilla told the justices.

Foster countered by noting that some of Burroughs’ alleged misdeeds had occurred early in the jury’s lengthy deliberations.

“If there was this terrible pressure put on, why would they deliberate another 80 hours before reaching a verdict?” Foster asked rhetorically.

Perhaps because, Justice Donald R. Work suggested, smiling wryly, they were waiting “until all the booze was gone”--a remark that provoked loud laughter in the courtroom.

‘Green Hat Story’

Work also used humor to make his point during debate over another key point: whether Burroughs’ recounting of a story, about how two jurors in another trial had come to blows as a result of a dispute over the color of a suspect’s hat, influenced how some of Hedgecock’s jurors defined “reasonable doubt” in their own deliberations.

Sevilla argued that the so-called “green hat story” was related to that crucial legal definition and pressured some of Hedgecock’s jurors to side with the majority that favored conviction.

Foster, though, characterized the incident as simply a humorous anecdote unrelated to reasonable doubt and that had no impact on the jury’s deliberations.

But amid Sevilla’s frequent reminders that it was Burroughs’ responsibility to protect the jurors from improper contact with others during their deliberations--and not to interfere himself--Work questioned whether the bailiff’s remark could be dismissed as lightly as prosecutors suggest.

“Was that a joke?” Work asked Foster.

“When you hear of two jurors fighting over the color of a hat, I think that brings about a chuckle,” Foster responded.

“Even Henny Youngman . . . wouldn’t say that,” Work said.

“Take my bailiff. Please!” Foster joked back.

That exchange concluded with Work disputing Foster’s assertion that the “green hat story” was legally insignificant.

“It’s pretty obvious that some of the jurors believed one thing (and) some of the jurors believed another,” Work said. “I think that’s the problem.”

Minor Drinking Beer?

Work, acting Presiding Justice Howard B. Wiener and Justice Edward T. Butler also questioned Foster closely about Burroughs’ purported provision of beer to a minor who served on Hedgecock’s jury during deliberations.

Describing that incident, too, as legally trivial, Foster said: “To use that as the basis for overturning the felony conviction of the mayor of San Diego strikes me as elevating form far above substance.”

“The more serious the case, the more scrupulous a person ought to be that the law was fulfilled,” Work responded. “There seems no question that some of the jurors were drinking to excess just a few hours before (the verdict was returned).”

That drinking, Sevilla argued, impaired some jurors’ “deliberative abilities” and is another reason why Hedgecock’s conviction should be reversed.

Sevilla, however, expressed some reservations when the justices raised the possibility of a full court hearing--presumably before a Superior Court judge--to more fully explore the jury-tampering allegations. Ironically, Hedgecock’s attorneys have long argued that they could better demonstrate the seriousness of Burroughs’ actions if they were permitted to question the jurors, bailiffs and, perhaps, Judge Todd himself in court.

But Sevilla lamented Friday that the two-year interval since the case concluded would hamper any investigation today, saying that jurors’ memories of key details likely have faded.

“Two years after the fact is a bit late to start calling jurors to tell us what happened,” Sevilla said. Because of the difficulty in reconstructing the two-year-old events, Sevilla argued, if the justices find merit in the defense’s complaints about the jury-tampering allegations, a new trial--not merely a new hearing on that facet of the case--should be ordered.

Sevilla joked that Hedgecock, whose first trial ended in a mistrial with the jury deadlocked 11-1 in favor of conviction, would have to be “dragged . . . kicking and screaming” into court for a third trial.

Still, Sevilla conceded, that possibility, however unpleasant it may be for the former mayor, “is better than the alternative.”