Appellate Court Upholds Decision for Hearing on Hedgecock Retrial

Moving former San Diego Mayor Roger Hedgecock’s case one step closer to resolution, the 4th District Court of Appeal on Wednesday rejected both defense attorneys’ and prosecutors’ requests to rehear the case.

In a 14-page ruling, the appellate court reaffirmed its April decision ordering a Superior Court judge to hold a hearing on Hedgecock’s claim that his 13-count felony conviction should be overturned because of jury tampering. If the lower court judge eventually denies Hedgecock a new trial, the justices added in last month’s ruling, Hedgecock’s conviction and one-year jail sentence should stand.

Because of Wednesday’s decision, the legal action on Hedgecock’s 2 1/2-year-old appeal will move to the state Supreme Court. Within 10 days, both sides will formally ask the court to review the case, and the court’s reply would be expected within two months. If the Supreme Court decides to consider the appeal, a final ruling may not come until next year.

Wednesday’s action stemmed from legal briefs filed by Hedgecock attorney, Charles Sevilla, and prosecutor Robert Foster in which both addressed the admittedly difficult task of trying to persuade the appellate justices that they erred in their decision last month.

Sevilla argued that evidence supporting the jury-tampering allegations is sufficient to merit an outright reversal of Hedgecock’s conviction, not merely another hearing on their import. Foster, meanwhile, contended that Hedgecock is not even entitled to the lower-court hearing on the tampering charges, and asked the justices to reconsider that part of their ruling.

Not surprisingly, the justices decided Wednesday that their original ruling was correct, and turned down both sides’ requests for yet another hearing that essentially would have represented an appeal of an appeal. The justices, however, did clarify their reasoning on some of the myriad legal issues raised in the complex case.

“The bottom line is, there’s no change, a little shuffling of position here and there, and it’s on to the Supreme Court,” Sevilla said.

Much of the court’s opinion Wednesday was devoted to bolstering the justices’ legal rationale for ordering the Superior Court hearing on the jury-tampering allegations. In last month’s 139-page ruling, they stated that the failure to conduct a full evidentiary hearing on the charges at the time of Hedgecock’s October, 1985, conviction denied the then-mayor “a fair and complete opportunity” to determine whether the alleged tampering tainted the jury’s verdict.

The tampering charges stem from sworn allegations from two jurors--contradicted by statements from the 10 other jurors--that a court bailiff improperly discussed the case and its progress during their deliberations. But, in denying Hedgecock a new trial in December, 1985, then-Superior Court Judge William L. Todd Jr. rejected the defense’s contentions that the bailiff’s actions, which also included providing alcoholic beverages to jurors for consumption after their daily deliberations, affected the jury’s verdict.

The appellate court, however, faulted Todd for the process by which he arrived at that decision. Todd had refused to permit testimony by the jurors or the bailiffs, deciding the issue solely on the basis of sworn statements filed by all parties.

In Wednesday’s ruling, the justices speculated that, if California courts do not conduct a complete hearing on the tampering allegations, federal courts could later intervene and order such a review.

“Where issues of a constitutional magnitude are involved, state courts . . . should attempt to properly resolve concerns before they become a burden on the federal courts,” the justices wrote. “It is, therefore, hardly surprising that post-trial evidentiary hearings at which jurors are permitted to testify regarding allegations of jury misconduct are a common, if not routine, occurrence in virtually every state.”

Recently retired Justice Edward Butler, who dissented in the appellate’s court’s original ruling, saying he would have upheld Hedgecock’s conviction, again disagreed with his former colleagues Wednesday.

In a two-page dissent, Butler argued that Hedgecock is not entitled to a hearing into whether the jurors’ drinking of liquor impaired their judgment. Such a hearing, Butler said, would be aimed at “attacking the (jurors’) subjective mental processes,” which he described as “an off-limits area.”