High Court to Hear Case of Hedgecock : Justice: The ex-mayor of San Diego says he’s relieved that the end of the legal ordeal is at last in sight. But is it?

When then-San Diego Mayor Roger Hedgecock’s felony trial on campaign-law violations began, Ronald Reagan had just been reelected, Dan Quayle was an obscure U.S. senator from Indiana, the Padres were National League champions and no one had ever heard of Bart Simpson or Roseanne.

Now, more than 4 1/2 years after Hedgecock’s 13-count conspiracy and perjury conviction, the California Supreme Court this week will hear an appeal in the case that the former mayor has often described as “the country’s longest-running political soap opera.”

At a scheduled one-hour session Tuesday in Los Angeles, defense attorney Charles Sevilla will ask the high court to overturn Hedgecock’s conviction, while prosecutor Robert Foster will encourage the justices to uphold the guilty verdict and, in the process, reverse an appellate court ruling that could lengthen the case still further.

Facing a one-year jail term if he loses his appeal, Hedgecock says that he is simply pleased that the long-delayed hearing finally will occur, and that he is prepared for any eventuality. The high court agreed to hear the case in August, 1988, but a backlog of other appeals postponed the hearing for nearly two years.

“The overwhelming emotion I have is one of relief that the end is finally in sight,” said Hedgecock, now a radio talk-show host. “After having this hanging over my head for years, I’ll just be glad to have it resolved, one way or the other. If anyone had told me five years ago this would still be going on today, I’d have told him he was crazy.”

Under the court’s guidelines, the justices are expected to decide on Hedgecock’s appeal within three months of Tuesday’s oral arguments. However, both sides concede that this summer’s decision, rather that moving the case closer to a resolution, could just as easily add another inconclusive chapter to the already voluminous story.

“It could be all over with us winning, all over with them winning, or somewhere in between,” said defense attorney Sevilla. “The permutations are incalculable.”

In addition, because of another change in the court’s operating procedures designed to expedite its rulings, the justices may have already voted on the case and drafted their opinions.

“What we may be doing Tuesday is trying to change some minds,” Foster conceded.

As with other appeals, Tuesday’s hearing will turn on relatively narrow points of law, a stark contrast to the highly politicized atmosphere and myriad factual disputes that dominated Hedgecock’s two 1985 trials.

The focal point of Tuesday’s arguments will be an April, 1988, ruling by the 4th District Court of Appeal ordering a lower court to hold a hearing on Hedgecock’s claim that his conviction should be reversed because of jury-tampering allegations.

If the Supreme Court were to agree with prosecutors to uphold Hedgecock’s conviction and forgo the hearing on jury-tampering, Hedgecock could face the prospect of beginning his jail sentence as early as this summer.

But, if the court overturns Hedgecock’s conviction, San Diego County Dist. Atty. Edwin Miller Jr. would have to decide whether to drop the case or try it a third time, setting in motion another cycle of trials and appeals that could last for years. Hedgecock’s first trial ended in a mistrial in February, 1985, with the jury deadlocked 11 to 1 in favor of conviction.

The third major option available to the Supreme Court--upholding the appellate court’s decision--would indefinitely postpone the case’s conclusion until the jury-tampering hearing ends. The result of that hearing, however, also could be appealed--and, given the history of the case, almost certainly would be.

“The one thing I’m sure of is we’ll all be together again in another court somewhere down the road,” Sevilla said, chuckling.

The jury-tampering allegations surfaced only days after Hedgecock was convicted of conspiring with former J. David & Co. principals J. David (Jerry) Dominelli and Nancy Hoover to funnel illegal donations to his 1983 mayoral campaign through a political consulting firm owned by his close friend Tom Shepard. The perjury counts charged that he purposely falsified financial disclosure statements to conceal the aid that he had received from the now-defunct La Jolla investment firm.

In sworn affidavits, two jurors alleged that court bailiff Al Burroughs Jr. improperly discussed the case and the jurors’ progress in their deliberations while they were sequestered at a Mission Valley hotel. According to the two jurors--whose claims were contradicted by statements from the 10 other jurors--Burroughs allegedly helped jurors define the crucial legal term reasonable doubt , pressured them to reach a verdict expeditiously by reminding them of the cost of the hotel where they were staying, and provided jurors, including one minor, with alcoholic beverages after their daily deliberations.

But, in denying Hedgecock a new trial in December, 1985, then-Superior Court Judge William L. Todd Jr. rejected the defense’s contention that the bailiff’s actions affected the jury’s verdict. Even if some of the bailiff’s alleged improprieties occurred, Todd said, “the weight of evidence against (Hedgecock) . . . is so great that no prejudice could have resulted.”

The 4th District appellate court, however, faulted Todd for the process by which he arrived at that decision. Todd--who, ironically, since has been elevated to the 4th District panel--refused defense requests to permit testimony by the jurors or the bailiffs, deciding the issue solely on the basis of sworn statements filed by all parties and the competing attorneys’ arguments.

In its 139-page ruling, the appeals court stated that the failure to conduct a full hearing on the jury-tampering charges precluded “a fair and complete opportunity” to determine whether the jury’s verdict was tainted.

Saying that the sworn affidavits provide a “less than enlightening . . . picture,” the justices added that “live testimony by jurors in open court may sometimes be necessary to accurately establish the underlying facts.”

In briefs filed in the case, Hedgecock’s attorney argues that the passage of time would make such a hearing problematical, because jurors’ faded memories would make it difficult to reconstruct the key details and nuances relating to the 4 1/2-year-old tampering charges. Because any hearing on the charges would therefore be flawed, Hedgecock argues, any misconduct on the part of the bailiff is sufficient reason for overturning his conviction.

“It’s not our fault that we didn’t get the hearing to which we were entitled at a time when these events still were fresh in the jurors’ and other witnesses’ minds,” Sevilla said. “If the court finds that we were improperly deprived of that hearing, then the only reasonable remedy nearly five years later is to throw out the conviction and start over.”

Dismissing Hedgecock’s argument as one that “borders on the absurd,” Foster, a supervising deputy state attorney general, has characterized the former mayor’s appeal as “the desperate act of a convicted perjurer grasping at straws.”

The appeals court, Foster emphasizes, rejected a wide array of legal arguments, ranging from insufficient evidence to claims of legal errors by Todd and prosecutors, offered by Hedgecock’s attorneys as reasons that he deserves a new trial. As a result of having to stake his hopes primarily on the jury-tampering charges, Hedgecock has “stretched, exaggerated and twisted them beyond the point of recognition,” Foster said.

“Our position is that what happened with the jury was regrettable but does not rise to the level of misconduct necessary for a reversal,” he said.

Noting that trials and hearings often occur years after the events involved, Foster also calls the contention about the passage of time “a red herring, an argument made of whole cloth” that he speculates stems from a “hidden agenda.”

“If the argument is that the mere passage of time eliminates the jurors’ ability to remember and so, therefore, you can’t hold hearings on these questions, then you wouldn’t be able to retry a lot of defendants,” Foster said. “I think the hidden agenda here is weakening the death penalty and trying to find a way to help all those folks on Death Row. They’d love to see a rule like that.”

Sevilla, one of the attorneys handling the appeal of convicted San Diego murderer Robert Alton Harris, who this spring came within days of becoming the first Californian to be executed in 23 years, disputes that argument. There are “ample precedents” in both state and federal law, he says, in which courts held that the lapse of time, by undermining the prospect of a fair court hearing, merited a new trial or the reversal of a conviction.

Beyond the jury-tampering allegations, the Supreme Court has asked the attorneys to address a second major, though admittedly more legally arcane, point in their arguments Tuesday: the so-called “materiality question” related to the perjury counts on which Hedgecock was convicted.

The essential issue is whether certain omissions on Hedgecock’s personal and campaign financial disclosure statements were sufficient--or, in legal jargon, “material” enough--to warrant his conviction of perjury. In other words, is any error on a form signed under penalty of perjury adequate grounds for a conviction, or could some errors be so insignificant as to be legally negligible?

In particular, the high court asked the attorneys to debate whether the “materiality” issue is a legal question for a judge to decide or a factual question for the jury.

Hedgecock’s position is that the jury should have weighed the significance of the mistakes on his financial statements--some of which he disputes were mistakes, while describing others as inadvertent errors corrected by later amendments. However, Judge Todd preempted the jury’s duty, Sevilla argues, by “deciding that everything was material.”

“That’s the jury’s call, not his,” Sevilla said. “What it comes down to is, who has the power to decide whether someone is guilty--a judge or a jury?”

Foster, however, responds simply by arguing that Todd’s handling of the matter was in accordance with U.S. Supreme Court rulings.

“If it’s good enough for the Supreme Court, it’s good enough for me,” Foster said.

The change in Supreme Court procedures aimed at speeding decisions provides an intriguing backdrop to Tuesday’s hearing. Facing a crush of pending appeals, the justices, in order to be able to issue their rulings within 90 days of oral arguments, now usually vote on cases and draft their opinions before even hearing the oral arguments.

If that has happened in the Hedgecock case, it puts either Foster or Sevilla essentially in the position of having to change some justices’ minds--a situation that paradoxically both heightens and, perhaps, lessens the import of the arguments that each will make Tuesday.

Hedgecock, meanwhile, says the tortuous path that his own case took in reaching the state Supreme Court provides insight into the acerbic comments about the legal system that are a staple of his radio commentary.

“Some people might wonder why I’m always talking about this subject,” Hedgecock said. “Well, one of the reasons is because I’m one of the victims of the system slowing down to a halt. It’s been a very, very frustrating experience.”

When it finally comes, however, the court’s decision could either reinforce that feeling or prompt Hedgecock to reevaluate his sentiments about the pace of justice.