State’s High Court Hears Hedgecock Case

Saying that a judge’s errors and jury tampering by a court bailiff deprived former San Diego Mayor Roger Hedgecock of a fair trial, Hedgecock’s attorney asked the California Supreme Court on Tuesday to overturn his 13-count felony conviction.

A deputy state attorney general, however, disputed those and other key defense arguments in urging the justices to uphold the former mayor’s conspiracy and perjury conviction, succinctly summarizing the prosecutors’ position by saying: “Roger Hedgecock deserves his one year in County Jail.”

With those diametrically opposed viewpoints staking out the battle lines, yet another legal chapter was written in the 5 1/2-year-old case that Hedgecock describes as “the country’s longest-running political soap opera.”

Though Tuesday’s one-hour hearing turned on relatively narrow points of law, it was enlivened by the justices’ pointed questions and occasional flashes of humor from both sides of the bench. Moreover, because both attorneys entered the courtroom knowing that the seven justices, under new guidelines designed to expedite their rulings, probably had already taken a tentative vote on the case, each sought to analyze the justices’ questions for signs of their predilections. The court’s decision is expected within three months.

Most of the justices’ queries seemed sympathetic toward Hedgecock’s position. They repeatedly pressed Robert Foster, supervising deputy state attorney general, to justify the prosecutors’ legal stance and, on occasion, simply appeared not to buy his arguments. Both attorneys, however, cautioned against reading too much into what Foster described as the “legal tea leaves,” saying that justices sometimes play the role of devil’s advocate simply to illuminate underlying legal issues.

“You can over-interpret these things,” said Foster. “There have been times when I’ve been hammered in (the hearing) and then get a favorable ruling.” Similarly, Hedgecock attorney Charles Sevilla described himself as “cautiously optimistic, but I’m not taking it to the bank.”

With the justices’ questions dictating the direction of Tuesday’s hearing, most of Sevilla’s half hour was devoted to debate over the jury-tampering allegations, while Foster’s comments focused on the manner in which Hedgecock was convicted of perjury. Hedgecock, now a local radio talk-show host, was on the air Tuesday and did not attend the hearing.

The jury-tampering allegations surfaced only days after a Superior Court jury convicted Hedgecock in October, 1985, of conspiring with former principals of the now-defunct La Jolla investment firm of J. David & Co. to funnel illegal donations to his 1983 mayoral campaign through a political consulting firm owned by a close friend. The perjury counts charged that Hedgecock purposely falsified financial disclosure statements to conceal that aid.

During Tuesday’s session, the justices questioned whether then-Superior Court Judge William L. Todd Jr. erred in instructing jurors that any omissions or errors on Hedgecock’s financial statements should be considered significant--or, in legal jargon, “material.” That determination is a crucial one in deciding whether such mistakes are serious enough to warrant a perjury conviction.

Arguing that “materiality is a question of law” to be decided by a judge, Foster said that jurors are ill-equipped to deal with such arcane legal issues and that it would take too long to educate them on the background of the state campaign laws at the heart of the case.

Sevilla, however, charged that Todd improperly “took away an element of the crime” from the jurors, thereby preempting them from weighing the significance of the mistakes on Hedgecock’s personal and campaign financial forms. While prosecutors view any intentional error on forms signed under penalty of perjury as adequate grounds for a conviction, the defense argues that some mistakes are so insignificant as to be legally negligible.

Several justices closely questioned Foster on that point. Questioning why materiality should be beyond a jury’s purview, Justice Allen Broussard observed that “juries decide every day whether something is significant.” And Justice Edward Panelli asked: “Why is (a judge) in any better position to judge that than any 12 lay people?”

“He’s trained to handle the legal questions,” Foster answered.

But if juries are allowed to weigh the legal concept of malice of forethought in making “a determination that can send a person to the gas chamber,” Justice Armand Arabian asked, why should questions about campaign finance reports be considered too complex for them to handle?

“A jury has to consider the totality of what was either stated or omitted,” Arabian said. “Was this some casual oversight? Was it significant? Was there some intent to delude. . . . Aren’t these the unique and exotic factors that are better placed in the hands of the jury . . . as opposed to slam-dunking a critical element? If you take that key element away from the deliberative process . . . aren’t you hamstringing the defendant?”

When Foster responded by arguing that it would be difficult for attorneys “to give juries the tools” for grappling with such legal questions, Arabian shot back: “If the case is so hard to prove, we should give you a break--that’s what you sound like to me.”

The jury-tampering charges, meanwhile, involve sworn allegations by two jurors--contradicted by statements from the 10 others--that a court bailiff improperly discussed the case with them during their deliberations. Among other things, the bailiff has been accused of helping jurors define the crucial legal term reasonable doubt , pressuring them to reach a verdict expeditiously by reminding them of the cost of the hotel where they were staying and providing jurors, including one minor, with alcoholic beverages after their daily deliberations. After one late-night party, one juror reportedly was hung over and vomiting on the day that the verdicts were voted on, according to defense briefs.

In denying Hedgecock a new trial, Todd refused defense requests to permit testimony by the jurors and bailiffs, deciding the issue solely on the basis of the sworn statements and the competing attorneys’ arguments. The 4th District Court of Appeal, however, faulted Todd for that procedure, saying that his 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.

In their questions to Sevilla, the justices focused on whether such a hearing--which the 4th District has ordered to be held in Superior Court--could be conducted without contradicting laws and legal precedents protecting jurors’ rights and privacy. Jurors could be questioned, Sevilla answered, about whether purportedly improper activities occurred without invading the sanctity of the “subjective mental processes” by which they arrived at their verdict.

“Yes, there is definitely a concern for the right of jurors to serve and not be harassed with subpoenas,” Sevilla said. “But there is a right that is even more fundamental, and that is the right to an uncontaminated jury trial. . . . This defendant, be he the mayor or a homeless person back in San Diego, did not get his right to a fair jury deliberation.”

Saying that evidentiary hearings such as that envisioned by the 4th District and the defense would be a powerful disincentive to jury service, Foster argued that jurors should not be compelled to testify except “under the most rare and extraordinary circumstances.”

Hedgecock’s case, Arabian said, appears to meet that criterion.

“The mayor of San Diego. . . conflict of interest, perjury and omissions or commissions on filing requirements. Now we go into the jury room and we’ve got vodka, we’ve got vomiting and a new definition of the term hung jury as far as I’m concerned,” Arabian said, provoking loud laughter in the courtroom. “What kind of administration of justice is taking place in that scenario, which I call rare and unusual?”

While they agreed on little else, attorneys on both sides said after the hearing that the high court’s ruling is more likely to initiate another round of legal maneuvering than it is to conclude the already protracted case.

The options available to the court include upholding Hedgecock’s conviction and one-year jail sentence; overturning the verdict, which would force prosecutors to decide whether to try the case a third time (Hedgecock’s first trial ended in a mistrial with the jury deadlocked 11-1 in favor of conviction), or leaving the 4th District’s decision intact, thereby indefinitely postponing resolution of the case pending the jury-tampering hearing.

“This case is not over,” Foster said afterward, sighing. “We may even be back here again.”