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Justices Reverse Perjury Conviction of Hedgecock : Law: State court sets aside conspiracy verdict. Claims of bailiff, juror misconduct may be reconsidered.

TIMES STAFF WRITER

The state Supreme Court on Thursday reversed the perjury convictions of former San Diego Mayor Roger Hedgecock and temporarily set aside a conspiracy conviction to permit a trial court to reconsider claims of misconduct against a bailiff and juror.

The high court held unanimously that further proceedings on the conspiracy count are warranted by the “serious nature” of defense allegations that the bailiff improperly urged jurors to return a swift verdict and provided them with liquor after their daily deliberations.

One juror, the defense said, had become so intoxicated the night before the verdict she became violently ill and was unable to deliberate the next day.

The ruling opened the way for what could be a third trial for the 44-year-old Hedgecock, now a radio talk-show host in San Diego. As mayor, he was charged with conspiring with officials of the now-defunct investment firm of J. David & Co. to funnel $360,000 in illegal donations into his 1983 mayoral campaign and with perjury for allegedly falsifying financial disclosure statements to conceal those contributions. He denied there was a conspiracy and said any misstatements were inadvertent.

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After his first trial ended in a jury deadlock, Hedgecock was convicted by a San Diego Superior Court jury in December, 1985, and resigned from office. His sentence of one year in prison and a fine of $1,000 were set aside during his appeal.

The high court, in an opinion by Justice Joyce L. Kennard, ruled 5-to-2 that the 12 perjury counts against Hedgecock must be overturned because the trial judge improperly ruled that the statements or omissions on the disclosure forms were “material,” or significant enough to support the charges. That was a factual determination to be made by jurors, not the judge, the court said.

On the conspiracy charge, the justices held unanimously that the trial court may hold an evidentiary hearing--complete with questioning of the jurors--over the allegations of misconduct. The trial judge, then-Superior Court Judge William L. Todd Jr., who since has been appointed to the state Court of Appeal, had rejected the allegations on the basis of written statements by jurors and the bailiff. Todd erroneously concluded he lacked authority to summon witnesses to a hearing, the high court said.

The justices said that now a trial judge--presumably not Todd--must decide whether to hold a hearing on the charges of misconduct and determine whether to grant a retrial on the conspiracy charge or uphold the conviction.

In San Diego, Dist. Atty. Edwin Miller Jr. said he would not decide whether to try Hedgecock again on the perjury counts until the fate of the conspiracy conviction is resolved in court. Miller denied Thursday’s ruling was a significant setback, noting: “We still have a felony conviction (for conspiracy) and we have the ability to retry Hedgecock for perjury.”

Hedgecock’s attorney, Charles M. Sevilla, welcomed the ruling and expressed confidence the conspiracy conviction would be overturned in further proceedings. “We have a strong case for showing taint (in the verdict) and I think it is going to get even stronger,” he said.

Hedgecock, commenting on his radio show, denied his victory was won on a technicality. “Directing a jury verdict is not a technicality--it’s a kangaroo court,” he said. “Tampering with the jury, pressuring the jury with booze and stories . . . is not a technicality.”

The allegations of misconduct arose shortly after Hedgecock’s conviction. Some jurors said in affidavits that the bailiff, Allen Burroughs, had told them that sequestering jurors in a hotel was costly and that there should be a quick verdict; had recounted a story of a previous case in a misleading attempt to explain a point of law; and had provided jurors with liquor when they were not deliberating. One juror was described by others on the panel as being so hung over on the final day of deliberations that she reclined on a couch with a pillow over her head and repeatedly went to the bathroom to vomit.

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In their affidavits, Burroughs denied trying to influence deliberations and the juror denied being hung over, saying that while she had been ill, her mental processes had not been affected.

In Thursday’s decision, the high court urged trial courts to make sure that bailiffs make no statements to jurors that can be construed as an attempt to influence deliberations.

“Any comment by a bailiff that is likely to influence the deliberative processes of the jury constitutes serious misconduct,” Kennard wrote.

The court said further that the allegations of alcohol use by jurors were “equally serious” matters. While a juror need not abstain when not deliberating, the use of alcohol that later “renders the juror unable to competently perform” duties constitutes misconduct, Kennard said.

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The justices were divided over whether it was up to the jury--or the judge--to determine the significance of statements or omissions on campaign disclosure forms.

Kennard’s majority opinion rejected state prosecutors’ contentions that under the Political Reform Act, any failure to disclose or a misstatement about a contribution was inherently significant in a case of alleged perjury.

Such an omission or misstatement was significant only if it were important in evaluating a candidate’s suitability for office--and that question should be resolved by jurors, Kennard wrote. When judges erroneously make that determination themselves, the error renders the trial “fundamentally unfair” and a verdict of guilt must be reversed, she said.

Justice David N. Eagleson, joined by Chief Justice Malcolm M. Lucas, dissented on that point, saying the issue was one of law to be decided by the judge. Even if the question were one for the jury, the error did not raise doubts about the perjury verdict and thus reversal was not warranted, Eagleson said.

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Times staff writer Barry M. Horstman in San Diego contributed to this report.


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