Judge Named for Hedgecock Case to Be Challenged : Courts: Because William L. Todd Jr. presided over former San Diego Mayor Roger Hedgecock’s two felony cases, he is the wrong person to hear Hedgecock’s request for a new trial, says Hedgecock’s attorney.

Calling it a “total surprise,” former San Diego Mayor Roger Hedgecock’s attorney said Wednesday that he intends to challenge the selection of the judge who presided over Hedgecock’s two felony cases to hear his request for a new trial.

Twice before during the complex conspiracy and perjury case, Hedgecock has asked Judge William L. Todd Jr.--now an appeals court judge--to step down, alleging that Todd was biased.

Yet in an order signed Tuesday, San Diego Superior Court Judge Judith McConnell picked Todd, who has said publicly that he believes Hedgecock is guilty, to preside at a Nov. 21 hearing ordered by the California Supreme Court to determine whether Hedgecock deserves a new trial.

Hedgecock’s attorney, Charles M. Sevilla, said Wednesday that he will seek to discuss the order informally with McConnell, to show her passages from an appellate court ruling that explicitly suggest that Hedgecock was right to challenge Todd and that conclude Todd would never hear the case again.

If Sevilla is unable to persuade McConnell to assign another judge to the case, he said, he probably will appeal that question to the 4th District Court of Appeal, the very court on which Todd now sits, before the Nov. 21 hearing.

Todd said Wednesday that he could not comment in detail on his appointment. But, he added: “I wouldn’t take the assignment if I didn’t think I could be fair.”

In sentencing Hedgecock in December, 1985, Todd bluntly said he believed the former mayor was guilty--comments that underline the defense’s doubts about his ability to be impartial in ruling on a matter in which Todd’s own conduct and that of his former bailiff are at issue.

Saying that Hedgecock “violated the public trust in an onerous, onerous way,” Todd termed Hedgecock’s conduct “reprehensible in every sense of the word.” In rejecting Hedgecock’s initial claim that his conviction should be overturned because of the jury-tampering charges, Todd added that he was “absolutely and completely convinced” of Hedgecock’s guilt.

Hedgecock, now a radio talk-show host, declined to comment Wednesday.

Deputy Dist. Atty. David Cox, the current prosecutor on the case, also could not be reached for comment.

If the Nov. 21 hearing yields a new trial, Todd would leave the case and it would be assigned to another judge, according to McConnell’s order.

McConnell’s ruling, which she refused to comment on Wednesday, was the latest twist in a case that--replete with two trials and a cast of changing judges and lawyers--has held public attention in San Diego for six years.

On Sept. 6, the state Supreme Court threw out 12 of the 13 felony counts on which Hedgecock had been convicted by a San Diego Superior Court jury in October, 1985. The court reversed Hedgecock’s 12 perjury convictions and set aside his remaining conspiracy count until his claims of jury tampering could be reconsidered.

Originally indicted in September, 1984, Hedgecock was charged with conspiring with principals of the now-defunct La Jolla investment firm of J. David & Co. to funnel $350,000 in illegal donations to his 1983 mayoral campaign through a political consulting firm owned by a close friend.

The perjury counts alleged that Hedgecock falsified personal and political financial disclosure reports to conceal that illegal aid.

Hedgecock’s first trial ended in a mistrial in February, 1985, with the jury deadlocked 11 to 1 in favor of conviction. Eight months later, he was convicted in the second trial, but his one-year jail sentence and $1,000 fine have been set aside pending the outcome of his appeal.

Todd, who presided over both trials, was elevated to the 4th District Court in October, 1986. Since July, 1990, he has been serving on special assignment to help relieve the San Diego Superior Court’s backlog.

Before Hedgecock’s second trial, Hedgecock’s attorneys asked Todd to remove himself from the case, arguing that a new judge who had not already heard evidence in the case would be more impartial.

Todd, however, denied that motion, as he did a later defense request that he not preside over a special December, 1985, hearing on allegations that Todd’s bailiff had tampered with Hedgecock’s second jury during their deliberations, thereby tainting the guilty verdict.

In an April, 1988, decision, a three-judge 4th District panel--not including Todd--suggested that defense challenges to Todd were “proper grounds for disqualification” of the judge.

Because it was possible that Todd might be called as a witness to testify about the alleged tampering, it was not proper for him to be both judge and a witness in the same case, the court said.

However, the court did not decide whether Todd should be ruled off the case, saying that would not be necessary because “now-Justice Todd will obviously not preside over the evidentiary hearing mandated by this opinion.”

At another point, the appellate court said the case would be “assigned to a different trial judge for the purposes of the hearing on the motion for new trial.”

“Given that Judge Todd may no longer be presiding over the hearing on remand, the circumstances will be different” should Hedgecock again call Todd to testify, the 4th District panel added.

Sevilla declined to comment Wednesday on whether Todd was on the witness list for the Nov. 21 hearing.

However, Sevilla said that, because of the way the California Supreme Court worded its opinion, the 4th District’s comments on Todd’s disqualification are still applicable. “This is still the law of the case,” he said.

In its decision, the California Supreme Court ruled that the 12 perjury counts had to be reversed because Todd improperly ruled that the statements or omissions on the financial disclosure forms were sufficient--or, in legal jargon, “material” enough--to support the charges.

That determination should have been made by jurors, not the judge, the court said.

On the remaining conspiracy charge, the justices ruled unanimously to order a hearing that could lead to a subsequent, full-blown evidentiary hearing over the defense allegations of jury tampering. It is that hearing that McConnell has assigned to Todd.

According to sworn statements by two jurors, court bailiff Al Burroughs Jr. improperly discussed the case and the progress in their deliberations while the jurors were sequestered at a hotel.

In denying Hedgecock a new trial, Todd refused defense requests to permit testimony by the jurors and the bailiffs, deciding the issue solely on the basis of their sworn statements and the competing prosecution attorneys’ arguments. Saying that Todd erred in doing so, the state Supreme Court noted that Todd was wrong to have concluded that he lacked authority to summon witnesses.