Bailiff's Bias in Hedgecock Trial Disclosed

TIMES STAFF WRITER

By the time former San Diego Mayor Roger Hedgecock's second trial on political corruption charges went to the jury, the bailiff assigned to attend jurors during their deliberations let it be known that he had already made up his own mind.

Hedgecock, bailiff Al Burroughs said, was guilty.

Burroughs then plied jurors with liquor. He reminded them that it was expensive to keep them secluded, so costly that they were expected to "do a good job." And, against all rules, he partied with the jurors and told them stories suggesting that other juries had let minor issues keep them from a verdict.

Burroughs admitted all this and more in an interview with state prosecutors shortly after the close of the 1985 trial. His comments stayed secret for five years. Then Hedgecock and his lawyers finally got the transcripts.

The documents, which were never made public, lend substance to the defense claim on appeal that there had been jury tampering. They also led to a plea bargain that quickly settled the case. That plea bargain cleared Hedgecock's record and left him free to run for mayor again, something he says he might do. Had the felony conviction stood, it would have barred him from public office.

"If I do run again, all these old bones (allegations) will be drug around the yard by my opponents," Hedgecock said in an interview last week. "People ought to know that (Burroughs') statements represent a complete repudiation of the final, coerced judgment of the jury."

The material, obtained by The Times, underscores why Hedgecock won such a favorable deal in one of San Diego's most riveting cases. It also sheds light on the tactics state prosecutors used in the politically charged case.

The conviction forced Hedgecock from office. It could have led to a year in jail. Yet state prosecutors, who held evidence that backed Hedgecock's claim of tampering, didn't share it with the defense or even local prosecutors for five years, until forced to by the state Supreme Court.

The material "tend(s) to show what I was saying all along, beginning seven years ago, that this was not a fair trial and the truth did not come out," Hedgecock said.

The transcripts fill hundreds of pages with the word-by-word interviews state prosecutors conducted with Burroughs and all 12 jurors days after Hedgecock was convicted.

The case ended Dec. 31, 1990, after six years of litigation and two trials.

Hedgecock was convicted Oct. 9, 1985, on felony conspiracy and perjury charges stemming from illegal contributions to his 1983 mayoral campaign from the now-defunct La Jolla investment firm J. David & Co. The first trial, eight months before, ended with the jury deadlocked 11 to 1 for conviction.

In September, 1990, the California Supreme Court threw out the 12 perjury convictions and set aside the remaining conspiracy charge, pending a hearing on Hedgecock's claim for a new trial, which was based on allegations of jury tampering.

The hearing never took place. The defense obtained the transcripts in October, 1990. The next month, the deal was struck.

Hedgecock accepted a conviction on a single felony charge in return for no jail sentence and no retrial. The deal also called for a judge to reduce the felony to a misdemeanor and dismiss the case, which is precisely what happened.

What's curious is why it took so long to get to the end.

Within days of the Oct. 9 guilty verdict, two of the 12 jurors in Hedgecock's case alleged in sworn statements that Burroughs provided jurors with alcohol, told them stories, guided deliberations and pressured the jury to reach a quick verdict.

Under court rules, anything a bailiff says or does that could influence a verdict is "serious misconduct" and grounds for reversal.

A bailiff is a court officer who is charged with maintaining order in the courtroom, seeing to the needs of jurors and making sure that deliberations are following the judge's orders. When a jury is sequestered, the bailiff is the jury's only link to the outside.

The bailiff is supposed to limit conversations with jurors to the bare essentials. But the jurors' affidavits complained that Burroughs broke the rules. The affidavits provided the basis of Hedgecock's claim on appeal of jury tampering.

On Nov. 1, 1985, Burroughs filed his own affidavit, denying wrongdoing. That same day, he sat down with state prosecutors for a 97-minute interview, according to the transcripts.

In the interview, Burroughs said, "I, in my mind, made up the second or third day that, that he was guilty, and I looked at those girls so long to come around to that."

"Those girls" apparently is a reference to three women who ended up being holdout jurors. The juror interviews reveal the panel was split early on, often 6 to 6, on many of the counts.

Burroughs' comment is particularly telling because it shows he somehow knew who the holdouts were, which he should not have known.

In the 1985 interview, Burroughs, a county deputy marshal, did not elaborate on what he meant by "looking" at them to "come around."

He declined last week to comment on the transcript. "I have nothing to say about that," Burroughs said in a phone call from the downtown San Diego courthouse, where he still works as a court bailiff. "If you have the transcript, you don't need to ask me anything."

One of the two jurors who complained of tampering suggested Burroughs pressured the jury. The juror said Burroughs had told him that it was expensive to sequester a jury, that the panel didn't have to be treated so nicely and that it should reach a speedy verdict.

In his affidavit, Burroughs denied he said any such thing to that juror.

In the interview, Burroughs admitted telling a juror it was expensive to sequester a jury. But he said it was another juror.

It cost so much that the citizens of San Diego "would expect you guys to, ah, do a good job, an admirable job, or words to that effect," Burroughs said he told the other juror. He also said in the interview that doing a "good job" as a juror could have been interpreted as reaching a verdict--though the law clearly allows hung juries.

Then there was what came to be known as the "green hat" story.

Burroughs told jurors a story that went like this: Another jury so hotly disputed the color of a suspect's hat that a fight broke out between two jurors, which bailiffs had to break up.

A Hedgecock juror complained that Burroughs told the tale to make the point that not every disagreement amounts to reasonable doubt, and to pressure holdout jurors not to dwell on seemingly small points.

In the interview, Burroughs said the tale might have had an impact, conceding he "very possibly" may have used "words to the effect" that suggested the green-hat dispute was the only thing holding up a unanimous verdict.

The transcripts make clear that, whether it was spinning stories or socializing, Burroughs enjoyed a sense of camaraderie with the jurors, who, like him, were isolated in the hotel.

At a birthday party one night, he recalled in the interview, he and one of the men on the panel were talking while looking at one of the female jurors who was "well endowed up top." Burroughs told the man, "Now that's a real set of chee chees, and I said, you ought to be going after that."

At that party, the night before the verdicts, Burroughs shared his private stash of alcohol--vodka and Kahlua--with three jurors, he said in the interview. The next day, verdict day, one of the jurors was sick to her stomach, apparently because of the alcohol, according to court documents.

Jurors are allowed to drink off-duty, but drinking so much as to be incapacitated on duty is misconduct, the Supreme Court said in its ruling.

Hedgecock's defense lawyers suspected early on that the interviews were full of potentially useful information not contained in any affidavit. Immediately after learning of the interviews, the defense claimed a right to read the transcripts.

It's a rule of law--as well as a point of legal ethics--that prosecutors must turn over to the defense any evidence that might exonerate someone accused of a crime. That also means anything that might deprive a suspect of a fair trial.

Robert Foster, the deputy attorney general in San Diego who handled the appeal of the case, said last week that when state prosecutors did unearth tidbits deemed relevant to Hedgecock's case--for instance, that one of the jurors had a felony conviction--defense lawyers were promptly notified.

The transcripts were different, he said.

First, Foster said, the interviews were conducted as part of an investigation into a separate issue: whether the alleged jury tampering itself amounted to a crime. No charges were ever brought, and state prosecutors were concerned about jurors' privacy concerns, so the material was never available in open court files, he said.

Second, after the defense asked for transcripts, state prosecutors presented transcripts to then-San Diego Superior Court Judge William L. Todd Jr., Foster said. "We took them to the judge, which is what we thought was needed," Foster said.

Court records indicate the transcripts Todd got were from interviews with two other jurors--but not the Burroughs transcript or the record of jurors who complained about his actions.

Todd, now a Court of Appeal justice in San Diego, was the judge at both of Hedgecock's trials. He reviewed the two transcripts, then announced in December, 1985, that there was "nothing in the documents" that would be useful to the defense.

Todd said last week he remembered nothing about the transcripts. "I don't remember what I read," he said. "It was a long time ago. I don't have any specific recollection at all."

In 1988, an appellate court in San Diego ruled that Todd--who had announced from the bench that he believed Hedgecock was guilty--was wrong to block release of the documents.

Instead of releasing the transcripts then, however, state prosecutors kept them locked away during an appeal to the state Supreme Court. That meant the transcripts stayed secret for two more years.

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