Attorney General Calls Decision ‘Flawed’ : Court Asked to Reconsider Hedgecock Ruling

Citing what it termed “fatally flawed . . . reasoning� by the 4th District Court of Appeal, the California attorney general’s office on Monday asked the court to reconsider its decision ordering a lower court to hold a hearing on jury-tampering allegations in the case of former San Diego Mayor Roger Hedgecock.

In a five-page brief asking the appeals court for a rehearing on the narrow legal question of whether a Superior Court judge should, as the 4th District justices ordered last week, review the jury-tampering charges, prosecutors argued that the ruling violated a California law designed to protect jurors’ rights.

“Basically we say, ‘Hey, guys, you went against the law,’ � said Robert Foster, the supervising deputy attorney general who is handling the appeal in the celebrated case.

Complicated Ruling

In a complicated 2-1 ruling last week, a three-judge appeals panel ordered a Superior Court judge to hold a hearing on jury-tampering allegations--charges that Hedgecock argues should result in a reversal of his 13-count conspiracy and perjury conviction. However, the appellate judges added that if the judge ultimately denies Hedgecock’s request for a new trial, his conviction should stand. Hedgecock, who faces a year in jail, is free pending the outcome of his appeal.

The tampering charges stem from sworn allegations from two jurors--contradicted by statements from the 10 other jurors--that a court bailiff improperly discussed the case and the progress in their deliberations with jurors during their deliberations. But in denying Hedgecock a new trial in December, 1985, then-Superior Court Judge William L. Todd Jr. rejected the defense’s contentions that the bailiff’s actions tainted the jury’s verdict.

Last week, the appeals court faulted Todd for the process by which he arrived at that decision. Todd had refused to permit testimony by the jurors or the bailiffs, deciding the issue solely on the basis of sworn statements filed by all parties.

By not ordering a full evidentiary hearing, the appeals court ruled, Todd “denied Hedgecock a fair and complete opportunity to have his serious allegations of misconduct properly considered.�

In a key passage in their 139-page decision, the appeals justices noted that the California Supreme Court has ruled that new-trial motions in civil cases on the grounds of juror misconduct “should be heard solely on the affidavits or declarations of the affected jurors and . . . the parties are not permitted to subpoena trial jurors to testify in support or opposition to the motion.�

Different Standard

However, the justices emphasized that the state Supreme Court also has “indicated that a separate rule was applicable in criminal cases.� According to the justices, that different standard permits--indeed, encourages--�live testimony by jurors in open court� in order to better evaluate jury misconduct charges.

In Monday’s brief, prosecutor Foster strongly took issue with that part of the appeals court’s ruling, charging that it is diametrically opposed to a California law stating that jurors in civil and criminal cases should be treated equally.

Siding with the appeals court for obvious reasons, Hedgecock’s attorney, Charles Sevilla, has argued that a court hearing on the jury-tampering charges is legally proper.

The 4th District court has until May 25 to decide whether to reopen the case to consider Foster’s request or any of the legal arguments that Sevilla plans to file later this month. If the appeal court does not rehear the case, both sides then have 10 days to ask the California Supreme Court to consider the appeal.