Saying that former San Diego Mayor Roger Hedgecock's attorneys have "bent and twisted" legal arguments, the state attorney general's office urged an appellate court Friday to uphold Hedgecock's 13-count felony conviction.
In a 294-page brief, Supervising Deputy Atty. Gen. Robert Foster argued that the "evidence unmistakably shows" Hedgecock's guilt on charges stemming from illegal contributions to his 1983 mayoral race, and asked the 4th District Court of Appeal to reject Hedgecock's request for a new trial.
Foster, who worked on the brief in the complex case for five months, meticulously sought to refute the two dozen reasons cited by Hedgecock's attorneys for a new trial. In January, defense attorney Charles Sevilla filed appeal briefs contending that Hedgecock's October, 1985, conviction should be overturned for reasons that range from jury-tampering charges to alleged legal errors by a Superior Court judge and prosecutors.
Using descriptions such as "trifling," "nit-picking" and "red herring," Foster dismissed those defense arguments as legally insignificant, and argued that none interfered with Hedgecock's right to a fair trial.
Although it has taken 20 months to reach this preliminary stage of the appeal process, Friday's filing by the attorney general's office--which will handle the appeal even though the San Diego County district attorney's office prosecuted the case--will begin to accelerate the legal timetable in Hedgecock's case.
Hedgecock's attorneys are expected to respond to the prosecution's filing this summer, after which a three-judge panel will schedule oral arguments in the case, probably late this year or early in 1988. If the 4th District judges rule against Hedgecock, the former mayor, now a radio talk-show host and land-use consultant, could appeal to the state Supreme Court.
"While the public probably thinks this is taking a long time, this case is actually on a very fast track for a case of this complexity," Foster said in an interview.
Hedgecock, who was sentenced to one year in local custody and fined $1,000 for receiving illegal campaign donations from former J. David & Co. principals J. David (Jerry) Dominelli and Nancy Hoover, is free pending the outcome of his appeal.
In the brief filed Friday, Foster characterized the arguments offered by Sevilla as justification for a new trial as a combination of misstatements of fact, legal misinterpretations and wishful--though legally invalid--attempts to retry the case's basic evidence. Many of the defense's objections, Foster wrote, should not even be considered by the court because they were not raised in a "timely fashion" during the trial, while the remainder are "without merit."
A major portion of Foster's brief addresses one of the defense's chief hopes for a new trial--alleged misconduct by jurors and bailiff Al Burroughs Jr.
Shortly after Hedgecock's conviction, two jurors charged that Burroughs improperly discussed the case and the progress of their deliberations with the jurors while they were sequestered. In sworn affidavits, jurors Kathy Saxton-Calderwood and Joe Bohensky also alleged that Burroughs had helped some jurors to define the crucial legal term of "reasonable doubt" and pressured the jury to reach a verdict expeditiously. The 10 other jurors, however, signed affidavits denying that the bailiff had behaved improperly.
In denying Hedgecock a new trial in December, 1985, then-Superior Court Judge William L. Todd Jr. rejected the defense's contention that Burroughs' alleged misconduct tainted the jury's verdict.
In a sweeping assertion aimed at cutting the heart out of Hedgecock's appeal, Foster argues that the jury-tampering allegations are now moot, simply because of the manner in which Todd rejected them.
The basis for that contention, Foster notes, is a California Supreme Court decision that states: "Where an issue is tried on affidavits . . . and where there is substantial conflict in the facts stated, a determination of the controverted facts by the trial court will not be disturbed." That decision, Foster argues, means that Todd's ruling--based on the conflicting evidence in the jurors' affidavits--is binding on the appeal court.
Foster also attacked the specifics contained in the allegations against Burroughs and vigorously defended his behavior.
"Bailiff Al Burroughs was painstakingly careful to avoid any discussion or mention of the legal and factual matters before the jury," Foster wrote.
Foster found no greater substance to any of the defense's other legal arguments. However, he reserved some of his most caustic commentary for one of Hedgecock's key legal contentions--that he displayed "good faith" in his handling of his campaign and personal financial statements, and, for that reason, should have been found innocent, despite the reports' inaccuracy.