A federal appeals court has upheld the second bribery conspiracy conviction of Dr. Murdock Head, rejecting the claim of the Airlie Foundation creator that 2,470 interruptions and remarks by an Alexandria judge denied him a fair trial 17 months ago.
The 4th Circuit Court of Appeals agreed that District Judge Oren R. Lewis' interjections were "distressingly frequent" but said his comments "were distributed between the government and the defendant with remarkable, though purely random, evenhandedness -- if without a consistent and informed judiciousness."
The unanimous opinion, released yesterday by a three-judge appellate panel in Richmond, said Lewis, an 80-year-old, semiretired jurist, left an impression "of a degree of trial judge intrusion that far exceeded the bounds of the model of judicial control on trials rightly aspired to in our adversarial system."
Defense lawyers had sought to overturn the 58-year-old Head's second conviction in July 1981 of conspiring to bribe two powerful House committee chairmen in exchange for a steady flow of government grants to his Airlie conference center and filmmaking operation near Warrenton, Va. Head took the stand at both his trials to deny the charges.
His first conviction, in October 1979, was thrown out by the same appeals court on the grounds that Lewis had failed to instruct the jury properly on the statute of limitations regarding aspects of the case.
Head faces a 4 1/2-year prison sentence imposed by Lewis 17 months ago, although the judge said at the time he might reduce it if Head, a George Washington University professor and department chairman, got involved in "worthwhile work" on the roots of violence among American youth.
Defense lawyer Frank W. Dunham Jr. said yesterday no decision has been made on further appeals. Head declined to comment.
Dunham, who broke the news of the opinion to his client, said Head reacted calmly. "I think I've had more depressing moments during this case than he has," Dunham added.
Assistant U.S. Attorney Joseph A. Fisher III said he and fellow Head prosecutor Theodore S. Greenberg were "gratified" by the decision.
The 30-page decision, written by Judge J. Dickson Phillips Jr., marked the latest turn in a five-year saga during which federal prosecutors tried to prove the tall, athletic Head paid at least $36,000 in bribes to former Reps. Daniel Flood (D-Pa.) and Otto Passman (D-La.) in the 1970s.
Head, who holds degrees in dentistry, medicine and the law, was indicted in July 1979 on 13 counts related to the alleged scheme, which the government charged included code names for Flood ("The Mustache") and Passman ("The Priest") and a slush fund at the Airlie complex that was handled with paper tissues to avoid fingerprints. After his first conviction was overturned, Head blasted the government's case, which he called "a legal can of worms" handled by "rogue prosecutors" who sought to bring the "relentless and punitive machinery of an unbridled judicial bureaucracy" against him.
A former aide to Flood, Stephen B. Elko, who said he served as an intermediary to deliver the bribes, later appeared as a key prosecution witness at both Head trials.
Although he was convicted of conspiracy at his first trial, Head was acquitted of multiple tax counts by the jury and others were dismissed by Lewis. The defense contended the tax evidence should have been stricken from the second trial.
The latest appeals court opinion rejected that argument, saying the court found "no merit" in either the tax-related, double jeopardy claim or in defense claims of Lewis' bias.
Head was convicted last summer of a separate charge of giving an illegal $1,000 gratuity to Flood.
In their decision, the appellate judges said the trial record showed interruptions by Lewis that "demonstrably include the berating of witnesses and counsel, the making of frequent . . . objections to counsel's presentation of the case and extensive cross-examination of witnesses."
But, the decision added: "Considered in their totality, they probably only conveyed an impression of general irritation and impatience with counsel for both sides and with the whole course of the proceedings."
While he waited for the appeals outcome, Dunham said yesterday, Head has been actively involved in community service in Fauquier County, as Lewis suggested. Head was named "Man of the Year" by The Fauquier Democrat last Thursday, the same day the appellate opinion was dated.
Among Head's film projects, according to Dunham, are "The Deadliest Weapon," about drunk driving, and a work in progress about a fire set by juveniles at Fort Hunt High School in Fairfax County in 1978.