By Mark Gutglueck
More than two of the three days of testimony in week 12 of the Colonies Lawsuit Settlement Public Corruption Trial was provided by the investigator for the district attorney’s office who supervised the probe into allegations that a Rancho Cucamonga developer extorted and bribed several high ranking public officials a decade ago.
Now-retired district attorney’s office investigator Robert Schreiber offered testimony and evidence that undergirded a central element of the prosecution’s case as outlined in the 2011 indictment of Colonies Partners co-managing principal Jeff Burum, former sheriff’s deputies union president Jim Erwin, former county supervisor Paul Biane and Mark Kirk, who was the chief of staff to former supervisor Gary Ovitt. But Schreiber’s testimony was heard by only one of the two juries considering the case, that one assessing the guilt or innocence of Erwin. And Schreiber’s nearly three days on the stand subjected him to cross examination by Erwin’s attorney that brought into focus the tactics the district attorney’s office had applied and the intellectual honesty or lack thereof Schreiber had exhibited in making representations of his investigative findings when he previously testified before the grand jury that handed down the indictment.
Erwin’s attorney, Rajan Maline, also carried on an exacting analysis of the evidence Schreiber personally extracted from Erwin during their verbal exchange while a search of Erwin’s premises had been ongoing in 2009. Erwin’s statements implicated Burum in the extortion element of the crime, which in accordance with the court’s granting of pretrial motions, is no longer part of the charges. And one of Erwin’s statements, amidst others, in some if not total measure cast doubt upon the bribery element of the crime, which does remain as an issue in the trial. Maline also brought into question Schreiber’s characterization of Erwin’s statements before the grand jury that handed down a 29-count indictment of the quartet in May 2011. And Maline locked Schreiber in on the handling and chain of custody of a tangible piece of evidence – a Rolex Daytona watch worth $12,765 which had been the primary piece of evidence seized during the January 15, 2009 raid on Erwin’s home. The chain of custody of that watch is an issue that carries with it the possibility of greatly eroding the credibility of the district attorney’s office when the prosecution’s case concludes and the defense begins calling its witnesses.
In the case, prosecutors allege Jeff Burum, a Rancho Cucamonga-based developer coordinated with one-time sheriff’s deputies union president Jim Erwin to first extort, through the use of blackmail, intimidation and threats, former supervisors Bill Postmus and Paul Biane to obtain a vote conferring a $102 million payout to the Colonies Partners to settle the lawsuit that company had brought against the county over flood control issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeastern Upland. Burum and Dan Richards were the two managing principals in the Colonies Partners, who over the course of the seven months after the lawsuit was settled provided two separate $50,000 donations to political action committees controlled by Postmus, and separate $100,000 donations to political action committees prosecutors allege were controlled by Biane, Erwin and Mark Kirk. Kirk was the chief-of-staff to then-supervisor Gary Ovitt, whose vote to settle the lawsuit was critical in the 3-to-2 decision to approve the settlement. The indictment alleges the political action committee donations were thinly-veiled bribes made to Postmus, Biane and Kirk, who prosecutors allege influenced Ovitt and delivered his vote in favor of the settlement. Postmus, who served as county assessor after he left the board of supervisors, in February 2010 was criminally charged along with Erwin in a case predating but related to the allegations contained in the May 2011 indictment. Though Postmus initially maintained his innocence, he subsequently pleaded guilty to 14 separate felony political corruption-related charges, including conspiracy, bribery, conflicts of interests, and perjury. He turned state’s evidence and testified before the grand jury that indicted Erwin on charges superseding those leveled at him in 2010 and which also named Burum, Biane and Kirk. Postmus’ testimony, considered to be key to the case, is anticipated in the months or weeks ahead.
Patrick O’Reilly, a public relations specialist who had worked on behalf of the Colonies Partners who testified last week, was yet on the witness stand Monday morning, March 20. After little more than an hour on the witness stand this week, O’Reilly was dismissed, subject to recall. O’Reilly had done substantial damage to Burum last week, admitting he had been paid a substantial amount of money – $250 an hour – by Burum to meet with members of the board of supervisors, in particular Postmus and Biane, to lobby them to approve the settlement and to confer with Burum and other members of his team in formulating strategies for promoting the idea in the media that the settlement was both justifiable and a less expensive alternative to losing the lawsuit in court and perhaps paying damages approaching or exceeding $300 million. Along the way, O’Reilly testified that Burum was involved in preparing so-called hit piece mailers targeting Biane which raised the issue of Biane’s insolvency. O’Reilly further confirmed that the subject of creating a hit piece targeting Postmus relating to his homosexuality was broached during a dinner meeting he had with Burum and Erwin at the Double Tree Hotel in Ontario on the night of October 18, 2006, although he attributed the idea to Erwin, and said it was one that Burum was not keen on. O’Reilly testified that Burum had checked into the Double Tree Hotel using O’Reilly’s name, obscuring his presence there. Postmus, who was due to engage as one of a contingent of county officials in a mediation session with the Colonies Partners and its representatives the next day, October 19, 2006 in Ontario, was also checked into the Double Tree that night. Without outright acknowledging he had done so, O’Reilly gave indication that on October 19, 2006 he had played a role as a conduit of confidential information relating to the county’s negotiating position on the Colonies lawsuit settlement that illegitimately flowed from Postmus to Burum. He acknowledged that Erwin was obtaining information from Postmus. He also confirmed, in his response to questions from supervising assistant district attorney Lewis Cope based on his cell phone records, that on October 19, 2006, during that mediation session, he had made 21 calls to Erwin and Erwin had made 16 calls to him. O’Reilly’s testimony had been damaging to Burum in large measure because he was in no way hostile to Burum but rather a close friend with whom he sometimes vacationed as well as served as a well-paid consultant.
Monday morning, March 20, Cope asked O’Reilly if he had been called upon by Erwin in 2009 to assist him in determining the value of a Rolex Daytona watch that Burum had purchased for Erwin at the Tourneau Watch Store in New York City on January 29, 2007 as an expression of gratitude for Erwin’s assistance in helping the Colonies Partners achieve the $102 million settlement. O’Reilly said he indeed assisted Erwin in determining the value of the watch and that he obtained the information Erwin wanted by contacting Burum. When Cope showed O’Reilly an email that he had sent to Erwin, O’Reilly was able to peg the price of the watch at $12,765.
Cope showed O’Reilly an accounting of the amount of money he and his public relations firm had been paid by the Colonies Partners between June 2004 and January 2009 which totaled $550,000. O’Reilly, who last week testified that he estimated the amount of money paid to him by Burum relating to the Colonies Partners settlement at $30,000, acknowledged that the $550,000 figure was very likely accurate. Cope then asked him if he had any money invested in the Diversified Pacific Real Estate Fund, which is an entity owned and controlled by Burum. O’Reilly said that he had been invested in the ten-year fund for nine years at this point and that investment had grown to a worth of just under $1.5 million. Cope ended his direct examination of O’Reilly at 10:10 a.m., expecting to be able to come back to him as a witness after the defense attorneys for the four defendants cross examined him. But in a strategic move, masterminded by Burum’s lead attorney, Stephen Larson, the legal teams for all of the defendants passed at questioning O’Reilly, choosing to get him off the witness stand before he could do any further damage. One of Burum’s attorneys, Jennifer Keller, stating that O’Reilly and his family had already been put through enough during the last eight years, said she would have no questions for O’Reilly on behalf of Burum. The attorneys for Erwin, Biane and Kirk, Rajan Maline, Mark McDonald and Peter Scalisi, respectively, followed suit.
Before O’Reilly was dismissed, subject to recall, Cope asked O’Reilly about his previous testimony relating to Burum having provided him with a 1099 tax form for the watch that Burum had purchased for him at the Tourneau Watch Store on January 29, 2007, the same day Burum had purchased the Rolex Daytona for Erwin, likewise as a thank you gift for the assistance O’Reilly had provided in achieving the $102 million settlement with the county. To Cope’s question as to whether Burum had delayed providing that 1099 for two years and did not give it to O’Reilly until after a grand jury was impaneled in 2009 to look into the settlement deal, O’Reilly said he could not remember when he had received the 1099 relating to the watch from Burum. When Cope pressed him, O’Reilly acknowledged he had not received the 1099 until “several” years after he had gotten the watch.
The next witness to be called was Bob Schreiber, but before he took the witness stand, Judge Michael A. Smith conducted a hearing on a motion brought by Erwin’s attorney, Maline, to suppress an audio recording Schreiber had made of his conversation with Erwin while a search warrant was being served at Erwin’s home. Maline asserted in the motion that Erwin was essentially being detained at the time the search was ongoing. Schreiber’s conversation with Erwin ensued shortly after Schreiber and the other investigators from the district attorney’ office arrived at the home and Erwin had just emerged from a shower and was clad only in underwear and a bath robe. This was tantamount to a custodial setting, Maline maintained, without Erwin having been read his Miranda rights. Schreiber was put on the stand and underwent questioning outside the presence of the juries, in which he said that he had made clear to Erwin that he was free to move about the home and that Erwin willfully engaged in the back-and-forth with him. Maline, noting that Erwin was unable to change into street clothes while the investigators were searching his bedroom and that the vehicles at the home were subject to the search as well, said the circumstance made it practically impossible for his client to leave. Smith, however, denied the motion, saying Erwin was not under arrest, had been informed he was not under arrest and was free to leave at any time.
At 2:52 p.m. on Monday, Erwin’s jury came into the courtroom to hear Schreiber’s testimony.
Schreiber, who is now retired as an investigator with the district attorney’s office, testified he headed up a team of six to eight of the office’s investigators that served the search warrant at Erwin’s Highland home on January 15, 2009. Schreiber said he and his fellow investigators arrived sometime between 7 a.m. and 7:30 a.m. and first encountered Elizabeth Sanchez, with whom Erwin was at that time in a domestic relationship. Sanchez was just about to leave to take several children to school. Schreiber said that while members of his team carried out a quick search of Sanchez’s vehicle, for which they had a search warrant, he accompanied Sanchez into the home and up to the second floor and into the master bedroom, where Erwin had just emerged from the shower and was still in his underwear. Shortly thereafter, Sanchez was allowed to proceed with taking the children to school. Very soon after arriving, Schreiber said he spotted the Rolex Daytona watch on the counter in the bathroom. The watch was a primary item specified for seizure in the search warrant, along with Erwin’s Blackberry communication device, his computers, records or any documents relating to the purchase of the watch or the January 2007 flight to New York and Washington D.C. with its fueling stopover in Kansas City, the case for the watch, paperwork pertaining to the watch and the outer box for the watch.
Schreiber, who had been a deputy in the sheriff’s department before he became an investigator in the district attorney’s office, testified he was well acquainted with Erwin, as they had both begun as deputies in the sheriff’s department around the same time and were for a time working together in the department’s jail. He said he was wearing an audio recording device when he was at Erwin’s home which he activated shortly after he arrived. Much of the conversation captured on the recorder took place, Schreiber said, as the other investigators were engaged in searching rooms throughout the house and he and Erwin came out of the master bedroom and seated themselves in the loft area.
An edited version of the tape was played for the jury. Heard on the tape is Erwin, prompted by Schreiber’s questions, acknowledging and illustrating key elements of the prosecution’s theory of guilt, which pertains to pressure being applied to Postmus and Biane to settle the lawsuit, with that pressure at times crossing into the realm of extortion.
Erwin said Burum knew Postmus was a homosexual.
“Was Burum aware?” Schreiber asked, referring both to Postmus’ sexual orientation and his drug use.
“Yes, that’s fair,” said Erwin, but then qualified his answer when Schreiber followed up on the question.
“What measures do you think Burum was taking to let Postmus know that he knew about his homosexuality or his methamphetamine use?” Schreiber asked.
“I don’t know if Jeff basically knew about the methamphetamine use,” Erwin said. “He knew about Bill’s homosexuality. I know that. I mean the issue of his drug use didn’t really start until later. I don’t know for a fact, but Jeff basically indicated that … I mean that he was basically dirt digging on everybody.”
Erwin said Postmus “got mad” when he told him Burum knew about his sexual orientation.
Schreiber inveigled Erwin into disclosing that Burum was also focusing on Biane and that Burum was using a private investigator to gather compromising information on both Biane and Postmus.
In the recording, Erwin said Burum had indicated “that Paul had heavy debt problems and he was actually saying – there was a county pay measure on the ballot for the board of supervisors, Measure P – he was aware that Paul had, you know, heavy debt problems, so he [Burum] formed a committee and then started running, you know, ads and mailers [saying Biane was sponsoring Measure P] because he needs to pay his bills.”
“And how about Postmus?” Schreiber asked Erwin.
“I remember going and meeting him [Burum] and Patrick O’Reilly in Ontario back in ’06 and he was pretty angry and he just said, ‘You know, I know what kind of drinks Postmus likes…’ He was trash digging or somebody was,” Erwin is heard saying on the recording.
“Dumpster diving?” Schreiber asked.
“Yeah, something like that,” Erwin said. “It had been done in this county in the past with other people.”
Schreiber is heard asking if that meant Burum was using a private investigator to “get dirt on Postmus?”
“Um hum,” said Erwin.
“He decided he’d play hardball and get private investigators and find dirt on them?” Schreiber asks.
“Yeah,” said Erwin. “That’s my perception ”
“Did you talk about, you know, exploiting homosexuality as an example?” asked Schreiber. “Do you remember discussing that with Burum?”
“Yes,” said Erwin.
“Okay, how do you think it got communicated to Postmus and Paul Biane that Burum was aware of homosexuality issues or bill issues?” Schreiber asked.
Erwin said, “I went and I told Bill, I said, ‘These guys are angry. They’re playing nasty. He’s [Burum is] going to the mat on this.’ I was very candid. I said, ‘He’s mad because you guys apparently keep making these promises and then you break them. He is basically, you know, spending tons of money on legal bills. He feels you’ve strung him along.’”
“I see, and so you told Bill that he was thinking of using homosexuality as an issue and he was prepared to expose that?” Schreiber asked.
“I said, yeah, I mean, he was dirt digging,” said Erwin.
“That Burum was going to expose that?” Schreiber asked. “You let Bill know that?”
Erwin said, “Well, he [Burum] didn’t indicate what information he had specifically, other than I remember Paul’s bills being a big deal. The homosexuality stuff, I don’t know if there was any, I mean, I didn’t see any pictures. I didn’t see any, you know, evidence.”
“But you let him know, though, that Burum…” Schreiber began.
“…is dirt digging,” Erwin concluded the sentence.
“Did you also communicate that to Paul Biane?” Schreiber asked. “That he was digging dirt on Paul Biane?”
“I think Bill told Paul,” Erwin said. “I don’t recall having a conversation where I was telling Paul. I never had a conversation where he was basically upset like that. I never had that dialogue with him on dirt digging as much as… I had with Paul.”
When Schreiber asked if Burum had gathered blackmail material on supervisor Gary Ovitt, Erwin responded, “I don’t know if Gary was ever an issue.”
When Schreiber sought to nail down the bribery element of the crime with Erwin, he made far less progress than with the extortion element. The closest Schreiber came to getting Erwin to acknowledge some order of payoff had occurred was when the investigator pushed him about the $100,000 contributions.
“If the settlement hadn’t occurred, that money probably wouldn’t have been contributed, I would say,” Erwin conceded.
But at another point, when Schreiber suggested the $100,000 donations were made in return for the votes in favor of the settlement, Erwin said “I wouldn’t say they were related transactions. Actually the vote went down for the right reason. I will tell you there was no quid pro quo.”
One of the crimes Erwin is charged with is failing to disclose the gifts Burum had provided him – the trip to New York and Washington, D.C. and the accommodations there, along with the watch – on income reporting documents that Erwin, who in January 2007 had just been designated as assistant county assessor, was required to fill out. When Schreiber asked him if he should have made that disclosure, Erwin responded, “I should have, probably.” When Schreiber followed that with a question about whether Erwin should have just not accepted the watch, he said, “If hindsight is 20/20, yeah, maybe.”
There were, however, a number of statements on the audio recording, by both Erwin and Schreiber, that clash with the prosecution’s theory of guilt.
When Schreiber was discussing the $400,000 in contributions made by the Colonies Partners to the various political action committees, he sought to get Erwin to make an acknowledgment that the money had been misspent. But Erwin stood that suggestion off, saying that the money could be spent on meals and travel if done for legitimate political or campaign related purposes. He said, though, that he had not used the money in that way himself. “Just campaign work,” he said. Along the same lines, when Schreiber asked him “Had you heard that Mark Kirk pulled some money out of his [political action committee]?” Erwin responded, “Yeah, I remember. I know he did that,” but added, “Well, it’s legal.”
At one point on the tape, Schreiber comes across as a character witness for Erwin.
“I’ve never known you to be a liar about anything, okay,” Schreiber said, “at all, okay? I happen to know that you’re a guy who’s in the know. You, um, are somebody who’s very much involved in everything that is San Bernardino County. So, you know, I think my office is comfortable with that perception of, of, of, of, you, what your role is in all that and so, in other words, you know, you’re an important guy, as far as our office is concerned. Well, look, I appreciate very much so that you are just talking with me and being, you know, very clear as you can be about these items.”
At one point, Erwin, who left the assessor’s office after ten months in the position of second in command there, indicated that it might have been his own reports of wrongdoing by Postmus and others working for him that had touched off the events that had led to the search warrant being served that day.
“When I came into the public integrity unit [within the district attorney’s office where he had made a report of misuse of assessor’s office resources by Postmus and others], I knew that I was gonna have rocks thrown at me,” Erwin said.
When Rajan Maline, Erwin’s lawyer, had the opportunity to cross examine Schreiber about his statements on the recording lauding Erwin’s truthfulness and honesty, Schreiber indicated his own words were not sincere.
“You were lying to him?” Maline asked.
“I could have been,” acknowledged Schreiber. “I was employing many investigative techniques,” going on to explain that one approach is to formulate his statements so suspects “Hear what I want them to hear.”
With regard to Erwin’s suggestion that it was his own complaint to the public integrity unit that redounded to his detriment and led to his becoming a suspect himself, Maline was able to get Schreiber to acknowledge that Erwin in fact had come forward to the district attorney’s office with reports about the activity of the other assistant assessor in the office, Adam Aleman, relating to office facilities being used for partisan political purposes, among other abuses. When Aleman was summoned to appear before a grand jury regarding the matter and to produce documents and other material, he panicked and had an office employee alter several documents and he personally destroyed a hard drive in a computer that had been issued to him by the county. He then made material misrepresentations to the grand jury. On June 30, 2008, Aleman was arrested and charged with vandalizing county property, altering public documents and perjury. In October 2008, Aleman through his attorney approached the district attorney’s office, offering information of his own relating to what he knew of wrongdoing within the county, including information with regard to blackmail and bribery related to the Colonies lawsuit settlement. He undertook to assist investigators in gathering further evidence relating to his allegations, including making surreptitious audio recordings of those he said were involved. A year after his arrest, Aleman entered a guilty plea to the four felony counts against him. His sentence is being held in abeyance, pursuant to his continuing cooperation in the prosecution case against Burum, Biane, Erwin and Kirk.
Maline zeroed in on the investigation relating to the activity in the assessor’s office targeting Postmus and Aleman, which his client had launched.
“Wasn’t the issue at that point the malfeasance that was going on at the assessor’s office?” Maline asked.
“That was one issue, yes,” Schreiber acknowledged.
Maline pressed Schreiber with regard to Erwin’s cooperation during the assessor’s office investigation, ranging from his initial November 2007 interview with district attorney investigators to his testimony before a grand jury. Much of the information Erwin disclosed related to Aleman, Maline stated directly or implied in his questions.
“He provided quite a bit of information, wouldn’t you agree?” Maline asked.
“He certainly provided information to us,” Schreiber said.
Maline suggested that it was Erwin who not only sparked the investigation but provided the lion’s share of the information gathered against Aleman which led to his conviction.
“He provided information that corroborated information we got from other sources,” Schreiber said.
Early in the afternoon on Tuesday, Schreiber did not return to the witness stand. Rather, Judge Steven Malone, who had been called as a witness and that day was presiding over a court trial in his courtroom, came into Judge Michael Smith’s courtroom to testify, having suspended testimony in the matter he was hearing for an agreed-upon hour to accommodate the prosecution. Like all of this week’s testimony except that of O’Reilly, Malone’s testimony was taken before Erwin’s jury alone. The jury hearing the case against Burum, Biane and Kirk are excluded from testimony based on statements made by Erwin because it is presumed at this point that Erwin will exercise his Fifth Amendment right to not testify and Burum, Biane and Kirk have a Sixth Amendment right to confront any and all of their accusers in open court.
Malone said he had made Erwin’s acquaintance during his 2006 election campaign for judge, when Erwin had supported his candidacy and was instrumental in securing for him the support of the sheriff’s deputies union, the Safety Employees Benefit Association, known by its acronym SEBA. He said Erwin had advised him on how to proceed with his campaign, including advising him to make use of the money in his campaign war chest early to capture a convincing win in the primary against two other candidates, paving his way for victory in the November run-off.
Cope questioned Malone about his contact with Erwin on what was either the evening of January 15 or January 16, 2009, in the immediate aftermath of the serving of the search warrant at Erwin’s home.
Malone testified that he had learned of the search of Erwin’s home from both the discussion of the topic around the Rancho Cucamonga Courthouse, where he was then assigned, and from newspaper accounts. He said he called Erwin and arranged to meet him early that evening at Applebee’s Grill & Bar in Highland.
In his testimony, Malone indicated he thought that Erwin had received the watch in the month just prior to their January 2009 meeting, possibly based on the belief that it was a Christmas gift. While Malone said, “I don’t remember what words we exchanged,” he generally recalled that Erwin told him Burum had given him the watch and “He hadn’t claimed it on his Form 700s. I remember him asking what I thought” and “asking me if I thought [district attorney] Mike Ramos would file charges against him.”
Cope asked Malone, who was a prosecutor with San Bernardino County before he was elected judge, if Erwin had asked him to intervene with Ramos. Malone said Erwin did not.
Cope asked Malone, “Did he indicate to you it was a mistake?”
“He told me he had not reported it on his 700 form,” Malone responded. “He was concerned the district attorney’s office might file charges against him. I don’t remember if he said it was a mistake.”
“Did he indicate whether he wanted you to actually speak with the district attorney to find out what was going to happen to him?” Cope asked.
“I do not recall that,” Malone said.
“He said, ‘I screwed up.’ Is that accurate?” asked Cope.
“Yes,” said Malone.
Cope asked if Erwin had told him he had formed a political action committee. Malone said Erwin had told him so, but he was not sure that occurred during that meeting. Malone said he believed the committee was formed in relationship to the 2008 season and the campaign to defeat Dennis Hansberger as supervisor and replace him with Neil Derry.
Maline asked Malone whether with regard to Erwin’s failure to disclose his having received the watch, his client “made really clear he was remorseful about that.”
“He was obviously feeling horrible and that he made a mistake,” said Malone. “It was an unintentional mistake.”
Malone exited from the witness stand at 2:15 p.m. to return to his courtroom.
Schreiber returned to the witness stand following Malone’s testimony. During his cross examination of Schreiber, Maline explored the political enmity that had developed between Erwin and district attorney Mike Ramos. The pair had once been much closer. When Ramos first ran for district attorney in 2002, the sheriff’s deputies union, SEBA, of which Erwin was then president, had endorsed Ramos and had been a major contributor to his campaign fund. By 2009, however, relations between Ramos and Erwin had soured, in some measure over Erwin’s support of Neil Derry, who had defeated Dennis Hansberger in the race for Third District supervisor. Upon his election, Derry hired Erwin to serve as his chief of staff.
Maline asked Schreiber if he knew that by the time the search warrant was served at Erwin’s home Erwin and Ramos were at loggerheads. To the question, Schreiber initially responded that he did not know about any tension, animosity or differences between the two. When Maline pushed him on the subject, however, Schreiber said, “I was aware that Jim Erwin was making allegations against the district attorney. I was not involved in that, but I was aware allegations were made.”
Maline tried in vain, over prosecution objections that were sustained, to contrast the filing of criminal charges against his client in comparison to three campaign finance reporting violations Ramos had engaged in which were dealt with administratively by the California Political Practices Commission, which levied fines against the district attorney.
Maline then took persistent aim at Schreiber with regard to the Rolex Daytona watch, which had been displayed in the courtroom earlier by Cope. Maline sought to ascertain from Schreiber the chain of custody on the watch and whether it had remained in an evidence locker, evidence room or safe at the district attorney’s office. Schreiber acknowledged that he likely had possession of the watch in the days shortly after the search warrant was served at Erwin’s home on January 15, 2009, but that it had been placed into an evidence storage room sometime after that and was eventually put into a safe on the district attorney’s office premises. Maline persisted in asking whether Schreiber had personally handled it outside of the near term aftermath of its seizure from Erwin’s home. Schreiber insisted it had been put away for safekeeping in the evidence room and the safe, but said at some point it had been removed from one of those repositories so it could be photographed and that he might have held it at that time. Maline made a close inquiry of the registration processes for evidence in the possession of the district attorney’s office. Schreiber said a log of evidence is kept and that each item of evidence is signed in when it is received and signed out when it is transferred to another agency or entity, such as the court. Maline wanted to know, however, what registration of each evidence item is made when it leaves the evidence locker or safe to be examined internally by a district attorney’s office employee or removed to another district attorney’s office location. Schreiber said no signing in or out of the evidence is done when it remains within the custody of the office, even if it goes from one location to another.
Point blank, Maline asked Schreiber, “Did you have the watch in your possession outside the office?”
“Absolutely not,” said Schreiber.
“How about inside the office?” Maline asked.
“I held it the day we seized it,” said Schreiber. “After the 20th [of January 2007],” he said it was in safe storage. “I remember one of my investigators had to open that to take a picture of it. I don’t remember whether I had it in my hand at one time or another. I could have.”
Maline also took issue with characterizations of evidence or statements Schreiber had made in his statements before the grand jury, including representing that at crucial points in his conversation with Erwin on January 15, 2007 that Erwin grew evasive, hesitant or made lengthy pauses to his questions relating to the alleged crimes at issue in the case. Maline pointed out that in one of those questions that cut right to the heart of the prosecution’s bribery allegations, Erwin had made a quick and direct answer by asserting there was no quid pro quo. But Schreiber had told the grand jury there had been a long delay in Erwin’s response. He focused on that portion of the tape to drive the point home with the jury.
Maline asked Schreiber if he had discussed that issue with Cope and the other prosecutor on the case, California Supervising Deputy Attorney General Melissa Mandel, during a break after Maline had raised it earlier. Schreiber said he had.
“That’s the problem with this whole case,” Maline blurted. “Every time you guys are caught in a lie, you scramble and try to come up with a way to explain your way out of it.”
Cope objected and Judge Smith sustained the objection.
There was no testimony on Thursday after a juror suffered a death in the family.
By Mark Gutglueck