By Mark Gutglueck
In the eleventh week of trial, the prosecution in the Colonies Lawsuit Public Corruption Case maneuvered itself back onto track after a disastrous showing during three days of testimony in the tenth week. The fodder for that comeback was provided by Patrick O’Reilly, who seemed unlikely for the role, given that he was not only one of defendant Jeff Burum’s close friends but also his publicist, in which function he was highly practiced at putting his client’s best foot forward.
Seventy days after the trial began on January 4, the prosecution had yet to put squarely before the jury rock solid evidence of bribery, the single central crime element of the case after pretrial motions by the defense successfully knocked out the conspiracy and extortion components contained in the 29-count indictment handed down against the four defendants – Jeff Burum, Paul Biane, Jim Erwin and Mark Kirk – in May 2011.
In that indictment, Burum, a Rancho Cucamonga-based developer, is alleged to have coordinated with one-time sheriff’s deputies union president Jim Erwin to first extort, through the use of blackmail, intimidation and threats, former supervisor Bill Postmus and Biane, also a supervisor, to obtain a vote conferring a $102 million payout to the Colonies Partners to settle a 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 controlled by Biane, Erwin and Mark Kirk, the chief-of-staff to then-supervisor Gary Ovitt, whose third 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 in February 2010 was criminally charged along with Erwin in a case predating but related to the allegations contained in the May 2011 indictment, initially maintained his innocence but 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.
While the prosecution this week did not broach in any real sense the bribery issue, it did succeed in recapturing the momentum it appeared to have picked up during the first day of testimony provided by Supervisor Josie Gonzales at the end of week nine of the trial, during which the prosecution had carried out its direct examination of her. Under direct examination by the prosecution, Gonzales provided a version of events highly favorable to the prosecution which was damning in particular toward Burum. Gonzales testified that despite wanting to put the expensive, time consuming and energy draining litigation behind the county, she was unable to reconcile the Colonies Partner’s steep monetary demands to offset the damages the company was claiming. She said its representatives consistently failed, despite her requests of them to do so, to document with receipts and back-up materials those claimed losses. More devastating still, at least temporarily, were three vignettes she offered pertaining to the pressure the Colonies Partners were bringing upon her and her colleagues to settle the lawsuit.
One of her narratives related to an encounter she had with Postmus in the minutes prior to the board approving the $102 million payout in November 2006. She said that a “very agitated, very nervous” Postmus came into her office in the county’s main administration headquarters five floors above the board of supervisors’ meeting chambers and in an apparent reference to Burum and Erwin said, “Josie, don’t let these bastards do anything to you. Do not ever let them hurt you.” She said that what he said he was going through was awful. Gonzales indicated she understood Postmus to be referring to the tactics of intimidation and blackmail being leveled at him to get him to support the settlement.
Gonzales further related an encounter she had with Burum during a lawsuit settlement mediation that took place in Los Angeles in which the opposing parties were sequestered in rooms isolated from one another while a mediator shuttled between the rooms in an effort to hammer out an acceptable compromise. She said Burum ambushed her as she emerged from the ladies room when she had briefly departed from the conference room occupied by the county’s representatives, and that Burum had, inappropriately she felt, lobbied her for her support of the settlement on the terms the Colonies Partners were proposing.
Most significantly, Gonzales told the jury about a near encounter she had with Burum during a trade mission to China. Years ago, Gonzales said the event occurred in 2006, but on the witness stand on March 7, testified it had occurred in September 2005. She said that she had been approached by former State Senator Jim Brulte, who had been retained by the Colonies Partners to assist in reaching a settlement of the litigation favorable to the development company, in the lobby of the White Swan Hotel in Guangzhou shortly after her arrival there. Brulte, she testified, invited her to dinner and an evening out on the town with himself and Burum, telling her there was a limousine waiting to whisk them away to a night of Oriental pleasure. Gonzales said she could see Burum further away in the lobby. She initially gave Brulte indication she would go with them, but upon consideration concluded doing so might put her in a compromising position because the lawsuit was still pending. She put Brulte off, she said, using a manufactured excuse, and then retreated to her hotel room where she remained for much of the next two days.
Gonzales also illustrated her belief that the terms of the settlement the Colonies Partners were seeking were grossly out of proportion with the damages the company had sustained and that when the Colonies Partners and its attorneys and representatives were pressed to do so, they were incapable or unwilling to make a definitive and credible documentation of the losses and costs they were asserting the company had suffered. She offered her assessment of the county’s legal position in the matter as a defensible one that was being competently represented by its attorneys and that the judge who had made findings in trial that were more favorable to the Colonies Partners than to the county with regard to the issues in the lawsuit, Judge Christopher Warner, had failed to look out for the best interests of the county. She said she was confident the county would prevail in an appeal.
As the trial ended its ninth week, Gonzales appeared to be the strongest witness in the prosecution’s arsenal that had yet been brought to bear. While her testimony did not extend to her knowledge of bribes having been provided by Burum or received by her colleagues or other county officials, it strongly supported the narrative contained in the original indictment against the four defendants, which held that before the bribes or kickbacks were given to Postmus, Biane and Kirk, threats and blackmail had been utilized to extort from Postmus and Biane votes in favor of the settlement. She painted a picture of the backdrop against which the crimes the prosecution alleges occurred had played out. In that scenario, Burum, answerable to his investors for a risky project on undevelopable property hamstrung with flood control easements and drainage issues, had been prevented from proceeding in earnest for nearly four years. Thus, approaching or having gone beyond the point of no return, the prosecution’s theory is that Burum desperately and ruthlessly conspired with Erwin to use the skeletons in Postmus’ and Biane’s closets to strong arm the two politicians into settling the case on terms that were dictated to them.
But after laying out an account favorable to the prosecution, Gonzales was obliged to remain on the witness stand for the duration of the following week, where she was subjected to a vicious cross examination by the defense, most notably Jennifer Keller, one of Burum’s attorneys. Keller was able to shed doubt on the accuracy of Gonzales’ memory of the events she had related. Through the use of newspaper accounts and documentation, Keller was able to establish that Gonzales was in San Bernardino County attending board meetings and local events and had gone on a tour of storm-ravaged Mississippi in the wake of Hurricane Katrina during that span of September 2005 when she had testified she was in China. While Gonzales reflexively remained defiant in the face of Keller’s demonstrations, she eventually conceded that her 2005 dating of the China trip had been in error, and she changed her testimony back to comport with what she had told two previous grand juries, that the trip took place in November 2006, just a fortnight prior to the 3-2 vote accepting the $192 million settlement.
The difficulty with Gonzales’ flip-flop was that Burum’s attorneys had demonstrated more than five years ago that Burum, who had been in China in 2005, had not been in China in 2006. Indeed, prosecutors had seized his passport at the time of his 2011 indictment, putting them in possession of information which cast grave doubt on Gonzales’ March 7 testimony. Burum’s attorneys immediately cried foul to Judge Michael Smith, asserting the prosecution had, essentially, suborned perjury and perhaps even coached the testimony containing that perjury, a charge which was supported by the consideration that Gonzales had previously testified that the events she related had taken place in 2006, not 2005. The entire matter represented a significant setback for the prosecution, which worsened with each day Gonzales remained on the stand, during which defense attorneys grilled her with regard to other elements of her testimony. Keller was able to make further inroads by extracting from Gonzales further details with regard to her encounters and alleged close encounter with Burum that she had testified about before the grand jury, noting the “sinister” intent Gonzales had imputed to Burum and Brulte in their interaction with her, including Gonzales having previously testified that she feared, while she was in China, that Burum and Brulte intended to get her drunk or drug her and then photograph her in sexually compromising poses to blackmail her into supporting the settlement. Keller suggested in her questions that Gonzales had consistently unreasonably interpreted random or chance encounters or routine interactions she had with the Colonies Partners or their representatives as attempts to stalk or unduly influence her.
When defense attorneys sought to discredit her over her assertions that “time was of the essence” in settling the case and that the Colonies Partners had provided the documentation with regard to the company’s claims against the county which she had requested, Gonzales forthrightly stated that time was not of the essence to her in settling the case but rather to Postmus, who had been elected county assessor and was due to leave his supervisor’s post. And she said, the documentation had been provided at the last minute before the settlement vote was taken, leaving her insufficient time to examine it.
Gonzales’ testimony had not yet concluded this week when the defense was loading up yet again to make a sally against her credibility. Last week, on March 8, fresh from the witness stand, she had driven to Ontario to attend the annual State of the County business networking event at the Inland Business Bank Arena. Just before board of supervisors chairman Robert Lovingood’s speech, she met and greeted several county officials also in attendance, including district attorney Mike Ramos.
On Monday of this week, March 13, she was questioned about what had occurred on March 8. She testified she asked Ramos about the identity of Erwin’s attorney, whose name she did not know, describing him as “handsome, tan, well dressed and GQ,” saying that he had exhibited a “passive aggressive” technique in cross-examining her. Ramos was able to identify the attorney as Raj Maline. Gonzales said her exchange with Ramos lasted less than a minute.
Gonzales indicated she was not complaining about Maline but rather seeking to find out his identity, as neither member of the prosecution team – supervising deputy district attorney Lewis Cope and California Supervising Deputy Attorney General Melissa Mandel – had responded to her inquiries regarding him. Nevertheless, Ramos had detailed two of his office’s investigators to look into the matter, essentially opening an investigative file on Maline, apparently for “harassing and intimidating” a witness.
Maline became aware of the investigation on March 10, a day when there was no testimony in the trial. It appears the investigation was closed out after the district attorney’s office investigators ascertained that Gonzales’ interaction with Maline came while she was being cross examined by him. In an effort to shift the onus off of Ramos for overreaction and impropriety inherent in his having detailed his investigative resources to shadow a defense attorney in the middle of a trial, on March 13 Cope offered what might have been seen as a mild rebuke of his witness when he asked Gonzales if she did not understand that she should not have been talking directly to the district attorney about the case while she was yet on the witness stand and should rather be communicating through investigators.
“Do I understand that in the future you will not be approaching Mr. Ramos with regard to this case?” Cope asked.
“Absolutely not,” Gonzales said.
But the defense was not ready to let the matter simply die. Previously during her testimony, Gonzales’ contact with Ramos in regard to the criminal case had been a matter defense attorneys had explored, angling to determine what issues she had discussed with the district attorney, whom she characterized as one of her political allies. They had sought to determine when in relation to the settlement, before or after, the contact between Gonzales and the district attorney as well as the investigators he vectored her to had taken place, and they wanted to know who had initiated those contacts. The defense demanded, and was given access to, the district attorney’s office’s report of the investigation relating to Maline that Gonzales’ exchange with Ramos had launched, and upon assimilating it, came to court on the morning of March 14 prepared to question her about what was contained in the report and her testimony the previous day, looking to erode her believability with the juries further. At that point, however, Judge Smith, like a referee in a prize fight who sees a combatant up against the ropes with his hands by his sides and incapable of deflecting or slipping the punches coming at him, stepped in to end the carnage, intervening to keep the defense from piling on. Outside the presence of the jury, Smith told the prosecution and the defense attorneys that further questioning of Gonzales about her exchange last week with Ramos and the contents of the report on the investigation of Maline would not be permitted.
To the howls of protest from the defense attorneys, who have openly suggested, both in front of the jury and outside its presence that Gonzales has fabricated much of her testimony, Smith said, “She has been impeached on a whole host of issues.” Later, he offered the legal basis for not allowing “additional cross examination of Supervisor Gonzales [with regard to her] interview with the investigators. The court determined it to be precluded as cumulative under Evidence Code Section 352, Penal Code Section 1044 and Evidence Code Section 765 as a mode of interrogation and to protect the witness from undue embarrassment.”
With the exodus of Gonzales from the witness stand, it then fell to Cope and Mandel to stanch the bleeding. They began by next calling a relatively safe witness, former Assistant San Bernardino County Administrator Norman Kanold, whose authority within the county included oversight of the county’s flood control district. Kanold, who acknowledged he came into his position of authority “midway through the case,” quibbled with former county chief administrative officer Mark Uffer’s statement that he was a lead adviser on the case but said he did represent staff’s view that the Colonies Partners were wildly inflating the costs associated with the lawsuit. For example, Kanold said, the Colonies Partners estimated management costs for a flood control basin at $75 million when he believed a more realistic assessment would be $30 million. Kanold indicated that overall, he did not believe much more than one third of the $102 million that was paid out in the settlement could be demonstrated as actual damages, if that. He also enunciated his belief that the price the Colonies Partners attributed to the basin went beyond paying for its basic function in providing flood control and contained landscaping and aesthetic elements that were the province and responsibility of the developer and not the county. He, like Gonzales, and the other supervisor who voted against the settlement and testified earlier in the trial, Dennis Hansberger, maintained the Colonies Partners had not provided adequate back-up and documentation of the company’s cost claims. “This was Colonies claiming the costs,” he said. “It was really their responsibility to provide that information.” Kanold said.
On cross examination, one of Burum’s attorneys, Stephen Larson, sought to illustrate to the jury that Kanold was not really steeped in the background and details of the lawsuit and the issues involved in it. Kanold had attended law school, but despite that, Larson was able to get him to say that he did not know what a “quiet title” action was, nor an “inverse condemnation” suit, which pertain to determining the actual ownership of land and the government taking private property without compensation, respectively, both of which were involved in the case.
Larson also was able to get Kanold to acknowledge he was unaware the Colonies Partners had used dirt unearthed to create the 210 Freeway to fill in the quarry hole on the Colonies Partners’ property.
Larson sought to turn Kanold’s statement to Mandel that the board of supervisors had not directed county staff to examine the damage numbers claimed by Colonies into a suggestion that Kanold had an inadequate grasp of the entire matter. When Kanold maneuvered around that question, Larson sought to use his statement that he had “mixed feelings” with regard to the $102 million settlement. Kanold said the ambiguity was based more on perception than fact. “There was talk of raising the ante [i.e., the damage amount claim the Colonies Partners was seeking ] to $300 million,” Kanold said, describing how it was that the Colonies Partners were running a bluff that might influence public opinion. “We had appraised at a much lower figure,” he said.
Kanold said that Judge Warner “was not kind” in his rulings with regard to the county’s action at issue in the Colonies Partners lawsuit, but testified that he had not seen Ken Miller, the head of the county’s flood control district, manifest the deceit and dishonesty Judge Warner had accused Miller of in one of his findings, upon which much of Warner’s ruling against the county was based.
Kanold related to Mandel a brush he had with Postmus that echoed the previous testimony of others indicating Postmus was imploding, quite possibly through drug use, and that he was being pressured simultaneously to settle the lawsuit on terms favorable to the Colonies Partners.
“He was in a hurry to get it settled,” Kanold said of Postmus. “I had one encounter with him in his office. I was there on another matter and the subject of the Colonies settlement came up.” Kanold said this occurred as the final vote that ratified the settlement was approaching. “I pointed out the numbers seemed a little high,” said Kanold, to which Postmus, he said, responded, “You just don’t understand. This needs to be settled and it needs to be settled quickly.” Kanold said “I mentioned the amount being considered was high. He raised his voice and I took that as a cue that the conversation was over.”
Kanold said that Postmus was “disheveled, [with] a two-day beard, I think. His hair wasn’t combed.”
When Kanold was asked, “Were you aware of any role Jim Erwin played in the settlement?” he responded, “Not at that time,” leaving the impression he learned of Erwin’s role assisting Burum later.
The $102 million pay out, Kanold testified “took every bit of reserves we had,” in reference to the county flood control division’s budget.
After Kanold was dismissed as a witness, late on Tuesday, Michael Eagleson, who succeeded Erwin as the executive director of the union representing the county’s sheriff’s deputies, the Safety Employees Employment Benefit Association, took the witness stand. Two juries are hearing the case, one of which is to decide the guilt or innocence of Burum, Biane and Kirk and the other of which is to assess the case against Erwin. Both juries are usually present in the courtroom as the testimony provided has relevance against all of the defendants. Nevertheless, in some circumstances, where statements by Erwin are testified to by a witness, if that statement has bearing on Burum, Biane or Kirk, their jury is excused because of the likelihood that Erwin will avail himself of his Fifth Amendment protection and not testify during the trial. Because Burum, Biane and Kirk also have the protection of the Sixth Amendment right to confront any witness against them, their jury is not hearing testimony with regard to any of Erwin’s statements bearing upon Burum, Biane or Kirk. Eagleson’s testimony was most relevant to Erwin but on Tuesday afternoon, both juries were in the courtroom for prosecutor Lewis Cope’s initial round of questioning of him.
Eagleson told both juries that Erwin was a “bright guy” who was “smart about politics.” Eagleson, who had started in a staff role with the union in 1999 before acceding to his present position, said that as president of the union and later as its executive director, Erwin had some degree of influence over how the union’s political action committee money was spent, but that his influence was not absolute since there were 35 to 40 union board members who also had a say in how the money would be used and which candidates would be supported. Eagleson told both juries that Erwin told him in January 2007 that he was going to form a political action committee of his own, and that he anticipated receiving a $100,000 donation into that committee from Burum for assisting in getting the Colonies lawsuit settled. Eagleson said that Erwin said that having control of his own political action committee would make him more powerful and that “When you have a lot of money people don’t want to upset you.”
To questions from Erwin’s lawyer, Raj Maline, Eagleson said that as union president and as its chief of administration Erwin was “very passionate about the deputies he was representing. He took care of his membership.”
Thereafter, Burum, Biane and Kirk’s jury was excused and Eagleson continued his testimony before Erwin’s jury, relating that Erwin in February 2007 told him about a January 2007 trip he took with Burum to New York City, where they stayed, Eagleson said, in what Erwin described as “a high end place, a pretty nice place,” and that Burum bought Erwin a Rolex watch. Burum had provided the lavish accommodations and the gift, Eagleson said, “for assisting in settling the Colonies matter.”
Cope also questioned Eagleson about that assistance and efforts to broker a settlement involving Postmus and Burum at an Ontario hotel. Eagleson said “It is my understanding Mr. Burum and Patrick O’Reilly were at a hotel in Ontario hotel to discuss with Mr. Postmus a solution to the Colonies matter. Mr. Erwin would deal with Mr. Postmus on settlement issues and Patrick O’Reilly would meet with Mr. Burum and then Mr. Erwin and Mr. O’Reilly would meet.”
Sometime later, Eagleson testified, perhaps as late as 2008, Erwin told him that he was considering returning the watch to Burum because he had not reported receiving it on the statement of economic interest form he was required to fill out after he had been appointed assistant assessor by Postmus.
Cope asked Eagleson if he had given him any advice about that dilemma.
“I told him he needed to report the watch,” Eagleson said.
Eagleson said he and Erwin had attended intensified and accelerated negotiation and labor relations training seminars together at Harvard.
At 11:17 a.m. on Wednesday morning Cope began his direct examination of Patrick O’Reilly, who had narrowly avoided being indicted himself. Not yet disclosed, or even broached, is whether O’Reilly cut a deal with prosecutors for his cooperation in testifying. What came across over the day-and-a-half of testimony that ended on Thursday March 16, was that, willingly or not, O’Reilly assisted Cope in taking a major stride toward rehabilitating the prosecution’s case.
Much doubt about whether O’Reilly would be of much use in furthering the prosecution toward its goal had hung over the case from the outset. As O’Reilly testified to on Wednesday, he was not only one of Burum’s close friends with whom he sometimes vacationed, he had a significant professional relationship with him as well, in that Burum had paid O’Reilly and his public relations firm substantial fees. While some of that work appears to have been standard public relations efforts, the exact nature of some of it remains unclear and was not made any less opaque by O’Reilly’s testimony. Rather it left open the impression that it might have entailed both gathering information on Postmus and Biane and lobbying and pressuring them. At the very least, O’Reilly confirmed the subject of blackmailing Postmus and Biane had been broached among Burum, Erwin and O’Reilly in the crucial two-month period before the final settlement vote.
Cope dwelled for some time on the nuts and bolts of running a public relations firm and the minutiae of preparing press releases and the distinction between talking points, media decks, press kits and sound bites. When he moved on to actual events, he cleverly did not proceed in a chronological fashion through his questioning but rather early on jumped to a point shortly after the settlement had been effectuated, in January 2007. He questioned O’Reilly about a trip to New York City and Washington, D.C. on January 28, 29 and 30, 2007 aboard a private plane Burum either owned or chartered. In a painstaking fashion that seemed picayune, Cope led O’Reilly through what even Judge Michael Smith would indicate he felt was an unnecessarily overly-detailed description of what the trio had done on the excursion, which included meals, taking in a Broadway show, Burum purchasing watches for O’Reilly and Erwin, and a flight to Washington, D.C., where they spent the night at the Mandarin Oriental Hotel and had dinner with Congressman Kevin McCarthy at the Congressional Club before flying home. When the defense raised objections to questions Cope asked about what courses had been ordered by whom at the restaurants, Smith sustained the objections, saying at one point, “I don’t think going into exactly what they ordered and ate has anything to do with it [the case before the juries].”
Cope at one point focused on one of the receipts for the watches, referencing the credit card number used to make the payment, and asking O’Reilly if he recognized or knew Burum’s credit card number. The question, seemingly finicky at the time, had the effect of angering and exasperating O’Reilly, who gave a rather exaggerated response that he did not.
So proceeded much of Cope’s questioning, dealing to a remarkable degree with what seemed minor or unremarkable events and circumstances. In his questioning, Cope gave O’Reilly plenty of latitude and opportunity to establish that he not only worked for Burum, was his friend and thought highly of him, but that he believed the Colonies Partners held both the factual, moral and legal high ground in the company’s legal dispute with the county and that it was more than justified in its approach toward achieving a settlement of the suit. At one point, O’Reilly testified that it was he who had convinced Burum to prosecute his case in the media, a piece of advice and guidance that early in the trial, Jim Brulte had taken credit for during his testimony. O’Reilly said he was the architect of much of that media campaign, including suggesting that the Colonies Partners’ actual damages in the case exceeded $300 million.
Similarly, Cope through his questions allowed O’Reilly to propound to the jury a message highly favorable to not just the Colonies Partners but the defense, which held that the $102 settlement was a fair and just one and that, if anything, the Colonies Partners received less money in the settlement than was due the company for all it had been put through by the county.
When Cope asked O’Reilly if Burum “was happy” with the settlement, O’Reilly responded, “I think he felt he had left some [money] on the table but, candidly, he was happy to get it behind him.”
In this way, by late Wednesday afternoon, O’Reilly’s guard was down and he had been lulled or perhaps manipulated into a comfort zone when Cope moved his questions into an area in which tremendous hazard to both Burum and Erwin lurked – a meeting involving Burum, Erwin and O’Reilly at the Double Tree Hotel in Ontario on October 18, 2006. Staying at the Double Tree that night was Postmus, who was there to attend a mediation session between the county and the Colonies Partners in Ontario on October 19.
After Cope got O’Reilly to admit he was at the Double Tree that evening and that he had been invited there by Burum, the bespectacled and mild-mannered prosecutor dry-gulched the witness.
He showed O’Reilly three exhibits, one showing O’Reilly had checked into a room at the Double Tree that night.
“No, sir, I don’t remember doing that at all,” said O’Reilly, with Cope vectoring attention to another of the exhibits, a credit card slip showing that the room had been paid for by the same American Express card – Burum’s – used to pay for the watches a little more than three months later. The unstated inference was that Burum had checked into the Double Tree, where Postmus was in temporary residence, the night before the mediation, under O’Reilly’s name.
From that point on, O’Reilly was like a stag in the middle of a road in Upper State Michigan caught in the glare of high beams at midnight.
Cope got O’Reilly to relate how he had rendezvoused with Burum and Erwin at the hotel. After Erwin went down to Postmus’ room, all three of them went to the supervisor’s room to greet him, after which they left Postmus and the three went to the hotel restaurant to have dinner.
O’Reilly said the trio had come to the Double Tree that night to see what information might be had with regard to the county’s position going into the settlement talks scheduled for the next day. That turned out to be a bust, O’Reilly testified, since when they had attempted to suss out from Postmus where the county stood, Postmus, then the chairman of the board, “said he didn’t know, and that it was ‘up in the air.’” Some time later, on his drive home, O’Reilly said he thought to himself that the meeting with Postmus had proven out as “the biggest waste of time.”
In his matter-of-fact responses to the questions being thrown at him, O’Reilly was confirming the foundation of the prosecution’s case, that the Colonies Partners had gone to extraordinary lengths in focusing on, pressuring and exploiting the county’s decision-makers to achieve the company’s ends.
While Cope was having his way with O’Reilly on the stand, the prosecutor inflicted further damage on the defendants by getting the witness to say that Erwin was being utilized to relay information about the county’s negotiating position provided by Postmus to Burum and O’Reilly.
Having capitalized already on O’Reilly’s psychological shock at seeing his name on the receipt for Burum’s hotel room, Cope advanced into the most critical area of that day’s testimony, establishing the existence of hit pieces – mailers containing highly derogatory information about politicians – that had already been created or were in the works against Postmus and Biane. The hit pieces, which were never mailed, comprise, according to the prosecution, the central element of the extortion alleged against Burum and Erwin in the 2011 indictment. One of those hit pieces concerned Postmus’ homosexuality and drug use, highly problematic issues for someone who was the chairman of the county Republican Party and a candidate for county assessor in that year’s election. The other hit piece dwelled on Biane’s financial woes that extended to his being on the brink of bankruptcy, which was information he would have preferred remain unknown given that he was at that point sponsoring Measure P, which called for increasing each supervisor’s annual salary from $99,000 to $151,000. Cope had the further advantage that the Measure P issue was the one matter at that time over which O’Reilly and Burum had differences. Burum was opposing Measure P and using it as a cudgel against Biane. O’Reilly and his public relations firm were working on behalf of promoting the measure.
Cope started with Measure P, asking “Do you recall a bag of flyers at that meeting?”
O’Reilly said that a bag containing flyers was indeed delivered by Spencer Brown, one of Burum’s employees.
“What was the subject matter of the flyers?” Cope asked.
“Measure P,” said O’Reilly.
O’Reilly said he did not look at any of the flyers because discussion of them “wasn’t germane” to the topic that had led to the gathering at the Double Tree “and I was on the other side.”
Cope asked, “You knew they were campaign flyers?”
“Yes,” said O’Reilly.
“How did you know they were?” Cope asked.
“Jeff said they were,” responded O’Reilly.
Delicately, Cope proceeded, asking what the flyers concerned.
“He did indicate he had mailers relating to Supervisor Biane,” O’Reilly said. “He thought it was hypocritical for them [the supervisors] to be going on about getting a pay raise when they hadn’t been doing a good job.” The mailers, O’Reilly said, “were going to say he doesn’t deserve a pay raise. He [Biane] doesn’t do a good job with the money he’s already given. That was definitely a theme of them.”
When O’Reilly began to balk at giving further damaging information about Burum, Cope coaxed him along with references to testimony O’Reilly had provided before the grand jury in 2011 to the effect that Biane was having money and debt problems. One question before that panel to O’Reilly was, “Did he [Burum] say that he knew Paul Biane was having financial difficulties?” O’Reilly’s response was, “Yes, that’s what he told me.”
After establishing that an effort to intimidate and threaten Biane had taken place in the period prior to the settlement vote, Cope moved on to addressing a similar effort against Postmus involving hit piece mailers.
It was Erwin, O’Reilly said, who had brought up the subject of a mailer targeting Postmus relating to his homosexuality. Before the topic proceeded very far, O’Reilly said, Burum brought it to a close. “Jeff stopped him,” O’Reilly said. “He said it was not even relevant. It was the end of the discussion.”
When Cope sought to hover over the subject, asking if “that information would be harmful to Mr. Postmus’ career?” O’Reilly sought to put in a good word for Burum, succeeding in doing so but simultaneously acknowledging the creation of a mailer using Postmus’ homosexuality against him was a recurrent topic.
“I know on another occasion when Jeff said that shouldn’t be an issue,” O’Reilly said.
Cope explored whether Burum knew of Postmus’ homosexuality prior to the settlement.
“It was a well known rumor around the county,” O’Reilly acknowledged.
Cope then asked O’Reilly if Postmus’s sexual orientation left him politically vulnerable.
O’Reilly said that if the information had been revealed “It would pretty much have killed any political situation for him at that time, yes sir.”
Wednesday’s testimony ended shortly thereafter.
Thursday morning, having reestablished momentum in the prosecution’s favor, Cope enlarged further on the gains he had made, even though O’Reilly, apparently conscious of the degree to which he had been utilized to wound Burum and Erwin, was growing more circumspect.
When Cope inquired about whether Erwin was exploiting his access to Postmus to obtain information on the county’s negotiating position regarding the lawsuit settlement before, during and after the mediations, O’Reilly said, “Jim was receiving updates from Bill, when and how I am not familiar.”
Shortly thereafter, perhaps without understanding what he was doing or perhaps beguiled by the casualness with which Cope asked the question, O’Reilly implicated Burum and Erwin in a political money laundering conspiracy.
“During this period of time that Mr. Erwin was helping with the interface of the board, Mr. Erwin was president of SEBA [the Safety Employees Benefit Association, the union for the county’s sheriff’s deputies],” Cope said, blurring the distinction between union president and its executive director. In fact, Erwin had been union president, but in 2006 was the union’s executive director. “Did you consider him an influential member of SEBA?” Cope asked.
“Yes,” O’Reilly responded.
“Did Mr. Burum indicate he was going to deliver a large amount of money to SEBA with the understanding that the money would be delivered to candidates he favored?” Cope asked.
“Yes,” said O’Reilly. “I know it happened. He agreed to it and he was fine with that.”
Later in the morning and then into the afternoon, Cope used invoices sent from O’Reilly’s public relations firm to the Colonies Partners which delineated the work O’Reilly was doing on behalf of the company to demonstrate that in the months before the settlement vote and especially during the mediation sessions, O’Reilly’s work on behalf of Burum intensified and much of what he did appeared to be concentrated on Bill Postmus. While Cope did not explicitly ask or directly suggest that O’Reilly was being used to spy on Postmus or pressure him on Burum’s behalf or that he was coordinating with Erwin to do so, the indirect inference was that something akin to that was ongoing.
For his work, O’Reilly was being paid $250 an hour.
The invoices documented that O’Reilly had made scores of phone calls during the fall of 2006 relating to the Colonies lawsuit settlement efforts either to the parties involved in the discussions or otherwise was involved in providing Burum with advice on how to proceed with his phone conversations or interpret or utilize the information he had gleaned from those calls.
In plodding examination of the invoices and testimony from O’Reilly, it was established, among several other lesser billings, O’Reilly had been paid: $1,125 for four-and-a-half hours’ work on August 1, 2006 involving media response to the recent court ruling in favor of the Colonies Partners and for phone calls to Burum and Postmus; $750 for three hours spent editing an op-ed piece that was to be written by assembly members Russ Bogh and Bill Emmerson calling for a settlement of the case, involving direction and input from Erwin and Postmus; $937.50 paid for three-and three-quarters hours he was involved in taking phone calls from Burum, Postmus and Biane, and then meeting with Postmus; $500 paid for two hours involving meetings with Postmus and Biane and phone calls from Burum on August 22; $1,500 paid for six hours’ work which involved meeting with Postmus and Gonzales and phone calls with Burum and Biane on August 23; $1,000 for four hours’ work on August 24 which involved reading and evaluating newspaper articles, editing responses to the same and phone calls with Burum, Biane and Postmus; $1,000 paid for four hours’ work on September 5 for either meeting with or phoning Burum, Erwin and Postmus’ chief of staff Brad Mitzelfelt and his field representative Adam Aleman; $750 paid for three hours’ work in contacting Erwin and editing phone bank scripts on October 13.
On the day of the meeting at the Double Tree, October 18, 2006 O’Reilly billed Burum $1,250 for five hours’ work, which was described in the invoice as consisting of “Postmus & Erwin issues.”
On October 19, the day of the mediation, O’Reilly was paid $1,500 for six hours’ work shown as board of supervisors calls, Erwin calls and Burum calls. Cope gave special focus on October 19, stating that on that day, there had been 37 calls between O’Reilly and Erwin on their cell phones, consisting of 21 calls from O’Reilly to Erwin and 16 calls from Erwin to O’Reilly.
When asked about the number of calls between him and Erwin, O’Reilly said, “I don’t recall that. I’m not disputing it happened.” When Cope put those calls into the context of the mediation held that day, O’Reilly, almost casually, stated “That’s not surprising. That would be reasonable.”
On November 1, the day of another mediation session between the county and the Colonies Partners involving former California Supreme Court Justice Edward Panelli, O’Reilly was paid $2,000 for eight hours’ work, which was described as relating to the “Colonies settlement issue” on the invoice.
On November 6, he was paid $1,625 for six-and-a-half hours’ work relating to board of supervisors issues.
At the November 7, 2006 board of supervisors meeting where it was anticipated the settlement would be approved, O’Reilly was in attendance, for which he was paid $1,625 based upon his invoice’s claim of six-and-a-half hours’ work.
On November 8, he invoiced Burum for $500 for two hours’ work, consisting of phone calls to Burum and Erwin.
Cope also used the invoices to demonstrate that O’Reilly had met with Postmus on at least three occasions that summer and fall prior to the settlement, which controverted O’Reilly’s initial claim that he had met Postmus only once and that the meeting occurred after the settlement.
In the criminal complaint filed against Postmus and Erwin in February 2010, O’Reilly was not identified by name but described in detail as a “co-conspirator” in the extortion, bribery and conspiracy scheme for which Postmus and Erwin were charged. Also described as co-conspirators were Burum, Biane, Kirk and Dan Richards, who is with Burum a co-managing principal in the Colonies Partners. O’Reilly and Richards avoided being named in the 2011 indictment. O’Reilly’s entanglement in many of the events alleged in the indictment, together with statements he has already made under oath before the 2011 grand jury, makes him a very problematic figure for the defense. The defense will have the opportunity to cross examine him next week following the conclusion of Cope’s direct examination, which had not concluded as of this week. And while the defense had a field day in impeaching Supervisor Gonzales after she provided testimony on direct examination deemed damaging to the defendants, pursuing a similar strategy against O’Reilly would be hazardous at best, given the fashion in which Cope has established him as being closely identified with and on such positive terms with Burum.
This week, a development with the grave potential of resulting in the criminal proceedings lapsing into a mistrial manifested when one of the members of Erwin’s jury alerted Judge Smith that members of the Burum, Biane and Kirk jury had engaged in inappropriate discussions outside the courtroom. Smith admonished the jury members that they needed to exhibit caution in their discussions and comportment.
By Mark Gutglueck