By Mark Gutglueck
Bill Postmus, whose testimony in the Colonies Lawsuit Settlement Public Corruption Prosecution is considered the centerpiece of the case and which enlivened the flagging fortunes of the combined district attorney’s office/state attorney general team pursuing it during week 18, found himself beset by defense attorneys during Week 19 as they sought, with some degree of effectiveness, to compromise him as the bête noir of the four remaining defendants charged with participation in what California Governor Jerry Brown once termed “the most appalling corruption case in decades, certainly in the history of San Bernardino County and maybe California itself.”
Brown, who was then California Attorney General, made that description in 2010, when Postmus was himself charged in the conspiracy, along with former deputy sheriffs’ union president Jim Erwin. Though he originally pleaded not guilty, Postmus caved in the following year, pleading guilty in March 2011 to a total of 14 political corruption charges lodged against him, and agreed to turn state’s evidence. He then served as the star witness before a grand jury that indicted Erwin along with Jeff Burum, one of two managing principals with the Colonies Partners development consortium; Paul Biane, who had been one of Postmus’ colleagues on the board of supervisors that conferred a $102 million payment on the Colonies Partners in November 2006 to end a four year-running lawsuit the development company had brought against the county over flood control issues at the Colonies at San Antonio and Crossroads Colonies residential and commercial subdivisions in northeast Upland; and Mark Kirk, who had been the chief of staff to Gary Ovitt, the third supervisor who had joined with Postmus and Biane in approving the $102 million settlement.
Last week, during the first two hours of his testimony under direct examination by supervising deputy district attorney R. Lewis Cope, Postmus had provided more material in support of the prosecution’s case than had been vouchsafed by the 33 previous witnesses combined in the first 18 weeks.
According to the 29-count indictment handed down in May 2011, Colonies Partners co-managing principal Jeff Burum, after four years of being unable to resolve the matter with the county so that his residential and commercial projects could proceed as he envisioned, conspired with Erwin to extort Postmus, the then-chairman of the board of supervisors, and the then-vice chairman of the board of supervisors, Biane, by threatening to reveal in mailers to be sent to voters throughout the county highly derogatory personal information about both of them. After Postmus and Biane acceded to this blackmail and voted with then-supervisor Ovitt in November 2006 to approve the $102 million lawsuit settlement, according to the indictment, Burum then provided Postmus, Biane, Erwin and Kirk with separate $100,000 bribes in the form of donations made to political action committees they had created or otherwise controlled. Kirk’s bribe, the prosecution alleges, was provided to him by the Colonies Partners in return for having delivered Ovitt’s vote. Erwin, who was not employed by the county at the time of his efforts related to the extortion, was, however, employed as assistant county assessor in 2007 when the $100,000 donation to his political action committee was made.
During his time on the witness stand Monday, Tuesday and well into Wednesday, May 1 through May 3 last week, Postmus replicated the key elements of this narrative. In the latter half of 2006, Erwin, working on behalf of Burum and the Colonies Partners, Postmus testified, had threatened to expose elements of both his and Biane’s personal lives in an effort to persuade them to support the settlement. And Burum had promised to support him in either or both future political and business endeavors once the settlement was out of the way, he said. Moreover, Postmus said, he believed the $102 million paid out to the Colonies Partners was more – ridiculously more – than the development company was due. The threats and promises of reward, he said, along with the desire to put the whole thing behind him, he testified, prompted the settlement. And after the settlement was in place, Postmus testified, the Colonies Partners had come through with two separate $50,000 donations to political action committees he had control over. Postmus was chairman of the board when the decision was handed down, and previous testimony by numerous witnesses represent him as having commandeered from Biane the role of the major champion on the board of forging some order of a settlement with the Colonies Partners to bring to a close the litigation. Those witnesses generally held that Biane, in whose Second Supervisorial District the project was located and who had been elected as Second District supervisor in 2002 in large measure on the strength of grand scale political donations from the Colonies Partners, had been the earliest and most vocal advocate of ending the legal wrangling. A number of witnesses – ranging from former top county administrator Marc Uffer to two of the county’s top ranking in-house attorneys, Ron Reitz and Ruth Stringer, along with the then-up-and-coming junior lawyer Reitz and Stringer had kept assigned to handle the Colonies litigation case, Mitch Norton, all reported that when Postmus returned to California from a nearly two-week-long trade mission trip to China in September 2005 during which he had met extensively with Burum, he had adamantly insisted that the county bring the litigation to a close, ignoring their counsel that a settlement on the terms the Colonies Partners was seeking was unjustifiable and inconsistent with the county’s interests. Postmus offered testimony that complemented that of Uffer, Reitz and Stringer, acknowledging that he had met Burum only a handful of times before the China trip at fundraisers. Postmus testified that as a consequence of the efforts of former state legislator Jim Brulte, who had gone to work as a lobbyist for the Colonies Partners, he had been properly introduced to Burum on the flight to China, and that while in Hong Kong and a number of cities on the mainland he and Burum had hit it off as traveling companions who on their own sought out Western cuisine as a respite from the Oriental dishes served at the formal dinners associated with the tour. They visited bathhouses and bazaars together, cementing their newfound friendship, Postmus testified, while Burum bent his ear with regard to settling the lawsuit.
When Cope ended his direct examination of Postmus on Wednesday May 3, the prosecution’s case had seemingly achieved its high water mark. In the afternoon of May 3, one of Burum’s attorneys, Jennifer Keller, began her cross examination of Postmus. That day and the next, she succeeded in making inroads on the ground deep behind the defense’s lines the prosecution appeared to have captured. Right out of the gate, Keller moved to explore in greater depth Postmus’ drug use both during and after the events upon which Cope had vectored such a sharp focus. In so doing, Keller established that, in Postmus’ words, “My mind is kind of messed up” from drug use, to the point that his memory was sketchy at best and his temporal sense was completely out of synch, such that dates and times were jumbled so that he was confusing things that happened at one point or another with things that had happened one, two or three years previously or one, two or three years later. In response to a set of carefully crafted questions accompanied by displays of emails, documents, and/or the transcripts of interrogations by district attorney’s office investigators, Keller endeavored to establish that what appeared to be false memories were being planted in Postmus’ addled pate by those investigators and that the prosecutors had then harvested those false memories during his appearance before the grand jury in 2011 to obtain the indictments.
Monday morning of this week, May 8, Keller continued her assault. Remarkably, however, Keller maintained the essential tenor of her cross examination of last week, one that avoided an absolute destruction of Postmus as a witness but instead turned him into something that in much of its aspect imprecisely simulated a defense witness. Whereas previously, elements within the defense camp, including Burum’s publicist Edward Berrera, had hinted or openly suggested that Keller and the other defense attorneys were “going to burn him to the ground,” that immolation never took place, at least in the way many courtroom observers anticipated. This was partially because Postmus made doing so awkward if not undoable. From the start, under direct examination by Cope, he had owned up to his drug use and homosexuality. Once establishing those two elements of Postmus’ makeup as realities, the prosecutor had gone on to issues directly bearing upon his theory of guilt. That presented Keller, or so it seemed, with an opportunity to shred Postmus’ credibility by showing that he had in some fashion minimized his addiction or elements of his lifestyle in his exchange with Cope. But when Keller pounced, suggesting that Postmus’ lifestyle was far more sordid than he had let on, involving drug-fueled homosexual hook-ups with scores or hundreds of men whom he had never before met through a website entitled Party and Play, through which he had indulged what Keller characterized as “a sexual addiction” and by which arrangements for those trysts were made, including explicit references to which party in the pairings would bring which drugs, he offered no resistance to her assertions and there were no denials in his answers. Indeed, Postmus without any seeming reluctance came across as willing to openly acknowledge all of the elements of his personality which he had kept under wraps during his political heyday, a signal that he had abandoned in its entirely his previous political ambition, any illusion that he might again establish his hold on the Republican establishment over which he had once lorded, and that without reservation he was absolutely resigned to endure a complete loss of his dignity. Keller’s examination style embodies a strategy of asking simple and disarming questions in a friendly tone and manner to establish a baseline which she then abandons without warning by posing a ruthlessly challenging and pointed question. Postmus cottoned at once to the almost motherly tenor of Keller’s initial questions and once that seemingly warm relationship was established, refused to abandon it, even when Keller put steel into her voice and venom into her questions. In short, Postmus could not be lured into a confrontation with her during which she would be able to marshal documentation in the form of an email, recorded statement or transcript of his earlier testimony before the grand jury or his interrogations with investigators to demonstrate him to be wrong, mistaken, exaggerating or outright lying.
Thus Keller was faced with a similar circumstance as the defense camp had been confronted with by an earlier prosecution witness, Matt Brown. Brown had been Biane’s chief of staff who had created the political action committee, San Bernardino County Young Republicans, which had received the $100,000 donation from the Colonies Partners which the prosecution alleges was a bribe to Biane. When he was approached by investigators with the district attorney’s office in 2009, Brown agreed to cooperate with them and gather information against those the district attorney’s office believed to be involved in the bribery conspiracy, primarily targeting Biane, including wearing a concealed audio monitoring device and secretly recording conversations in which he trolled for statements to implicate the defendants in a quid pro quo arrangement with regard to the Colonies lawsuit settlement. Burum’s defense team, as well as Biane’s lawyer, Mark McDonald, were prepared to savage Brown. But Brown, who was clearly resentful toward prosecutors for having been put into the position of having to offer testimony against his one-time friend, political associate and boss, and who yet harbored a grudge toward the district attorney’s office investigators for the intimidation tactics used during his interrogations, failed to offer the hard-edged and damning testimony that California Supervising Deputy Attorney General Melissa Mandel attempted to elicit from him on direct examination. Defense attorneys immediately regrouped and instead of seeking to impeach Brown, seemingly worked with him to elicit testimony that retarded the prosecution’s case nearly as much as it advanced it. Somewhat similarly, Keller in a remarkable show of mental dexterity adjusted on the fly with Postmus, almost but not quite befriending him and thereby drawing from him statements or simple yes-or-no answers that compromised, softened, watered-down, lessened or even in some sense contradicted the testimony he had given during his first three days on the witness stand that had so significantly strengthened the prosecution.
In this way, Keller had essentially two major issues to work with – Postmus’ poor memory and his accompanying fragile mental state. Both of those are at least partial byproducts of the heavy drug use Postmus was engaged in at the time of the events which are the subject of the case were taking place. Keller suggested, over and over again, that the prosecution had exploited the drug addled Postmus to piece together a criminal case that would not hold up in the light of the application of mental acuity.
On Monday May 8, Keller took aim at what the defense has all along represented as a crucial area of weakness in the prosecution’s theory of guilt, specifically the assertion there was a clear understanding before the settlement was voted upon that the alleged bribes – the $100,000 contributions to the various political action committees – had been promised to the recipients. In his initial testimony related to this issue under direct examination last week, Postmus had said that Burum in 2006 prior to the settlement had given him an assurance that if the settlement were effectuated he would support him politically if Postmus remained in office, and that Burum said he would sponsor him in his private sector endeavors if he decided to leave office, and that he had discussed with Burum being placed on the board of one of the nonprofit corporations Burum had founded. But that representation offered no specific dollar amount and Keller asked Postmus if in 2006 he had been promised money in return for approving the agreement
“No, Ma’am,” he said.
Keller moved to counter Cope’s success last week when the prosecutor had wrung from Postmus a statement to the effect that he thought the $102 million settlement was excessive. Postmus told Keller that finding a negotiated end to the prolonged litigation was “the right thing” to do, given that the county had suffered a setback in court and that the Colonies Partners were asserting the company had sustained $300 million in damages.
Keller used the rapport she was cultivating with Postmus to foreshadow and in some measure attempt to discredit ahead of time the testimony of Adam Aleman, from whom the juries have yet to hear. Aleman was Postmus’ protégé, a young man long suspected by many as having been one of Postmus’ lovers. Aleman was 20 years old and working as a maître d’ when Postmus met him. Postmus hired him to work as a field representative in his supervisor’s office and eventually encouraged him to successfully seek a position on the San Bernardino County Republican Central Committee. Upon being elected assessor, Postmus altered the traditional managerial hierarchy in the assessor’s office from having a single assistant assessor position to having two assistant assessors, into which posts he installed Erwin and Aleman, who was then 23 years old. Postmus hired Aleman, conferring upon him a $132,000 per year salary plus $56,000 in benefits, despite the consideration that he had no college degree, no experience assessing real estate and no real estate license. Upon assuming the assistant assessor’s position, Aleman failed to complete a property assessment training and licensing course. Instead, Postmus entrusted him to oversee a newly-formed branch of the assessor’s office which Postmus filled with political appointments and several of his boyfriends, none of whom had any skills relating to the duties of the assessor’s office. It would be Aleman’s actions and comportment as assistant assessor which in no small measure would lead to Postmus’ political demise. Rather than master the ins and outs of determining the worth and taxability of property and assets, Aleman operated what was essentially a partisan political promotion effort from his office, assisting Republicans seeking office with their candidacies when he was at work. He was often absent from the assessor’s office, attending college classes in an effort to get a degree. Eventually, complaints about his lack of performance on the job as well as his use of government facilities for partisan political purposes surfaced and the ensuing investigation expanded into a grand jury inquiry into the assessor’s office. When he was subpoenaed to go before that grand jury, Aleman panicked, ordered an assessor’s office secretary to alter internal office documents, destroyed the hard drive of a laptop computer that had been issued to him by the county and then perjured himself when he went before the grand jury. Criminal charges against him ensued and eventually he entered into a plea arrangement, agreed to wear a concealed recorder for investigators in their efforts to gather information first against Postmus and later against the defendants now on trial. Along the way he provided statements about events leading up to and following the Colonies lawsuit settlement. Indeed, in court papers and in grand jury testimony, prosecutors and their investigators have indicated that it was Aleman who sparked the case now being prosecuted against Burum, Biane, Erwin and Kirk when he intimated to investigators that Postmus, Biane and Kirk were offered the money they eventually received from the Colonies Partners in the form of donations to their political action committees in advance of the November 2006 vote to approve the $102 million settlement.
Keller explored with Postmus his estimation of Aleman’s credibility, seeking from him his current opinion, but also prompting him with passages from conversations Postmus had with Aleman which the latter was the surreptitiously recording, statements made before the grand jury and statements made to investigators, both those with the San Bernardino County District Attorney’s Office and the FBI. One of those was an interview Postmus had with FBI Agent John Zeitlin and then-Assistant U.S. Attorney Jerry Behnke on October 14, 2011. Behnke is now working with one of the law firms defending Burum.
Postmus told Zeitlin and Behnke that Aleman had made misrepresentations with regard to several elements of the Colonies settlement corruption case. “He has been very dishonest about many things,” Postmus told Zeitlin and Behnke, adding that no one solicited the bribes from the Colonies Partners prior to the settlement, a direct contradiction of Aleman’s assertion to district attorney’s office investigators that Postmus, Biane and Kirk all knew they were getting the contributions before the settlement.
Keller reiterated that subject with Postmus, asking him if he was told he could expect a $100,000 contribution in exchange for his vote.
“I don’t ever recall having a conversation with anyone regarding that,” Postmus said.
As Keller proceeded with her cross examination of Postmus, referencing secretly recorded conversations or text messages that had passed between Aleman and Postmus which Aleman had turned over to investigators, Postmus appeared to be discovering anew the degree to which he had been betrayed by one of his closest associates. The irony of this was palpable when Keller referenced a poignant text message Postmus had sent to Aleman in November 2008 in which Postmus had written “I’m so sad. I’ve been betrayed by everyone except you and Greg.” Greg was Greg Eyler, one of Postmus’ boyfriends he had hired to work as a “taxpayer advocate” in the assessor’s office. Aleman passed that along to the district attorney’s office.
Postmus remained unsuspecting that Aleman had entered into a cooperative alliance with the district attorney’s office throughout 2008 and into 2009, while they were both the focus of the district attorney’s office’s targeting of abuse of the assessor’s office. In February 2010, Postmus and Erwin were named in a criminal complaint alleging a grand conspiracy relating to the Colonies lawsuit settlement. Both were arrested. The complaint gave a comprehensive description of the overt acts alleged by prosecutors, and contained within it was a description of several individuals, unnamed and described only as John Does one through five as unindicted co-conspirators. Enough information was contained in the narrative to identify those Does as Burum; Burum’s co-managing principal in the Colonies Partners, Dan Richards; a public relations consultant working for the Colonies Partners, Patrick O’Reilly; Biane; and Kirk. There were also multiple references within the complaint to a confidential informant. After his February 2010 arrest, Postmus was bailed out of custody. Shortly thereafter, he read the complaint against him and Erwin. An analysis of the statements attributed to the confidential informant led him to the conclusion that it was Aleman. Sometime thereafter, they exchanged text messages, which Keller referenced. When Postmus confronted Aleman about his act of betrayal, Aleman responded by telling Postmus “Please get help with your meth problem.” Postmus shot back “Please get help with telling the truth.” He went on to tell Aleman, “You will always be known as a liar,” adding that no one believed him except the district attorney’s office investigators. He told Aleman to devote his time to dealing with district attorney’s office investigator Hollis Randles. “I’m certain he believes everything you say,” Postmus texted.
Keller briefly explored borderline ethical violations the district attorney’s office, which eventually pursued the criminal charges against the defendants in conjunction with the California Attorney General’s office, had engaged in during its investigation. One example was the information district attorney’s investigators obtained from Aleman during his discussions with Postmus about his difficulty in financing his criminal defense, which either came very close to crossing or did cross over the line into the arena of attorney-client privilege. Keller also determined from Postmus that district attorney’s office investigator Bob Schreiber had set up a non-governmental email address with which to communicate with Postmus after Postmus began cooperating with the district attorney’s office.
Keller sought to illustrate the extremity to which Postmus had been pushed and the desperate straits he was in when he threw in the towel in 2011 and agreed to plead guilty to the charges against him and become a witness against his former friends, colleagues, political associates and one of his major campaign donors.
In November 2007, Erwin resigned from the assessor’s office, was given a six-month severance package and went to the district attorney’s office with a complaint about untoward activity in the assessor’s office. That led to the investigators’ focus on Aleman. In 2008, following Aleman’s arrest, rumors of problems in the assessor’s office began to spread publicly, which were fueled by Postmus’ extended absence that summer and into October, while he was undergoing drug rehab. That fall, Postmus was only sporadically present in his office and the board of supervisors began an inquiry into the matter. On January 6, 2009 Postmus came before the board of supervisors, claiming he had “with the help of God” beaten the “scourge” of drug addiction. Less than two weeks later, however, the district attorney’s office, having ostensibly obtained a search warrant to search Postmus’ office and home for evidence of misuse of his authority as assessor but having been secretly tipped off by Aleman that there would very likely be drugs abounding at his residence, served that search warrant and found a bag with methamphetamine residue in it, a small quantity of the drug ecstacy, a syringe with liquefied methamphetamine in it, and other drug paraphernalia. Postmus was arrested and the county thereafter hired former Assistant U.S. Attorney John C. Hueston, who had worked on the Enron prosecution and had since gone into private practice, to put together a report preparatory to removing Postmus from office. The following month Postmus resigned.
Later that year, charges of grand theft, embezzlement and perjury, growing out of his alleged misuse of his authority in the assessor’s office, were filed against Postmus in a complaint in which Greg Eyler was also charged. Postmus was further charged with possession of a controlled substance. Then, in February 2010, the aforementioned charges pertaining to the Colonies settlement were filed against him and Erwin. On August 12, 2010, when Postmus came to court for a preliminary hearing on the charges filed against him and Eyler, he appeared to be intoxicated when he was approached by a sheriff’s deputy in the courtroom. He was arrested and charged with being under the influence of an illegal substance.
In November 2010, Postmus’ fortunes were at a nadir. He was no longer able to pay either of his attorneys. In February 2011, Postmus, in consultation with his attorneys Stephen Levine and Richard Farquhar, began talking to the district attorney’s office about the Colonies case.
When Keller asked him about his circumstance at that point, Postmus said he was overwhelmed by it. He was out of money, unemployed and facing what seemed certain prison time on the drug offenses. Cooperating with the prosecutors was his only way out.
“I didn’t have a chance,” he testified. Once he started down that path, Postmus said, he was subjected to “immense pressure” to make his story conform with the theory of conspiracy already developed by the district attorney’s office.
Keller sought to pull from Postmus a narrative that would absolve her client, Burum.
“You went in there with the intention of telling the truth,” Keller said. She asked him if in his encounters with the district attorney’s office investigators, “You felt you weren’t being believed?”
Postmus said the investigators implied that he was not telling them the truth.
Postmus did provide the investigators with a crucial confirmation of the prosecution’s theory of bribery, essentially that Burum told him he would support him in the future, and that would not take place until the lawsuit had been satisfactorily resolved.
Keller sought to show that the investigators had sought to artificially enlarge upon that, suggesting that Schreiber and Randles had pressured him to say that Burum had explicitly connected the rewards in the form of the political donations to the vote ratifying the settlement. She played a tape recording of an exchange between Postmus and Randles during an interrogation on February 16, 2011 in which Randles said Postmus’ hesitancy in implicating the others “was going to be a problem.”
Postmus retorted, “I’m telling you the truth” and “I don’t want to put words into other people’s mouths.”
Randles, however, insisted that Postmus was seeking to minimize his own participation in the bribery scheme and that of others. “That’s not going to work here,” Randles told Postmus.
Keller returned to a theme she had laid out previously, this time suggesting directly that the investigators were seeding him with “false memories” and “false beliefs,” a defense theory that propounds Postmus’ drug use left him addled and ripe for suggestion. To emphasize this, she explored whether the investigators, who had more than adequate reason to believe and understand that Postmus had a serious drug problem based upon his January 2009 arrest at his home and his arrest in court in August 2010, had abetted him in his continuing use of drugs in 2011 because that would dovetail with their goal of inducing him to falsely implicate the others.
“Did they ever drug test you?” Keller asked
“No,” he said.
“In all those interviews?” she pressed.
“No. But my attorney did,” Postmus said. It was not until 2012, Postmus said, that he at last resolved to end his drug use.
After Keller concluded her cross examination, Erwin’s attorney, Raj Maline, set about showing that his client had been maligned and falsely accused by Aleman, who had laid down the basis of the prosecution narrative, leading to the charges against his client and the others. Using email exchanges and recorded conversations between Postmus and Aleman that Keller had already played or referenced and then introducing others in which Aleman was continuously making uncharitable statements about Erwin, Maline got Postmus to acknowledge that Aleman disliked and resented Erwin. Maline also was able to get Postmus to acknowledge that after both Erwin and Aleman had been hired as assistant assessors, Erwin had taken the responsibility that had been bestowed upon him seriously, qualified himself in terms of training and licensing with regard to determining the valuation of properties and assets vis-à-vis their taxability, and had taken on the assignment of overseeing the assessor’s office’s operations while Aleman had cultivated no expertise or even knowledge about the office’s function and had instead engaged in political activity bearing no relation to the duty of the assessor.
Taking a leaf from Keller’s book, Maline sought to suggest through an extended set of questions and demonstrations of exhibits that the prosecution had planted in Postmus’ mind the false belief that Erwin had blackmailed him over his homosexuality and drug abuse by propounding a false narrative to that effect. This false narrative, Maline suggested, was based on the fact that Erwin had indeed threatened Postmus with exposure of his drug use, not before the Colonies settlement took place but well after it, when Postmus was established as assessor and his drug use was raging out control and threatening the integrity of the office and the livelihoods of those who worked there.
To illustrate this, Maline questioned Postmus about the multiple efforts made by those in his circle to get him into a drug rehab program so he could kick his addiction. Postmus testified that those at the forefront of this effort were Erwin; Bob Smith, a former sheriff’s deputy who had worked as one of his field representatives when he was supervisor; and members of his family. In at least two of his earlier rehab efforts in 2006 and 2007, Postmus said, he had failed to complete the program or left early. By the spring of 2007, Erwin, who had engaged in an intervention with several others at Postmus then-home in Hesperia and packed him off to a drug treatment center in Lucerne Valley from which Postmus ultimately ditched, was losing patience with the situation and was on the brink of resigning as assistant assessor.
Maline displayed an interoffice memo dated May 23, 2007 Erwin sent to his boss in which he, remarkably, dictated to Postmus what he was going to have to do, which consisted of completing a drug rehabilitation program with no shilly-shallying. The memo, alluding to the intervention that took place at Postmus’ Hesperia residence on May 11, 2007, put forth that Postmus had last acknowledged using drugs on May 7 and that he had been checked into the Pine Ridge recovery center on May 11. The memo then moves on to state that Postmus is being given one last chance to end his drug use, and that if he does not do so, Erwin will take drastic action.
“I am sure that after much reflection you are aware that your conduct has placed into jeopardy your personal and political reputation,” the memo stated, noting that Postmus’ “erratic behavior” was risking the livelihoods “of approximately 230 employees of the assessor’s office.” Erwin noted that he had personally contacted Chuck Reed, a principal in the Pine Ridge operation, which had a satellite clinic in San Bernardino offering outpatient services, to arrange for Postmus to undergo treatment while continuing to function as assessor. Postmus was to take part in a regimen that included weekday group counseling sessions and mandatory random drug screening that would trigger automatic notification of Aleman and Erwin if Postmus were to test positive. “After much deliberation and soul-searching, I have decided in the event that you fail to complete the aforementioned rehabilitation program, formal disclosure to the county of your condition will be required,” the memo states. “Tomorrow I will contact Pine Ridge to confirm that you have authorized mandatory disclosure.”
Maline asked Postmus if what Erwin was engaging in at this point was “tough love. Is that what we could describe this as?”
“Yeah, I guess you can say that,” Postmus responded.
“To the degree possible, Mr. Erwin kept your drug problem under wraps so you could continue your career, right?”
Postmus said that was the case.
Maline then went on to extract from Postmus a reiteration of his previous testimony that somewhere in that time frame he had been at his home with Aleman when a man was spotted in a car across the street reconnoitering Postmus’ home. When Postmus approached him, the man drove off. Maline suggested that the man was actually a private investigator hired by John Hueston to assist him with the report the county was undertaking to justify removing Postmus from office. Maline contrasted this with Postmus earlier testimony under direct examination by San Bernardino County Supervising Deputy District Attorney Lewis Cope that Erwin had told him prior to the settlement that Burum had hired private investigators who had dug through both his and Biane’s trash in an effort to find derogatory information about them. Maline’s suggestion was that Keller’s theory that Postmus’ drug use had jumbled events in his mind and memory was indeed accurate, causing him to falsely believe Erwin had blackmailed him on behalf of Burum.
Following Maline’s cross examination, Kirk’s attorney, Peter Scalisi, asked Postmus a brief set of questions, the most significant of which focused on whether supervisor Gary Ovitt, whose vote on behalf of the Colonies lawsuit settlement Kirk is accused of delivering in return for the $100,000 donation to his political action committee, was in favor of settling the litigation with the Colonies before he came into office in 2004. Postmus indicated that Ovitt was committed to settling the settlement from the outset of his time in office.
Cope began his redirect examination of Postmus on Wednesday afternoon May 10 at 1:44 p.m. After four days in which the defense attorneys had distracted the jury from the basics at the heart of the prosecution’s case which he had propounded so well during Postmus’ testimony on May 1, 2 and 3, Cope set to reestablishing the momentum in his direction. Cope was able to do so, at least in part. He utilized references to Postmus’ earlier testimony before the grand jury that indicted Burum, Biane, Erwin and Kirk as well as Postmus’ statements to the FBI to bring certain issues into focus.
To undo the doubt that Keller had sown with regard to Burum having made a commitment to Postmus to reward him for supporting the $102 million settlement, Cope asked, “Just to make sure, he stated to you many times he would support you in future political efforts for higher office?”
“Yes, sir, said Postmus.
“And if you chose not to go on to higher office, in other words, he would provide a business future for you. Is that correct?” Cope asked.
“Absolutely,” said Postmus.
“He said he would support you with a business opportunity,” said Cope. “Did that include money?”
“We never talked about, you know, specifics, but the impression I was under is Jeff did business deals and investments, etcetera, and… he’d be an investor of mine if we settled on whatever numbers we ultimately came up with,” Postmus said.
Cope then switched his focus to Erwin’s role in forging the $102 million settlement, getting Postmus to say, “During 2006, when the settlement negotiations had stalled, Jim became very angry with myself and Paul Biane over that.” He said that when he and Biane failed to get supervisor Josie Gonzales to join in with approving the settlement that Erwin “basically made threats that he would expose my homosexuality and drug use.”
Cope asked how many times that had happened.
“Dozens of times, in person and over the phone,” Postmus testified.
On Thursday morning, Cope returned to the issue of Postmus’ statement to Zeitlin and Behnke during the October 14, 2011 interview with the FBI relating to there being no quid pro quo with regard to the settlement vote and the $100,000 in donations to his political action committees. Postmus indicated last week he was unclear on the definition of the Latin term quid pro quo, which translates into ‘this for that’ or ‘something for something.’ The defense has made much of that statement. When Cope asked about it, Postmus stated, “I never felt it was a quid pro quo, per se, but it was very clear afterward there would be campaign donations.”
Cope referenced statements that Postmus had made with regard to the $102 million settlement to the effect that “Paul [Biane] and I had some heart to heart discussions. We felt we were being bent over on this big time. In terms of the amount, we felt it was a ridiculous amount of money. I still can’t justify the $102 million in my mind.”
Postmus further suggested there was something illicit about the settlement in that there had been a tremendous rush to complete it by the time he left the board because of the lack of certainty that whoever would succeed him might not support it.
Cope took up the issue of Postmus being coached in his testimony by the prosecution. Cope asked if he felt he had been coached through the process.
“No, not coached, absolutely not,” Postmus said.
Noting that Postmus’ emphasis on the word ‘coached’ in his answer yet betokened his answers were in some fashion being manipulated, Cope asked him, “Is there another word you think is better than coached?”
“Well, coached would kind of mean you are helped along in your questions to push me along to an answer you wanted,” Postmus said.
“Your statement to the FBI was you had not been coached by the DA’s office,” Cope said. “Did you feel you were coached by the investigators?”
“I believe that Mr. Randles and Mr. Schreiber were somewhat heavyhanded in the first interviews,” Postmus said.
Cope asked if his attorneys were present during those sessions. Postmus said that at least one was.
“Did you tell members of the FBI that you did not feel pressured to give certain answers?” Cope asked.
Postmus responded that he felt pressured to close a plea deal but that “I did not feel pressured to give certain answers, etcetera.”
Upon the conclusion of seven days on the witness stand, Postmus’ testimony had not yet ended, and he is to return on Tuesday May 16 for more redirect questioning from Cope. Indeed, Postmus came across as highly accommodating of whichever attorney was questioning him at any given time, almost as if he was taking on the personality of his examiner. This comported with, to no small degree, Keller’s theory that his near-decade long use of drugs had left him in a highly suggestible state. Still the same, there is no assurance that demonstration will redound to the defense’s benefit, since it is the prosecution’s contention that Burum and Erwin used his suggestibility to their advantage in achieving the $102 settlement.
The most significant developments in the case this week in terms of the eventual determination of the guilt or innocence of the defendants may have occurred outside the presence of the juries. The prosecution wanted to introduce as evidence a letter, written by one of the 19 minority investors in the Colonies Partners, Ray Crebs, in April 2007 that was posted to all of the Colonies Partners investors. In that letter, Crebs called for conferring on Jeff Burum and Dan Richards, the other managing principal in the consortium, a bonus consisting of ten percent of the $102 million settlement. Crebs refers in the letter to the $102 million as a “windfall,” and stated that the $102 million settlement far exceeds any settlement that was expected or anticipated. Moreover, he indicated, the $102 million exceeded by more than $60 million the actual $40 million maximum value of the property that was at stake in the litigation with the county. Thus, Krebs’ letter would, if considered by the two juries hearing the case, starkly contradict the contention advanced by the Colonies Partners and the legal teams for the defendants throughout the criminal trial to the effect that the $102 million settlement was a reasonable one which the Colonies Partners were due, an assertion which the defense maintains undercuts the prosecution’s assertion that the settlement was an unjust one which came about because of graft. Defense attorneys opposed displaying the letter to the jurors while the prosecution wanted them to consider it and hear the prosecution’s argument that the letter establishes Burum knew that he was not entitled to the $102 million the Colonies Partners achieved with the settlement. This, the prosecution asserts, buttresses the argument that Burum and Erwin used threats, intimidation, blackmail, extortion and bribery to obtain the settlement. Judge Michael A. Smith, who is presiding over the case, said Krebs’ letter would be relevant only if it could be established that he had in-depth knowledge of the development project and the litigation it had spawned, which a minority partner was not likely to have. A hearing was held Wednesday morning inside the second floor courtroom while jurors were out of earshot within the court hallway. Krebs under questioning by California Supervising Deputy Attorney General Melissa Mandel testified he had not written the letter, and had instead entrusted its drafting to his attorney. Krebs said he was a minority investor with $125,000 invested in the venture who had no direct knowledge of the progress of the project or its accompanying litigation and only received periodic updates on the project from the managing partners. He indicated that he had laid out the theme of the letter, which was consistent with his philosophy as an investor that those in a management role should be incentivized to perform. He said his perception that the windfall received by the Colonies Partners was inconsistent with the value of the property at stake in the litigation came from press accounts rather than knowledge gleaned from being an insider with the Colonies Partners. Judge Smith seemed to be leaning against allowing the jurors to see the letter, which was indicated by him telling Burum’s lawyer, Stephen Larson, who wanted to question Krebs after Mandel had finished her examination, that his questions would not be necessary.
Erwin’s attorney, Raj Maline, had requested two open files on investigations of public officials in San Bernardino County being done by the district attorney’s public integrity unit. Deputy district attorney Carlo DiCesare, outside the presence of the jury, came into the courtroom with what were identified as public integrity unit files 309 and 310, which were provided to the court under seal. Judge Smith is to review their contents to determine if they bear any relevance to the case.
Also discussed outside the presence of the jury was the admissibility of an exchange between Postmus and Aleman in which Postmus offered Aleman an assurance that Burum is going to take care of them.
A question in writing from one of the jurors submitted to the court, based upon its wording, appeared to indicate, Judge Smith said, that the juror was leaning toward a conclusion that bribery had occurred. Smith has allowed jurors to submit questions to ensure that issues that result in possible confusion are given an adequate explanation, and Smith has shared the questions with all of the attorneys involved. The question at issue arose when Postmus provided answers to Keller’s questions which seemed to contradict answers he had given under direct examination by Cope. Smith said it appeared the juror might be reaching a conclusion prior to the close of testimony and before deliberations, which is contrary to the basic instructions provided to the jury.
On Thursday, Judge Smith dismissed two felony charges contained in the case against Erwin which pertained to his having failed to make timely and proper reports of gifts he received from Burum, a Rolex watch valued at more than $12,000 and air fare and accommodations on a trip to New York City and Washington, D.C. they took together with Erwin’s then-publicist, Patrick O’Reilly in the aftermath of the lawsuit settlement, in January 2007. Erwin reported receiving the gifts in February 2009, a month after district attorney’s investigators served a search warrant at his home in Highland and seized the watch. A month later, the district attorney’s office charged Erwin with the two felony counts of filing a false or forged document. Those charges were wrapped into the 2011 indictment.
The dismissal grew out of the California Supreme Court allowing a Fourth District Court of Appeal ruling in a similar case to stand. The appellate court ruled that public officials cannot be charged with felonies for failing to report gifts valued at $50 or more on economic and income disclosure documents known in California as Form 700s. A parallel statute in the California Government Code which sets such Form 700 disclosure failures at the level of a misdemeanor supersedes prosecutors’ ability to pursue the charges as felonies, the court held.
Because the statute of limitations on the filing of the charges as misdemeanors has elapsed, the charges were dropped. Erwin is still facing 10 felonies, including aiding and abetting in the receipt of a bribe and failing to file a tax return. One of the juries in Smith’s courtroom is hearing the case against Erwin. The other jury is deciding the fate of Burum, Biane and Kirk. On those occasions where statements made by Erwin are introduced as evidence against him, the jury for the other three defendants is excluded, because of the presumption that Erwin will not testify in the trial based on his Fifth Amendment rights, and because the other defendants have Sixth Amendment rights which allow them to cross examine any witness in the matter.
By Mark Gutglueck