By Mark Gutglueck
After six months of testimony by 34 witnesses in the Colonies Lawsuit Settlement Public Corruption Trial relating to actions that took place a decade and more ago, one of the two lead prosecutors in the matter and three of the defense attorneys this week offered widely divergent interpretations of that evidence in closing arguments. Those closing statements were initiated before the two juries which will soon begin their deliberations with regard to the four defendants.
Rancho Cucamonga-based developer Jeff Burum stands accused of conspiring with one-time sheriff’s deputies union president Jim Erwin to threaten, coerce, blackmail and extort former San Bernardino County supervisors Bill Postmus and Paul Biane to support the settlement of a lawsuit Burum’s company, the Colonies Partners, had brought against the county and its flood control district over drainage issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland filed in 2002. Together with Mark Kirk, who in 2006 was supervisor Gary Ovitt’s chief of staff, Burum, Biane and Erwin were named as criminal defendants in a May 2011 indictment. That indictment originally charged the four with a host of criminal acts including conspiracy, extortion-related and bribery-related acts, misappropriation of public funds, conflicts of interest, failure to report income and tax evasion. Before and during the trial, a substantial number of those charges have been dismissed. Burum and Erwin are yet charged with aiding and abetting Postmus and Biane in receiving and agreeing to receive a bribe. Biane remains charged with receiving and/or agreeing to receive a bribe under Penal Code sections 165 and 86, and engaging in a conflict of interest. Mark Kirk is faced with improper influencing of a public official and conflict of interest. Beyond aiding and abetting Postmus and Biane in receiving a bribe, Erwin faces additional charges of failing to file a tax return and of not properly disclosing his reception of gifts and other income from the Colonies Partners.
Postmus has already pled guilty to conspiracy, bribery, misappropriation of public funds, engaging in a conflict of interest as a public official and perjury. He turned state’s evidence and testified against the four defendants. Also testifying against them was Adam Aleman, who had been a member of Postmus’ staff when Postmus was supervisor and served in the capacity of assistant assessor after Postmus was elected assessor in 2006 and assumed that office in 2007. Aleman was caught up in the political corruption scandal surrounding Postmus, and he too agreed to turn state’s evidence, like Postmus testifying as part of a plea deal in return for favorable consideration with regard to his sentencing. Like that of Postmus, Aleman’s sentencing has been on hold during the duration of the Colonies trial.
According to California Supervising Deputy Attorney General Melissa Mandel, the evidence she and her prosecutorial colleague, San Bernardino County Supervising Deputy District Attorney Lewis Cope, laid out during the course of the trial, coupled with the trial testimony, provided a “bright and clear” illustration of “the contrast between what went on in this case and what we would expect to see” in the course of litigation between business entities and the county. Mandel said “secrecy and cover-up” surrounded the actions Postmus, Biane and Kirk took while the litigation was ongoing. That action included, she said, angling to obtain for Burum and the Colonies Partners a favorable outcome of the lawsuit the company was pursuing, which demonstrated their loyalty was not to the citizen taxpayers who had elected or employed them but rather with Burum, who had corrupted them through threats and blackmail and the provision of money.
“In this case, the devil’s in the details,” said Mandel. “We see lies. We see a cover-up. We see things done in secrecy. Those things don’t happen when things are on the up and up.”
Postmus, Biane and Kirk, Mandel said, “held themselves out to be” faithful public servants looking after the greater good while “secretly they were working toward one goal: to get as much money as they could into Jeff Burum’s hands for their own personal gain.”
The greater good they betrayed, Mandel said, consisted of letting the case the Colonies Partners had filed against the county be fully adjudicated in the court system.
“Trial was the best outcome,” Mandel said, to demonstrate “the shoddy construction work the Colonies had done” on a flood control basin that was at the root of the dispute between the county and the Colonies Partners. But Postmus, Biane and Gary Ovitt had chosen instead, she said, to “silence the voices that would stand up for the county,” i.e., the county’s lawyers representing the county in the lawsuit. Those lawyers were both contesting the Colonies Partners’ claims of extensive county liability with regard to the issues relating to delays of the Colonies Partners’ projects as well as working toward having other entities involved in those delays, including making sure other responsible government “agencies would pay their fair share.” Mandel said, “There was a train driven by Jeff Burum’s and Jim Erwin’s unadulterated greed, but Mark Kirk and Paul Biane weren’t supposed to be on that train. From the beginning Jeff Burum and Jim Erwin were trading money for political influence.”
Mandel said, “San Bernardino County and the Colonies [Partners] were adversaries in that lawsuit.” But Postmus, Biane and Kirk, influenced by the money Burum was handing about, she said, were militating on the Colonies Partners’ interest rather than on behalf of the county.
According to Mandel, Burum and Erwin “took over San Bernardino County the way ordinary bullies take over a schoolyard.”
Mandel said that the way in which the $102 million lawsuit payment was conferred upon the Colonies Partners to settle the case was a criminal enterprise which was evidenced by a “paper trail” which traced out “a secret flow of money” that originated with Burum and the Colonies Partners. Ultimately, Mandel said, that money lodged with Postmus, Biane and Kirk, as bribes, and with Erwin, as a reward for his part in the “scam,” all in the form of donations to political action committees the defendants had set up to receive and launder those bribes.
Burum used his wealth to drive an early opponent of the lawsuit settlement, Jon Mikels from office, bankrolling in large measure the campaign of Biane, who replaced him, Mandel said.
Burum’s greed, Mandel said, had propelled the settlement amount from a disputed $28 million in early 2004 to $77 million in March 2005 to the $102 million approved by a bare 3-2 majority of the board of supervisors in November 2006.
Mandel said Burum employed Erwin as a cat’s paw to carry out his depredations. Erwin at that time was no longer the president of the sheriff’s deputies union, the Safety Employees Benefit Association, known by its acronym, SEBA, and had moved on to become SEBA’s executive director. From that position, Mandel asserted, Erwin had used SEBA’s political action committee’s account to launder – that is to hide the true origin of – money provided by the Colonies Partners that went to Biane.
In the spring and early summer of 2007, after the settlement was voted upon and $102 million had come the Colonies Partners’ way, Burum made $400,000 in contributions divided equally to political action committees (PACs) controlled by Postmus, Biane, Erwin and Kirk. The Inland Empire PAC and the Conservatives for a Republican PAC, each controlled by Postmus, received $50,000 each. The San Bernardino County Young Republicans, controlled by Biane, received $100,000. The Alliance for Ethical Government, which Kirk controlled, received $100,000 from Burum. And Erwin in March 2007 set up a PAC, the Committee for Effective Government, which likewise was provided with a $100,000 check from the Colonies Partners signed by Burum.
Postmus, Kirk and Erwin created those PACs in the aftermath of the settlement. Members of Biane’s supervisorial staff set the San Bernardino County Young Republicans PAC up in 2004, nearly two years before the settlement vote. Nevertheless, Mandel said, Biane had utilized that PAC to hide the origin of money he was receiving from Burum and the Colonies Partners from the inception. This is an indication that all along Biane was anticipating receiving a “big payoff” for assisting in securing a settlement on the Colonies Partners’ lawsuit against the county.
Erwin, by virtue of his control over SEBA, had facilitated “secret” deliveries of money to the elected co-conspirators involved, Mandel said, laundering those donations so that the politicians militating on Burum’s behalf could not be directly tied to him or the Colonies Partners. On December 10, 2004, Colonies Crossroads contributed $8,000 to SEBA. Seventeen days later, on December 27, 2004, SEBA contributed $5,000 to the San Bernardino County Young Republicans.
In addition, Mandel said, Burum had made contributions – ones substantially smaller than the $100,000 Biane’s PAC received in 2007 – to the San Bernardino County Young Republicans early on, including $2,500 on December 30, 2004 and $5,000 on June 8, 2005. In the case of the money that went from the Colonies Partners to SEBA and then from SEBA to the San Bernardino County Young Republicans, Biane was doubly insulated from being linked to Burum. In the case of the donations from the Colonies Partners to the San Bernardino County Young Republicans, there was just one layer of insulation between Burum and Biane, Mandel suggested, as the San Bernardino County Young Republicans did not bear Biane’s name but had been founded by Biane’s chief of staff, Matt Brown, and another staff member, Tim Johnson. “This is all the secret money going back and forth,” Mandel said. “The San Bernardino County Young Republicans was set up for Paul Biane’s secret control. Matt Brown in his early conversations [with investigators] said that PAC was to support his [Biane’s] elections. Matt Brown and Tim Johnson were Biane’s staff members. It’s not small money. This money does mean something to them.”
Just as Burum employed Erwin and SEBA to conceal the secret flow of money to those he was seeking to influence, he used other PACs to funnel money to them and stay off the public radar, Mandel said.
The $100,000 given to Kirk’s Alliance for Ethical Government after the settlement was in place was not, Mandel said, the first example of Burum’s largesse to Kirk.
Some two years before Mark Kirk created the Alliance for Ethical Government, he had created another committee, the West Valley Young Republicans.
“In 2005, the West Valley Young Republicans got a $10,000 donation from the Colonies [Partners],” said Mandel. “This meant something. There was also the promise of more.”
Burum had purchased Kirk’s services with that money, Mandel suggested.
“Once [Ovitt was in office] he did not talk to Mr. Burum or Mr. Richards about the Colonies trial,” Mandel said. Thus, Kirk almost immediately upon coming into office was working as an intermediary between Burum and Ovitt, seeking to keep his boss committed to settling the Colonies litigation on terms favorable to Burum, according to Mandel. This was evidenced, Mandel said, by Kirk angling, very early on, to put himself into place to influence Ovitt with regard to the Colonies litigation. She displayed for both juries a December 7, 2004 email from Kirk to Ovitt, sent the week Ovitt began as supervisor, in which Kirk was pushing his boss to be allowed to participate in the closed sessions of the board of supervisors where ongoing litigation against the county and legal strategy with regard to it was routinely discussed. “Both Brad [Mitzelfelt, Postmus’ chief of staff] and I agree that if you want me in there [closed session meetings] for issues, then I should be there. Just because they haven’t done it [permitted chiefs of staff to participate in closed sessions in the past] isn’t a good enough reason,” that email stated.
Further indication that Kirk was doing Jeff Burum’s bidding consists of a conversation he had with then-county counsel Ron Reitz, the county’s highest ranking in-house attorney shortly after Ovitt had taken office, Mandel said. Kirk at that point was already pushing Reitz to let the board settle the case short of trial. Mandel reminded the juries of testimony to the effect that Kirk had told Reitz, “You can’t handle the Colonies case like a regular case. It is a political issue.”
In further asserting to the juries that Burum had unduly influenced the board to impose on the county a settlement lopsidedly in favor of the Colonies Partners, Mandel referenced a tentative ruling by the Fourth District Court of Appeal that was highly favorable to the county in the litigation with the Colonies Partners. That ruling reversed San Bernardino County Superior Court Judge Peter Norell’s ruling that the county had abandoned its flood easements on the Colonies Partners’ property. That ruling gravely undercut the Colonies Partners’ claim that the county had unjustifiably seized the Colonies Partners’ property, and the ruling brought into question the validity of the development company’s claim for monetary damages. Postmus and Biane had convinced the rest of the board to approve allowing the two of them, in the company of several of the county’s attorneys, to have “a small low key meeting” with Burum and the other managing principal in the Colonies Partners, Dan Richards, along with the Colonies Partners’ legal representatives, to discuss the implication of the appellate court ruling. Biane went into the meeting enthusiastically anticipating to confront Burum and Richards from the position of strength the county had just gained by virtue of the appellate court’s recent ruling that the easements remained intact and that the county potentially owed the Colonies Partners nothing, Mandel said. But in the course of that meeting, Postmus and Biane dismissed the attorneys from the room, leaving themselves in a negotiating session involving Burum and Richards, who were accompanied by their consultant, Jim Brulte, the then-recently termed-out state senator advising them on how to achieve a favorable resolution of the litigation. In that forum, a proposed $77.5 million settlement was arrived at which included a $22 million cash payout and the county turning over to the Colonies Partners property in Rancho Cucamonga deemed to be worth $55.5 million.
The fashion in which Biane bowed before the will of Burum and Richards in this instance, Mandel said, illustrated his first loyalty was not to the constituents who voted for him but the Colonies Partners, which was providing him with generous dollops of political cash.
Mandel said action that Biane engaged in with regard to expenditures from or use of the money in his own electioneering account – Paul Biane for Supervisor – demonstrated he knew in advance that both he and Postmus were going to receive money down the road from the Colonies Partners in return for their support of the lawsuit settlement.
In spring 2006, as Postmus was engaged in a challenge of then-incumbent assessor Don Williamson, Biane, who had $290,392.20 in his political war chest, loaned Postmus $100,000.
Mandel said Biane made the loan despite Postmus having at that time checked into drug rehab and then leaving before he had completed the program. “It was evident in 2006 he was clearly under the influence of some type of substance,” Mandel said. “Mr. Biane loaned him $100,000 because he knew Mr. Postmus was going to be able to pay it back.”
The investment of that kind of money inPostmus’ political future, given his proclivity toward drug use, would have been an unacceptably risky move by a serious politician such as Biane, said Mandel. This demonstrates Burum was indemnifying Postmus and Biane, she said. “There was no way Mr. Postmus was going to pay that money back if it backfired,” said Mandel. “There’s no other explanation why Mr. Biane would have loaned $100,000 to Mr. Postmus, who was spiraling out of control, unless he knows he’s going to get it back.”
The most damning testimony against the defendants in the trial came from Adam Aleman, whose version of events was more or less an encapsulation of the prosecution’s narrative and theory of guilt. In roughly descending levels of importance to the prosecution below Aleman was the testimony of Postmus, supervisor Josie Gonzales, Colonies Partners publicist Patrick O’Reilly, former county counsel Ron Reitz and former chief county administrative officer Mark Uffer.
By a substantial margin, the defense expended its greatest effort in attempting to impeach, discredit and demonize Aleman. In deference to that, Mandel acknowledged that Aleman stands convicted of four felonies, had been demonstrated as being dishonest and that his credibility on many points was subject to question. Nevertheless, she said, he had been intimately involved with the operation of Bill Postmus’ office during the time in question and he offered an important window on what had transpired. “Believe what is believable here, and you disregard the rest,” Mandel told the juries. “Every witness should be looked at closely. Look at the totality.”
She claimed Aleman’s testimony with regard to hit pieces targeting Biane which were used to coerce Biane had been corroborated by Patrick O’Reilly, Burum’s friend and public relations specialist who had no enmity toward Burum and Erwin. Aleman’s statements to investigators with regard to the PAC money that were in large measure an ignition point for the investigation that led to the prosecution of the case against Burum, Erwin, Biane and Kirk are corroborated by campaign finance documents, she said.
Further evidence of the conspiracy involving Burum, Postmus, Biane, Kirk and Erwin consists of the communication and coordination that went on between them while county officials and their attorneys were seeking to mediate a settlement with the Colonies Partners, Burum, Richards and their attorneys, Mandel said. She displayed phone bills and billing statements from the Colonies Partners’ publicist, Patrick O’Reilly, showing Postmus and, to a slightly lesser extent, Biane were meeting with or speaking by phone with Burum, Erwin and the Colonies Partner’s public relations team. Those contacts, she showed, included O’Reilly assisting Postmus and Biane drafting public and statements that advanced the idea that a settlement of the lawsuit was in the county’s interest.
Moreover, she said, there was evidence suggesting Postmus was outright militating on the Colonies Partners’ behalf and acting as their agent.
“Matt Brown testified Postmus would come out of closed sessions and tell Jim Erwin everything,” Mandel said.
Mandel noted that O’Reilly had been a powerful witness on behalf of the prosecution and that the damage he inflicted on the defendants, in particular Burum, went uncontroverted by the defense.
“Mr. O’Reilly wasn’t asked a single question” on direct examination by the attorneys for all four defendants, she noted. She reminded the juries that on the witness stand O’Reilly testified “Mr. Burum told me large amounts of money would be given to candidates he favored.”
This established an important element of the crime, Mandel said. The perpetrators of the criminal acts had moved forward in stages, Mandel said, in a carefully choreographed fashion that masked there was a quid pro quo at play. “The care that Mr. Burum took to structure the deal is evident,” she said. Burum did not pay the bribes, which were disguised as donations to the PACs, up front, Mandel said, but waited until after the settlement was made. That did not magically transform those kickbacks into non-bribes, Mandel said. “It’s not a defense to wait until after the settlement to pay the bribe,” she said.
And the explanation the defense offered that the payment of $100,000 to Postmus, who voted for the settlement, $100,000 to Biane, who voted for the settlement, and $100,000 to Kirk, whose boss, Gary Ovitt, voted for the settlement, were simply attempts to build bridges with county politicians in the aftermath of a hard fought legal battle as part of an effort to make sure that the Colonies Partners would be able to work on a cordial basis with the county in the future did not stand to reason, Mandel said. Those the Colonies Partners had to build bridges to at that point were the two members of the board, Josie Gonzales and Dennis Hansberger, who had opposed the settlement, Mandel pointed out. Indeed, after the settlement, Burum provided $200,000 that was used in Neil Derry’s 2008 campaign to defeat Hansberger when he ran for reelection. In this way, the two separate $50,000 donations to the PACs Postmus controlled, the $100,000 donation to the PAC Biane controlled and the $100,000 donation to the PAC Kirk controlled came across as rewards for the three votes to approve the settlement – quid pro quos, Mandel said.
The conspiracy was a grand one, Mandel said, consisting of many independently moving parts, all of which when isolated did not rise to the level of a criminal act. But in cohesion and in causation and ultimate result, they coalesced into felonies and a $102 million larceny, she maintained.
“In and of themselves, these acts are not illegal,” Mandel said. “In the totality of the evidence, they clearly are. The line is crossed when the elements of each of these crimes have been proved.”
In her final summation and penultimate appeal to the jurors before the commencement of the defense attorneys’ final arguments, Mandel said, “Your job is to keep an eye on the ball and not be distracted by smoke and mirrors. The question in all this is, ‘Was that settlement good for the county?’ Ladies and gentlemen, there is a line, and that line was crossed here. This was an obscene abuse of the public trust. This was a group of men who thought they could to anything. It is time to hold them accountable for their crimes.”
In the trial, from January until June, the prosecution put on its case, calling 34 witnesses. After the July 4 break, the defense teams for all four defendants responded by not calling any witnesses and resting after less than a half day’s presentation of stipulations, a series of facts or sworn statements which both the prosecution and defense concede are accurate. The tacit statement in the collective defense’s decision not to call witnesses is to imply that the prosecution had failed to establish its case.
In this way, the defenses’ closing arguments, which began on Wednesday after Mandel concluded hers, represent, along with the cross examinations of the various witnesses throughout the trial, gravitas of the defense case.
On Wednesday, Kirk’s attorney, Pete Scalisi, was the first of the defense attorneys to present a closing statement.
After thanking members of both juries – the one hearing the case against his client along with Burum and Biane as well as the other jury deciding Erwin’s fate – for their attention to the proceedings and for exhibiting tremendous patience throughout the trial, Scalisi told them the law dictates that they view the matter through a lens of presumptive innocence by which the prosecution has the burden of convincing them of guilt. He said the prosecution had not met that burden and that Mandel and her colleague Cope had been on a treadmill to nowhere from day one. “There’s reasonable doubt all throughout this case,” he said. “The way this evidence played out, none of our clients did anything wrong. None of them are guilty of anything.”
Scalisi rather daringly predicted both juries would return not-guilty verdicts before moving on to say that in the case of his client, Kirk could be acquitted on the basis of character witness testimony from three individuals Scalisi characterized as upstanding citizens – Ovitt, current county supervisor Curt Hagman and Biane’s former staff member Tim Johnson. All three vouched for Kirk’s character during the trial.
Of those, the one whose testimony was most germane to the charges against Kirk was Ovitt.
“Mr. Ovitt completely destroys the government’s theory,” Scalisi said. “Back in January, the government told you that Mark Kirk improperly, criminally, wrongly, influenced Gary Ovitt.”
Scalisi quoted Ovitt’s testimony during the trial. “He [Kirk] did not try to unduly influence me on any of the decisions I made,” Scalisi quoted Ovitt, continuing “It [approving the settlement with the Colonies Partners] was my decision, my decision alone. I stand accountable for it, not him [i.e., Kirk].”
The interpretation of this, Scalisi said, as pertains to Kirk is “case over. Mr. Kirk is innocent. He never unduly influenced Gary Ovitt. It is ridiculous to say ‘I can deliver Gary Ovitt’s vote when the entire world knew Gary Ovitt was going to vote in favor of the settlement before he came into office.”
Scalisi said “The very idea that he [Kirk] could bamboozle Jeff Burum by telling him he was going to deliver his [Ovitt’s]vote is ridiculous. Mark Kirk was just doing the things he was supposed to do. That’s why Gary hired him.”
The prosecution’s allegation that the defendants in general and Kirk in particular were hiding the $100,000 donations missed the mark entirely, Scalisi said. The donations were disclosed on all of the required reporting documents and Kirk had been the prime mover behind the county intensifying the disclosure requirements, which entailed putting the information on the county’s website.
A character witness for Kirk came from an entirely unexpected source, said Scalisi.
“Bill Postmus was a rising star in politics who was trying to hide his sexuality, trying to hide his meth addiction,” said Scalisi. “He didn’t say anything bad or negative about Mark Kirk.”
The $100,000 provided to the Alliance for Ethical Government by Burum was an entirely legal donation, Scalisi insisted. And the $20,000 from that PAC that Kirk paid himself which the prosecution said proves the donation was intended as a bribe was entirely legitimate as well, Scalisi said.
“Mr. Kirk got withdrawals for lawful consulting contracts,” Scalisi said, calling suggestions that was illegal “nonsense.” He said the prosecution’s own witness, former California Fair Political Practices division chief Lynda Cassady made a determination Kirk paying himself the consulting fee from his own PAC “was fully legal.”
Suggesting that Kirk was some kind of go-between linking Ovitt with Burum was a canard, Scalisi said, pointing out that Burum’s wife had been one of Ovitt’s students at Chaffey High School when Ovitt was a teacher there, and Ovitt had known Burum long before Kirk went to work for Ovitt.
“These are innocent men,” Scalisi said of all four defendants. “The prosecution says there is a conspiracy here. What conspiracy?There’s no conspiracy. It’s ridiculous. It’s an easy word to throw around. Once you start throwing it around, you better have proof. They’ve got nothing.”
Adam Aleman, upon whose information and testimony Scalisi said the prosecution had based its case, told the prosecution whatever it wanted to hear, “not even caring about what the truth is. The best that the government gives you is Adam Aleman?” Aleman’s misrepresentations to the investigators escalated into perjury before the grand jury and then when he was on the witness stand in the trial, Scalisi said. “He came into this courtroom, raised his right hand and lied. He was making stuff up as he went along.” He called Aleman’s testimony “a fairy tale.”
Prosecutors were colluding with Aleman, agreeing to reduce the felony charges he has pleaded guilty to down to misdemeanors in exchange for his perjured testimony, Scalisi said
“He’s going to walk,” Scalisi said.
Mark McDonald, Biane’s lawyer, accused the prosecution of engaging in “misrepresentation, taking a fictional stroll down conspiracy lane, using speculation presented as fact to make outlandish claims offered without proof. What I saw over the course of Tuesday and into Wednesday [when Mandel was offering her closing statement] was a piecing together of unrelated emails, messages and phone calls.” Mandel had not given them the truth, McDonald told the juries, but “presented to you a story she created.”
McDonald said the juries should not buy into Mandel’s creative assembly of exhibits and evidence after the fact. “What I urge you not to do is play with [the exhibits] and put them in an order that builds a case for guilt,” McDonald said. “These exhibits don’t prove anything.”
The prosecution had constructed its false story, McDonald said, on the basis of those misleading exhibits and the perjury provided by Aleman, whom he called “a mealy mouthed little liar. It was hard to look at him during trial, to see [him] go at it and at it. I don’t think I’ve ever seen anything that blatant.”
He quibbled with the prosecution charging his client with both Penal Code 165 and Penal Code 86 violations. McDonald once specialized in prosecuting white collar and political corruption cases when he was with the Riverside County District Attorney’s Office.
“I have never been able to understand why there are two different parts of the law to cover the same thing,” McDonald said. He further said that the conflict of interest charge filed against Biane was misapplied in that Biane had no direct stake in the outcome of the vote.
He said the donations to politicians by developers or others having a stake in the outcome of a vote, even in close temporal proximity is not illegal.
A donor, he said, is “able to make those kind of donations. It might look bad. It might be distasteful. But the Supreme Court has said a political contribution made close in time to a vote is [Constitutionally protected free speech].” McDonald said basing a case on the fact that a politician had voted on an issue impacting a political donor was “a misunderstanding of the law. That’s why these guys are here.”
An indication the prosecution had taken evidence out of context to assemble “a false story” consisted, McDonald said, in the consideration that investigators for the district attorney’s office had induced Biane’s chief of staff, Matt Brown, to use an audio recording device to capture something on the order of 70 conversations he had with Biane in an effort to capture an utterance from Biane implicating himself. “I don’t know how many hours there were,” said McDonald. “It seemed like a lot.” Biane and Brown were close political affiliates, friends and mutual confidants, McDonald pointed out. “If Paul was going to tell anybody, it would have been Matt Brown,” McDonald said. Biane made no mention of bribery, McDonald said.
“This is a case that should never have been brought to trial,” McDonald said.
Saying he was reluctant to make such a recommendation, McDonald urged the juries to make a finding of not guilty “to send a message,” telling prosecutors, “‘You should not go after anybody who didn’t do anything.’”
Erwin’s attorney, Rajan Maline, began but did not finish his final argument on Thursday, after McDonald had concluded.
On the courtroom’s overhead visual projectors Maline displayed the text, “No one has ever been charged with this crime, aiding and abetting the receipt of a bribe.”
Mandel objected to the display. Judge Smith overruled it.
Charging his client with aiding and abetting, and by extension charging Burum with aiding and abetting, was a legal fallacy, Maline asserted. Someone who aids and abets a perpetrator in the commission of a crime must share the perpetrator’s intent, Maline asserted.
“The problem is they [Erwin and Postmus; and Erwin and Biane] don’t share the same intent,” Maline said. “To be an aider and abetter you have to have the same intent. Mr. Erwin can never be guilty of this crime.”
A hole in the prosecution’s case, Maline indicated, is that a key element of it is based upon Aleman’s contention that Erwin showed him fliers threatening to expose Postmus’ homosexuality and drug use and Biane’s dire financial circumstance.
But Aleman had been outfitted by investigators with, Maline said, “recording apparatus from December 18, 2008 until February 16, 2011.” Maline said that in none of the conversations Aleman recorded with Postmus did Aleman ask about the fliers or discuss with Postmus the six to 12 meetings between Postmus and Burum between January and June 2006 where Aleman claimed he was also present and where Aleman claimed the bribe to be paid in exchange for a vote in support of the settlement was discussed. Both of those failures to corroborate Aleman’s claims provide the jurors, Maline said, “a path to check the not guilty box on the verdict forms.”
Postmus testified, Maline said that “Burum never crossed the line” with regard to offering money in exchange for a vote. “And he told you the same thing when he got on the stand,” Maline said.
Prosecutors did not have sufficient evidence upon which to convict the defendants or to even bring charges, Maline said. “They doubled down on Aleman,” he said. “They had nothing else.”
The Colonies Partners had aggressively lobbied members of the board of supervisors to bring an end to the litigation, Maline acknowledged, but he said doing that was not illegal and was necessitated by the consideration that “The county was not negotiating in good faith.”
Maline ridiculed the prosecution’s claim that the political action committees controlled by the defendants were “sham PACS, [set up] in the dark of night. She [Mandel described them as sham PACS.” Those were genuine PACs, Maline said, and if they were sham PACs the prosecution would have the evidence to prove it, he said. “They [the prosecution] have every document these gentlemen own [as the result of having seized materials from the defendants’ homes and offices during searches pursuant to search warrants.] They’ve gone through everything with a fine tooth comb.” Maline dismissed the idea that “Mr. Erwin’s PAC is a secret. He filled out his [disclosure documents]. If anyone wants to go online, they’re going to know exactly who started it.”
Maline will finish his closing statement on Monday. He is to be followed by Stephen Larson, Burum’s lead defense attorney, a former federal judge. Mandel is permitted to make a rebuttal after the defense attorneys complete their final arguments. Thereafter, the juries are to begin their deliberations.
One jury is to return verdicts for or against Burum, Biane and Kirk. The other jury, deliberating separately, will decide Erwin’s fate.
By Mark Gutglueck