In a fashion befitting the nearly eight-month duration of the trial that preceded them, the deliberations of the jury considering the guilt or innocence of one-time sheriff’s deputies union boss Jim Erwin entered their third week yesterday. While that panel is gamely making an effort to weigh the totality of the evidence presented to it during the marathon proceedings to determine whether or not Erwin aided and abetted the pair of men who in 2006 were San Bernardino County’s two top elected officials in taking bribes, details relating to the nature of those deliberations revealed in competing motions by the prosecution and Erwin’s defense attorney considered by the judge this week seem to indicate the jury is very likely deadlocked.
Beginning in January, two juries heard testimony against four of the six total defendants charged in the Colonies Lawsuit Settlement Public Corruption Case. In that matter, prosecutors alleged Rancho Cucamonga-based developer Jeff Burum by 2006 had grown increasingly frustrated at how the litigation his company, the Colonies Partners, had filed against the county four years earlier was failing to achieve its desired effect of allowing his project, the Colonies at San Antonio residential subdivision in northeast Upland, to proceed. This led Burum, prosecutors maintained, into blackmailing and then bribing then-county supervisors Bill Postmus and Paul Biane to forge a $102 million settlement of that litigation. According to a 29-count indictment handed down by a grand jury in May 2011, Erwin assisted Burum in threatening both Postmus and Biane, then the chairman and vice chairman of both the board of supervisors and the San Bernardino County Republican Party, with exposure relating to the former’s drug use and homosexuality and the latter’s precarious financial condition. According to the prosecution, that induced Postmus and Biane to vote in November 2006, along with then-county supervisor Gary Ovitt, to approve conferring the $102 million payment on the Colonies Partners to end the litigation. Thereafter, between March and the end of June in 2007, the Colonies Partners provided each of two political action committees controlled by Postmus with separate $50,000 donations; and $100,000 donations to each of three political action committees controlled by Biane, Erwin and Mark Kirk, who was Ovitt’s chief of staff. The indictment alleged that the $300,000 paid out to Postmus, Biane and Kirk was bribe money, kickbacks provided to Postmus and Biane in exchange for their vote to settle the litigation and a kickback that went to Kirk for his assistance in delivering Ovitt’s vote in favor of the settlement. The $100,000 received by Erwin, the prosecution maintained, was a reward provided to Erwin for his assistance in inducing Postmus and Biane to support the settlement. Two months prior to the indictment, Postmus pleaded guilty to a raft of criminal charges relating to his vote in favor of the settlement that had been filed against him in 2010, including bribery. He was the star witness before the grand jury that indicted Burum, Biane, Erwin and Kirk, and he was a central witness in the trial this year that was presided over by Superior Court Judge Michael Smith.
Two juries heard the case, one for Burum, Biane and Kirk and the other for Erwin, because Erwin had previously made statements to investigators implicating himself and the other defendants. Because it was anticipated Erwin would invoke his Fifth Amendment right not to testify, which he in fact did invoke, the case against him was heard by a separate jury, which heard those statements. Because all criminal defendants have a right, guaranteed by the Sixth Amendment, to confront their accusers with regard to any evidence presented against them, the jury for Burum, Biane and Kirk were excluded from the courtroom during the presentation of the evidence relating to Erwin’s statements to the investigators, as the lawyers for Burum, Biane and Kirk would not have the opportunity to cross examine Erwin with regard to what he had said in implicating their clients.
Beginning on August 14 and concluding on August 24, California Supervising Deputy Attorney General Melissa Mandel followed by the attorneys for Kirk, Biane, Burum and Erwin – Peter Scalisi, Mark McDonald, Stephen Larson and Raj Maline, respectively – provided the jurors with final arguments. On August 23, the jury for Burum, Biane and Kirk began deliberations on the charges, which by that point had been whittled down to four against Burum, three against Biane and two against Kirk. The following day, the jury for Erwin began its deliberations on the seven charges still in play against him.
After just two days of deliberating, the panel for Burum, Biane and Kirk returned with not guilty verdicts on all nine remaining charges against the three defendants, which were read to a packed courtroom on August 28.
No such quick resolution of the case against Erwin, however, was forthcoming. That jury continued its deliberations throughout the week, breaking for the three-day Labor Day Holiday. On September 5, dual motions from the prosecution and the defense were heard. In a somewhat irregular filing, the prosecution on August 31 submitted by email rather than through a paper document filing with the court a motion, which reportedly sought the removal of two jurors, citing potential juror misconduct. It referenced, according to verbal representations at the courthouse, pre-judgment of the case by the jurors in questions, their refusal to deliberate, and concealment of information as grounds for discharging them. In response, Maline filed a motion of his own seeking the removal of two other jurors, including the foreman. To all appearances, the upshot of the motions was that the prosecution was seeking to remove two jurors believed to be steadfastly in favor of acquittal, and the defense was seeking to remove the two jurors believed to be most passionately in favor of conviction.
The actual contents of the prosecution motion have not been made publicly available, and are known primarily on the basis of Maline’s motion, which references several of the prosecution’s motion’s elements.
In the title of his motion, Maline laid out that he and Erwin were seeking “to remove for good cause Juror Number One and Juror Number Seven pursuant to California Penal Code Section 1089 or, in the alternative, for mistrial.”
According to Maline, “It has become clear that defendant James Erwin’s jury is deadlocked in its deliberations over most, if not all, of the claims against Mr. Erwin. Rather than bend to this reality, the prosecution has used this development to launch a last-minute attack on an apparently large jury faction that has sat through this eight-month trial and concluded, as is its right, that the prosecution has not made its case. Rather than accept the judgment of these citizens, the prosecution has already expressed its intent to use the deadlock to launch a full inquiry into the entire panel’s deliberations. Only these prosecutors could conclude that mere disagreement with the prosecution’s self-serving conclusions rises to the level of misconduct. But in their zeal to disqualify and remove jurors who have expressed Erwin’s innocence, they run roughshod over Mr. Erwin’s constitutional rights – not to mention the sanctity and secrecy of jury deliberations.” The motion continues, “Instead of considering these paramount issues, the prosecution requests an inquiry into the jurors that have concluded Mr. Erwin’s innocence, and this on the hearsay-based statements of two jurors that disagree with their fellow jurors. These accusations have been hurled – literally at the last hour – at the jurors favorable to Mr. Erwin. These supposed statements were made weeks or months ago – at a time when all of the jurors should have been maintaining, as repeatedly instructed by the court, that each of the defendants including Mr. Erwin are presumed innocent – and are only now being reported in the wake of the jury’s evident deadlock. We do not know what precipitated these belated accusations, and no reasonable inquiry – an inquiry that would have to take place in the middle of the jury’s deliberation – could ever resolve their he-said-she said character.”
At that point, Maline initiated his call for the removal of two of the jurors believed to be pushing their colleagues in the direction of findings of guilt.
“In truth, it is Juror Number 1 and Juror Number 7 that have committed misconduct by publicly revealing the jury’s deliberations to the court and to the public,” Maline stated in the filing. “Juror Number 1 and Juror Number 7 should be removed for this misconduct, and no further inquiry is necessary. The only other alternative is an immediate ruling of mistrial. Juror Number 7 indicated in her complaint to the court that she called Juror Number 1 on Wednesday August 30, 2017 at night. When the court questioned Juror Number 7 about this call, Juror Number 7 indicated that the only thing discussed was her plans to tell the court she wished to be removed. That does not appear to be true. Rather, it appears based upon her nearly identical list of complaints submitted by Juror Number 1 (in his written letter) and Juror Number 7 (in her in camera disclosure to the court) that the two have fully coordinated their story and list of complaints outside the presence of the other jurors. That is manifest misconduct.”
Maline’s motion continues, “Jury deliberations should be conducted in secrecy. If jurors are not permitted to deliberate in secret, it will chill the debate, deliberation, and free expression of thought necessary to the deliberation process. Juror Number 1 and Number 7 have colluded in breaching the sanctity of the deliberations and hopelessly poisoned the proceedings. Unsurprisingly, the prosecution has leapt at this opportunity to wreak havoc on these proceedings, jumping immediately to endorse an all-encompassing and intrusive investigation into the jurors who did their job but happen to disagree with the prosecution. In doing so, they treat the deliberation process with the same dilatory contempt with which they treated their presentation of evidence. Of course, the investigation the prosecution urges upon this court both invades the jury’s ability to freely express diverse and varying options without fear of reprisal, and naturally carries with it the significant likelihood of prejudicing the defendant’s right to a jury trial. Complaints by Juror Number 1 and Juror Number 7 about their fellow jurors do not even merit inquiry, much less removal, under the relevant legal standards. First, we know that the problem is not a failure to deliberate, as demonstrated by the fact that these concerns only came to light (1) after several days of deliberation; (2) after the jury, in the presence of the court, clearly reflected their engagement in deliberations by listening to the court’s answer to a question by the jury; and (3) after the jury reported their division. If the situation were truly as it has been represented, one would have expected these reports long before this late date.”
Continuing, the motion states, “The problem, to the extent one exists, is that the jurors disagree about the state of the evidence. The jury foreperson, Juror Number 1, has told us so. His letter demonstrates that deliberation has occurred, and that several jurors do not agree with his assessment of the evidence. For example, he believes, per his letter to the court, that the ‘Postmus plea deal’ is evidence that some crime was committed. Others do not – more than a reasonable conclusion, particularly given the conclusion reached by the other jury as well as the court’s instruction on the significance of the guilty plea. But rather than accept this disagreement in the course of deliberation, Juror Number 1 has now revealed the jurors’ disagreements to the court – including the particulars of the jurors’ disagreements – and thus to the world. Ironically, the failure of Juror Number 1 and Juror Number 7 to honor the secret and sacred nature of jury deliberations is the only provable juror misconduct in this case.”
Maline said they “conspired… for the purpose of sabotaging the deliberations altogether.”
Though the prosecution’s motion is not available, Maline’s motion reveals that one of the grounds cited by the prosecution for removing one of the two other jurors represented as leaning toward acquittal is an “incident when one juror was texting instead of listening to the read back of testimony” during deliberations.
According to Maline’s motion, the prosecution’s motion also referenced “one juror’s declaration that she wanted to have ‘100% no doubt,’” which is distinct from the standard of beyond a reasonable doubt. Maline’s motion further states that “Both Juror Number 1 and Juror Number 7 also complained that several other jurors ‘disregarded evidence.’”
Maline’s motion made the claim that “The prosecution is strategically using Juror Number 1 and Juror Number 7 to target minority jurors for removal. Juror Number 1 and Juror Number 7 are both white, while each of the jurors identified by Juror Number 1 and Juror Number 7 as the ‘crew’ of Erwin supporters is of minority heritage – either African-American or Hispanic. It is no surprise that the prosecution strategically seeks to have the court ‘investigate,’ then no doubt exclude, these minority jurors from further deliberation. Rather than embark on an investigative jeremiad against the jurors who have concluded that Mr. Erwin is innocent, what should happen is that the jurors that have revealed the jury’s deliberative process – Jurors Number 1 and Number 7 – should be removed and the panel instructed to begin deliberations anew.”
Despite Maline’s assertion that “The only way to restore any kind of sanctity for the jury’s deliberative process is to remove Juror Number 1 and Juror Number 7, and proceed anew with deliberations with a reconstituted panel” and “The only alternative is for this court to declare an immediate mistrial,” Judge Smith did neither. He did, however, late Tuesday morning in his chambers and beyond the view of the public, make inquiries of the 12 jurors on issues brought up in the motions.
Thereafter, the entire jury returned to the jury box in Smith’s courtroom on the sixth floor, at which point Smith made no reference on the record with regard to the motion to remove any of the jurors, but rather signaled the panel would remain intact when he instructed them all to return to deliberations. Before sending them back to the jury room, however, he gently admonished them to remain engaged during their discussion and avoid “completely tuning out” when disagreements among the panel members manifest. “You can’t just turn off,” Judge Smith said.
The judge said that despite the jurors coming to loggerheads over some of the charges, they should continue to deliberate on the charges they have yet to come to a verdict on and with regard to which there is some chance of reaching a consensus.
The charges against Erwin consist of two counts of aiding and abetting Postmus in receiving or asking to receive a bribe, two counts of aiding and abetting Biane is receiving or asking to receive a bribe, intentionally failing to file his state tax return for 2008, and two counts of perjury prosecutors say he committed when he did not fully disclose on statements of economic interest that must be filled out by public officials that he had received a $12,765 Rolex watch from Burum and travel and accommodations on a trip to New York and Washington D.C. Erwin took on with Burum in January 2007 as a show of appreciation for his part in helping to achieve the settlement.
Erwin, once a sheriff’s deputy, was until 2004 the elected president of the sheriff’s deputies’ collective bargaining unit, the Safety Employees Benefit Association, known as SEBA. In 2006, he was no longer SEBA president but was working as SEBA’s executive director. In November 2006, Postmus was elected county assessor and in January 2007, Postmus appointed Erwin assistant assessor.
Six individuals were charged in the criminal case growing out of the Colonies lawsuit settlement. With Postmus’ 2011 guilty pleas and the acquittals of Burum, Biane and Kirk last month, the case against four of those has been concluded, though Postmus has not yet been sentenced, as the punishment to be meted out against him was to be conditional upon his cooperation in the prosecution of the others. Erwin represents the fifth defendant in the matter. A sixth defendant, Postmus’ business partner and political associate Dino DeFazio, is charged with assisting Postmus in laundering the bribes he is alleged to have received from the Colonies Partners. He is awaiting trial.   –Mark Gutglueck