By Mark Gutglueck
On the first day of autumn, eight months and 18 days after opening arguments in the Colonies Lawsuit Settlement Public Corruption Trial began in the dead of winter, Judge Michael Smith this morning brought the proceedings to a close against the last of the four defendants who were tried in the matter, after prosecutors made a motion to dismiss the case against Jim Erwin under Penal Code Section 1385.
Shortly thereafter, Erwin walked from the courtroom an entirely free man, more than seven years after he was originally charged in the case and more than six years after he was named in a superseding indictment that also indicted Rancho Cucamonga-based developer Jeff Burum, former San Bernardino County Second District Supervisor Paul Biane and Mark Kirk, who had been the chief of staff to former San Bernardino County Fourth District Supervisor Gary Ovitt.
“Since the conclusion of jury deliberations, the people have carefully evaluated our current position,” said Senior Supervising Deputy San Bernardino County District Attorney Lewis Cope this morning. “We’ve identified some witness problems we felt we cannot resolve. As a result, we’re moving to dismiss this case in the interest of justice.”
Before Judge Smith granted that motion, he told Erwin and his attorney, Raj Maline, that Erwin had a right to seek exoneration by having the charges that were brought against him heard by a jury. Both Erwin and Maline indicated they were willing to have the matter terminated by dismissal, whereupon Smith dismissed all remaining counts against Erwin, after which spontaneous applause sounded throughout Smith’s sixth floor courtroom, which was packed with spectators.
Present for this morning’s proceedings were several of the jurors who heard the case, including at least three of the jurors on the panel who evaluated the case against Erwin and two of the jurors who considered the accusations against Burum, Biane and Kirk.
Today’s developments followed the September 13 declaration by the jurors hearing the case against Erwin that they were deadlocked without any prospect of resolving their differences with regard to the seven charges remaining against Erwin after deliberations that had been carried out over 20 days. That mistrial came two weeks and two days after another jury, one that sat through the proceedings in the same courtroom and heard the case against Burum, Biane and Kirk, on August 28 returned not guilty verdicts on all nine charges remaining against those defendants. Two juries heard the case because there was testimony and evidence against Erwin that was not admissible against the other defendants. When that testimony or evidence was presented to Erwin’s jury, the other jury was absent from the courtroom. The lion’s share of the testimony and evidence presented was applicable to all four defendants and was heard by both juries.
The just concluded-case began as a 29-count 40-charge indictment handed down in May 2011 citing the four with conspiracy, bribery, misappropriation of public funds and conflict of interest along with separate charges against Erwin pertaining to perjury on his statements of economic interest and failure to file his tax returns in 2008. The case revolved around allegations that Erwin, the one-time president of the county sheriff’s deputies union, assisted Burum in threatening, coercing, blackmailing and extorting both Biane and former San Bernardino County First District Supervisor Bill Postmus into settling a lawsuit Burum’s company, the Colonies Partners, had brought against the county over flood control issues at the Colonies at San Antonio residential and the Colonies Crossroads commercial subdivisions in northeast Upland. The indictment alleged that Kirk had participated in the scheme by influencing his boss, Ovitt, to join with Postmus and Biane in supporting the November 2006 lawsuit settlement. In return, according to the indictment, Burum through his company made two separate $50,000 donations for a total of $100,000 to political action committees set up and controlled by Postmus and three separate $100,000 donations to political action committees set up for or by Biane, Kirk and Erwin. Those donations were thinly-disguised bribes, according to prosecutors, that is, rewards for having supported or helping to effectuate the settlement.
One year and three months before the indictment, Postmus and Erwin were charged with a host of crimes relating to the settlement of the lawsuit with the Colonies Partners. In a plea agreement he entered into with the district attorney’s office in March 2011, Postmus pleaded guilty to 15 felony counts involving conspiracy to accept a bribe, receiving bribes, perjury, misappropriation of public funds, possession of a controlled substance, and conflict of interest. Those charges pertained to his vote to settle the lawsuit with the Colonies Partners as well as his action as county assessor, a post to which he was elected in November 2006. After entering his plea, Postmus turned state’s evidence and was the star witness before the grand jury that indicted Burum, Biane, Erwin and Kirk. He was a primary witness in the trial this year.
The lion’s share of the counts and charges against all four defendants were dismissed before the case went to the jury. Today’s development means that none of the original 29 counts and 40 charges were upheld.
“We’re thrilled with the outcome,” said Maline. “This case should never have been brought. Mr. Erwin asserted his innocence from day one and the prosecutors did not have what they are supposed to have when filing charges, which is tangible evidence. I am very pleased that there is at last some finality to this case for Mr. Erwin and his family and the dark cloud that has been hanging over him for these last eight-and-a-half years is removed.”
Maline said he was surprised by the prosecution’s motion to dismiss the case.
“Eight-and-a-half years is too long for anybody to go through this,” said Erwin. When the prosecution threw in the towel, he said, “I was indifferent. I was prepared to go to trial if that is what they were going to do. They never should have done this in the first place. What they said occurred never happened. The whole case was predicated on the lies and false testimony of certain witnesses and the action and miscalculations of overzealous prosecutors.”
There was much talk even before the trial as well as during it that the defendants would bring a civil suit against the county, the district attorney’s office and the California Attorney General’s Office, which participated with the district attorney’s office in prosecuting the case, once the four were exonerated. Speculation was that such a civil action would take as its basis prosecutorial overreach, malicious prosecution and civil rights violations.
Asked whether such a suit would be viable, Maline said, “It depends on what it is about. If there is a civil action to recover the money owed because of the indemnification the Colonies [Partners] had as part of the settlement, the answer is yes, I think it is very viable. When the settlement was made, the county agreed to pay the Colonies [Partners]’ legal fees, meaning Mr. Burum’s legal fees, if he were to be attacked because of the settlement. If the suit is to allege prosecutorial misconduct, that introduces a way higher burden. We would still have to do the analysis as to whether any of the prosecution’s action in court reached the level where we can positively state they engaged in intentional misconduct, but I can tell you right now prosecutors have a considerable degree of immunity. We can show that at the start they were saying that the proof of corruption was the outrageously high settlement amount, and that alone proved their case. They went before the grand jury with that to get the indictment. But they ran into the statement from [deputy county counsel] Mitch Norton, who said the settlement was ‘objectively reasonable.’”
Norton represented the county against the Colonies Partners in the lawsuit and was called upon by prosecutors to testify before the grand jury to demonstrate the county had overpaid when it settled the case for $102 million. But Norton also represented the county in the effort to collect insurance money to cover the settlement payout, during which he made representations that the Colonies Partners were due the amount paid in the settlement.
“They [prosecutors] used Mitch Norton to say that the settlement number was so out of whack that alone proved that something illegal had occurred,” Maline said. “But that was not what Mitch Norton said when he was seeking to have the insurance companies make good on their indemnification of the county. He said the settlement was reasonable. The prosecutors never mentioned that to the grand jury. They should not have done that. Prosecutors are not supposed to seek a conviction at any cost. They are supposed to seek justice. If early on they brought the case because they thought there was something fishy with the $102 million settlement, that is okay. But after they realized that their own witness was saying the settlement was reasonable, they should have admitted they had it wrong and that Paul Biane and Bill Postmus and Gary Ovitt had a good reason to support the settlement and that reason had nothing to do with bribery. They should have dismissed the case right then.”
Erwin told the Sentinel, “We probably can’t go after them for prosecutorial misconduct, but there are other possible causes of action. I lost my job with the county. Mark [Kirk] lost his job with the county. Paul [Biane] was voted out of office. The settlement had a clause that indemnified Jeff and the Colonies [Partners] for any legal expense that would come about as a result of the settlement. Those are all issue that could be crafted into a lawsuit or a possible lawsuit. We haven’t gotten together to discuss that yet, but we will. Right now, we’re just rebounding from the trial. Everyone needs to collect their thoughts. All of that is too much to deal with at this moment. I can tell you that if there are going to be civil claims, they are going to be made in federal court.”
In a prepared statement, Burum said, “I’m relieved and grateful that this is over for all of us. None of it should have happened. The board of supervisors needs to start holding people accountable. If county officials and lawyers had done their jobs, taxpayers would not be on the hook for $102 million. How much more was wasted because people refused to take responsibility for their actions and others acted for political reasons? This needs to end. I hope this is the beginning of positive change in our county, and I promise to do whatever I can to make that happen.”
Burum’s attorney, Stephen Larson, stated “[District attorney] Mike Ramos did right by dismissing this case, a case that should not have been brought. These four innocent men lost seven years of their lives, and the costs to them, their families, their business, and the communities they served have been huge. Those costs must be addressed, but the time has come to move forward.”
District attorney Mike Ramos said, “Since the conclusion of jury deliberations, we have carefully evaluated our current position and have identified witness problems that cannot be resolved. As a result, we are unable to proceed. One such issue is the trial testimony of Bill Postmus, who is a necessary witness in the case against Jim Erwin. Bill Postmus’ unexpected testimony on cross-examination at the last trial conflicted with his grand jury testimony, his statement to the FBI, and multiple interviews with the district attorney’s office.”
Ramos added that any retrial would have required the application of further judicial resources and litigation relating to the credibility of Bill Postmus and other witnesses.
Postmus is scheduled to return to court October 27 for sentencing.
Another witness used by prosecutors was Adam Aleman, one of Postmus’ political associates whom Postmus elevated, when he was 23 years old, to serve as assistant assessor after Postmus assumed the county assessor’s position in 2007. Aleman involved himself in a scandal in the assessor’s office and was charged with multiple felonies in 2008. In a plea agreement with the district attorney’s office, Aleman pleaded guilty in 2009 to theft, destruction, alteration or falsification of a public document, presenting a false claim, and vandalism. He was a key witness against Burum, Biane, Erwin and Kirk before the grand jury that indicted the four in 2011 and again at this year’s trial. On cross examination, Aleman was savaged by defense attorneys. Many of the jurors, in statements made after the verdicts were returned, said Aleman’s lack of credibility was for them a crucial weakness in the prosecution’s case. Aleman is scheduled to return to court on December 1 for sentencing.
The last defendant in the case is Dino DeFazio, who has not yet gone to trial. One of Postmus’ political associates and business partners, DeFazio was accused of assisting Postmus in laundering the $100,000 in bribe money Postmus admitted to receiving from the Colonies Partners. There is no indication when or if DeFazio will go to trial.
By Mark Gutglueck