By Mark Gutglueck
The accusers this week became the accused, seven weeks after a jury was unable to reach a unanimous verdict on any of the charges against Jim Erwin in the Colonies Partners Lawsuit Settlement Public Corruption Prosecution.
On September 13, the jury hearing the case against Erwin reported it was hopelessly deadlocked after more than two weeks of deliberations, and a mistrial was declared in his case. On September 22, which was eight months and 18 days after the trial for Erwin and his codefendants Jeff Burum, Paul Biane and Mark Kirk had begun on January 4, 2017, the district attorney’s office dismissed the case in its entirety against Erwin. More than three weeks before, a separate jury which had heard the case against Burum, Biane and Kirk had acquitted those three on all the charges.
The case, which was contained in a May 2011 indictment, 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, who was then a member of the board of supervisors, 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, then-supervisor Gary Ovitt, to join with Postmus and Erwin 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, provided to the defendants 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, receiving bribes, perjury, misappropriation of public funds, misuse of his public office, possession of a controlled substance, and conflict of interest. He then turned state’s evidence and was the star witness before the grand jury that indicted Burum, Biane, Erwin and Kirk.
The lion’s share of the counts and charges against all four defendants contained in the indictment were dismissed before the case went to the two juries that heard it, one for Erwin and one for Burum, Biane and Kirk. The decision to dismiss the charges against Erwin in the aftermath the acquittal of the other three defendants meant that none of the original 29 counts and 40 charges contained in the indictment were upheld.
On Wednesday, November 1, Erwin lodged a $25 million claim against San Bernardino County and the State of California, along with California Governor and former California Attorney General Edmund G. Brown Jr., U.S. Senator and former California Attorney General Kamala D. Harris, former Chief California Deputy Attorney General Gary Schons, California Supervising Deputy Attorney General Melissa A. Mandel, San Bernardino County District Attorney Michael A. Ramos, former San Bernardino County Assistant District Attorney James B. Hackleman, San Bernardino County Assistant District Attorney Michael Ferman, San Bernardino County Assistant District Attorney Gary Roth, San Bernardino County Supervising Deputy District Attorney Richard Lewis Cope, San Bernardino County District Attorney’s office investigators Michael J. Smith, Robert Schreiber and Hollis “Bud” Randles, former San Bernardino County Counsel Ronald Reitz, former San Bernardino County Counsel Dennis Wagner, former San Bernardino County Counsel Ruth Stringer, San Bernardino County Deputy County Counsel Mitchell Norton, former San Bernardino County Deputy County Counsel Charles Scolastico, and San Bernardino County Supervisor Josie Gonzales.
In his claim, Erwin alleges malicious prosecution, false arrest/imprisonment, fabrication of evidence, negligence, intentional infliction of emotional distress, retaliation, and civil rights violations.
The case put on by the prosecution consisted of 39 witnesses and 1,494 exhibits, all of which revolved in some or even large measure around the centerpieces of the trial, former county supervisor and assessor Bill Postmus and one-time assistant assessor Adam Aleman, who did not make their appearances in court until May, some four months after the trial was under way and after the table had been set for them by some two dozen preceding witnesses. Both Postmus and Aleman were caught up in criminal wrongdoing, with Postmus’ activity relating to the Colonies Partners lawsuit settlement as well as the political exploitation of his position as assessor and Aleman having been a prime actor in the exploitation of the assessor’s office for partisan political purposes. They both had pleaded guilty to charges against them. Postmus pled to 15 separate charges of which fourteen were felonies, and Aleman acknowledged committing four felonies, as part of plea deals with the prosecutors. Those plea arrangements included agreements to cooperate with the prosecution of the others.
According to the claim, “Adam Aleman ‘initiated the proceeding’ by knowingly making a false report to DA investigators during his November 2008 interview. Aleman continued to give false statements to DA investigators from 2008 to 2011 in a series of interviews both in person, telephonically, and electronically. He then intentionally and knowingly testified falsely, both before the grand jury and at trial. Josie Gonzales admits to having made a report to the DA’s public integrity unit sometime around the time of the settlement agreement (November 2006) in which she supposedly reported her suspicions of some criminal conduct and then like Aleman made false statements to the DA investigators, testified falsely to the grand jury and at trial.”
The claim continues, “To the extent either Aleman or Gonzales is found to have ‘initiated’ the criminal proceedings, the prosecution either knew—or should have known—that numerous witnesses were offering false and perjured testimony, including Aleman, Gonzales, and Bud Randles. Aleman and Gonzales knowingly testified falsely. The prosecution manipulated Postmus’s testimony, both by failing to ensure his sobriety during the interview process and then by manipulating his memories. While this is not connected directly to Gonzales, there is a connection to Aleman, who acted as an agent at the behest of the prosecution in this process through his numerous conversations and email/text exchanges with Postmus. Taken together with all of the false testimony, as well as other conduct by prosecutors, [they] manipulated the grand jury process.”
The complaint alleges “The prosecution was brought in retaliation against Erwin, Jeffrey Burum, and the Colonies Partners for pursuing the civil litigation and for exercising First Amendment rights of political expression. Moreover, both Aleman and Gonzales had ulterior motives to ‘initiate’ the criminal proceedings by providing false statements to investigators and testifying falsely—Aleman to secure his deal with prosecutors, and Gonzales to retaliate for the civil litigation and potentially to assist her major political supporters who are rivals of Mr. Erwin and the Colonies Partners. Further, both Gonzales and Aleman exhibited hostility and ill will toward Mr. Erwin, if nothing else based on their knowing and willfully false testimony against him.”
The claim maintains that “Randles and Schreiber had personal knowledge that the grand jury indictment had been procured through the false testimony of Postmus, Aleman, Gonzales, and Randles.”
According to the claim, prosecutors and their investigators piled on after they tackled Erwin. “Mr. Erwin was wrongfully arrested and jailed three times for bribery and other related charges,” the claim states.” One, on March 15, 2009 for the bail amount of $220,000. The second time on February 10, 2010 for the additional bail amount of $380,000. The third time in May 11, 2011 for the bail amount of $2,000,000, even though Mr. Erwin had been released on his own recognizance and had never been tardy or missed a court scheduled appearance. All inflated bail amounts were requested by the prosecution team. Erwin was waste-chained, leg shackled and paraded in front of news cameras in green jail attire. Afterwards Erwin appeared on the front page of local newspapers.” The claim says this was “an oppressive and malicious tactic to get fabricated testimony against developer Jeffrey Burum.”
The claim states, “The prosecution team’s conduct with regard to the investigation, grand jury, and trial breached their duty to ‘act reasonably so as to not cause Erwin undue harm.’ Specifically, the manipulation of Postmus, the attempted manipulation of other witnesses (e.g., Matt Brown), the eliciting of false testimony from Gonzales and Aleman, the false testimony provided to the grand jury by Randles, the various manipulations of the grand jury process (e.g., the handling of the Lindley testimony), and much more, all violates this duty.”
Matt Brown was Paul Biane’s chief of staff. Jim Lindley, a one-time Postmus political ally, was Hesperia mayor and the county’s head of purchasing and risk management.
“Further, investigators and prosecutors violated their duty ‘to properly and adequately investigate all reasonable leads and evidence’ with regard to exculpatory evidence, failing to drug test Postmus, failing to investigate Aleman’s false claims that he met with Mr. Erwin and Postmus, failing to investigate Gonzales’s false claim that she saw Mr. Erwin in China, and much more.”
Erwin’s criminal prosecution was an outgrowth, according to the claim, of his having blown the whistle on illegal activity in the assessor’s office. From January 2007 until he resigned in October 2007, Erwin had been, along with Aleman, one of the two assistant assessors appointed by Postmus.
“Mr. Erwin voluntarily went to DA investigators in November 2007 to provide information regarding criminal acts being committed by Postmus, Aleman and other assessor staff during the DA investigation of the assessor’s office,” the claim states. “The information provided by Mr. Erwin was largely responsible for the arrest and prosecution of Aleman and Postmus. Messrs. Schreiber and Randles knew or should have known that Aleman’s uncorroborated statements against Erwin were false and plainly in retaliation for Erwin’s earlier statements implicating Aleman in crimes associated with the assessor’s office.”
The claim propounds that “Investigators Randles and Schreiber and prosecutors Cope and Mandel knew that false testimony had been presented to the grand jury, and because they had been instrumental in developing and presenting that false testimony (including Randles’s own false testimony in connection with the statute of limitations), they knew that there was, in fact, no probable cause to indict Mr. Erwin—and thus their arrest/seizure of Mr. Erwin was unreasonable.” This was in violation of Erwin’s First, Fourth, Fifth, and Fourteenth Amendment rights, according to the claim. “Randles and Schreiber knowingly withheld the extent to which they had manipulated Postmus into falsely claiming he was bribed, or the fact that they had been investigating Mr. Erwin and the Colonies settlement,” according to the claim. “They withheld other relevant information or supplied some other false information to the prosecutors. Investigators violated Mr. Erwin’s Fourteenth Amendment rights by deliberately fabricating evidence to present to both the grand jury and at trial. Investigators deliberately fabricated evidence that was used to criminally charge and prosecute Mr. Erwin. Investigators continued their investigation of Erwin despite the fact that they knew that Mr. Erwin was innocent, or were deliberately indifferent to Mr. Erwin’s innocence, and the results of the investigation were used to criminally charge and prosecute Erwin. Randles deliberately gave false testimony regarding the timing of his investigation of Mr. Erwin so as to avoid the charges being time barred. Investigators used coercive and abusive techniques in interviewing Postmus when they knew, or were deliberately indifferent, that those techniques would result in false testimony from Postmus that would then be used to charge and prosecute Mr. Erwin, which they ultimately did.”
The claim contends that “Richard Lewis Cope, Melissa Mandel, Gary Schons and James B. Hackleman assisted in fabricating evidence and inducing false testimony before the grand jury when there was no probable cause against Mr. Erwin. Cope and Mandel participated with DA investigators in the Postmus and Aleman interviews. Those interviews were intentionally designed to illicit false testimony of wrongdoing against Mr. Erwin. Cope and Mandel deliberately involved themselves in those interviews but would leave the interview room before substantive questions were asked of Mr. Aleman and Postmus. DA Investigators would then report to Cope and Mandel during and after those interviews.”
The Sentinel was directed to district attorney’s office spokesman Christopher Lee for comment. Lee has a policy of not speaking to the Sentinel.
The claim states, “In the event this claim is rejected, Mr. Erwin will bring a lawsuit in the United States District Court for the Central District of California, and/or any other court of competent jurisdiction, requesting a jury trial for compensatory and punitive damages suffered by him according to proof, as well as such other relief as the court may order.”
Erwin told the Sentinel this morning that he did not know whether the county and state would seek to settle the claim short of trial. “It’s actually in my interest to have this heard by a jury,” he said.
Erwin said his codefendants would be filing similar claims to be followed up with legal action. “It’s coming,” he said.
By Mark Gutglueck