Prosecutors Hid Exculpatory Evidence From Grand Jury, Burum’s Lawyers Say

(October 1) Prosecutors withheld key exculpatory evidence pertaining to the central figure in the Colonies Lawsuit Settlement Public Corruption Prosecution, his attorney has set forth in the most recent filings with the Fourth District Court of Appeal relating to the case.
The case, which revolves around charges of conspiracy, bribery, extortion and the corruption of public officials, involves the activity leading up to the November 26, 2006 vote by the board of supervisors to confer a $102 million settlement on the Colonies Partners to bring to an end litigation brought against the county of San Bernardino and its flood control division over drainage issues at the company’s Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland.
In 2010, prosecutors told a grand jury that Jeff Burum, one of the managing principals in the Colonies Partners, with the assistance of one-time sheriff’s deputies union president Jim Erwin, first threatened and coerced then-supervisors Bill Postmus and Paul Biane into supporting the lawsuit settlement along with their board colleague Gary Ovitt. Prosecutors further alleged that after the vote was made Burum provided separate $100,000 bribes to Postmus and Biane as well as Ovitt’s chief of staff, Mark Kirk, in the form of donations to political action committees the three set up and controlled. In February 2010, that grand jury indicted Postmus and Erwin on a variety of political corruption, bribery, perjury and conspiracy charges. They pleaded not guilty to those charges but the following year Postmus pleaded guilty to 14 charges against him and turned state’s evidence. He then testified before a second grand jury, which handed down a superseding 29-count indictment that renamed Erwin and indicted Burum, Biane and Kirk.
All four have pleaded not guilty and are seeking to clear their names.
After the 29-count indictment was handed down on May 9, 2011, defense attorneys filed demurrers challenging the sufficiency of the case on a host of legal, factual and technical grounds. In August 2011, Judge Brian McCarville granted several of those demurrers, throwing out a number of the charges. The prosecution appealed McCarville’s ruling to the Fourth District Court of Appeal, a move which was matched by defense attorneys, who asserted that McCarville should have dispensed with even more of the charges than he actually did. The Fourth District Court upheld McCarville on all but one of his rulings favoring the defense and, in addition, threw out even more of the charges. Prosecutors then filed a last-minute appeal of the Fourth District Court’s ruling with the California Supreme Court.
After a year-long delay, the Supreme Court reinstated the charges and sent the matter back to the trial court, where it is being heard by Superior Court Jude Michael  A. Smith.  Defense attorneys filed a series of five motions with Smith seeking the dismissal of the entirety of the case, based on a number of grounds, including statute of limitations,  lack of probable cause, jury misinstruction, prosecutorial misconduct in having raided the defense camp and seizing privileged materials crucial to the defense, along with prosecutorial and investigator misconduct. In his first ruling on those motions, Smith granted the dismissal of the  issue at the heart of the case, a single conspiracy charge against each of the defendants, upon which the primary narrative of the case was hinged, including 43 overt acts. Smith granted that motion on his interpretation of the law that held conspiracy charges are subject to a strict three-year statute of limitations rather than the four years alleged by the prosecution. Because the last overt act of the conspiracy, that is, the final delivery of the alleged bribe money in the form of the contributions to the political action committees, occurred in June and July of 2007 and the indictment did not come until May 2011, Smith concurred with the pleadings of Burum’s attorney, former federal judge Stephen Larson, that the  statute of limitations had been exceeded.
Larson and the defense camp seemed to be making headway with Smith’s next ruling, which likewise was based on statute of limitations grounds, that sought the dismissal of twelve other charges in the case. Larson cogently argued that the stature of limitations on those charges had likewise been exceeded in that the victim, i.e., the county and its officials, knew of or had strong grounds to suspect as early as 2006 that the illegal activity described in the indictment had taken place, thus making the May 2011 indictment too late given the three-year statute of limitations. Smith granted that motion but  then attenuated that defense victory by granting  the prosecution the opportunity to amend the complaint to clarify that both law enforcement officers and county officials had no substantial indication that the alleged crimes had occurred until November 2008. Prosecutors in August availed themselves of that option by filing an amended indictment with that clarification, preserving those charges.
When Smith turned to the motions  for dismissal based on lack of probable cause, jury misinstruction, prosecutorial misconduct and investigator misconduct, he uniformly denied those motions,  allowing that portion of the case relating to  misappropriation of public funds – Penal Code Section 424 – to proceed,  as well as sustaining the charges of  tax and perjury against Erwin that were based upon his not having properly reported having received gifts from Burum. Smith did dismiss another set of perjury and tax fraud charges against Erwin, Biane and Kirk relating to the contributions to the political action committees they controlled, ruling such political donations cannot be considered income to the founders of the political action committees (PACS) or those in control of them. Smith  also dismissed conflict-of-interest charges against Burum and Erwin, reasoning that Burum was never a public official and Erwin was not one at the time of the events in question.
In all, Smith threw out eleven of the 29 charges, but left nearly two thirds of the case, consisting of 18 of the counts, intact.
In response, both the prosecution and defense again sought to second guess the trial court, appealing Smith’s decisions to the Fourth District Court of Appeal. For its part the prosecutors, consisting of Supervising Deputy California Attorney General Melissa Mandel and San Bernardino County deputy district attorneys Michael Abney, Lewis Cope and Reza Sadeghi, have indicated they want the single conspiracy charge against each defendant thrown out by Smith reinstated.  In his first filing with the appellate court, Larson on September 16 filed a writ of prohibition, challenging every ruling Smith made in favor of the prosecution relating to the motions to dismiss the charges against Burum. On September 26, Larson followed the writ for prohibition with a writ of mandate.
In the first part of the writ of mandate, Larson asserted Smith erred in allowing the prosecution to amend the indictment to, “circumvent” the statute of limitations. Larson further maintains Smith compounded that error by allowing the prosecution to amend the dates of the alleged bribery counts. This part of the writ of mandate touched on several highly technical and arcane provinces of law, including assertions that “The trial court applied the wrong legal standard in evaluating whether the evidence presented to the grand jury supported the proposed amendment,” that the “trial court’s error was prejudicial because the People utterly failed to meet their burden to show that sufficient evidence was presented to the grand jury to support the amended tolling allegation,” that a  “payment made after an official act is not bribery under California law,” that an “after-the-fact payment is not part of a ‘continuing crime’ involving an already completed bribery,” that the “trial court improperly disregarded California law in favor of a century-old case from New York,” and that the “trial court’s error was prejudicial because the People failed to meet their burden to show sufficient evidence supporting the amended bribery dates.”
In the second half of the writ of mandate, Larson changes gears, moving away from more esoteric areas of the law to focus on the more accessible and easily understood concept of the prosecution either misrepresenting or withholding evidence to and from the grand jury. The writ asks the Fourth Court of Appeal to examine Smith’s rejection of the so-called so-called Johnson motion,  named in reference to the precedent-setting case Johnson v. Superior Court, Larson’s  request that the charges against Burum be thrown out, citing allegations prosecutors withheld exculpatory evidence from the grand jury.
The explication of the basis for Larson’s request that the appellate court make a finding that the charges be thrown out on these grounds makes the most compelling argument for Burum’s innocence contained in the document.
“A grand jury’s purpose is to stand ‘solidly between the ordinary citizen and an overzealous prosecutor,’” Larson and his co-counsel, Dennis Fischer, state in the writ. “It must not act as a prosecutor’s ‘rubber stamp,’ but instead should be ‘an independent bulwark’ of justice.”
But because of the way in which prosecutors selectively presented information to the grand jury, according to Larson and Fischer,  the grand jury failed to act independently and ultimately rubber stamped the prosecutions version of events.. “[A]s Mr. Burum established in his Johnson Motion, the People withheld exculpatory evidence from the grand jury that would have eviscerated their circumstantial case against him,” the writ states. “At its core, the People’s case is founded on the testimony and guilty plea of former Supervisor Postmus. The People repeatedly told the grand jury that Mr. Postmus had pled guilty to the crimes of receiving bribes, misappropriating public moneys, and violating California’s conflict of interest laws. They also heard Mr. Postmus testify that Mr. Burum had allegedly promised to support him in the future either in politics or future business ventures if he voted for the settlement. But the grand jury was not told the rest of the story: That within the two months prior to this testimony, Mr.Postmus repeatedly and unequivocally denied to district attorney investigators that there was any bribery or other wrongdoing relating to the settlement. What the record shows but what the grand jury was never told—is that Mr. Postmus initially resisted those efforts, continuing to maintain that no bribery or wrongdoing occurred.”
To back up this assertion, Larson and Fischer provide the following transcript of an interrogation of Postmus by district attorney’s office investigators Hollis “Bud” Randles and Robert Schreiber.
“Bob Schreiber: Okay. There are discussions about taking care of you politically. Let’s hear about that.
Bill Postmus: Well, Yeah. No. He — he had said that that they would support me in the future, that he would personally support me in the future.
Schreiber: If —
Postmus: He didn’t say if the settlement was done. He said he would support me in the future.
Schreiber: If — if what?
Postmus: Well, I mean Jeff and I were good friends. You know.
Schreiber: Okay. Come on, Bill —
Postmus: No. I’m not. You want me to tell you the truth and [inaudible] that’s what I’m doing.
Postmus: [Mr. Burum] never crossed the line with me with regards to the Colonies.
Bud Randles: What about incentives that, uh, he proposed, uh, for you to approval the Colonies settlement?
Postmus: Like, with respect to what, Bud?
Randles: Like, I will support your candidacy for the assessor.
Postmus: No, well, he – he never did that. Because, I mean, he never did — he never said that. He never – never said that. He was very clear — he was very, very clear, Jeff was, that he wasn’t going to support or give anybody or do anything during the Colonies settlement.
Randles: There was a $100,000 that was contributed to you and others that, uh, approved the lawsuit and Jim Erwin, who facilitated it. This $100,000 was discussed with you prior to the lawsuit being settled. The $100,000 contribution to you in some form.
Postmus: No. No. That was not discussed. As I stated earlier that was discussed after I was sworn in as Assessor. It was never discussed prior.
Randles: The $100,000 contributions to others that were involved in the approving of this lawsuit was discussed with you prior to the lawsuit . . .
Postmus: No.
Randles: . . . being settled.
Postmus: No. It was discussed after. Money – money was never — money was never discussed.
Randles: Characterize the $100,000, uh, that went to you from Colonies Partners, uh, that was for what purpose?
Postmus: Well, it was a campaign contribution after the fact.
Randles: For what purpose?
Postmus: Well, I’m not gonna, you know, I’m not going to say because I do not, you know, I’m not going to say because I don’t . . . Ya know, I know what you want me to say, but, I-I, you know.”
According to Larson and Fischer, “The People also hid from the Grand Jury similarly exculpatory statements.”
Supervising Deputy California Attorney General Mellissa Mandel indicated through her secretary she would have no comment on the matter outside of court filings and the courtroom until the case concludes.

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