County, DA & AG Want Colonies Case Defense Subpoenas Quashed

SAN BERNARDINO—Both the County of San Bernardino and the San Bernardino County District Attorney’s Office in concert with the California Attorney General’s Office are raising objections to subpoenas of former and current county lawyers Ruth Stringer and Mitch Norton and former assistant district attorney James Hackleman issued by defense attorneys in the Colonies Lawsuit Settlement Public Corruption Prosecution.
Stringer and Norton testified before the grand jury that indicted the four defendants in the case and Hackleman played a role in overseeing the early stages of the prosecution of the criminal case.
The Colonies Lawsuit Settlement Public Corruption Prosecution arose from the 3-2 decision of the county board of supervisors nearly nine years ago to confer a $102 million payout on the Colonies Partners development consortium to put to rest a lawsuit that company had brought against the county over flood control issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in Upland. The prosecution maintains that settlement was tainted by extortion, bribery, kickbacks, fraud and graft.
Jeff Burum, who with Dan Richards was one of the two managing principals in the 19-member Colonies Partners, was accused by prosecutors in a 29-count indictment handed down in May 2011 of having worked with former San Bernardino County sheriff’s deputy union president Jim Erwin to first extort and then bribe former county supervisors Bill Postmus and Paul Biane to get them to vote in favor of the settlement in November 2006 and then providing a kickback to Mark Kirk, the chief of staff to another former supervisor, Gary Ovitt, whose third vote for the settlement was crucial to its passage.
The indictment was built around the theory that Burum and Erwin, with the assistance of public relations consultant Patrick O’Reilly, conspired to threaten Postmus and Biane with exposure pertaining to their respective homosexuality/drug use and financial insolvency during the 2006 campaign season when Postmus was vying for county assessor and Biane was stumping for a measure to increase the pay of county supervisors. The indictment further charges that the conspiracy broadened and intensified with the provision of four separate $100,000 kickbacks provided to Postmus, Biane, Kirk and Erwin in the form of contributions to political action committees each of those parties set up or arranged to have set up after Postmus and Biane acceded to the threats and voted to approve the $102 million settlement. Kirk, according to the indictment, was rewarded with the $100,000 donation to his political action committee for having persuaded Ovitt to vote for the settlement.
The strength of the indictment in large measure hinged on guilty pleas by Postmus on a host of political corruption charges relating to the alleged scheme, including conspiracy, bribery, fraud and criminal conflict of interest. Both Postmus and Erwin had been previously charged in February 2010 with criminal wrongdoing in relation to the settlement and Postmus’s guilty pleas came in March 2011, one month before he became the star witness before the grand jury that indicted Burum, Biane, Erwin and Kirk.
But after the case has dragged on for more than four years, including two appeals by prosecutors to the Fourth District Court of Appeals to reestablish charges thrown out at the trial court, two appeals by the defense to throw out charges kept in by the trial court and an appeal by the prosecution to the California Supreme Court to reestablish charges thrown out at the appeal court level, the defense has now intensified its challenge of the prosecution case scheduled to go to trial in February.
One element of the defense’s challenge is the contention that the $102 million settlement was a reasonable one which needed no facilitation by means of extortion or bribery. In this vein, the defense has latched on to the consideration that lawyers for the county, known as the office of county counsel, made representations that the settlement was entirely kosher to the county’s insurance carriers in their attempts to recover a portion of the payout. In particular, the defense is attempting to argue, two of the county’s lawyers, Ruth Stringer, who was appointed as interim county counsel in November 2006 and was given the position of the county’s top in-house lawyer the following year when she acceded to the position of county counsel in 2007, and deputy county counsel Mitch Norton, who represented the county with regard to the litigation filed against it by the Colonies Partners and then played a lead role in seeking to force the county’s insurers to make good on their indemnification of the county relating to the Colonies settlement, in civil court were claiming the county legitimately owed the Colonies Partners the settlement money paid to that company and before the grand jury were prevented by prosecutors because of the form of questions they were asked from disclosing the settlement was above board.
Based upon information available to Biane, who was on the board of supervisors from 2002 until 2010, and former supervisor Neil Derry, who was on the board from 2008 until 2012, defense attorneys have learned that Stringer was serving as an informant against the members of the San Bernardino County Board of Supervisors by reporting to the district attorney’s office confidential information discussed during closed session discussions of the board. In October 2010, Derry confronted Stringer during a closed session and before the other members of the board wrung from her an acknowledgment that she had been meeting with then-assistant district attorney James Hackleman and was reporting to him the contents of closed-door discussions of the board of supervisors as well as details pertaining to the county’s legal strategy, being coordinated between her, Norton and an outside lawyer, Todd Theodora, with regard to efforts to induce the county’s insurance carriers, the California State Association of Counties Excess Insurance Authority and Travelers Insurance, to make good on the money the county claimed it was owed for the county’s loss as a result of the $102 million settlement.
Upon the board members learning Stringer had been violating attorney-client privilege and compromising the confidentiality due them as her client, she was pressured into resigning under a threat by Derry to inform the California Bar Association of her conduct.
Six months later, in April 2011, the prosecution team handling the Colonies Settlement Public Corruption Prosecution, consisting of select members of the district attorney’s office overseen by Hackleman and prosecutors from the California Attorney General’s Office, brought Stringer and Norton before a specially-impaneled grand jury. Prosecutor’s elicited testimony from Stringer and Norton that buttressed the case they were making against Burum, Biane, Erwin and Kirk.
Stephen Larson, the attorney representing Burum, two months ago filed a motion seeking the dismissal of the indictment, asserting that prosecutors withheld exculpatory evidence from the grand jury. Specifically, it is Larson’s contention that while questioning Stringer and Norton before the grand jury, prosecutors consciously and purposefully phrased their questions to provoke answers that reinforced a narrative suggesting the settlement was tainted by intimidation and extortion of Postmus and Biane before the fact and bribery, graft, kickbacks and fraud after the settlement was entered into while carefully avoiding questions that would have demonstrated to the jury that Stringer and Norton had been attempting to convince the legal teams representing the California State Association of Counties Excess Insurance Authority and Travelers Insurance as well as the mediators and judges hearing the case that the settlement was a fair, reasonable and justifiable one. In fact, according to Larson, prosecutors actively sought to lead Stringer and Norton away from giving answers that would disclose the county was making such an assertion in documents and court papers filed with regard to the indemnification case and in a case the county was pursuing against the city of Upland, Caltrans and San Bernardino County Associated Governments, the county’s transportation planning agency, all of whom it asserted had a hand in leading to the circumstance that led to the Colonies Partners having filed its lawsuit against the county and the county flood control district over the flood control issues on the Colonies at San Antonio and Colonies Crossroads properties. Ultimately, the California State Association of Counties Excess Insurance Authority paid San Bernardino County $14 million to settle a long-disputed insurance claim. Travelers Insurance in 2007 provided the county flood control district $9.5 million to satisfy its indemnification responsibility with regard to the Colonies Partners lawsuit settlement.
Larson propounds in court papers that the $102 million settlement was a reasonable one in that appraisers for both the county and Colonies Partners indicated that the Colonies Partners could have sustained, because of the county’s action, as much as “$250 [million] to $300 million in damages.” Prosecutors engaged in borderline prosecutorial misconduct, Larson has alleged, by preventing the grand jury from learning of those appraisals.
Larson has subpoenaed Hackleman, Stringer and Norton. His contention is that during the grand jury inquiry in April 2011, because the defendants were not represented by counsel, the prosecution team was required to inform the grand jurors of any potentially exculpatory information in their possession. He wants to question Hackleman, Stringer and Norton to demonstrate the district attorney’s office knew of the information that might have exonerated his client and his client’s codefendants but withheld it from the grand jury proceedings. Moreover, questioning of Stringer relating to her cooperation with the district attorney’s office in disclosing confidential information gleaned from closed sessions of the board of supervisors without having had authorization from the board to do so might be established as a violation of Biane’s constitutional rights against self incrimination.
Theodora and three other outside attorneys representing the county, Kevin Dorse, Roy Silva, Jerome Friedberg, as well as Norton along with the prosecution team, involving California Attorney General Kamala Harris, Chief Assistant California Attorney General Gerald Engler, senior Assistant California Attorney General Julie Garland, San Bernardino County District Attorney Mike Ramos, Deputy California Attorney General Melissa Mandel, San Bernardino County Deputy District Attorney Lewis Cope and San Bernardino County District Attorney Mark Vos, have filed two separate motions, one to quash the subpoenas aimed at Stringer and Norton and one to quash the subpoena of Hackleman .
According to the first motion to quash filed by Theodora, Dorse, Silva Friedberg and Norton, the subjective opinions, impressions and beliefs that Stringer and Norton may have had with regard to the reasonableness of the Colonies Settlement that they developed prior to the settlement are protected by the attorney work product doctrine and the testimony is “unnecessary” because, Burum’s legal team contends it has already obtained the documents needed to establish the “the prosecutors knew the county’s position regarding the settlement in 2011 and should have disclosed it to the grand jury.”
Moreover, according to the motion, Larson and the rest of Burum’s legal team have already taken the position in previous court hearings and documents filed with the court that the county’s attorneys’ opinions and beliefs with regard to the reasonableness of the settlement are “irrelevant” in that it is Burum’s position that Stringer and Norton were experts in neither land development nor real estate.
Furthermore, according to Theodora, Dorse, Silva, Friedberg and Norton, neither Stringer nor the office of county counsel are affiliated with the prosecutor and they were not themselves required to provide exculpatory evidence to the grand jury. “The issue is what the prosecutor knew, not what county counsel believed,” according to the motion. “The district attorney, not the county attorney witnesses, controlled questioning at [the] grand jury process. The attorney witnesses had no ability or duty to volunteer their current opinions of the Colonies Settlement in the grand jury proceedings. [W]itnesses are not apprised of evidence presented to the grand jury by other witnesses or by way of documents because the proceedings are conducted in secret.”
In their motion, Theodora, Dorse, Silva Friedberg and Norton request that if it is not granted in total, that the court bar Larson from questioning Norton and Stringer regarding their mental impressions and opinions formed after the settlement or any matters that would tend to disclose their mental impressions or opinions, as this qualifies as “work product” that is protected by attorney-client privilege.
In their motion, Harris, Engler, Garland, Ramos, Mandel, Cope and Vos assert, “Defendant’s subpoena of one of his prosecutor’s can and should be quashed… because subpoenas of highly-placed public officials are disfavored. Although Mr. Hackelman retired in 2011, his connection to this case before retirement was as an assistant district attorney, in charge of the Public Integrity Unit among other things and answerable only to the district attorney, himself. Mr. Hackleman remains a volunteer district attorney. The subpoena should be quashed because James Hackleman is a member of the prosecution team, and discovery from the prosecution can be had only through the criminal discovery statutes – and both are exclusive.”
The motion, authored by Vos, asks that if the subpoena is not quashed outright that a protective order be issued to prevent the disclosure of privilieged prosecutorial information.
In conjuunction with the motion to quash Hackleman’s subpeona, Hackleman filed a somewhat contradictory declaration in which he admitted, “I… had contact with members of county counsel’s office, including Ruth Stringer, concerning the Colonies case, including the service of search warrants on county faciliites, the service of subpeonas and the availability of county employee witnesses in trials, preliminary hearings and grand jury proceedings; the status of the ongoing Colonies indemnity action in San Diego Superior Court; and a waiver of the attorney-client privilege by the county in the county’s Colonies civil litigation. At no time during my contacts with county counsel Ruth Stringer or any other county counsel official did I knowingly receive any confidential or privileged information regarding the Colonies case, whether stemming from its related civil proceedings or elsewhere, or any information that I even speculated was privileged or confidential.”
The motions are set to be heard on October 30 by Judge Michael A. Smith, who has scheduled the trial of all four defendants to begin in February.

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