More than a dozen requests have been made to set aside some or the totality of charges against the defendants in the most energetic bribery prosecution in San Bernardino County history. Though a few of the charges in the matter have been thrown out, to date the motions to have the entire indictment dismissed have been uniformly rejected.
Now, the former federal judge turned defense attorney representing the central defendant in the case has lodged a legal tour-de-force with the Fourth District Court of Appeals in what is likely to be the final shot at having the matter dismissed before it goes to trial.
Stephen Larson, who was an assistant U.S. Attorney before he was a federal judge and left the federal bench some seven years ago to go into private practice, is representing Rancho Cucamonga developer Jeff Burum. Burum has been charged with working with former sheriff’s union president Jim Erwin to first extort and then bribe former San Bernardino County Board of Supervisors members Bill Postmus and Paul Biane to approve a $102 million settlement of a lawsuit Burum’s company brought against the county and its flood control district over drainage issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland. Burum is also accused of bribing Mark Kirk, the chief of staff to former supervisor Gary Ovitt, who joined with Postmus and Biane in the November 2006 vote of the board of supervisors to approve, by a 3-2 margin, the $102 million settlement.
Prosecutors, consisting jointly of deputy district attorneys from San Bernardino County and deputy prosecutors with the California Attorney General’s Office, allege that Burum and Erwin, working with public relations consultant Patrick O’Reilly, prepared but ultimately withheld electioneering material that exposed Postmus, then the chairman of the board of supervisors and the chairman of the San Bernardino County Republican Central Committee, as a drug addicted and closeted homosexual and Biane as a spendthrift and teetering on the brink of bankruptcy. Ultimately, after the vote to approve the settlement was made, prosecutors maintain, Burum provided Postmus, Biane, Kirk and Erwin each with $100,000 in bribes that were disguised as contributions to political action committees the four controlled. Kirk was allegedly paid for influencing Ovitt to support the settlement.
Postmus has already pleaded guilty to 14 separate felony charges relating to corruption in public office, including taking the bribes offered to him by Burum. Erwin, Biane and Kirk were indicted along with Burum in 2011.
Postmus pleaded guilty to the criminal charges in March 2011, and was brought as the star witness before the grand jury that indicted the four in May 2011. There were other witnesses before the grand jury, including two of the county’s in-house lawyers, county counsel Ruth Stringer and deputy county counsel Mitch Norton. Before the grand jurors, Stringer and Norton, who had defended the county in the suit brought against it by the Colonies Partners, responded to questions indicating that they believed the $102 million settlement was excessive and unreasonable.
In the suit, the Colonies Partners had maintained that the county flood control district, which constructed a two-and-one-half mile long storm drain for the City of Upland which conveyed water east from the northwest corner of the city and then channeled that water onto the Colonies Partners’ property, had interfered with the company’s development plans for the property, rendered some of the property undevelopable and cost the company money because it was unable to complete and market homes on the property subjected to the water overflow.
The county contended that the county flood control district had flood control easements on the property, established in 1933, 1934 and 1939, that allowed the water to be vectored there.
After the settlement was reached in 2006, the county sought to recover from its insurers a portion of the $102 million the county had paid out to the Colonies Partners. One of the county’s insurance carriers balked at making good on the indemnification and the county, including Stringer and Norton, wrote legal documents and made statements to the effect that the $102 million settlement was a justifiable one.
In his most recent filing with Fourth District Court of Appeals, Larson asserts that prosecutors violated Burum’s rights when they made a highly selective presentation of evidence relating to the lawsuit and the settlement calculated to persuade the grand jurors of Burum’s guilt. In so doing, according to Larson, the prosecutors failed to inform the grand jurors about countervailing information that suggested Burum was innocent.
In January, Larson cited Norton and Stringer’s court filings and other statements in the effort to recover money from the county’s insurer in which they asserted the $102 million settlement was a reasonable one. He made a motion to have the judge hearing the case, San Bernardino County Superior Court Judge Michael Smith, dismiss the indictment because, he argued, the prosecution team’s failure to elicit from either Stringer or Norton that they had grown to accept that the $102 million settlement was reasonable violated Burum’s rights to due process. Larson’s argument was essentially that the failure of the prosecutors to inform the grand jurors of evidence that contradicted their narrative of Burum’s guilt was de facto withholding of evidence, tantamount to the presentation of false testimony. Ultimately, however, Judge Smith, while expressing a level of discomfort with the prosecutors not eliciting from Norton and Stringer testimony with regard to how they had shifted their position once they were focused on recovering the county money, ruled this did not rise to the level of actual prosecutorial misconduct.
In his petition to the Fourth District Court of Appeal filed on February 22, Larson asked that Smith’s finding be overturned and the indictment in its totality be dismissed.
“The trial court’s orders are contrary to law and emergency relief must be granted to avoid prejudice to Mr. Burum,” Larson wrote. “Should the trial court’s orders stand, Mr. Burum will suffer irreparable injury by being forced to defend against criminal counts that are unsupported by law or evidence and that were obtained through violations of California law.”
A central element of the petition is California Penal Code Section 939.71, which states “If the prosecutor is aware of exculpatory evidence, the prosecutor shall inform the grand jury of its nature and existence. Once the prosecutor has informed the grand jury of exculpatory evidence pursuant to this section, the prosecutor shall inform the grand jury of its duties under Section 939.7. If a failure to comply with the provisions of this section results in substantial prejudice, it shall be grounds for dismissal of the portion of the indictment related to that evidence.”
In the petition, Larson puts forth that previous efforts by the defense to have the indictment dismissed were shot down, in part because there was not enough evidence to support the defense’s contentions at that time. At this point, Larson asserted there have been discoveries that make the earlier defense motions not only more compelling, but binding.
The petition states, “The first significant development involved the prosecution’s failure to satisfy its mandated Section 939. 71 duty to disclose not only the existence but the nature of all exculpatory evidence to the Grand Jury. To obtain the indictment, the prosecution convinced the grand jury that the $102 million settlement between the County and Colonies Partners, L.P. was so unreasonable and unsupported that it could only be the result of bribery and corruption, and that the defendants’ claims to the contrary were so ‘absurd’ as to constitute the evidence of criminal intent. Central to this theory was testimony from numerous witnesses that not a single attorney for the county – the purported victim in this case – supported the settlement, and that they instead agreed with the prosecution that the settlement was patently unreasonable and unjustified. The People have now admitted under questioning by the trial court that prosecutors intentionally withheld evidence from the Grand Jury that county attorneys, several of whom testified before the grand jury, completely reversed their position prior to the grand jury proceedings and have been advocating that the settlement was objectively reasonable and fully justified ever since.”
Larson also references in the petition, Penal Code Section 995, which states that “the indictment shall be set aside by the court in which the defendant is arraigned, upon his or her motion [if] the defendant has been indicted without reasonable or probable cause.”
According to Larson, “in ruling that the prosecutors’ admitted withholding of this evidence was not prejudicial, the trial court improperly applied an amalgamation of the probable cause standard under Section 995 and the sanctions standard for prosecutorial misconduct. The trial court erroneously read into Section 939.71 a distinction between ‘exculpatory’ and ‘exonerating’ evidence, a distinction found nowhere in the statute or case law. Second, it failed to understand that the basis for the reconsideration motion was not a failure to present any evidence supporting the settlement’s reasonableness, but rather the prosecution’s failure to present the specific evidence that the county’s post-settlement attorneys changed their position prior to the grand jury proceedings to affirmatively advocate that the settlement was objectively reasonable.”
Larson asked the appellate court to bring the matter to an end by dismissing the indictment altogether.
“It has been nearly five years since the People manipulated the grand jury into returning an indictment so flawed that every single count against Mr.Burum has been dismissed at some point, some multiple times, in these proceedings,” Larson wrote. “Since then, the trial court has ruled that the grand jury was improperly instructed, the indictment’s tolling allegations were inadequately and improperly pleaded, the prosecution’s lead investigator either intentionally or recklessly failed to include material information in the affidavit for a key search warrant, and both the conspiracy charges and conflict of interest charges had to be dismissed as a matter of law. Nevertheless, the People have received every benefit of the doubt from the trial court, and Mr. Burum has been forced to endure the injustice of a five year prosecution for crimes he did not commit. The remarkable new evidence that was only recently divulged makes clear the need for a remedy without further delay. It is time to end this unjust prosecution.”
On March 2 Fourth District Presiding Justice Manual A. Ramirez called upon the prosecution to respond to Larson’s petition by March 21. Since that time, the court has extended that deadline for the prosecution’s response to March 30.
Efforts by the Sentinel to enlist a reaction from the prosecution team were unsuccessful.