By Mark Gutglueck
The California Supreme Court has rejected what is almost certainly the last stab by the defense in the Colonies Lawsuit Settlement Public Corruption Prosecution to have the indictment dismissed before the interminably delayed case goes to trial in October.
More than a dozen requests have been made to set aside some or the totality of charges against the defendants in what is the most energetic and highly publicized bribery prosecution in San Bernardino County history. Though a few of the charges in the matter have been thrown out, all previous motions to have the entire indictment dismissed have been uniformly rejected. On Wednesday, August 17, the Supreme Court slammed the final door on the latest round of such motions, which originated early this year as a motion before San Bernardino County Superior Court Judge Michael Smith to have the indictment thrown out on the basis of prosecutorial misconduct.
That motion, filed by Stephen Larson, the attorney for the lead defendant in the case, Jeff Burum, laid out in detail why Larson, a former federal prosecutor and U.S. District Judge, believes the prosecution, consisting of the San Bernardino County District Attorney’s Office and the California Attorney General’s Office working in tandem withheld exculpatory evidence from the indicting grand jury in April 2011.
That grand jury indicted Burum, former San Bernardino County Supervisor Paul Biane, former San Bernardino County Assistant Assessor Jim Erwin and Mark Kirk, who was the chief of staff of former San Bernardino County Supervisor Gary Ovitt, in April 2011.
Burum was charged with acting in concert with Erwin, who in addition to having wangled the assistant assessor’s post was previously the president of the county sheriff’s deputies union, to first extort and then bribe former San Bernardino County supervisors Bill Postmus and Paul Biane to approve a $102 million settlement of a lawsuit Burum’s company, the Colonies Partners, 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 Kirk to convince his then-boss, Ovitt, to join 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 allege that Burum and Erwin, coordinating 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 who was 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.
After Postmus pleaded guilty to the criminal charges against him in March 2011, he was brought before the grand jury as the star witness. The grand jury 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’s lawyers, including Stringer and Norton, changed their position in an effort to obtain the insurance settlement, filing documents to the effect that the $102 million settlement was a justifiable one.
In his motion before Judge Smith heard in January, Larson asserted 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. Larson asked Smith to 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. Larson maintained that if the grand jurors had been informed that Stringer and Norton reversed their position with regard to the unreasonableness of the settlement, they would not have voted to indict the defendants.
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.
Larson filed an appeal of Judge Smith’s ruling to the Fourth District Court of Appeals in Riverside on February 22, asking that Smith’s finding be overturned and the indictment in its totality be dismissed. On June 8, the Fourth District Court of Appeals denied that appeal. Undeterred, Larson petitioned the Supreme Court on June 21 to review the decision by the Fourth District Court of Appeals. On Wednesday August 17, the California Supreme Court denied Larson’s petition.
It now appears that the matter will go to trial on October 17, more than a year after what Larson and the attorney for Erwin, Raj Maline, had previously asserted was the deadline for beginning a trial against their defendants, based on their constitutional rights to a speedy trial and their having previously refused to waive any further delays. Because of delays brought on by numerous appeals filed by both the prosecution and the defense as well as Biane and Kirk’s previous substitutions of their attorneys, together with health issues besetting one of those lawyers, Mark McDonald, the trial has been postponed and delayed continuously to the October 17 start date.
By Mark Gutglueck