By Ruth Musser-Lopez and Mark Gutglueck
Just a few days shy of four months into the Colonies Lawsuit Settlement Public Corruption Case, the prosecution brought its star witness before the two juries hearing the case, at last providing the 24 jurors and five remaining alternates with the first and most compelling testimony pertaining to the alleged bribery which lies at the heart of the case.
For seventeen weeks, the prosecution had sluggishly and tentatively motored along in first and occasionally second gear, as much of the testimony had taken on the aspect of a rehashing of the civil case that was ongoing from 2002 until 2006 between the Colonies Partners and the county over flood control issues at the Colonies Partners’ Colonies at San Antonio and Colonies Crossroads residential and commercial subdivisions in northeast Upland. This week, however, San Bernardino County Supervising Deputy District Attorney Lewis Cope departed from his normally somnolent presentation of the evidence provided by means of a plodding direct examination and shifted at just under light speed through first, second, third and fourth gears up into overdrive, taking laser focus on the delivery of $100,000 to one-time San Bernardino County political colossus Bill Postmus in the form of electioneering contributions which prosecutors allege were a veiled bribe made in exchange for conferring $102 million on the Colonies Partners to settle that lawsuit.
Upon calling Bill Postmus to the witness stand, Cope barely wasted time to establish from him that he had been elected to the San Bernardino County Board of Supervisors in 2000 and had been reelected in 2004, at which point he was elevated to board chairman. Cope then introduced the topic of Postmus participation in a trade mission to China in September 2005 during the course of which he had met with Jeff Burum, one of the two managing principals of the Colonies Partners. Cope said he wanted to focus “on the period of time after you took that trip to China. You were still a board of supervisors’ member?” Cope asked.
“Correct,” said Postmus.
Cope asked Postmus if he knew Burum prior to the China trip.
Postmus said the two had “met a few times at fundraisers” but said they had not been well acquainted. It was during that trip to China, Postmus testified, that the two men got to know one another.
Did you have any conversation with Mr. Burum about the settlement of the Colonies lawsuit?” Cope asked.
“Yes,” said Postmus.
“Tell me what he told you he would do for you if you were to get this case settled,” Cope probed.
A few months after he returned from China, indicating a time frame in the “beginning of 2006,” Postmus said, “Mr. Burum and I had multiple conversations. He said if I were to get this settlement finished he would support me for higher office if I choose to run and if I decided not to run, he would assist me in going to the private sector, or business ventures that I might be involved in.”
“Did you talk to him about being on the board for a business he ran?” Cope asked.
Postmus said he had, indicating the subject at hand involved “one of the nonprofit organizations that Mr. Burum was involved in. There was some discussions that it might be possible for me to serve on that board also,” Postmus said, “if the settlement was accomplished.”
Cope asked how the conversation had come about. Postmus said he had declared his candidacy for county assessor and learned when he approached Burum for a contribution that “The Colonies [Partners] was not giving contributions” because, he said, of the company being embroiled in the lawsuit with the county.
Cope asked Postmus what form the support for higher office would entail. “I was under the impression it would have been financial support,” Postmus said. To Cope’s inquiry as to how Burum recognized that Postmus had aspirations for higher political office, Postmus said, “I believe there was speculation I would run for some other type of office.”
“Did you talk to him about the possibility of running for Congress?” Cope asked.
“I am sure we had that conversation,” Postmus said. “There was a lot of speculation I would someday run for that office.”
Moving at an accelerated pace to cover the key elements of the case, almost as if he were questioning a mob informant whose day-to-day survival is in question, Cope jumped ahead to the actual settlement.
“So, you do recall being engaged in the settlement of this case in November 2006, correct?”
“Yes, “ Postmus said.
“Did you believe at the time that you signed the settlement agreement… it was appropriate?” Cope asked. Postmus said he did not.
“In terms of the dollar amount, the $102 million was too high,” he said. He said an earlier settlement he had been instrumental in working out with his board colleague Paul Biane for some $24.5 million less was more acceptable. “The $77.5 million we came up with the year before was more comparable,” he said. “I did not agree with the $102 million.”
“Even though you didn’t agree with it, you signed it anyway?” said Cope.
“I signed because the majority of the board decided to settle,” said Postmus. “We voted on it.” We ended up getting it done and I signed it to move it on.”
Cope pressed forward, asking, “Were there any other reasons why you entered into that settlement agreement?”
Postmus responded, “In 2006, we had two settlement conferences early in the year. Then, in the latter part of 2006, Mr. [Jim] Erwin, who was working with the Colonies [Partners] at that time, had started to put pressure on myself and Mr. Biane to get the settlement concluded.”
Postmus said there was a rush to bring closure to the lawsuit at that point because in the June 2006 primary, he had proven the top vote-getter in the race for county assessor, outdistancing the incumbent, Don Williamson, though he did not get a majority of the vote, that is, at least one vote more than fifty percent, to win the race outright. He was thus locked in a run-off against Williamson. “Due to the fact that earlier in that year, in June, I had won [i.e. finished in first place], everyone speculated I would leave the board in January 2007,” Postmus said. “So, Mr. Erwin put pressure on me, basically stating if I did not get the settlement concluded by the time I left office that Mr. Burum would be exposing my homosexuality and drug use at the time. He went on to talk about Mr. Biane and the financial issues he was having.”
“So those were the things that Mr. Erwin said that he would do,” Cope said. “Is that the reason you signed the settlement?”
“Yes,” said Postmus.
“Did the fact that Mr. Burum said he would support you in future [runs for] office, was that another reason why you signed the settlement?” Cope asked.
“Yes,” said Postmus.
“So you did sign the settlement and at some later time did you receive some money from the Colonies Partners?” asked Cope.
Postmus said he had received a “campaign contribution of $100,000 that was split two ways. It went into two separate political action committees, PACs.”
“Did you have control over those PACs?” Cope asked.
One of those, Postmus said he had “100 percent control” over and that he had control over whatever money he brought in to the other political action commitee, which had been set up by his political and business associate Dino DeFazio, and he thus had unimpeded access to the money provided to him by the Colonies Partners.
“Some of the money you controlled went into your campaign fund?” Cope asked, alluding to the consideration that Postmus would be able to spend the money in his own political war chest at will.
“I would give myself campaign contributions,” Postmus said.
Cope utilized the remainder of his direct examination of Postmus on Monday to go over his legal travails, initial contacts with investigators and the nature of the plea arrangement he entered into with prosecutors in 2011. Subsequently, this week, after Cope concluded his direct examination on late Wednesday, attorney Jennifer Keller, one of the members of the defense team for Burum took up her cross examination of Postmus, and she returned to the subject of the plea arrangements and Postmus’ interaction with investigators from the district attorney’s office.
Postmus was himself at one time a criminal defendant in a case that grew out of the same set of facts, overt acts and theory of criminality that infuses the case now being prosecuted.
In the ongoing case, prosecutors allege Jeff Burum, a Rancho Cucamonga-based developer, coordinated with one-time sheriff’s deputies union president Jim Erwin to first extort, through the use of blackmail, intimidation and threats, former supervisors Bill Postmus and Paul Biane to obtain a vote conferring a $102 million payout on the Colonies Partners to settle the lawsuit that company had brought against the county over flood control issues at the Colonies Partners’ residential and commercial subdivisions in northeastern Upland. Burum and Dan Richards were the two managing principals in the Colonies Partners, who over the course of the seven months after the lawsuit was settled provided $100,000 donations to political action committees controlled by Postmus, then-supervisor Paul Biane, Erwin and Mark Kirk. Kirk was the chief-of-staff to then-supervisor Gary Ovitt, whose vote to settle the lawsuit was critical in the 3-to-2 decision to approve the settlement.
Postmus, who served as county assessor after he left the board of supervisors in January 2007, was criminally charged in February 2010 along with Erwin in a case predating but related to the allegations contained in the May 2011 indictment which is at trial now. Though Postmus initially maintained his innocence, he subsequently pleaded guilty to 14 separate felony political corruption-related charges, including conspiracy, bribery, conflicts of interests, and perjury. He turned state’s evidence and testified before the grand jury that indicted Erwin on charges superseding those leveled at him in 2010 and which also named Burum, Biane and Kirk. The indictment alleges the political action committee donations were thinly-veiled bribes made to Postmus, Biane and Kirk, the latter of whom prosecutors allege influenced Ovitt and delivered his vote in favor of the settlement.
Postmus was charged with one count of conspiracy, two counts of grand theft, four counts of embezzlement by a public official, one count of perjury and three counts of possession of a controlled substance growing out of his malfeasance in office while he was assessor. With regard to his involvement in the Colonies lawsuit settlement, he was charged with one count of conspiracy to commit a crime, five counts of soliciting a bribe as a public official, five counts of bribery by an elected legislator, one count of bribery by a public official, one count of conflict of interest as defined by the government code, and two counts of embezzlement by a public officer.
On March 28, 2011, he entered into a plea arrangement with the district attorney’s office that was accepted by the court in which he was convicted, with regard to the assessor’s office malfeasance of one count of conspiracy, one count of perjury, two counts of grand theft, four counts of embezzlement by a public official and two counts of drug possession; and with regard to the Colonies lawsuit settlement matter of one count of conspiracy, one count of receiving a bribe, one count of bribery by a public official and one count of engaging in a conflict of interest under the government code.
His plea arrangement specified that he would agree to cooperate in further investigations carried out by the district attorney’s office with regard to other individuals involved in suspected or alleged criminal activity. Under direct examination by Cope on Monday, Postmus testified that he had, prior to the entering of his pleas and with the advisement of his lawyers, entered freely into discussions with the district attorney’s office’s investigators and that in doing so no promises or deals involving leniency or future sentence reductions were made.
Cope showed both juries hearing the case the plea arrangement documents filed with the court. The agreement provides for all the charges except conspiracy to commit a crime, conflict of interest and misappropriation of public funds being vacated in exchange for his cooperation with prosecutors and his truthful testimony at trial, whether that testimony favors the prosecution or benefits the defense. The judge hearing the Colonies Lawsuit Settlement Public Corruption Case against Burum, Biane, Erwin and Kirk is Michael A. Smith, who also oversaw the cases against Postmus. Thus, it will be Smith who will ascertain ultimately whether Postmus lived up to his commitment in the plea arrangement, though the prosecution will be able to make a sentencing recommendation. Smith will determine the length of Postmus’ sentence, which according to an indication by Cope on Monday, could range to up to five years in prison.
On Tuesday, Postmus again underwent direct examination by Cope, who elicited further statements from him in support of the prosecution’s narrative of guilt, at least with regard to Burum and Erwin.
During the entirety of 2006, the county and the Colonies Partners engaged in four separate mediation sessions brokered by former California Supreme Court Justice Edward Panelli. Two of those occurred prior to a trial on the matter in the court of Superior Court Judge Christopher Warner and two afterwards. In those mediation sessions, Panelli would shuttle between the two parties, seeking to shape a compromise that all of the participants could adopt. Postmus testified, as was hinted at by previous witnesses, that he used his Blackberry communications device to send messages to Burum during the first of those two meetings, thus arming the Colonies Partners negotiating team with information that would give it a heads up and the advantage of being able to formulate and calculate its responses to Panelli slightly ahead of time. When Burum cut off contact with county officials sometime after the Warner trial, Postmus continued to convey that inside information to the Colonies Partners during the mediation sessions, doing so indirectly by communicating with Erwin, who was assisting the Colonies Partners in attempting to achieve a settlement on its terms. Postmus also said that while he was in attendance at closed sessions of the board of supervisors, during which information relating to pressing county issues deemed to be confidential such as pending legal action was discussed, he sent text messages to Burum disclosing the substance of those discussions. Postmus said that in those texts he conveyed to Burum “strategies… [and] where the board was in terms of financial numbers” along with recommendations being made by the county’s attorneys in confidence to the board. Occasionally, Postmus said, he informed Burum about the opposition to settlement being expressed by then-supervisor Dennis Hansberger, who was steadfastly opposed to settling the case on the terms the Colonies Partners were seeking. He said in his furtive communications with Burum he would be “venting my frustration on Dennis, because he was always badmouthing the Colonies, etcetera.” Postmus said he conveyed to Burum and later Erwin “what the parameters were to the [proposed] settlement [being discussed] and [if there would be] land included in it.”
Cope asked if “because of this communication, Mr. Burum already knew where the board was at?”
“Correct,” said Postmus. “A lot of times, yeah. I would be texting to him about where the board was in terms of dollar amounts, where the board members were in terms of support.”
Cope asked Postmus if he was making similar disclosures of confidential information to Erwin. Postmus indicated that he was “but not as frequently” during the first half of 2006. But that changed, he said. “At some time in the second half of 2006 I stopped communicating with Mr. Burum.”
“When?” Cope asked.
“It was, I believe, after the Warner trial,” Postmus said. “Mr. Erwin told me there was a lot of tension between the Colonies and the county. He told me Mr. Burum was not going to be communicating with me with regard to the settlement. Things were rocky at that time, very tense. He told me he [Erwin] would be communicating with me.”
Cope asked Postmus if Erwin said why Burum was going incommunicado with him.
“Tensions were extremely high,” Postmus said. “Jeff was extremely upset with us.”
“Were you okay with that?” Cope asked.
“I just went along with it,” Postmus said.
Postmus had been the darling of the Republican political establishment as a boy wonder who had become the youngest member of the San Bernardino County Board of Supervisors in county history, the youngest chairman of the county board ever, and he acceded to become the chairman of the county Republican Party just two years after being elected supervisor. While representing himself as a rock-ribbed conservative and espousing Christian and family values as part of his political formula, he embraced socially conservative causes throughout his tenure in office, while denouncing liberals and Democrats as obstructionists to the concept of facilitating the economic revitalization of the region. He was widely perceived as an ideal candidate for the state legislature and Congress, while two of his closest political allies, Victorville Councilman Bob Hunter and one-time Assemblyman Anthony Adams, openly predicted he would one day be California Governor, a U.S. Senator and possibly President of the United States. When George Bush flew into California and landed at Ontario Airport, Postmus welcomed him as he disembarked from Air Force One, enduring the Chief Executive’s good natured ribbing that Postmus was too young to be a county supervisor. When Bush gave his acceptance speech at the 2004 Republican National Convention, Postmus was seated prominently near the podium, on display to a National audience amongst Senators, Congressman, ambassadors and other GOP luminaries. On Tuesday, in response to Cope’s questions, he gave what seemed a frank admission to his drug use and descent into addiction while he was outwardly on display as Captain America.
He had eschewed intoxicants into his thirties, Postmus said. “There was a lot of alcoholism and addiction in my family,” he said. “My dad had a struggle with alcohol” when he was young. As a consequence, he said, “My parents chose not to drink in our house.” He thus had led a life of total sobriety, until after he was an elected official. He said his use of drugs “began recreationally as early as 2003, while I was a member of the board. It got progressively worse over time. Up until that point, I had never picked up any substance. I believe it was 2002-2003,” when, he said, “for some bonehead reason – I don’t know why – I smoked some methamphetamines and from there it went to once or twice a month and then once a week and it just spiraled from there.”
He said he occasionally used the drugs ecstasy, GHB, marijuana and alcohol, as well as cocaine and “poppers,” i.e., amyl nitrate, but had a preference for methamphetamine. “By far, that was my drug of choice,” he said. During the increasingly intense back and forth between the county and the Colonies Partners during 2004 to 2006, Postmus said, he was sinking further into the morass of drug dependence. It was not until after he left the board, he said, and had moved on to become assessor that his addiction became “full blown.” By that point, he said, he had taken to using inhalants.
He said those within his circle had some inkling of his drug use, which very near broke out into the open in the summer of 2006, when he had been whisked away to a drug rehabilitation center in Yakima, Washington. His absence was conspicuous, as he was both the chairman of the board of supervisors and an active candidate for assessor. There was a devastating fire that took more than a week to bring under control in the Morongo Basin, and he was not in place to deal with that issue. He said Erwin “helped me get to Washington.” Bob Smith, a former sheriff’s deputy who was then one of his field representatives knew about his drug use at that time and so did his family, he said. He said one of his board colleagues, Josie Gonzales, also suspected or knew of his addiction. “She said she was praying for me,” he said.
As for his sexual orientation, Postmus said, “Adam Aleman knew I was gay.” Aleman was one of Postmus’ friends, whom he hired as one of his field representatives and later appointed to the position of assistant assessor. “I had multiple conversations with him,” Postmus said. “Mr. Erwin knew I was gay. We talked about it. Bob Smith never talked about me being gay, but he knew it.”
Nevertheless, his drug use and his homosexuality remained under wraps, he said, for the most part.
That secret rendered him vulnerable, he testified. As the efforts to achieve a settlement in the Colonies matter failed, he said, Erwin, who was militating on behalf of Burum and the Colonies Partners, began to exploit those secrets to bring the settlement about. Postmus said he had first become acquainted with Erwin in either 1999 or 2000, after he had embarked on his effort to unseat Kathy Davis as First District supervisor. Erwin was then the president of the sheriff’s deputies union, the Safety Employees Benefit Association, which was at that point in a bitter negotiating effort with the board of supervisors over pay and benefit increases. Erwin invited him to an interview before the association’s board, Postmus said, which conferred upon him its endorsement over Davis and then made two $20,000 donations to his election effort. Those endorsements and donations were key to his victory Postmus said. He had struck up a friendship with Erwin as a result, Postmus testified, which he said devolved into a “love-hate” relationship. Erwin, Postmus said, had slyly suggested shortly after Postmus was in office that deputies active in the union who were upset about the county not giving them an enhanced retirement package knew of Postmus’ sexual orientation. In time, the county granted the deputies, with Postmus’ support, the benefit increase they had sought. Postmus testified that in 2006 Erwin threatened Postmus with the prospect that he would expose his drug use and homosexuality as a means of inducing him to bring about the settlement with the Colonies Partners on the terms Burum was seeking.
“We had a very rocky relationship,” Postmus said. “Jim is Jim and Jim can be quite abrasive when he believes in something. He is a very strong personality, an ‘A’ type person.”
Postmus said that “after the Warner trial [which ended in June 2006] and sometime before the [third] Panelli settlement conference [in October 2006]” Erwin initiated the use of blackmail against him.
“Jim would start off subtly, saying at the time, ‘People out there know you’re gay. People know you’re using drugs,’” Postmus testified. “Over time, that turned into ‘If you don’t get this settled before you leave, we’re going to expose your homosexuality and expose your drug use.’”
“Did he explain to you how that was going to take place?” Cope asked.
Postmus said Erwin indicated he could take advantage of the consideration that Measure P, an initiative to raise the pay of the board of supervisors, was on the November 2006 ballot, and put out so-called political hit piece mailers that would expose his homosexuality and drug use and reveal that Biane was teetering on the brink of bankruptcy. “It was in the context of putting out mailers attacking me on those two issues,” Postmus said.
“That is what Mr. Erwin told you?” Cope asked
“Yes,” said Postmus.
“How often did Mr. Erwin talk about this?” Cope asked.
“It didn’t become hot and heavy until just before the Justice Panelli conference in October,” Postmus said “That was when we began to clash on the settlement. Jim wanted to get the settlement done. He began making statements about exposing my sexuality and drug use. He was continually ranting and raving about Mr. Biane having financial issues.” A committee was being created and something like $400,000 was going into the effort to defeat Measure P, Postmus said, and that would be the means by which the focus on his and Biane’s personal problems would be made. “He told me a political consultant had put together campaign mailers, but I never saw the mailers,” said Postmus.
“This ramping up the pressure and the threat of exposing your sexuality as a gay person and the fact that you were using drugs, was that a threat you considered serious?” Cope asked.
“Absolutely,” said Postmus.
“Was that something that motivated you to make sure the settlement with the Colonies [Partners] was passed?” Cope asked.
Postmus said it was. “Being a closeted gay man and a Republican in a very conservative district is not the best situation to be in,” he said. “At the time, it was not something I wanted to face.”
“Did Mr. Erwin tell you during the period of time before the settlement that he was working at the instruction of Mr. Burum?” Cope asked.
“I don’t remember the exact phrase, but he said he was working for the Colonies [Partners],” Postmus said.
Postmus said that while the promise of financial support made to him by Burum was a motivating factor with regard to the settlement vote, it was secondary to his concern over keeping his reputation and electability intact.
“Did you feel that if this lawsuit wasn’t settled at the time it was, that Mr. Burum would not support you?” Cope asked.
“At the time, that was the least of my worries,” Postmus said. “I was worried about getting through my election without being exposed about my being gay and my drug addiction. I was not concerned about the discussion as far as support as I was about not getting exposed during the election cycle.”
Cope pressed Postmus with regard to his statement that he thought the $102 million settlement was excessive. Postmus reiterated that belief, saying he had once referred to the settlement as being “ridiculously high.”
Anticipating that the defense would make an issue of one of Postmus’ utterances during an October 14, 2011 interview with FBI agent John Zeitlin and then-Assistant U.S. Attorney Jerry Behnke, Cope brought it up before the defense had the opportunity to question Postmus about it. In response to one of Zeitlin’s questions, Postmus had said in October 2011 that there had been no quid pro quo in his arrangement with Burum vis-à-vis his vote to ratify the $102 million settlement and the $100,000 in donations that the Colonies Partners had made to his political action committees. This week, Postmus testified that he did not know the meaning of the Latin term, which translates to “something for something” or “this for that.”
Cope asked Postmus, “Do you remember telling members of the FBI that you didn’t believe there was any quid pro quo?”
“Yeah,” Postmus said. Cope asked him to explain that assertion.
“It was my understanding at that time that a bribe had to take place previously to the vote or whatever it might be. I didn’t understand what an actual bribe was,” Postmus said.
The four defendants are being prosecuted by a team consisting of Cope, who is one of the longest currently serving prosecutors in the San Bernardino County District Attorney’s Office and the head of its public integrity unit, and Melissa Mandel, who is a supervising prosecutor with the California Attorney General’s Office. The case is being heard by two juries, one of which is evaluating the case against Burum, Biane and Kirk and the other of which is hearing the case against Erwin. Two juries are being used because investigators gathered statements from Erwin which allegedly implicated himself and at least some of his codefendants. Erwin, like all criminal defendants, has a Fifth Amendment right against self-incrimination and may choose not to testify. His codefendants, like all criminal defendants, have a Sixth Amendment right to confront and question all accusers and witnesses in criminal proceedings against them. Thus, when Erwin’s recorded statements or investigators’ relaying of those statements are provided as evidence, the jury hearing the case against Burum, Biane and Kirk is excluded from the room and only Erwin’s jury is privy to them. A similar but slightly different circumstance exists with regard to Postmus’ testimony. Erwin made statements to him which in some fashion extend to the other defendants. Nevertheless, Judge Smith ruled that the jury for Burum, Biane and Kirk could hear Postmus’ testimony regarding statements he heard from Erwin, but only after he gave the jury instructions that they would need to consider the evidence carefully and discount it if in their estimation that testimony within the context of the preponderance of the evidence indicated to them that a criminal conspiracy had not taken place.
While the California Attorney General’s Office did assign investigators to the case, the lion’s share of the investigation into the matter was conducted by investigators with the San Bernardino County District Attorney’s Office. On Wednesday, Postmus’ third day on the witness stand, Cope ended his direct examination. One of Burum’s attorneys, Jennifer Keller, began her cross examination of the former board chairman and county assessor who is widely perceived as the single most crucial witness in the prosecution’s case.
A major element of Keller’s focus was on the activity of the investigation unit of the district attorney’s office, which she implied had shaped Postmus testimony through coercive tactics, and that investigators had exploited Postmus’ fragile and pliable mental state brought on by his extended use of methamphetamine to essentially infuse in him false memories which have now been used by the prosecution to construct its case against her client and his codefendants.
Keller built upon the admissions of drug use and homosexuality that Postmus had made to Cope under direct examination to establish that his personal comportment while he was in office was far more outlandish than he had represented, and included internet-facilitated hook-ups with other gay men with whom he had no previous contact. Making more of a statement than a question, Keller propounded that Postmus’ drug addiction was accompanied by sex addiction. With no hesitation, he so acknowledged. Without actually reading into the record the text of the exchanges made during these on-line preludes to those encounters, Keller referenced them and Postmus acknowledged their existence. Without being overly graphic, Keller established that those exchanges included the arrangements for where the trysts would take place and which party would bring which drugs to those encounters. Postmus acknowledged that his maiden use of methamphetamine had occurred in just such a setting. He said his drug use, at least initially, had been intended to both intensify and prolong his sexual experience.
“While it was widely expected you were going to run for Congress, you had two huge secrets that were connected,” Keller said. “You were a closeted gay man and sex addict and you were engaging in very reckless behavior that put you at risk. You were also addicted to methamphetamine. Your drug use went hand-in-hand with your sexual encounters with strangers, a specific subset of gay men, in an activity known as “Party and Play.” Postmus acknowledge that was accurate.
Noting that if at any point this activity was publicly revealed, Postmus’ political career would have been destroyed, Keller got Postmus to admit he was compulsively using drugs without control and completely addicted, having gone beyond using street drugs and was using inhalants. He said he would “inhale cassette cleaner, anything I could get my hands on. I was a mess. I used meth every single day.”
Keller further illustrated to the jury how Postmus and the support network around him had gone to considerable lengths to prevent the public from learning of his drug use. In the summer of 2006, when he had been checked into a drug rehabilitation clinic in Yakima, Washington where there was little prospect that he would be recognized and while his extended absence from San Bernardino County was becoming a public issue, particularly in the wake of the county’s effort to bring the devastating Sawtooth Fire under control, a statement from Postmus’ camp went out on August 19, 2006 that he was in Wisconsin attending the funeral of his grandmother. Postmus told Keller he knew nothing about that misrepresentation that was put out in his name. At other points in his testimony he further indicated that his office was engaging in making public statements that were either attributed to him or designed to protect him and that he either had no knowledge of those statements being made or could not remember them at this time.
Keller also made reference to contradictory statements with regard to his drug use, even when he was ostensibly acknowledging he had a problem. She played a short video clip of his appearance before the board of supervisors in early January 2009, while he was still assessor. In it, Postmus acknowledged having dealt with the “scourge” of drug addiction, but asserted that he had overcome it. Less than two weeks later, when a search warrant was carried out at his Rancho Cucamonga residence, methamphetamine, ecstasy and paraphernalia, including a syringe containing liquefied methamphetamine, was found by investigators. During his 2011 grand jury testimony, Postmus gave statements about the cessation of his drug use which clashed with his statements in that regard during an interview with FBI agent John Zeitlin and Assistant U.S. Attorney Jerry Behnke in October 2011. Behnke now works for one of the law firms that represents Burum. Postmus said he underwent drug rehab attempts four times while he held office or shortly thereafter, none of which was effective. He said he had periods of sobriety, but none lasted until he resolved on his own volition to quit using methamphetamine, doing so in 2012. He said he has remained sober since.
Keller asked Postmus if his methamphetamine use had resulted in memory loss and if it caused memories and time lines to become “jumbled.” He said that was the case. Keller provided a tangible example of this jumbling, together with active assistance on the part of the prosecution investigators which she implied had provided the prosecution with damning evidence to support the prosecution’s theory of guilt, but which she indicated was demonstrably false.
One plank in the platform of the prosecution’s case is that during Postmus’ sojourn to China in September 2005, he had been waylaid by Burum, who was also there, and that after Postmus emerged from that several days’ long lobbying session, he intensified his previous efforts to have the Colonies lawsuit settled on terms favoring the Colonies Partners, and that he commandeered from Biane the leadership role in trying to finalize that settlement. Among the pieces of evidence the prosecution has marshaled in that regard is a text message sent on October 6, 2005 from Postmus’ Blackberry device to Ruth Stringer, who was then assistant county counsel, instructing her and the rest of the county’s lawyers to take no further action with regard to the litigation with the Colonies Partners until he met with them. “Per my direction don’t do anything further on Colonies until you talk with me,” the text states. Cope had suggested that this text message had been sent from China and when he questioned Postmus about it on Tuesday. Postmus affirmed that it had been sent from China. The clear implication of this, which favored the prosecution, was that Postmus was under the sway of Burum and was dictating instructions to the county’s lawyers at Burum’s direction.
Through a painstaking process, however, Keller used transcripts and recordings to demonstrate that the text was not sent while Postmus was in China and that the prosecution had used brainwashing techniques to lead him into believing it had. In the recording and transcription of a February 16, 2011 interrogation Postmus underwent by district attorney’s office investigators Robert Schreiber and Hollis Randles, Postmus is asked about having texted a message to Stringer telling her not to take any further action with regards to the Colonies matter. Postmus maintained at that point that he could not remember doing so. Schreiber than made repeated reference to the October 2005 text sent to Stringer. As Schreiber continued this browbeating, Postmus grew to accept that the text message, which he had indeed sent to Stringer, had been sent while he was in China. Keller then presented evidence to demonstrate that the 2005 trip to China had taken place from September 10 to September 21, 2005, establishing that the email to Stringer had gone out some two weeks after Postmus had returned stateside and was not sent while he was in the company of Burum in China.
Keller repeated this with another demonstration of a factual error and anachronism in Postmus’ statements based upon his porous memory. During another recorded and transcribed interrogation session with Postmus carried out by Randles and Schreiber on March 1, 2011, the investigators, after considerable back and forth induced Postmus to state that in 2004 he had succeeded in lining up sufficient votes by his board colleagues to fire the first outside attorney, Thomas Winfield of Brown Winfield & Canzonieri, that the county had retained to represent it in the litigation against the Colonies Partners, and that Postmus had done so because he had been directed to do so by Burum. But Keller displayed a May 4, 2004 memo to the board of supervisors from county counsel Chuck Scolastico in which it was indicated the impetus for jettisoning Winfield originated elsewhere. “Our office has evaluated this issue and will be recommending that a new firm be selected for the needed services,” Scolastico wrote.
Referencing Postmus’ earlier testimony that he had not had any extensive interaction with Burum prior to the September 2005 trip to China, Keller gave further suggestion that the investigators were planting false memories in Postmus which were then tapped into by the prosecutors when he appeared before the grand jury which indicted the defendants. She said this was continuing with his ongoing testimony.
Keller bolstered her assertion that the prosecution was using Postmus as a pliable mouthpiece of its position and theory of guilt when during an exchange which included references to changes in his responses and his sometimes spotty memory, he stated, “I testified to my interviews,” indicating he was relying on previous statements during interviews and in his grand jury testimony. He acknowledged he had reviewed his previous testimony before coming to the witness stand this week.
Keller also sought to suggest Postmus’ testimony was being influenced by the constant presence of the prosecution’s investigators in and around the courtroom as well as by the terms of his plea bargain, which puts him in the position of having to please the prosecution. Keller got Postmus to acknowledge that the amount of time he will spend in prison is yet up in the air and that, based on the limited time he has already spent in jail and the circumstances of that incarceration, he abhors the concept of going into a penal institution. She drew from him testimony indicating that it is his belief that, in return for his testimony in this case and in others, it is possible he could get a suspended sentence and not have to serve time in prison.
Postmus testified that early on in the case, both before and after criminal charges were lodged against him, he and Erwin referred to the district attorney’s office investigators as “the thug squad.” Postmus acknowledged using the term numerous times, though he indicated it was Erwin who had coined it. He said he found being interrogated by the investigators to be very unpleasant. Keller referenced how the investigators were constantly shadowing him, such that during the breaks in the court proceedings, when Postmus goes leaves the courtroom and goes down the hallway to access the facilities, one investigator goes into the men’s room with him and another stands outside. When Keller used the term “thug squad,” Postmus grimaced. Keller noted his reaction. “You looked a little uncomfortable when I said that,” Keller said.
“I was,” he answered.
“Especially when one of them is sitting right here in the courtroom,” Keller observed.
Keller inquired into why it was that the investigators were hovering around him. “Are you under arrest?” she asked.
“Not that I know of,” Postmus answered.
She revisited Postmus’ testimony with regard to Kirk elicited by Cope on Tuesday afternoon and Wednesday morning, pointing out that in Cope’s first go-around with Postmus, the former supervisor had indicated that Supervisor Gary Ovitt had been a consistent supporter of the settlement, whereas on Wednesday, when Cope again focused on Kirk, Postmus had indicated that Kirk was steering Ovitt toward supporting the settlement. Keller revisited the language in Postmus’ plea arrangement, noting that it called for his cooperation with the prosecution. She probed into why, on Tuesday, Postmus testified that Supervisor Gary Ovitt was solidly in favor of arriving at a settlement with the Colonies Partners over the litigation but that literally overnight he had revised his statements to the effect that Kirk had, as the prosecution is alleging, delivered Ovitt’s vote.
Keller implied without directly stating that the prosecution had instructed him to change his version of events.
“Today, you testified that not only did Jeff Burum tell you that Mark Kirk was going to deliver Ovitt’s vote, but that Mark Kirk told you that,” Keller said. “Were you worried that you might be seen yesterday as not cooperating with law enforcement by the testimony you gave?”
Postmus responded, “Possibly.”
“And that’s really scary,” she said.
“Could be,” Postmus replied.
Obscured by the sensationality of Postmus’ appearance was the conclusion of testimony by Thomas Malcolm on Monday. Malcolm, an attorney with the law firm of Jones Day who had represented the county in 2005 and 2006 in its legal dispute with the Colonies Partners and who had resigned along with the rest of the law firm when the 3-2 majority of the board of supervisors approved the $102 million settlement, had testified last week, strongly asserting that the settlement was not justified and was, in his words, “outrageous” and “a gift of public funds,” constituting “a crime.”
On Monday, he testified that he believed that the county would have had a strong set of arguments to make if it were to file an appeal of the findings that Judge Christopher Warner made at the conclusion of a bench trial of the quiet title lawsuit and ensuing litigation filed by the Colonies Partners against the county he heard over 18 days in April, May and June of 2006. Warner had entered a proposed statement of decision in that matter that was unfavorable to the county but it had not been finalized at the time the $102 million settlement was ratified with the 3-2 vote of the board of supervisors.
Malcolm testified that he was aware of “difficulties” in Warner’s courtroom that threw the validity of the judge’s decision into doubt.
This week the Sentinel learned there is a growing possibility that Erwin will take the stand in his own defense at the trial. Defendants at a criminal trial cannot be forced to testify. Often, defense attorneys elect to not have their clients testify. In his opening statement in January, Burum’s lead attorney, Stephen Larson, implied that his client and the other defendants would testify, but there has been no further indication with regard to that. The widespread assumption is the defendants are not likely to take the witness stand. But this week, statements emanating from the defense camp implied that Erwin will brave being questioned by prosecutors because he has information to provide that will significantly undercut the prosecution’s case.
By Ruth Musser-Lopez and Mark Gutglueck