By Mark Gutglueck
After nine-months of proceedings, the trial of former sheriff’s deputy union boss Jim Erwin, the last of the major defendants in the Colonies Lawsuit Settlement Public Corruption Case, ended on a less than definitive note, with the jury deadlocking on all seven counts remaining against him.
It now remains to be seen whether prosecutors, more than six years after Erwin was named in a superseding indictment in 2011 that followed by more than a year the filing of the original case against him in 2010, will elect to prosecute him once more and, if so, whether the judge who presided over the now-concluded first trial will permit the matter to go before another jury or instead dismiss the case in part or in its entirety.
The criminal case against Erwin pertained to events alleged to have transpired in 2006 and 2007.
In all, six individuals were caught up in the case, which grew out of the energetic effort by the Colonies Partners, a consortium of 28 investors, to develop 440 acres in northeast Upland which was purchased from a successor trust of the San Antonio Water Company in 1997 for $16 million. The property was crisscrossed with drainage easements recorded by the San Bernardino County Flood Control District in 1933, 1934, 1939 and 1962. Those easements committed a 31-acre quarry on the property to permanent flood control use and called for allowing another 30 acres to be used for drainage purposes if needed, pursuant to terms to be worked out by the property owner and the flood control district, with the understanding that the county would defray the cost of building and be responsible for constructing any flood control facilities on those easements. In 1999, the county and the Colonies Partners entered into an agreement with the county under which the Colonies Partners agreed to construct a flood control basin on the property to alleviate drainage issues relating to the planned residential and commercial development of the property. That agreement carried the proviso that upon completion of the flood control facilities, the property would no longer be hampered by the flood control easements and the Colonies Partners would have complete and absolute control of the property and could develop it subject to the City of Upland’s land use and zoning restrictions and regulations.
In the same time frame, the California Department of Transportation sought to use a roughly 40-acre swathe along the north of the Colonies Partners’ property for the 210 Freeway, which resulted in litigation between the Colonies Partners and the state. That litigation was resolved with a $17 million settlement which was intended to recompense the Colonies Partners for the taking of land and any severance damages that taking represented. In the meantime, the Colonies Partners was moving ahead with the first phase of its Colonies at San Antonio residential subdivision. By 2001, however, the county had grown unsure about whether the 67-acre flood control basin the Colonies Partners was completing met the specifications laid out in the 1999 agreement. Simultaneously, the county flood control district was constructing, at the behest of the City of Upland, what is referred to as the 20th Street Storm Drain, which collected rainwater from the northwest portion of Upland as well as runoff from the below-ground 210 Freeway. The Colonies Partners, which disagreed with the county’s assessment that the flood control basin the company was constructing was in any way inadequate, filed a quiet title action aimed at obtaining a declaration from the court that the company had unfettered control over the property. In 2002, the county completed the 20th Street Storm Drain and began discharging water originating elsewhere in the city and from the freeway trough onto the Colonies property. In 2003, Superior Court Judge Peter H. Norell, who was hearing the quiet title action, made a finding that the county had abandoned the flood control easements on the Colonies Partners’ property. The ruling was perceived as highly favorable to the Colonies Partners, and created the expectation that the Colonies Partners would be free to pursue its development of the property unfettered. The county, however, appealed Norell’s ruling, continuing to keep the Colonies Partners from proceeding with the next phase of residential development. The following year, the county filed suit against the Colonies Partners for breaching the 1999 agreement. This touched off a counter claim from the Colonies Partners, an inverse condemnation suit, which maintained the vectoring of the water from the 20th Street Storm drain onto the Colonies Partners’ property was an unconstitutional taking of its land. In that suit, the Colonies Partners sought reimbursement from the county for building the basin and compensation for the land it claimed the county had taken. The lawsuit, however, was put on hold while the quiet title action was yet being litigated. In 2005, the Fourth District Court of Appeal reversed Norell’s ruling, finding that the county’s flood control easements had not been abandoned. It sent the matter back to Norell with instructions that a determination be made as to how that portion of the basin not covered by the 31-acre easement specified as absolute in the 1934 easement document fit within the rubric of the 1939 easement which indicated another 30 acres beyond the 31 acres could be used for flood control purposes with the consensus of all parties. The Fourth District Court’s mandate thus sought a determination from Norell as to how much of the basin land the county would have to pay for.
This represented a further setback and delay for the Colonies Partners. In a 29-count indictment handed down in May 2011, it was alleged that by late 2005 and moving into 2006, an increasingly frustrated Burum, concerned over the interminable delays in his project, conspired with Jim Erwin, the one-time president of SEBA, the Safety Employees Benefit Association which served as the collective bargaining unit for the county’s sheriff’s deputies, to blackmail and then bribe then-county supervisors Bill Postmus and Paul Biane to forge a $102 million settlement of the litigation. According to the indictment, Erwin assisted Burum in threatening both Postmus and Biane, then respectively the chairman and vice chairman of both the board of supervisors and the San Bernardino County Republican Party, with exposure relating to the former’s drug use and homosexuality and the latter’s precarious financial condition. According to the prosecution, those threats persuaded Postmus and Biane to vote in November 2006, along with then-county supervisor Gary Ovitt, to approve conferring the $102 million payment on the Colonies Partners to end the litigation. Thereafter, between March and the end of June in 2007, the Colonies Partners provided each of two political action committees controlled by Postmus with separate $50,000 donations; and $100,000 donations to each of three political action committees controlled by Biane, Erwin and Mark Kirk, who was Ovitt’s chief of staff. The indictment alleged that the $300,000 paid out to Postmus, Biane and Kirk was bribe money, kickbacks provided to Postmus and Biane in exchange for their vote to settle the litigation and a kickback that went to Kirk for his assistance in delivering Ovitt’s vote in favor of the settlement. The $100,000 received by Erwin, the prosecution maintained, was a reward provided to Erwin for his assistance in inducing Postmus and Biane to support the settlement. Both Postmus and Erwin were criminally charged in February 2010 with regard to the circumstances surrounding the 2006 lawsuit settlement, and both entered not guilty pleas at that time. Thirteen months after that criminal filing and two months prior to the indictment, Postmus in March 2011 pleaded guilty to a raft of criminal charges relating to his vote in favor of the settlement that had been filed against him in 2010, including bribery. He was the star witness before the grand jury that indicted Burum, Biane, Erwin and Kirk, and he was a central witness in the trial this year that was presided over by Superior Court Judge Michael Smith.
Two juries heard the case, one for Burum, Biane and Kirk and the other for Erwin, because statements Erwin had made to investigators prior to the indictments were deemed inadmissible against his codefendants. When those statements were presented in court against Erwin, the jury for Burum, Biane and Kirk was excluded from the courtroom. The prosecution rested in June, after which the juries were absent from the courtroom as the prosecution and defense hashed out before Judge Smith the mutually acceptable language for jury instructions, and Smith heard defense motions to have all of the charges against the defendants dismissed. Judge Smith granted some but not all of those dismissal motions. On July 18, the jury reconvened with the expectation that the defense would put on its case. In a surprise move, the defense called no witnesses and rested. An abbreviated summer hiatus ensued and beginning on August 14 and concluding on August 24, California Supervising Deputy Attorney General Melissa Mandel followed by the attorneys for Kirk, Biane, Burum and Erwin – Peter Scalisi, Mark McDonald, Stephen Larson and Raj Maline, respectively – provided the jurors with final arguments. On August 23, the jury for Burum, Biane and Kirk began deliberations on the charges, which by that point had been whittled down to four against Burum, three against Biane and two against Kirk. The following day, the jury for Erwin began its deliberations on the seven charges still in play against him.
After just two days of deliberating, the panel for Burum, Biane and Kirk returned with not guilty verdicts on all nine remaining charges against the three defendants, which were read to a packed courtroom on August 28.
Erwin’s panel, however, was unable to resolve any of the individual members’ differences over seven charges against the defendant, consisting of two counts – invoking both Penal Code Section 68 and Penal Code Section 165 – relating to aiding and abetting Postmus in receiving or asking for a bribe; two counts – invoking both Penal Code Section 68 and Penal Code Section 165 – relating to aiding and abetting Biane in receiving or asking for a bribe; two counts of perjury relating to Erwin having not disclosed on statements of economic interest routinely filled out by public officials gifts he had received from Burum and money from a political action committee controlled by district attorney Mike Ramos’ political consultant David Ellis which defrayed some Erwin’s legal costs; and one count of failing to fully pay his taxes in 2008.
As deliberations dragged on, both the prosecution and Erwin’s attorney, Raj Maline, each sought to bounce two jurors from the panel. In the case of the prosecution, its motion called for the removal of a pair of jurors perceived as being strongly in favor of acquittal. In Maline’s motion, he pushed for disqualifying two jurors, including the foreman, Joseph Harris, believed to be in favor of conviction. Judge Smith refused to grant either motion, and sent the jurors back into deliberations last week.
By Wednesday of this week, September 13, the jury had exhausted all efforts to come to a consensus. At that point, Judge Smith was absent, having sojourned to parts unknown for a long-delayed vacation.
The jury returned Wednesday morning to Smith’s courtroom, where Judge Brian McCarville was substituting for his absent colleague. Reviewing the tallies of the jury’s votes on each count, McCarville preliminarily determined that no verdict had been reached on any of the charges. His exchange with the jurors confirmed that. Reportedly, the jury narrowly avoided convicting Erwin 11-1 on the income tax charge. That tally was not officially confirmed by the court. The panel also favored conviction, reportedly by an 8-4 margin, on the perjured reporting documents charges. With regard to the four bribery-related counts, the unconfirmed poll was 7-to-5 in favor of acquittal with regard to one aiding and abetting bribery charge relating to Postmus and 9-to-3 in favor of acquittal in regard to the other aiding and abetting bribery charge pertaining to Postmus; the jury voted 10-to-2 in favor of acquittal on both of the aiding and abetting charges relating to Biane.
“The court finds and declares the jury is hopelessly deadlocked and I declare a mistrial at this time,” McCarville pronounced.
McCarville ordered Erwin and his lawyer to return to court on September 22 for a hearing into whether the proceedings against him will continue to a retrial on all or just some of the counts. At that point, the court will entertain a motion from Maline to dismiss the case.
San Bernardino County District Attorney Mike Ramos immediately put out a statement, saying, “Today, the judge declared a mistrial in the case against defendant Jim Erwin in the ‘Colonies’ corruption trial. First and foremost, this jury took their job very seriously and we are extremely thankful for their service. We will continue to seek justice on behalf of the citizens of San Bernardino County and are evaluating the best course of action.”
In remarks made on the first floor of the courthouse shortly after the mistrial was announced, Maline said the overriding sentiment of the jury with regard to the most substantial charges was that not only had the prosecution failed to prove its case but that his client was innocent. “This case should not be tried again,” he said. “You saw whole thing. That was the best they could do. It only gets worse for them from here.”
With regard to the bribery charges which were the heart of the case, Maline said, the prosecution came nowhere near convincing a majority of the jurors that there was any substance to the allegations, let alone achieving the unanimous twelve votes needed to convict. “The jury spoke, in terms of the main bribery counts, overwhelmingly, for innocence,” Maline said. “From the beginning, the vast majority of the jurors were of the opinion that he was not guilty.”
Maline suggested that the jury foreman and one other juror were pursuing “their own agenda,” which was in lockstep with the prosecution. “They certainly did not follow the law” in reaching a conclusion of guilt, Maline said.
Maline offered a different running total of the votes with regard to the income tax evasion charge, saying the jury split 6-6, implying the report that the jury was one vote away from conviction was inaccurate.
He acknowledged that the panel was leaning toward conviction on the two statement of economic interest reporting violations. Maline said, however, that the prosecution had overcharged Erwin with regard to both of those. He said the omissions that were charged as felonies were simple oversights and he contrasted the district attorney’s action in charging his client criminally to the action taken against the district attorney, Mike Ramos, who made similar reporting slip-ups on his statements of economic interest on three separate occasions. In those cases, the matters were referred to the California Fair Political Practices Commission, which nominally fined Ramos on the first offense and then imposed the maximum fine on the two follow-up omissions. The commission also noted in assessing the latter two fines that Ramos had been a repeat offender who had not taken to heart the previous admonishments relating to his previous reporting violations. Maline noted that Erwin was rung up on a felony violation relating to an error he made the first time he had filled out the reporting forms.
“That should never have been charged as a felony,” Maline said. “The district attorney charged Jim criminally twice for simple mistakes that the district attorney himself has engaged in repeatedly.”
“Although it is difficult to refrain from responding to the frivolous attacks being reported in the newspaper, along with the unfounded comments about this case being politically motivated, our ethical duties as prosecutors prevent us from trying the case in the media,” Ramos said in a prepared statement. “At this time, we have no further comment while the case is still pending retrial.”
“I am grateful to the jurors who believed in me and took the time to look at the truth,” said Erwin. “I am not completely happy with the deadlock but what I had to deal with was two renegade jurors whose minds were made up. They kept hammering on the others.”
He said the closest the prosecution came to getting a conviction consisted of a final vote on the income tax count, which he said jurors originally were divided on 6-to-6. “They weren’t even close on anything else, but as a compromise, I understand, they concentrated on that count and it moved to 11-to-1 for conviction,” Erwin said. “One of the jurors held out. She said she couldn’t vote to convict because she knew I was not guilty. That was as close as they got.”
Erwin said he is anxious to return to court on September 22, when a motion to dismiss based on Penal Code Section 1385 will be presented to the court. He said he and his legal team have had “no communication with the prosecution,” but he said the consensus is it will be very difficult for prosecutors to mount a convincing opposition to the dismissal motion. “On the so-called corruption charges, the jurors were overwhelmingly on my side,” he said. “The other charges on perjury and income tax were meant to overwhelm me and get me to plead early on. That didn’t work, and those charges should never have been brought. I didn’t call any witness in my defense and if they re-file, this time there will be a full-fledged defense. That is the situation they [the prosecutors] have to analyze. If they want to retry any count, I am not waiving time.”
Stephen Larson, Burum’s lead attorney, said that jury’s majority vote to acquit Erwin on the bribery-related charges should convince the prosecution to “do the right thing and put this to rest.”
Charged, but yet to be prosecuted in the case is Dino DeFazio, who stands accused of assisting Postmus in the laundering of the bribes he admitted to receiving from the Colonies Partners. It is not known what impact the earlier acquittals will have on the case against him.
By Mark Gutglueck