By Mark Gutglueck
Seven-and-a-half years after the California Attorney General’s Office and the San Bernardino County District Attorney’s Office embarked on a prosecution growing out of what then-California Attorney General Jerry Brown called the “biggest corruption scandal in San Bernardino County, if not the state’s, history,” half of that prosecutorial effort ended in abject failure.
Just short of eight months into a repeatedly delayed trial in the Colonies Lawsuit Public Corruption Case, three of the six defendants charged in the matter, including the wealthy developer about whom practically all of the substantial original counts revolved, were found not guilty of all charges remaining against them.
Prior to the two juries hearing the case beginning deliberations last week, 18 of the original 29 counts and 24 of the 40 separate charges against defendants Jeff Burum, Paul Biane, Mark Kirk and Jim Erwin contained in the May 2011 indictment naming them had been thrown out or otherwise dismissed, so that the two juries were left to ruminate 11 counts and 16 charges.
One of those juries was consigned to consider the remaining charges remaining against Burum, Biane and Kirk. Burum remained accused of aiding and abetting former San Bernardino County Supervisor Bill Postmus under Penal Code Section 68 in receiving and agreeing to receive a bribe to influence a vote and alternately under Penal Code Section 165 of aiding and abetting Postmus in receiving, agreeing to receive or asking for a bribe to influence a vote and aiding and abetting former San Bernardino County Supervisor Paul Biane under Penal Code Section 68 in receiving and agreeing to receive a bribe to influence a vote and alternately under Penal Code Section 165 aiding and abetting Biane in receiving, agreeing to receive or asking for a bribe to influence a vote. Biane yet faced charges of receiving and agreeing to receive a bribe to influence a vote under Penal Code Section 68 and receiving, agreeing to receive and asking for a bribe to influence a vote under Penal Code Section 165, along with a violation of Government Code Section 1090, engaging in a conflict of interest. Kirk yet had to face down the allegation he had violated Government Code Section 9054, improperly influencing a public official, and a violation of Government Code Section 1090, engaging in a conflict of interest.
A second jury was tasked with considering against Erwin charges that he had aided and abetted Postmus under Penal Code Section 68 in receiving and agreeing to receive a bribe to influence a vote and alternately under Penal Code Section 165 aiding and abetting Postmus in receiving and agreeing to receive or asking for a bribe to influence a vote, along with aiding and abetting Biane under Penal Code Section 68 in receiving and agreeing to receive a bribe to influence a vote and alternately under Penal Code Section 165 aiding and abetting Biane in receiving and agreeing to receive or asking for a bribe to influence a vote, a violation of Revenue and Tax Code 19706 consisting of failure to file a tax return, and two counts of perjury for failing to disclose gifts or income he received from Burum.
The case involved charges that Burum had conspired with Erwin to threaten and blackmail Postmus and Biane into settling in 2006 a lawsuit his company, the Colonies Partners, had brought in 2002 against the County of San Bernardino and its flood control district over drainage issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland. Prosecutors alleged that Erwin at Burum’s behest prepared but ultimately withheld “hit piece” mailers that targeted both Postmus, who was then the board of supervisors chairman as well as the chairman of the Republican Central Committee, and Biane, then the vice chairman of the board of supervisors as well as the vice chairman of the Republican Central Committee. Those mailers, according to prosecutors, took as their subject matter Postmus’ homosexuality and methamphetamine addiction and Biane’s financial travails which had him on the brink of bankruptcy. On November 7, 2006, the 2006 general election was held, in which Measure P, an initiative sponsored by Biane which raised each supervisor’s annual salary from $99,000 to $151,000, passed and Postmus was elected county assessor. Three weeks following the election but prior to Postmus transferring to the assessor’s office, the board of supervisors voted 3-2 to confer a $102 million settlement on the Colonies Partners, bringing the four year-long lawsuit to a close.
That litigation had followed a roller-coasteresque and serpentine progression. Superior Court Judge Peter Norell early on made a ruling in favor of the Colonies Partners which held that the county’s flood control easements on the Colonies Partners’ property recorded in 1933, 1934, 1939 and 1962 had been abandoned. But the Fourth District Court of Appeal had overturned Norell, ruling that the county had unfettered easements on 31 acres and a right to utilize 30 further acres of land on the property in question for flood control purposes with the landowner’s consent pursuant to terms to be worked out between the two parties. When the matter went to trial before Judge Christopher Warner, he ruled against the county, this time asserting the easements had been extinguished because the county had surcharged, i.e., overused, them and that certain county officials had defrauded the Colonies Partners in the arrangements for the development of the property and the construction of flood control facilities there. It was in the aftermath of Warner’s ruling, as the county’s lawyers were advising the board of supervisors to appeal it to the Fourth Appellate District which had previously established the easements as being intact, that Postmus, Biane and then-supervisor Gary Ovitt voted to settle the case.
Following the settlement, between March 2007 and the end of June 2007, the Colonies Partners endowed Postmus, Biane, Erwin and Kirk with $100,000 each in the from of donations to political action committees the four controlled. In a 29-count indictment handed down in May 2011, in which Burum, Biane, Erwin and Kirk were named, it is alleged those $100,000 donations to Postmus and Biane were bribes provided in return for their votes in support of the settlement and that the $100,000 donation to Kirk’s political action committee was likewise a bribe made in exchange for his having delivered Ovitt’s vote in favor of the settlement. Kirk was Ovitt’s chief of staff and primary political advisor.
The indictment followed by less than three months Postmus pleading guilty to criminal charges lodged against him in 2010 relating to his settlement vote and his acceptance of the $100,000 provided by the Colonies Partners to two of his political action committees, which he acknowledged in his plea as a bribe.
Beginning on August 14 and concluding on August 24, prosecutor Melissa Mandel and the defense attorneys for Burum, Kirk, Biane and Erwin – Stephen Larson, Peter Scalisi, Mark McDonald and Raj Maline, respectively – made their closing arguments, punctuated by a rebuttal from Mandel. The jury for Burum, Biane and Kirk went into deliberations on August 23, with the jury for Erwin hearing a final set of arguments from Mandel and Maline on August 24, at which point that panel began its deliberations.
Midmorning on August 28, it was announced that the jury for Burum, Biane and Kirk had reached verdicts. The reading of those verdicts was set for 1:30 p.m., by which time the Department-1 courtroom on the second floor of the San Bernardino Justice Center – the largest courtroom in the building, which has the capacity to accommodate two jury boxes – was packed with Burum’s, Biane’s and Kirk’s family members, associates and supporters. Present in the courtroom was Judge Christopher Warner, the judge who had made the civil court ruling in favor of the Colonies Partners prior to the November 2006 settlement. On hand, as well, was Erwin. Present in the courtroom near the double-door entrance were three uniformed and armed sheriff’s deputies brought in to augment the two sheriff’s deputies who have served as bailiffs in the courtroom throughout the trial. Notably absent was San Bernardino County Supervising Deputy District Attorney Lewis Cope, who had prosecuted the case in tandem with Mandel. Cope was not present at his normal position at the prosecution table. In his stead was deputy district attorney Michael Abney.
When the jury filed into the courtroom before the assembled multitude, none on the panel conveyed by their body language or demeanor an outward show of their verdict. Judge Michael A. Smith asked the group’s forewoman if verdicts had been reached. She said they had. Smith had her hand an envelope containing the written verdicts over to the court clerk who read them, charge by charge in a somewhat dramatic fashion. The verdicts for the defendants were read in alphabetic order, with Biane going first. To each of the three counts against him, a pronouncement of “not guilty” was made. Thereafter, the reading of the charges and verdicts against Burum was provided. Upon the first declaration of “not guilty” a chorus cheers erupted but immediately dimmed. Thereafter, the three further not guilty pronouncements relating to Burum were read, punctuated by a more extended clamor of exaltation by his supporters in general at his full acquittal, which none of the bailiffs attempted to quell. When the cacophony ended, the two counts against Kirk were read and met with “not guilty” pronouncements.
Both Burum and Kirk appeared lachrymal in the immediate aftermath of the acquittal announcements, while Biane, though clearly relieved, was less emotionally demonstrative.
An air of celebration momentarily descended over the courtroom as the voices of spectators acclaiming the acquittals resonated around the confines and members of the defense team shook hands, congratulated and in some cases embraced or steadied one another.
For Judge Smith an awkward moment ensued when he addressed the jury. “This finally concludes your service,” he said, and then, making reference to the uncommonly long duration of the trial, remarked, “Normally I’d just say ‘Thank you,’ but you deserve more than that. You went above and beyond the call of duty.” At that point, spontaneous applause from those in attendance in the courtroom broke out. Somewhat sheepishly, Smith sought to downplay the appearance that the crowd was expressing gratitude to the jury for its exoneration of the defendants. “That’s not for your verdict,” he asserted, somewhat unconvincingly. “That’s for your service. We knew this would be a long trial. We told you [it would end in] July; it’s now end of August. You stayed with it and we really appreciate it. We’ve had jurors have a birth in the family, a death in the family, a marriage; I hope no divorces, and if so, not because of this case.”
In off-the-cuff remarks before he left the courtroom, Burum told the press “I’m grateful to the jury. They are my new heroes. They gave up part of their careers and lives for eight months to hear this case. I’m grateful to my friends and family for sticking by me in the belief this would be over eventually. Nobody should have to go through seven years of waiting to defend themselves.” He added that the prosecutors had proceeded against him “without evidence” and had been “running roughshod” over his and his co-defendants rights throughout the case.
Later, in a less hurried and more contemplative circumstance, Burum said, “I believed from the beginning that justice would prevail, but I never thought it would take seven years. I am forever grateful to the jury for their sacrifice for all of the defendants and our families. My family, friends, and partners have believed in me from the outset, and now I just want to get back to being a father, husband, friend, and developer without this political persecution being used against me.”
Larson said, “This is a resounding but utterly predictable defeat for the district attorney of San Bernardino County. The trial revealed, as we said it would, that the investigators recklessly ignored exculpatory evidence, that the prosecutors misled the indicting grand jury, and that the government’s leading cooperator, Adam Aleman, and other former and present government officials lied in court. Millions of dollars have been misspent. The residents of this county know that the pursuit of justice can be perverted for the sake of a politically-motivated prosecution.”
Larson added, “The prosecution was an ill-advised effort to criminalize constitutionally-protected political activity, which the jury emphatically rejected by its decision.”
Biane said, “I knew the jury would get it right, but it was a surreal moment, knowing that it could have gone the other way. To hear those words, ‘not guilty,’ was amazing. I can finally move on and not have to worry about this every night. But I’m still angry and disappointed with the district attorney and county counsel for getting everything so wrong.”
Scalisi said, “I am happy for Mark Kirk that this long, unjust nightmare is over for him, and that the jury quickly and justly found him, and Jeff Burum, and Paul Biane not guilty.”
Kirk said, “Although this case has robbed me of six years of working in a profession I love, I’m grateful to the jury for their courage to do the right thing. It’s now more obvious than ever that this case shouldn’t have been brought to the grand jury. I’m grateful to my family, friends and church who got me through this long nightmare. My wife and I look forward to moving on and enjoying life with our two kids without a cloud hanging over us.”
Jerry Brown was California attorney general in February 2010, when a forerunner of the indictment, a criminal filing against Postmus and Erwin was filed in which Burum, Biane and Kirk, along with two others, Colonies Partners co-managing principal Dan Richards and Colonies Partners publicist Patrick O’Reilly, were identified as unnamed and uncharged co-conspirators. Brown at that time said the case represented the “biggest corruption scandal in San Bernardino County, if not the state’s, history.” Three days after Burum’s, Biane’s and Kirk’s acquittals, Brown had not responded to requests for comment on the outcome.
Similarly, Kamala Harris, who succeeded Brown as California Attorney General and kept the prosecution on track throughout her tenure as attorney general and was elected to the U.S. Senate representing California last November, has not weighed in on the verdicts.
Also caught up in the case was Dino DeFazio, who was one of Postmus’ business and political associates. He was accused of assisting Postmus in the creation of one of the political action committees through which prosecutors alleged the bribe to Postmus was laundered in the form of a political contribution. DeFazio has yet to go to trial.
Meanwhile, the jury that heard the case with respect to Erwin at press time was still in deliberations and had not reached a verdict after three-and-a-half days of considering the evidence and testimony. It was reported that jurors had asked some technical legal questions of Judge Smith, but had given no indication of how it is leaning verdict-wise. Those jurors ended deliberations yesterday at noon and will not deliberate today or over the three-day Labor Day Holiday. The panel is expected to again take up deliberations on Tuesday. The same day, a motion of unknown content from Erwin’s attorney, Raj Maline, is scheduled to be heard by Judge Smith. That motion might, it is speculated, ask for the dismissal of the two charges pertaining to Erwin having aided and abetted Biane in receiving a bribe, based on Biane’s acquittal on the bribe-related charges.