By Mark Gutglueck
More than seven years after former county supervisor/assessor Bill Postmus pleaded guilty to a raft of political corruption charges, he is now moving toward withdrawing those pleas.
According to Postmus’ new attorney, San Bernardino-based Jeffrey Lawrence, Postmus was not in control of his faculties and was under substantial duress when he was criminally charged and then capitulated with a series of nolo contendere pleas, by which he officially declined to contest the allegations against him, agreed to cooperate with further investigations into the matters relating to the charges against him and to testify against others implicated with him in his actions.
According to Lawrence, justice dictates that the matter be reexamined in the light of revelations since that time, during the course of which Postmus’ sentencing was being held in abeyance so prosecutors and the court could determine how well he lived up to the terms of his plea arrangement. Without directly contending Postmus was entirely innocent, Lawrence suggested Postmus’ guilt with regard to much of what he was charged with is questionable.
For prosecutors and a significant portion of the public, Postmus’ request represents an audacious effort at rewriting history.
Indeed, Postmus was the central player in what has been characterized as and is largely perceived to be the most extensive political corruption scandal in county history. With few exceptions, those of his associates who were public office holders, like him, no longer hold elected office. Virtually all of his associates have seen their political or professional status suffer, and a subset of them have been charged criminally, several of whom have been convicted of charges relating to the graft of which he acknowledged in his guilty pleas to be a participant.
Postmus’ sentencing for the crimes he acknowledged in 2011 was suspended at that time, as the punishment to be meted out to him was by the terms of his plea arrangement to be conditional upon his cooperation in the further prosecution of others. The most celebrated outgrowth of the scandal was the trial last year of Jeff Burum, Paul Biane, Mark Kirk and Jim Erwin.
In April 2011, a month after Postmus entered into a plea arrangement in which he acknowledged guilt to one misdemeanor drug count and 14 felony charges relating to political corruption, including conspiracy, bribery, misappropriation of public funds, conflict of interest, fraud and perjury, he turned state’s evidence and the following month served as the star witness before a grand jury that in May 2011 returned a 29-count indictment of Burum, Biane, Kirk and Erwin.
That indictment revolved around the circumstances of a $102 million settlement of the lawsuit the Colonies Partners brought in 2002 against the county and its flood control district over storm water drainage issues at the Colonies at San Antonio residential and Crossroads Colonies commercial subdivisions in Upland. In the indictment, prosecutors cataloged their allegations that prior to the November 2006 vote to approve the settlement, Erwin and Burum had bullied Postmus and Paul Biane, who was then serving with Postmus on the board of supervisors, with threats to expose their personal vulnerabilities, including Postmus’ drug use and homosexuality and Biane’s financial difficulties. Prosecutors alleged that Burum and Erwin thus successfully blackmailed Postmus and Biane into supporting the settlement and then provided them both $100,000 each in kickbacks after the settlement was ratified, and that those bribes had been hidden, or laundered, in the form of political donations. Similarly, the indictment described $100,000 provided to Kirk’s political action committee as a kickback to reward him for helping convince Ovitt to support the $102 million settlement. The Colonies Partners also provided a political action committee Erwin set up with a $100,000 donation, and prosecutors said that was a reward to him for having assisted the Colonies Partners and Burum in effectuating the settlement.
The eight month-duration criminal trial before two juries last year included testimony by Postmus in May. During his first three days of testimony under direct examination from May 1 through May 3, Postmus replicated the key elements of the prosecution’s narrative. In the latter half of 2006, Erwin, working on behalf of Burum and the Colonies Partners, Postmus testified, had threatened to expose elements of both his and Biane’s personal lives in an effort to persuade them to support the settlement. And Burum had promised to support him in either or both future political and business endeavors once the settlement was finalized, he said. Moreover, Postmus said, he believed the $102 million paid out to the Colonies Partners was ridiculously more than the development company was due. The threats and promises of reward, he testified, along with the desire to put the whole thing behind him prompted the settlement. And after the settlement was in place, Postmus testified, the Colonies Partners had come through with $100,000 for him in the form of two separate $50,000 donations to political action committees he had control over.
Thereafter, when the defense was given an opportunity to cross examine Postmus, under the withering questioning of one of Burum’s attorneys, Jennifer Keller, Postmus began to go sideways, and he testified that he had been intimidated by the district attorney’s office investigators to meet their expectations of what they needed to make the case against the others. Keller elicited from Postmus his acknowledgment that he was in the throes of methamphetamine addiction at the time of the events in question, rendering his memory unreliable and leaving him vulnerable to manipulation by the prosecution.
The trial closed out without the defense calling any witnesses and without testimony from the accused, all of whom stood on their Fifth Amendment rights. The jury which heard the case against Burum, Biane and Kirk returned verdicts of not guilty against all three on all remaining charges against them that had not already been dismissed by the judge hearing the case after less than two full days of deliberation. The other jury deadlocked on all of the remaining charges brought against Jim Erwin. Thereafter, on a motion by the prosecution, the charges against Erwin were dismissed.
Following the conclusion of the trial, all four of the defendants lodged claims against the county based upon the ordeal to which they had been subjected. On March 1, 2018 the Colonies Partners filed a civil rights lawsuit in Riverside Federal Court against San Bernardino County District Attorney Mike Ramos and former state attorneys general Jerry Brown and Kamala Harris, other members of the prosecution team and witnesses involved in last year’s unsuccessful political corruption trial. That suit, which seeks $80 million in damages, alleges both prosecutors and investigators in the criminal case disregarded or hid evidence vindicating the defendants and furthermore “fabricated evidence to prop up their case.” Also contained in the lawsuit is the allegation that the county failed to make good on an indemnification clause in the settlement which the company maintains required the county to defray the cost of Burum’s criminal defense.
On April 2, Burum followed up with a $50 million malicious prosecution lawsuit in federal court against San Bernardino County, district attorney Mike Ramos and former state attorneys general Kamala Harris and Jerry Brown, prosecutors Lewis Cope and Melissa Mandel, former assistant district attorney Jim Hackleman, district attorney’s office investigators Robert Schreiber and Hollis Randles, and county supervisor Josie Gonzales, asserting overzealousness and retaliatory motives on the part of prosecutors, who, he claimed, used fabricated evidence in accusing him of involvement in an extortion and bribery conspiracy relating to the $102 million settlement.
Even before the trial of Burum, Biane, Kirk and Erwin concluded, prosecutors were miffed with Postmus’ testimony, believing he had not held up his part of the plea bargain he had made in 2011 by shrinking from the testimony he had given before the grand jury when he was grilled by Keller a year ago. Jurors interviewed after the verdicts were returned indicated that Postmus’ hedging of his testimony was a factor in their acquittal votes. At the time of the dismissal of the case against Erwin, district attorney Mike Ramos stated publicly, “Bill Postmus’ unexpected testimony on cross-examination at the last trial conflicted with his grand jury testimony, his statement to the FBI, and multiple interviews with the district attorney’s office.”
Ramos’ statement presaged what occurred in late October, when Postmus at last came before Judge Michael Smith for sentencing. Instead of acquiescing to having Judge Smith adhere to the language of the plea agreement which called for dismissing eleven of the felony charges against Postmus and taking into consideration Postmus’ testimony to arrive at a determination as to what his sentence would be, Supervising San Bernardino County Deputy District Attorney Lewis Cope asked for Smith to refer Postmus’ case file to the Riverside County Probation Department for review and sentencing recommendations. That was a tacit indication that the district attorney’s office was hoping to convince Smith, who is and was the judge of record in the criminal cases against both Postmus and Burum, Biane, Kirk and Erwin, to throw the book at Postmus. Ultimately, the Riverside County Probation Department passed on undertaking the analysis. Instead, the San Diego County Probation Department was tapped to arrive at a determination of a proper sentence. The San Bernardino County Probation Department was bypassed because as supervisor for six years, Postmus had voted repeatedly with regard to that department’s budget.
On January, 19, 2018, Postmus, contemplating the results of last year’s trial, appeared in court for sentencing, represented by Lawrence, and moved to fire his two attorneys – Richard Farquhar, who represented him in the Colonies lawsuit settlement case, and Stephen Levine, who represented Postmus in the assessor’s office case. Farquhar and Levine in 2011 had arranged the terms of Postmus’ plea deal. Free of his former attorneys, Postmus retained Lawrence for the purpose of filing a motion to withdraw his plea. At that time, Lawrence asked the court for time to review the case files relating to both cases. Last Friday, April 27, eight years and nine months after he was charged with crimes relating to his activity as assessor and eight years and two months after he was originally charged in the Colonies lawsuit settlement case and seven years and one month after entering guilty pleas on all of those charges, Postmus came before Judge Michael Smith for sentencing. Three weeks previously, one of the deputy prosecutors who had prosecuted the case against Postmus as well as the four defendants in the trial last year, Lewis Cope, had retired.
Postmus’ sentencing was delayed by Lawrence’s filing of a motion to withdraw his plea.
According to that motion, “The criminal justice system imposes the fundamental requirement that a guilty plea must be knowing and voluntary. Thus, the very fabric of the justice system requires that guilty pleas not be obtained by coercion or manipulation. Mr. Postmus pled guilty to several charges in March 2011 in People v. Postmus, Case No. FSB 902977 and People v. Postmus, Case No. FSB 1000523. But these pleas were not knowing or voluntary under any reasonable interpretation of those words. Rather, Mr. Postmus’s prosecution and eventual guilty plea was plagued by incomprehension and intimidation.”
Further, according to Lawrence’s motion on Postmus’ behalf, “As part of their efforts to prosecute Paul Biane, Mark Kirk, James Erwin, Jeffrey Burum and others connected with the Colonies Partners L.P.’s 2006 settlement with the County of San Bernardino, the San Bernardino County District Attorney’s office callously took advantage of Mr. Postmus’s debilitating drug addiction, which they were aware of at least as early as 2009, two years prior to Mr. Postmus’s plea. District attorney investigators – experts on the effects of drug use on witnesses – preyed on Mr. Postmus in a series of interviews, using confusion, coercion, inducements, and threats to convince Mr. Postmus that he had no choice but to plead guilty. They fed him false information. They induced him with hopes of a deal, and then they used cleverly-worded threats and intimidation to ensure that any deal would be predicated on Mr. Postmus perjuring himself about the Colonies case and pleading guilty to a Colonies-related charge.”
According to Lawrence, the district attorney’s office investigators failed to discern “fact from fiction” in dealing with Postmus and instead used “his drug-induced fear and paranoia to hoodwink Mr. Postmus into believing fiction. Additionally, when Mr. Postmus’s plea was taken in court, Judge Smith failed to ask Mr. Postmus if he was under the influence of drugs or any other substance that would affect his ability to enter the plea, a standard question in all felony pleas.”
The theory Lawrence is basing the request for the vacation of the pleas on revolves around Postmus’ excessive drug use and the exploitation of this by the prosecution and its investigators, together with the incompetence or ineffectiveness of Postmus’ previous attorneys, particularly Richard Faraquhar, who represented him with regard to the criminal case relating to the Colonies lawsuit settlement, and the failure of the court to take into consideration Postmus’ drug-addled state. Lawrence referenced the prosecution’s use of “confusion and false representations” which he labeled as a “mind-trick, played by the investigators to convince Mr. Postmus that there was wrongdoing where none existed. [P]rosecutorial investigators successfully planted false memories. Mr. Postumus’s drug addiction rendered him incapable of entering a knowing, intelligent, and voluntary guilty plea and DA investigators used his addiction to manipulate him into taking a guilty plea. Neither prosecutors nor the court did anything to determine the scope of Mr. Postmus’s drug abuse or whether it interfered with his ability to knowingly, intelligently, and voluntarily enter into a guilty plea. In negotiating and accepting these pleas, the prosecution did nothing to determine the scope of Mr. Postmus’s drug use, or to determine the effect of that drug use on his mental faculties. Neither did Mr. Postmus’s prior counsel nor this court, which took the plea. Indeed, during his oral plea in this case, no one ever asked Mr. Postmus if his current or past drug use was affecting his ability to understand the terms of his plea bargain.”
According to Lawrence, both prosecutors and their investigators recognized the extent of Postmus’ drug addiction but did not seek to redress it and rather exploited it to effectuate the manipulation of him to assist with the prosecution of the criminal case relating to the settlement of the Colonies Partners lawsuit. One indication of that, Lawrence said, were notes from a district attorney’s office investigator “listing a sobriety date [for Postmus] of June 20, 2012—a date more than a year after Mr. Postmus’s interviews, plea, and grand jury testimony were completed.” In this way, Lawrence said, the district attorney’s office knew “that Mr. Postmus did not stop abusing drugs for more than a year after his plea was given.”
Another indication that Postmus was not mentally focused when he consented to the pleas came, Lawrence said, when “At the plea hearing, deputy district attorney Lewis Cope offered a stipulation that affidavits in support of Mr. Postmus’s arrest warrant would serve as an adequate ‘factual basis’ for Mr. Postmus’s guilty plea. Mr. Postmus’s attorneys accepted this stipulation at face value, failing to confer with Mr. Postmus or ensure that Mr. Postmus understood the facts described in the warrants. There is no evidence that Mr. Postmus had the opportunity to read, much less understand, the facts set forth in these documents. Meanwhile, when Mr. Postmus filled out the paperwork documenting his plea, he initialed every box on his plea form, including the box stating he could read and understand English and the very next box stating he needed an interpreter. In this case, Mr. Postmus believes that his attorney on the Colonies case was not fully aware of all of the facts in the case at the time he took his plea, and in any event, he never took the time to review the facts of the case with Mr. Postmus. The fact is that the evidence will show that Mr. Postmus never even had a meaningful discussion about the facts of the case with his Colonies case attorney, court appointed attorney Richard Farquhar, nor was Mr. Farquhar ever present during any of his numerous interviews with prosecution investigators, nor was he ever present during any of the ten days Mr. Postmus spent testifying on the witness stand in the Colonies case.”
In the motion, Lawrence states, “Mr. Postmus respectfully requests that he be allowed to withdraw his pleas of guilty in both cases. In the alternative, Mr. Postmus requests an evidentiary hearing to further establish that his guilty pleas were not knowingly and voluntarily entered.”
The request represents a gutsy roll of the dice for Postmus. In accepting the guilty plea worked out with the prosecution by Levine and Farquhar in 2011, Postmus entered no contest pleas, tantamount to pleading guilty, to all counts, which included conspiracy, bribery, misappropriation of public funds, grand theft, fraud, Government Code §1090 – conflict of interest by a governmental officer, and perjury with regard to the Colonies Partners lawsuit settlement case and counts of paying public funds to employees who failed to perform public services, misappropriation of public money for his own personal use, grand theft and perjury with regard to the case brought against him over his malfeasance in office as assessor. Nevertheless, that plea arrangement called for him to be sentenced merely on the grand theft and the Government Code §1090 conflict of interest charge stemming from the Colonies lawsuit settlement case and the misappropriation of public funds charge, based on the alleged purchase of gasoline on a government-issued credit card for private use, stemming from the case against him relating to his mismanagement of the assessor’s office. All other counts were to be dismissed. With the withdrawal of the pleas, he is now exposed to going to trial and being retried on all of the counts in both cases against him, as well as a misdemeanor drug possession case.
On April 9, 2018, Postmus, accompanied by Lawrence, submitted to an interview by San Diego County Probation Officer Melissa Bowyer. At that point, Postmus was advised by his new attorney not to answer any substantive questions about the cases, because of the about-to-be-filed motion to withdraw his plea. Lawrence advised Postmus to assert his Fifth Amendment rights to any questions about the facts of the two cases, which Postmus did. Ultimately, with regard to the three crimes to be considered under the plea arrangement, the San Diego County Probation Office’s recommendation was that Postmus be sentenced to four years in state prison. Were he to stand trial on all 14 counts in the two cases against him and be convicted, Postmus would be likely to get a far more substantial sentence than four years. While Lawrence took considerable issue with the accusations against Postmus in the Colonies lawsuit settlement case, he made virtually no reference to the specific charges or facts relating to the criminal case brought against Postmus over his alleged malfeasance in office as assessor, which involved his hiring of multiple individuals with no experience or expertise in assessing properties specifically or real estate in general; partisan political activity having no relationship to the function of the assessor’s office that Postmus and aforementioned individuals were engaged in while working for the assessor’s office; documented expenditures Postmus made using his county-issued credit card for out-of-state vehicular trips and airline travel and accommodations on excursions unrelated to his function as assessor; and documents he filed in which he falsely asserted those credit card charges were related to his function as assessor. Two of his employees have been convicted of charges related to the misuse of the assessor’s office under Postmus’ management.
Moreover, Postmus appears purposed to rely on a set of assertions that may prove highly problematic for him if he comes before a jury. Postmus was twice elected to the office of San Bernardino County supervisor and was at the end of his first term selected by his colleagues to serve as chairman of the board of supervisors. He was an elected member of the San Bernardino County Republican Central Committee who in that capacity was elevated to the role of chairman. He was elected county assessor. Yet, when questioned by the FBI in 2011, Postmus expressed confusion about the concept of bribery, failing to recognize a legal term, quid pro quo [Latin, meaning “this for that”] used by one of the agents in describing an exchange of money for a vote. Last year, on the witness stand during the Colonies lawsuit criminal trial, Postmus said, “I didn’t understand what an actual bribe was. I still don’t know if I fully understand.”
The motion filed on Postmus’ behalf by Lawrence does not treat the judge hearing the case against Postmus, Michael Smith, particularly kindly, suggesting that Smith wrongfully ignored indications of, and other issues pertaining to, Postmus’ drug use.
According to Lawrence, “Mr. Postmus recognizes that his actions have disappointed those in San Bernardino County who he once was elected to represent. This motion is not an attempt to minimize or escape the consequences of those actions, whatever his actions were and whatever those consequences may be. This motion merely demands that the San Bernardino County District Attorney’s office and its allies in this prosecution respect constitutional norms and follow the rules. The court should now permit Mr. Postmus to withdraw his guilty pleas, and to start over with a fair and constitutional process that respects Mr. Postmus’s rights.”
Despite objections from the prosecution team, which yet consists of personnel from both the California Attorney General’s Office and the San Bernardino County District Attorney’s Office, that the motion to withdraw Postmus’ plea is a delaying tactic and that he should be sentenced at once, Judge Smith held off on sentencing and gave the prosecution until November 2 to craft an answer to Lawrence’s motion.
By Mark Gutglueck