By Mark Gutglueck
A decade after his fall from the pinnacle of San Bernardino County politics, more than nine years after he was initially charged with engaging in criminal activity and more than seven years after pleading guilty to 14 felony counts relating to abuses of the public trust in his capacity as a government official and a single misdemeanor drug charge, Bill Postmus was in court last Friday and three days this week in an attempt to vacate those guilty pleas and seek a new trial. The matter will continue before Judge Michael A. Smith in Department 21 on the Sixth Floor of the San Bernardino Justice Center next week.
Postmus’ sentencing has been delayed for more than seven years because an element of the plea deal he signed in March 2011 required that he cooperate with prosecutors in their efforts to bring to justice others believed to have been involved in the crimes in which he participated. The criminal issues involving Postmus prosecutors were focused upon related to three matters. One of those pertained to the abuses of his authority during the slightly more than two years he served as county assessor from January 2007 until his resignation in February 2009. The second related to the vote he cast in November 2006 during the closing days of his tenure as a member of the board of supervisors to approve the county’s settlement of a lawsuit brought against it by the Colonies Partners in 2002 over the county flood control district’s handling of drainage issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland. Postmus had joined with his-then board colleagues Paul Biane and Gary Ovitt to close out that litigation by conferring upon the Colonies Partners a $102 million payout. Prosecutors alleged that one of the Colonies Partners’ managing principals, Jeff Burum, had worked with one-time San Bernardino County deputy sheriffs’ union president Jim Erwin to intimidate, threaten and blackmail Postmus and Biane to extort them into supporting the settlement. Prosecutors further maintained that after the county paid the Colonies Partners the $102 million, Burum then provided four separate $100,000 bribes/rewards to Postmus, Biane, Erwin and Ovitt’s chief-of-staff, Mark Kirk, disguising the payoffs as donations to political action committees that were either directly or secretly controlled by the four recipients. The $100,000 delivered to Kirk, prosecutors alleged, was intended as a quid pro quo to him for having induced Ovitt to support the settlement. The third set of criminal issues involving Postmus pertained to his illicit drug use, which were eventually reduced down to a single misdemeanor possession charge.
In 2006, after six years in office as county supervisor representing the First District, which at that time included practically all of San Bernardino County’s desert expanse, Postmus successfully vied against incumbent County Assessor Don Williamson, thereby acceding to the position of the county’s highest ranking taxing official. In 2008, the district attorney’s office initiated an investigation into reports that assessor’s office facilities, equipment, personnel and authority were being used for partisan political purposes. As part of that investigation, in January of 2009 district attorney’s investigators served search warrants at the assessor’s office headquarters in San Bernardino, at Postmus’ Rancho Cucamonga condominium and elsewhere. Within Postmus’s residential premises, investigators came upon liquid methamphetamine and a syringe to inject it. The following month, Postmus tendered his resignation as county assessor.
Also caught up in the assessor’s office investigation was Adam Aleman, whom Postmus upon becoming assessor in 2007 had appointed to serve as assistant assessor despite Aleman’s tender age of 23. In June 2009, Aleman pleaded guilty to felony vandalism charges relating his purposeful destruction of the hard drive in a county-issued laptop computer to prevent investigators from accessing it, two counts of theft, destruction, alteration or falsification of a public document, and presenting a false claim to a public board. Shortly thereafter and based in large measure on information Aleman had provided, Postmus was charged with multiple counts of having improperly used the authority of his office and misappropriation of government funds during his tenure as county assessor.
Some seven months later, Postmus and Erwin in February 2010 were named in a criminal complaint and charged with participating in a conspiracy to illegally obtain $102 million in a scheme that related to the November 2006 lawsuit settlement with the Colonies Partners. In that complaint, five other unnamed, uncharged co-conspirators were described. Though unidentified as to name, there were sufficient details in the complaint to make clear that the five alluded to were Colonies Partners co-managing principals Jeff Burum and Dan Richards, County Supervisor Paul Biane, Supervisor Gary Ovitt’s chief of staff Mark Kirk and public relations consultant Patrick O’Reilly, who had worked for the Colonies Partners.
Both Postmus and Erwin pleaded not guilty to the charges.
In March 2011, however, Postmus, who was represented in the criminal matter relating to the assessor’s office by attorney Stephen Levine and in the Colonies Partners lawsuit settlement criminal case by attorney Richard Farquhar, entered into a plea agreement by which he pleaded guilty to 14 felony charges arising out of the lawsuit settlement and assessor’s office cases and to a single drug possession count, with the proviso that he was to cooperate with prosecutors in providing information, evidence and testimony in making a case against the unnamed co-conspirators outlined in the February 2010 complaint and those involved in his misuse of the assessor’s office. Though convictions against Postmus were recorded at that time on all 15 of the charges, it was spelled out that based upon his cooperation, all but three of the 14 felony convictions would be vacated, and the maximum sentence he would receive would be six years and eight months, with the possibility that prosecutors would recommend that he be given straight probation with no actual prison time. Sentencing, ultimately, remained within the discretion of the judge assigned to the case.
The following month, April 2011, Postmus went before a grand jury as a star witness, and in May 2011 that grand jury returned a 29 count indictment which named Burum, Biane, Erwin and Kirk as defendants, the narrative of which revolved around the November 2006 lawsuit settlement and the Colonies Partners’ provision of the separate $100,000 contributions to Biane’s, Erwin’s, Kirk’s and Postmus’ political action committees, which prosecutors characterized as thinly-disguised bribes.
The prosecution team consisted of prosecutors with the San Bernardino County District Attorney’s Office and the California Attorney General’s Office. They were matched by an impressive array of defense attorneys paid for by a portion of the proceeds from the $102 million settlement. For five-and-a-half years there were a multitude of delays, as the lawyers sparred at the trial court level, twice at the appellate level and twice before the California Supreme Court with regard to the dismissal or reinstatement of charges. Jury selection took place in December 2016 and the case went to trial in January 2017 before Judge Michael A. Smith. That trial involved two juries, one which weighed the evidence against Burum, Biane and Kirk, and another which was charged with deciding the fate of Erwin. In court, the proceedings involved 39 witnesses, more than half of whom were on the witness stand for multiple days, and continued for eight months.
Both Postmus and Aleman were central witnesses, with their testimony accounting for nearly all of the court proceedings in May 2017.
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, including his own homosexuality and drug use, 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.
Toward the end of Summer 2017, 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 after less than two full days of deliberation returned verdicts of not guilty against all three on all remaining charges against them that had not already been dismissed by Judge Smith. 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.
In the immediate aftermath of the verdicts, several jurors from both panels were interviewed, with some indicating that Postmus’ hedging of his testimony was a factor in their acquittal votes. Members of the prosecution team expressed consternation with the circumstance, and District Attorney Mike Ramos provided a public statement in explaining why his office had decided against retrying Erwin.
“Since the conclusion of jury deliberations, we have carefully evaluated our current position and have identified witness problems that cannot be resolved,” Ramos said. “As a result, we are unable to proceed. One such issue is the trial testimony of Bill Postmus, who is a necessary witness in the case against Jim Erwin. 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.”
In accordance with the plea agreement he had entered into in March 2011, Postmus’ sentencing had been held in abeyance until the Colonies Partners lawsuit settlement trial had concluded. On October 27, 2017, Postmus came before Judge Smith for a hearing on his sentencing. Postmus had entered his guilty plea to the 14 felony charges and single drug offense misdemeanor count in 2011 before Judge Smith, who was fresh from overseeing the trial of Burum, Biane, Erwin and Kirk. Judge Smith was thus intimately familiar with the terms of Postmus’ plea bargain as well as his testimony at trial. Smith had sole discretion over the terms and duration of Postmus’ sentence, which could range from probation up to six years and eight months in state prison. A factor to be considered in Smith’s sentencing determination was the recommendation of the prosecution team, as it was a primary party in the plea arrangement and was in a position to ascertain how fully Postmus had lived up to the terms of the plea bargain. At that point, Postmus was yet represented by Levine and Farquhar, and all three were yet determined to abide by the plea arrangement.
Prosecutors, however, rather than recommending leniency that would consist of vacating 11 of the 14 felony convictions and asking the court to impose no incarceration in favor of placing Postmus on immediate probation, signaled their intention to keep all 14 convictions intact and seek substantial prison time, i.e., four years. At the October 27, 2017 hearing, 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. The matter was referred to the Riverside County Probation Department because Postmus, who was formerly one of the most powerful political figures in San Bernardino County, oversaw and approved budgetary allotments for the San Bernardino County Probation Department, and officials sought to avoid any chance of the recommendation on sentencing being influenced by that.
Subsequently, after the Riverside County Probation Department report on Postmus was completed, during a closed door sentencing conference at which at least one member of the prosecution team, Postmus and Levine were present, Smith indicated he was leaning toward sentencing Postmus to two years in state prison.
At that point Postmus, acutely conscious of how Burum, Biane and Kirk had been acquitted of criminal wrongdoing in conjunction with the same set of facts upon which he had pled guilty and that the prosecution’s best effort along the same line against his one-time codefendant Erwin had failed to obtain a conviction on any of the charges against him, reconsidered his own guilty pleas on the fourteen felony counts. Neither Levine nor Farquhar, who had been his legal representatives when the guilty pleas were entered, could represent him in withdrawing those pleas. Accordingly, Postmus fired them and retained attorney Jeffrey Lawrence in his effort to obtain what is euphemistically referred to as a “do-over,” that is, to withdraw his pleas and have the prosecution reinitiate the case against him so he can get a jury trial.
Lawrence has made a motion with the court to withdraw Postmus’ plea. According to Lawrence, Postmus was not in control of his faculties and was under substantial duress when he was criminally charged and then capitulated with the series of no contest pleas. Justice dictates, according to Lawrence, that the matter be reexamined in the light of revelations since that time and that Postmus essentially lived up to the terms of his plea arrangement and is now on the brink of being punished for doing so because the district attorney’s office and the California Attorney General’s Office are displeased with the outcome of the prosecution of Burum, Biane, Erwin and Kirk. Though Lawrence does not contend that Postmus was entirely innocent, he has suggested Postmus’ guilt with regard to much of what he was charged with is questionable.
Burum’s, Biane’s and Kirk’s acquittals and the failure to secure a conviction of Erwin illustrate, according to Lawrence’s motion, “the weakness of the evidence” the prosecution was relying upon.
According to Lawrence, “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.”
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, 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.”
An obstacle to Postmus’ having his plea deal vacated consists of Judge Smith, who possesses a comprehensive knowledge of virtually all elements of the several cases involving Postmus, including what he learned as the judge overseeing both of the two cases filed against him; what he learned being the judge overseeing the case taken to trial against Biane, Burum, Kirk and Erwin; what he learned being the judge in the case against Adam Aleman, who as one of Postmus’ field representatives when Postmus was supervisor stood witness to the events leading up to the $102 million settlement and as Postmus’ appointee as assistant assessor was caught up in the assessor’s office crimes, for which he pleaded guilty before turning state’s evidence against Postmus, Erwin, Biane, Burum and Kirk; what he learned overseeing the case filed against Postmus’ boyfriend Greg Eyler, whom Postmus had hired into a do-nothing post in the assessor’s office; and what he learned as the judge overseeing a case filed by prosecutors against Dino DeFazio, one of Postmus’ business associates who had headed one of the political action committees which had been endowed with $50,000 of the total $100,000 provided to Postmus by the Colonies Partners after the $102 million settlement. Prosecutors alleged DeFazio had committed perjury by attempting to shield Postmus in claiming that he, DeFazio was the progenitor of the political action committee, when in fact it was created and controlled by Postmus for the purpose of laundering the money delivered to him as a bribe by the Colonies Partners for approving the lawsuit settlement. Ultimately, after Kirk, Biane and Burum were acquitted and charges against Erwin were dismissed, prosecutors dropped the case against DeFazio.
It was before Judge Smith whom Postmus had come in 2011 to enter his plea on the 14 felony/single misdemeanor sheet of charges. Before accepting that plea, Smith had directly questioned Postmus, inquiring of him as to whether he was entering into the plea freely and without reservation, and whether he had a full comprehension of the plea, its implication, what it entailed and the expectation inherent within it of what Postmus would need to do to meet all of its terms. Smith specifically obtained from Postmus his acknowledgement that even were he to cooperate fully with the prosecution and meet the requirement that he testify truthfully, he might yet receive a sentence that would involve serving time in prison. Over the more than five-and-a-half years that then followed the subsequent indictment of Erwin, Kirk, Burum and Biane, the legal maneuvering of the defense team entailed repeated appeals to the appellate court and the California Supreme Court as well as motions before the trial court relating to the dismissal of various elements of the indictment. This necessitated Smith’s reading and re-reading of the testimony before the grand jury, including most particularly testimony by Postmus. Judge Smith was thus highly familiar with both the substance and nuance of the version of events Postmus had spelled out in his efforts to help prosecutor’s construct the case against the indicted defendants. That version of events provided in depth detail with regard to Postmus’ own involvement in the matter. Perhaps most importantly, Judge Smith was presiding from the bench in his courtroom some 17 feet away from Bill Postmus when he was in the witness box in May 2017 during the trial for Biane, Erwin, Burum and Kirk, a front row spectator, as it were, able to hear not only Postmus’ words but the forthrightness or hesitancy that accompanied them and watch Postmus’ face and body language as he responded to the questions put to him by Prosecutor Lewis Cope and Burum’s defense counsel, Jennifer Keller, as well as the sometimes combative questions leveled at him by Erwin’s defense attorney, Raj Maline.
Last Friday, Lawrence began his presentation on behalf of his client, shunting aside suggestions by Supervising Deputy California Attorney General Melissa Mandel that Smith should consider the effort to vacate the plea after more than seven years as “an affront to the court.” Deviating somewhat from the material in his original petition on behalf of Postmus that the plea agreement be vacated, Lawrence propounded a secondary theory that holds the prosecution of Postmus grew out of an animus and political rivalry toward the defendant by District Attorney Mike Ramos.
Ramos took up the prosecution of Postmus as part of an effort to politically persecute Postmus, who had designs of running for the same Congressional seat that Ramos coveted, which was then held by Congressman Jerry Lewis, one of Ramos’ political allies, who had designated Ramos as his heir apparent, Lawrence asserted. In a supplemental brief to the motion to withdraw the plea, Lawrence wrote, “DA Ramos was already a political rival of William Postmus in that they were both powerful Republicans in the county, both of whom had their eyes set on the congressional seat soon to be vacated by Congressional Representative Jerry Lewis.” Moreover, according to Lawrence, Postmus had angered Ramos by his having revealed the district attorney’s womanizing. “San Bernardino County District Attorney Mike Ramos targeted defendant William Potmus after he leaked personal information he had which indicated DA Michael Ramos had a sexual affair with Public Defender Doreen Boxer, while he was married, in March of 2006 at a county conference in Lake Arrowhead,” according to Lawrence.
On November 2, Postmus took the stand and Lawrence sought to explore the political and personal rivalry that existed between Postmus and Ramos in the 2006 and 2007 timeframe. Judge Smith, however, was not very indulgent of that line of questioning, indicating he believed it irrelevant to whether Postmus made a fully informed decision to enter into the plea arrangement in 2011. He curtailed that line of inquiry.
Deputy District Attorney Carlo Dicesare, who is working with Supervising Deputy California Attorney General Melissa Mandel in seeking to convince Smith to stay the course and abide by the 2011 plea arrangement, insisted that Postmus was in full possession of his faculties, knew all of his options, was mentally competent and had made a legally binding commitment when he accepted and signed his plea agreement in 2011. In questioning Postmus, Dicesare asked Postmus if he remembered Supervising Deputy District Attorney Lewis Cope stating during the trial last year that he could get up to five years in prison. “Yes,” Postmus responded.
Postmus also acknowledged that he had spurned previous suggestions that he should renege on the plea, as when, shortly after entering it, attorneys representing Burum and Erwin sought out his attorney and asked that he withdraw his plea. Postmus acknowledged he had declined to act in accordance with those suggestions until after the conclusion of the 2017 trial.
At one telling moment, Judge Smith questioned Postmus directly, asking if he remembered an exchange the two had in 2011 before the plea deal was finalized when Judge Smith had told Postmus that even if he testified truthfully and met all of the terms contained in the plea agreement, there was still a possibility he would be sentenced to jail or state prison.
Postmus said he did not recall the exchange.
Based upon the Riverside County Probation Report calling for the imposition of a four-year to six-year sentence, the prosecution’s request that the plea arrangement be kept intact and Postmus be sentenced to at least four years in state prison, Judge Smith’s earlier indication that he was purposed to hand out a two-year state prison sentence and the progress of the hearing in general, a pall had been cast over Lawrence and Postmus as well as a small band of Postmus’supporters – including DeFazio, Supervisor Josie Gonzales and Hesperia Councilman Paul Russ – who were present at the courthouse on Tuesday, when the hearing resumed. With signs that Judge Smith is purposed to deny the motion to withdraw the plea and will impose a sentence that will entail prison time, Lawrence appeared resolved to continue with the effort and put into the record issues which he believes will form the basis for an appeal.
On Tuesday, Richard Farquhar, gave testimony.
Farquhar represented Postmus with regard to the criminal issues in the Colonies lawsuit settlement matter. Stephen Levine represented Postmus with regard to the criminal case evolving out of Postmus’ tenure as county assessor. An element in the case Lawrence is making on behalf of Postmus is that he was provided with inadequate legal representation by both of his attorneys, which is of note given the collegiality which exists among defense attorneys working in San Bernardino County and the close association between Levine and Lawrence, a particularly skilled framer of legal briefs who has on occasion, it is acknowledged, ghost written for Levine motions and briefs with regard to other cases that were submitted to the court. The case Lawrence is making for Postmus makes issue in particular with inadequacies in how Farquhar represented Postmus. In his motion to vacate Postmus’ plea, Lawrence wrote, “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.”
Farquhar on Tuesday testified that he believed given his experience in handling criminal matters in general he was “competent to handle the case” when he took up the Postmus matter. Nor was he overbooked at the time, he said. “I had a fair amount of cases, but nothing that was overloading me,” he said. He acknowledged that he had a demanding schedule involving a number of murder cases in the 2010/2011 timeframe and that the Postmus defense entailed an inordinate amount of discovery material, consisting of “multiple boxes” that “would not fit in my car” to the point that he needed to get a “full-size Jimmy truck” to ferry them to his office. He said he endeavored to read all of the discovery, which filled in excess of “at least six banker’s boxes” and that “I started organizing it as best as I could.” He said that in addition to material relating to the Colonies lawsuit settlement case, discovery relating to the assessor’s office case had been dumped upon him. He said he had succeeded in making it through “two or three” of those boxes, which he said contained the material most pertinent to the case, by the time Postmus entered into the plea agreement.
He endeavored to get up to speed on the case, Farquhar testified. Asked if he had coordinated with Levine, Farquhar said, “With Mr. Levine, there were multiple discussion that went on” and that they had met at Levine’s office and discussed the case when they would encounter each other in the courthouse. “I informed him there was a whole bunch of discovery to go through that related specifically to Colonies matter. I did discuss with Mr. Levine the strengths and weakness of the assessor’s case,” Farquhar said. Postmus was present during some of those discussions, Farquhar said, and their client appeared to understand what they were talking about. Postmus with regard to some issues knew more than he did, Farquhar indicated. “He would supply me with certain facts about the case,” he said.
Asked if he had a “collaborative” relationship with Levine, Farquhar said, “Yes, we did. It made sense for us to discuss [both cases],” Farquhar said. “We anticipated that if there was a resolution it would involve both cases.”
Farquhar testified that he kept the channel of communication with Postmus open throughout the duration of his representation of him. “Mr. Postmus had my cell phone [number] and when he had a Blackberry we would discuss things,” he said, by both text and phone.
Farquhar acknowledged that in March 2011 he concluded an agreement with prosecutors to have Postmus accept the plea agreement that was being offered. That decision arose from Postmus and not from him or Levine, Farquhar maintained. Postmus had come to the conclusion he should accept the plea based on a number of factors, including the consideration that one of the employees with the assessor’s office caught up in the case, former Rancho Cucamonga City Councilman Rex Guieerez, had been convicted at trial, Farquhar indicated.
“One of the people involved in the case [Gutierrez] was sent to prison, so he wanted to make a deal with them if he could,” Farquhar said. Once Postmus was set on a course of arriving at a deal with the prosecution, Farquhar said he and Levine tried to structure an arrangement by which Postmus would trade cooperation with the prosecution and its investigators for staying out of prison. “He was frightened about the prospect of going to prison and he wanted to see what he could do about his resolving it without that happening,” Farquhar said. “We were hoping for probation. Not that that was firm, but we were hoping for probation. That was what I was shooting for and what I hoped would be accomplished.”
Asked if he had promised Postmus that he would be able to avoid going to prison, Farquhar said, “We could not promise him that. What was said was that if he did what he was supposed to do as a party to the plea agreement, that would be a fair resolution of the case.”
Asked if it had been explained to Postmus that he might go to jail, Farquhar said, “We did explain to him that we knew that was a possibility. I can’t say I believed that would happen, but we did discuss that possibility with him.”
Farquhar testified that during all of the initial meetings between Postmus and the district attorney’s office investigators to demonstrate Postmus’ willingness to cooperate with the prosecution, either he or Levine were present.
Farquhar acknowledged that because Levine had been representing Postmus longer than he had, Levine had a stronger and better relationship with Postmus than he did.
In his testimony, Farquhar indicated that there was a fundamental difference between Postmus and the prosecution and its investigators in that they considered the $100,000 the Colonies Partners had provided to his political action committees to be a bribe, and Postmus did not. “There was some disagreement with them over that,” Farquhar said. “He felt he wasn’t bribed. They felt he was.” When it was suggested the money the Colonies Partners provided him after he voted to provide the company with a $102 million payout to settle the lawsuit was a quid pro quo, Farquahar said Postmus would reply “that wasn’t what it was for. That is how a PAC [political action committee] is run. That is the political nature of things and it wasn’t bribery.”
Farquhar testified that at the time that the plea agreement was entered into he saw no indication that Postmus was using drugs or was of diminished capacity. Asked about Postmus’ “mental state,” Farquhar responded, “He seemed fine. Are you referring to intoxication?” Then, in response to a more specific inquiry relating to drugs, Farquhar indicated he would recognize all of the classic symptomology of drug abuse and said, “If Mr. Postmus was under the influence, I didn’t see it. I didn’t notice any indication or appearance that he was under the influence at the time.”
On the day that Postmus signed the plea agreement documents, Faquhar said he went over the contents with his client. Asked if he “appeared to understand” their contents, Farquhar said, “Yes.”
Farquhar said a glitch on the plea agreement document that Lawrence had latched onto in which Postmus had initialed a box relating to his ability to understand English and had then initialed a box below it relating to his need for an interpreter had been his oversight and not one attributable to Postmus or an indication that Postmus was in some fashion incoherent at the time he accepted the plea and signed the document.
Farquhar acknowledged that at one point the attorney for Jim Erwin, Raj Maline, had approached him about having Postmus withdraw his guilty pleas but that neither he nor Postmus had responded positively to that overture at the time. Farquhar was also questioned about a motion put together by Maline that sought to recuse Mike Ramos as the prosecutor on the criminal matter relating to the Colonies case.
“I didn’t see the grounds for it,” said Farquhar.
Lawrence asked Farquhar, “Do you recall rumors in the courthouse about Mr. Ramos having an affair with the public defender?”
Farquhar responded, “There were rumors that he was involved with a lot of people, including the public defender. I didn’t know Mr. Postmus had a lot of information about all of this.”
Farquhar asked why Farquhar had not been present in court during the trial for Burum, Biane, Erwin and Kirk, when Postmus testified.
“We discussed whether he felt it was necessary for me to be there and I told him I would be available if he needed me,” Farquhar said. “My best advice was ‘Just tell the truth.’ I said if he felt uncomfortable and he thought it was necessary, he could ask for a break and consult with me.”
Judge Smith carried out a brief questioning of Farquhar. After Farquhar acknowledged that he was present in court in 2011 when Postmus entered his guilty pleas to the 14 felonies, Judge Smith asked him, “Do you recall at one point me telling him something pretty close to that regardless of how well he cooperated and testified and told the truth, there was still a high likelihood he would go to state prison or county jail?”
Farquhar replied, “I do recall something of that nature.”
Lawrence called to the witness stand John Dino DeFazio, who was one of Postmus’ business partners. DeFazio acknowledged he was charged with perjury in the case but related “All the charges were dismissed.”
DeFazio said of his relationship with Postmus that “We’re business partners [in a] consulting business for entitlements.”
Lawrence’s major focus in his examination of DeFazio was what had transpired on an unspecified date in late 2010 or early 2011 at the Green Tree Inn in Victorville, which DeFazio at that time owned. DeFazio said that Postmus had been charged in the Colonies lawsuit settlement criminal matter. “I was aware he was charged,” DeFazio said. They were at lunch when Postmus received a call and because of the sound level in the restaurant, they exited the building, DeFazio said. “I don’t know the exact date,” DeFazio said. “We went outside and he put it [Postmus’ cell phone] on speaker.” On the line, DeFazio said were “Brett Granlund and Dave Ellis.”
Granlund, a former Republican Assemblyman who has since become a lobbyist, was a close associate of Mike Ramos. He was also heavily involved in Republican circles, which brought him into frequent contact with Postmus. Ellis is a political consultant who works almost exclusively with Republican politicians on their electoral campaigns. He was Mike Ramos’ campaign manager.
DeFazio said Postmus putting his phone on speaker mode on that occasion “made me privy to the call from both of those gentlemen. The gist of it was Dave Ellis trying to cut a deal with Mr. Postmus on his charges.”
“What was Bret Granlund doing?” Lawrence asked
“The same,” said DeFazio. “Brett Granlund was trying to talk Mr. Postmus into cutting a deal with the district attorney’s office.” DeFazio said he learned from Postmus that Ellis and Granlund had continued their efforts to have Postmus enter guilty pleas on the charges “over what could have been two or three weeks. I know they were talking on other days, but I didn’t listen to those calls,” he said.
DeFazio’s testimony supports that portion of Lawrence’s motion to withdraw the plea which states that Ramos “had David Ellis and Brett Granlund call Postmus for him and encourage him to plead guilty. Both knew Postmus from political circles, and they were aware of his drug problem. They encouraged Postmus to plead guilty and testify against Erwin, who was now publicly shaming DA Ramos with his claim that he had the affair Postmus had told him about. At the time, Postmus thought these men were sincere in their efforts to get him to plead guilty, but now he believes they were just doing Ramos’ bidding. DA Ramos wanted to quell any talk of his alleged affair, as he was up for reelection in 2010, but instead Neil Derry, then a [member of the] San Bernardino County Board of Supervisor[s], whom James Erwin helped elect when he worked for him, was calling for a public investigation of DA Ramos over his alleged sexual misconduct on the job.”
Also called to testify was Stephen Levine.
Lawrence asked Levine if Postmus had been offered assurances that pleading guilty to 14 felonies was the best way out of his legal dilemma.
“I can’t say that it was ever said that if he pled guilty they would go easy on him,” Levine said.
Levine said he read all of the discovery provided to him relating to the case against Postmus and that he had provided Postmus with an explanation of the case the prosecution was proceeding with.
“Did he appear to understand what you were describing to him?” Lawrence asked.
“Yes,” said Levine.
Levine said he and Farquhar had developed a rapport in representing Postmus, saying he had “communicated extensively with him. I kept him apprised of my conversation with Mr. Cope [the prosecutor]. I appeared for him and he appeared for me [in matters relating to the criminal cases against Postmus]. I hope we had good communication back and forth.”
Levine testified that he was not in favor of Postmus entering into the plea arrangement as it was formulated by the prosecution and presented. He said he had recommended against taking the deal and that the move to accept it ultimately was done “at my client’s desire.” Postmus caved in, Levine opined, as a consequence of the overwhelming circumstance he faced. “A lot of pressure had been brought to bear on Mr. Postmus,” Levine said. Postmus political career had been foreclosed on him, Levine pointed out, adding that here were three criminal cases pending against him in the form of the assessor’s office case, the Colonies lawsuit settlement case and a drug case. Several of his associates involved with him in politics and government were being charged, as well, Levine said, and the district attorney’s office was on the brink of charging him with further drug offenses after he showed up to court intoxicated, was detained and drugs were found in his vehicle. “He had no money left,” Levine said. Rex Gutierrez, one of his political associates whom Postmus had hired to work in the assessor’s office had been convicted. “Throw that on the pile,” said Levine. “Enough was enough.”
Asked if he had allowed Postmus at that point to be interviewed by prosecutors or interrogated by district attorney’s office investigators alone, Levine said, “Absolutely not.”
Asked by Lawrence his “impression of your client’s mental state” at the time he entered into the plea arrangement, Levine said, “He was nervous. He was exhausted. His ability to understand things and his ability to communicate were not impeded. He was resentful of being in the position he was in.”
Lawrence asked if Postmus understood the questions the district attorney’s office investigators were asking him in the meetings Postmus was having with them in Levine’s presence at the time. Levine said Postmus did. “He was able to respond,” Levine said. “He didn’t always give them what they wanted, but he was able to respond.”
Some of the sessions were lengthy, Levine said, with one going “four or five hours” with occasional breaks. In those, Levine said, Postmus’ version of events did not deviate substantially. “I think Mr. Postmus has remained consistent throughout my time with him,” he said.
“Did you hear bizarre gibberish?” Lawrence asked.
“I didn’t hear from him anything that was contradictory to what he told me previously,” Levine said.
Levine said the prosecution team proved “hard negotiators” which led to “frustration, but ultimately we agreed on a disposition.”
“Did you promise your client he would never go to prison?” Lawrence asked.
“The only thing I promised Mr. Postmus was my best effort,” Levine said.
“Do you believe he was under the influence on the day he entered his plea?” Lawrence asked
“No,” said Levine.
Levine said that he arranged to have Postmus drug tested on a random basis. “I knew Mr. Postmus’ credibility was going to be an issue at the trial that came nearly seven years later,” Levine said. “That credibility included his attempts to remain sober. To his credit, he sits before you a sober man.” Levine said Postmus was given ”four or five” random tests over the intervening years.
“And he tested clean all four times?” Lawrence asked.
“Yes,” said Levine.
Lawrence explored with Levine the tactics used by the prosecution team to have Postmus plead guilty, which Lawrence said including filing charges against his boyfriend, Greg Eyler, and his business partner, Dino DeFazio.
Levine acknowledged, “I received discovery on both cases” and that “I didn’t think any of this was a strong case. The charges against Mr. DeFazio were not genuine.”
“What were they [the prosecution] trying to get your client to do?” Lawrence asked.
“To cooperate with regard to the Colonies case,” Levine said.
Postmus was, Levine said “looking to have the case against Dino DeFazio dismissed and the case against Greg Eyler dismissed. He was trying to salvage his political career and not plead to something that would prevent him from holding office, regardless of the sentence.”
Levine said he learned from Postmus that David Ellis was telling him he should plead guilty. Lawrence asked Levine if he knew who Ellis was.
“I know he is the campaign manager or finance manager of Mr. Ramos’s campaign. I take it with a grain of salt that he was calling Bill and telling him to plead guilty.”
“As far as the disposition in this case, were you telling Mr. Postmus that if he told the truth, he would get probation?” Lawrence asked.
“I gave him my honest assessment that if he stuck to the terms of his plea agreement, when the dust settled, if he was honoring his plea agreement, he was a successful candidate for probation,” Levine said. “I thought there was no reason he should not receive probation but I also informed him of what the maximum exposure he faced was, what I read in the plea, and that he could be subject to state prison.”
Levine said that prior to Postmus entering into the agreement, there had been some dialogue with John Vandevelde, an attorney then representing Jeff Burum. That conversation focused on, Levine said, Postmus’ deteriorating financial situation. “The nature of discussion was about going the distance [legally] and what the trial would cost, that Mr. Postmus’s sources of finance were tightening up, and that he was relying on friends and family and he needed someone to help,” Levine said. “We had heard of some deep pockets who might help in funding.” Asked if Burum was willing to “offer some assistance” at that point, Levine said, “I’m afraid not.”
Several years later, Levine said, after Burum was being represented by Stephen Larson, Larson came forward, suggesting that Postmus should withdraw his guilty pleas.
“Did you think it was unusual that Mr. Larson was approaching you?” asked Lawrence.
“I thought it was highly unusual,” said Levine.
Judge Smith directly questioned Levine, repeating a facsimile of what he had asked Postmus and Farquhar. “Do you remember the court telling Mr. Postmus that ‘If the district attorney’s office and the attorney general’s office gives notification of him having cooperated fully and you have testified truthfully and fully there is a real likelihood you will be sentenced to prison or jail on the remaining three counts?’”
Levine said he did.
Judge Smith then asked if Postmus had expressed concern or asked questions about the judge mentioning a prison sentence.
Levine said, “From the very beginning of the plea bargaining, we told him that jail was a real possibility but that cooperation would go toward limiting that jail time, if any.”
The proceedings will resume at 9 a.m. on Tuesday, November 13, with oral arguments expected to be heard that day from both Lawrence, on Postmus’ behalf, and either Dicesare or Mandel on behalf of the prosecution. In what has been interpreted as a signal that Judge Smith will not grant the motion to withdraw the plea agreement, Postmus’ sentencing hearing is scheduled for 9 a.m. Wednesday, November 14.
By Mark Gutglueck