By Mark Gutglueck
In week fourteen of the Colonies Lawsuit Settlement Public Corruption Trial, what were likely the most impactful exchanges in court with regard to the eventual determination of guilt or innocence of the accused came on Wednesday April 12 outside the presence of the two juries hearing the case, as attorneys for the prosecution and the defense argued the admissibility of two elements of testimony and evidence.
Ultimately, Judge Michael A. Smith made one ruling in favor of the prosecution and another which favored the defense.
In each instance, one of the parties was seeking to limit the other from exploring information before the juries. With regard to the first issue, the defense attorney for Jim Erwin, Raj Maline, was seeking to elicit from one of the county’s in-house lawyers, Mitch Norton, how prosecutors had manipulated his testimony before the grand jury that indicted the four current defendants to prevent him from offering information the defense maintains exonerated rather than implicated those now on trial. Maline’s suggestion was that the prosecution had engaged in misconduct by hiding this information, and the prosecution spiritedly disputed that, telling Judge Smith that it would be improper for Maline to prejudice the jury against them. With regard to the second issue, the defense sought to prevent the prosecution from calling to the witness stand an attorney for the county, Thomas Winfield, who several years before the filing of criminal charges against the current defendants had advocated that the county file a breach-of-contract civil lawsuit against the company at the heart of the case, the Colonies Partners. The prosecution wanted to be able to question Winfield because it believes that Winfield could illustrate for the jury that it was the Colonies Partners that had engaged in fraudulent activity with regard to the development upon its property that was central to the lawsuit the Colonies Partners filed against the county. The criminal charges in the case stem from an alleged conspiracy involving, graft, extortion and bribery by one of the principals in the Colonies Partners, Jeff Burum, working in concert with Erwin to have county officials settle that lawsuit brought by the Colonies Partners against the county for what prosecutors allege was an unjustified $102 million. The prosecution wanted to use Winfield to offset suggestions made by defense attorneys that the county had indeed interfered in the Colonies Partners project in such a way that the lawsuit was fully legitimate and that the $102 million settlement was a reasonable one.
The first matter ruled upon by Judge Smith was precipitated by a series of objections raised by California Supervising Deputy Attorney General Melissa Mandel to questions being posed by the defense attorney for defendant Jim Erwin, Raj Maline, to deputy county counsel Mitch Norton, who had overseen all of the legal jousting that had gone on between the Colonies Partners and the county with regard to flood control issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland. When the county’s flood control district insisted on using between 67 and 72 acres of the 434-acres purchased by the Colonies Partners in 1997 for a catch basin to accommodate storm waters and thereby interfered with the Colonies Partners’ development plans, the company in 2002 sued the county. In 2006, a bare 3-2 majority of the county board of supervisors approved settling that litigation with a $102 million payout to the Colonies Partners.
Before that settlement was voted upon, Norton, along with three separate outside law firms the county had hired, vigorously opposed the Colonies Partners’ claims and allegations contained in its lawsuit. After the settlement, Norton represented the county nearly as vigorously in its effort to recover from its insurers a major portion of money paid out to the Colonies Partners. In seeking to make that recovery, which was contested by one of the insurers, Norton made representations that in large measure paralleled arguments since made by the defendants, who were indicted almost-four-and-a-half years after the settlement was ratified by the board of supervisors. That indictment alleged that the $102 million settlement was one tainted by conspiracy, extortion, fraud and bribery, based on the assumption that the settlement was not justifiable or reflective of the true level of damages sustained by the Colonies Partners as outlined in its lawsuit against the county.
At issue on Wednesday in the exchange between the lawyers and Judge Smith, was testimony Norton had provided to an exploratory grand jury in 2009, when he offered statements to indicate that his analysis of the issues contained in the suit and the totality of factors relating to the circumstance had led him to the conclusion that the $102 million settlement was “objectively reasonable.” But when Norton was called upon to testify before another grand jury in 2011, the one that indicted Colonies Partners Co-managing Principal Jeff Burum, former supervisor Paul Biane, one-time county sheriff’s deputies union president Jim Erwin and Mark Kirk, who had been the chief of staff to former supervisor Gary Ovitt, prosecutors had phrased their questions and in their own terms “cabined” Norton’s responses in such a way that the grand jury did not hear from Norton that he had subsequently concluded that the $102 million payout could be justified.
Erwin’s attorney, Raj Maline, while cross examining Norton after 10 a.m. Wednesday morning, initiated what he intended to be a series of questions with regard to Norton’s 2011 grand jury testimony. Immediately after Maline broached the subject, however, he encountered objections from Mandel, three of four of which Smith sustained. Maline gamely pressed on, or sought to, at which point Mandel asked for a sidebar, i.e., a hushed conference among attorneys and the judge outside the earshot of the jury. Instead, Smith at that point excused the jury from the room, and the discussion, which lasted from 10:32 a.m. until 10:54 a.m., was held openly and on the record.
Said Mandel, “The Court’s ruling … is that Mr. Norton’s prior inconsistent statements will be admitted, even though the general subject of reasonableness, or unreasonableness, after the settlement, which couldn’t have factored into the supervisors’ decision to settle, is generally irrelevant. That has been exhaustively explored. Mr. Norton has repeatedly testified about not only his inconsistent statements or his statements that the settlement was objectively reasonable, but [defense] counsel has gone far further and gotten Mr. Norton to testify that his current opinion is that the settlement is objectively reasonable … which we all know is based on additional litigation that he participated in and not what the supervisors knew at the time they were settling the case. None of that is true impeachment. Those aren’t truly inconsistent with his advice at the time, which was based on the information that he had at the time.
“Mr. Maline’s questioning is entirely improper,” Mandel continued. “First, along the lines of suggesting that Mr. Norton withheld information from the grand jury, it has always been the People’s position, and it’s been litigated thoroughly, that anything not known to the supervisors at the time was not relevant, and that, in fact, they had Mr. Norton’s post-settlement opinion in the Johnson materials.”
The Johnson materials Mandel referenced is information put up by prosecutors to overcome a so-called Johnson Motion, arising out of the precedent-setting case of People v. Johnson, which requires that in a case presented to a grand jury, prosecutors, as the only parties presenting evidence, must present to the grand jury any exonerating information of which they are aware . Before the Colonies case went to trial, the prosecution withstood a Johnson motion made by Burum’s attorney, Stephen Larson, to have the indictment thrown out.
“That’s not an issue for this jury,” Mandel said. “And the misleading implication should not be permitted. So, I think, this line of questioning is creating a very misleading and false inference for the jury to draw, and I think it should stop at this point. Mr. Norton has been extensively impeached with his prior statements, even allowed to testify about his current opinion.”
Maline, however, asserted, “This has nothing to do with Mr. Norton withholding information from the grand jury. It’s prosecutors withholding information from the grand jury. It was found out that the prosecutor possessed the information that the settlement was reasonable, and they believed that in 2009, and deliberately cut Mr. Norton off – or I forget the phrase they used – cabined his testimony to not include the fact that they had changed course. They knew that at that time in 2011. So it doesn’t go to impeach Mr. Norton on that issue. It’s the prosecutors withholding that information from the grand jury that I think is relevant. That’s where I’m going there.”
Smith responded, “That’s not relevant to this jury.”
Maline shot back, “I think it is, because the jury is wondering, ‘How did they get indicted?’”
Smith said, “The motivations of the prosecutors at the grand jury as to why they did ask or did not ask certain questions, why they did or did not elicit certain evidence, is not relevant to this jury. Even to the extent that if the prosecutors did anything that was improper before the grand jury, that also is not relevant to this jury. If they did anything that was improper that rose to the level of requiring a dismissal based on the Johnson line of cases, which we litigated extensively, that was an issue for the Court to decide, and I did decide, and decided that it did not rise to that level. So those issues of what the prosecution did or didn’t do before the grand jury, Number 1, is not relevant to these proceedings for this jury. Number 2, under Evidence Code 352, if I allowed you to go into that, then the prosecution would be entitled to put on evidence as to why they did what they did. And we could have a whole trial on the prosecution’s tactics before the grand jury, none of which has any remote relevance to the charges in this case.”
Maline did not give up the ghost at that point, saying “I believe that a question that lingers with not only this jury, but with any jury, is ‘Why?’ If our position is that, and Mr. Norton has testified that, he believed the settlement was reasonable and they [the prosecution] have gone to great lengths to testify how bad it was in terms of the advice given to the board of supervisors, why are they [the defendants] sitting here then? I think it’s fair to answer that question for them. They [the defendants] are sitting there because they [the prosecution] withheld evidence from the grand jury, mainly, that in hindsight, as Mr. Norton indicated, the settlement was reasonable.”
Smith said, “I disagree. That’s no different than any other criminal case where there may be some evidence that was used as a basis for a prosecution at one point, maybe even at the preliminary hearing. At the time it gets to trial, that evidence is either in question or has been refuted, but there’s still other evidence. I certainly agree that when Mr. Norton gave advice to the board that, in his opinion, and county counsel’s opinion, the settlement was unreasonable or excessive, that his subsequent statements to the grand jury, even if it were in hindsight with the additional knowledge gained in the interim time period, that his opinion was now that the settlement was reasonable and not excessive, that is proper impeachment, and I allowed the defense to impeach Mr. Norton with that, to bring out the fact that he did give that subsequent contrary opinion to the grand jury, and that still is his opinion today. So I think he’s been impeached.”
Maline again told Smith that the issue went beyond simply showing that Norton adopted a position contrary to his earlier stance.
“Your Honor, this case is different,” Maline said. “Generally, the district attorney’s office is not participating in the investigation. And we are allowed to criticize the investigation. We are allowed to say that investigators withheld information or whatever. The Court would not stop us from doing that. Well, Mr. Cope [deputy district attorney Lewis Cope] sat as an investigator. He was part of the investigation. He was conducting the questioning in the investigative grand jury. This was a long process. And he got information from his investigation in that grand jury process. And then when he went to the indicting grand jury, that information was withheld from them. I think that’s relevant. I don’t see why we should hide that fact from our jury. We are allowed to criticize the investigation. This is part of the investigation, your Honor.”
Smith said he would not allow the defense to explore with Norton whether prosecutors prevented him from expounding on his position with regard to the reasonableness of the settlement before the grand jury.
“Number one, it’s not relevant.” said Smith. “Number two, it goes into collateral matters that would tend to confuse the jury, rather than help the jury, with regard to the issues before this jury to decide, and it would be an undue consumption of time. So for all of those reasons, both on relevancy grounds and Evidence Code 352, the objections are sustained.”
There ensued a discussion about the proposed testimony of Thomas Winfield, who was the first outside attorney hired by the county to assist it in the litigation against the Colonies Partners. Winfield was waiting in the hallway outside the courtroom as the discussion before Judge Smith was ongoing, waiting to be sworn in and questioned upon Norton being excused from the witness stand.
Mandel and the other member of the prosecution team, Lewis Cope, said Winfield’s testimony was needed to generally support the prosecution’s contention that the $102 settlement was not a fair, reasonable or equitable one. Moreover, Cope asserted, Winfield was knowledgeable about a deal the county had entered into with the Colonies Partners in which an arrangement was made to have the Colonies Partners construct a water holding basin on its property in return for the county surrendering the restrictions the county had over the property in the form of flood control easements it had recorded against the property in the 1930s. Cope said the Colonies Partners had failed to perform with regard to that agreement. Pointing out that the defense in the criminal case has sought to propound that the county was being unreasonable in its action in restricting the Colonies Partners from proceeding with the development, thereby leading to the lawsuit filed against the county, Cope said Winfield would be critical to illustrating that the Colonies Partners had failed to live up to the 1999 agreement and that the county’s actions were indeed justifiable.
Stephen Larson, the lead attorney for Jeff Burum, told Judge Smith, “Your Honor, I believe the next witness is Thomas Winfield. After we finish with Mr. Norton, the prosecution has indicated that they are going to be getting into the breach of contract case that he recommended based on the 1999 agreement. By the time this case had worked its way to a settlement, the time period that is relevant to the issues before this jury, November of 2006, the breach of contract case was not in play, at all. That was not what was before the board of supervisors. Mr. Winfield… wasn’t the attorney when these agreements were entered into and was not the attorney when Judge Warner made his decision and the settlement. I think this is really a red herring. They are going to have to get into this. I am going to have to impeach it. It’s going to be a lengthy exercise. It really has no moment in connection to the vote in 2006. I would object on that basis.”
Mandel, responded saying that “Mr. Larson just discussed this area with Mr. Norton and raised the issue himself, so it is an issue.”
Judge Smith asked, “Tell me what the evidence with regard to the 1999 contract or agreement [is]. What’s your offer of proof as to what that evidence is?”
Cope responded, “That there was an agreement between the parties that the county would give up some of its [flood control] easements so that Colonies could do some work on the basin. There was an agreement for each side to give up some things. The reason why Colonies was doing work was pursuant to this agreement. That agreement, basically, broke down, eventually. It’s been asserted here, several times, through questioning and opening statement, that [the] Colonies [Partners] is being taken advantage of, that they are doing all sorts of work and the county won’t do certain things. The problem with that is all of this began based upon an agreement to do certain things.”
Smith inquired, “How is it relevant to the charges?”
Cope responded, “Well, that’s part of the problem, because the defense, themselves, have made it an issue by removing that context. They’re claiming that [the] Colonies Partners has been left alone to do all sorts of work that they are doing, and the county is bad because they are not performing, they are not willing to pay for the improvements that are being done. Making that argument without explaining the 1999 agreement doesn’t allow us to address that accusation.”
Larson asserted, “Then that leads to the Judge Warner decision and his consideration of the 1999 agreement and that gets us into the weeds of that litigation. Your Honor, this is not relevant. Mr. Winfield… wasn’t there for the treatment of this trial before Judge Warner. And this is nowhere before the board of supervisors in November 2006. He’s
talking about stuff that took place in 1999 that he was involved with in 2003.”
Judge Christopher Warner presided over the 2006 trial of the civil case between the Colonies Partners and the county.
Judge Smith asked if Winfield was representing the county when the 1999 agreement was entered into. Mandel said he was not, but that he had extensive knowledge about the agreement because he was the attorney who was preparing a breach of contract lawsuit over the Colonies Partners’ failure to live up to its terms.
Smith asked, “What does he do with regard to the 1999 agreement?”
Cope said, “He makes the recommendation to the board, based on the lay of the land at that time, when [the] Colonies Partners was threatening a lawsuit, [that] the county should file its lawsuit for breach of contract and gives reasons why to the board.”
Smith said, “And Mr. Winfield was subsequently, basically, fired by the board because they weren’t satisfied with his performance.”
Cope said, “He was fired by the board. Some of the board was not satisfied with his performance. There’s also some evidence that the Colonies [Partners] didn’t want Mr. Winfield there. We won’t get into that with this particular witness, but there are witnesses who will comment on that later.”
Smith asked, “So if Mr. Winfield didn’t come on until four years after this agreement, if other people are going to be testifying about that agreement and its effect on the current state of affairs at various points, why do we need Mr. Winfield?”
Cope said, “Mr. Winfield is the one who made the recommendation to the board to file the lawsuit …because of his perception or the county’s perception of the things that [the] Colonies [Partners] was doing related to the agreement in not performing.”
Smith asked, “How is that relevant to whether or not there was bribery in 2006?”
Cope said, “From defenses’ opening statements and their attack on the county and the heavy-handed manner in which the county treated Mr. Burum, there’s a different side to that story. In their examination of the witnesses, they’ve continued to bring that theme out, and it’s just simply not true. Because of the 1999 agreement, both sides had agreed to do certain things, and that’s an agreement that fell apart.”
“That’s a written agreement, right?” Smith asked.
“Yes,” said Cope.
“So you can submit the agreement and show what the agreement was,” Smith said.
“We can do that and we can authenticate it through Mr. Winfield,” said Cope.
Larson said the defense would stipulate to the existence of the agreement but did not want testimony from Winfield on “its context and relevance.”
Judge Smith said Winfield would not testify at this point. “After the other witnesses have testified, perhaps, after defense puts on evidence, if you still think it’s relevant or it’s become relevant for rebuttal, I would certainly let you be heard on that. But at this point, I would sustain the objection on both relevancy and Evidence Code 352.”
In this way, Winfield did not testify.
The inability to have Winfield heard by the jury was an especial setback to the prosecution in that earlier in the week, Larson had continued to make inroads in weakening the initial impact of deputy county counsel Mitch Norton’s testimony before the two juries hearing the case. Under direct examination by Mandel, Norton had provided background on the dispute the county had with the Colonies Partners over the Colonies developments, and the clash between the county flood control district and the Colonies Partners. The flood control district, at the behest of the California Department of Transportation and the City of Upland, which had given go-ahead to the Colonies development, had constructed the 20th Street Storm Drain to carry away flood waters in the watershed of Upland north of the 210 Freeway as well as from the freeway itself. Relying on its easements, it put the terminus of the 20th Street Storm Drain at the mouth of the basin on the Colonies Partners’ property. This, the Colonies Partners’ contended, clashed with its aggressive development plan for the property. That dispute led to the lawsuit.
Norton’s narrative matched in many aspects the elements contained in the May 2011 indictment which maintains that Burum, increasingly impatient with the lack of progress on the project and the ineffectiveness of the litigation in bringing about that end, conspired with Erwin to blackmail then-board of supervisors chairman Bill Postmus and Paul Biane, who was then-vice chairman of the board of supervisors, by threatening to send by U.S. Post to voters all across the county “hit piece” mailers which took as their subject matter highly personal derogatory information about the two supervisors intended to damage their political viability and careers. Those mailers were never sent. After Postmus and Biane voted in conjunction with then-supervisor Gary Ovitt in November 2006 to approve the $102 million settlement, the indictment alleges, Burum laundered separate $100,000 bribes to Postmus, Biane, Kirk and Erwin, by disguising those kickbacks in the form of contributions to political action committees they controlled. Kirk, who was Ovitt’s chief of staff, the indictment alleges, was paid for delivering Ovitt’s vote in favor of the settlement. At the time his political action committee received the money from Burum in March of 2007, Erwin had been hired as assistant county assessor by Postmus, who had successfully vied to become county assessor in 2006. Postmus, who was charged criminally with regard to a host of criminal acts in February 2010 pertaining to the same conspiracy, extortion, bribery, conflict of interest, fraud and political graft charges contained in the May 2011 indictment, initially pleaded not guilty to those charges but in February 2011 pleaded guilty to 14 felony charges and turned state’s evidence, serving in April 2011 as the star witness before the grand jury that indicted Burum, Biane, Erwin and Kirk in May 2011. It is anticipated that Postmus will be testifying in the trial either later this month or in early May.
On Monday, Larson continued with further cross examination of Norton that he had begun last week. One area Larson focused upon was the trial held before Judge Christopher Warner over an intermittent period of 18 days in April, May and June of 2006, after which he entered, on July 31, 2006, a statement of intended decision, which was unfavorable to the county.
When the county opened the storm drain’s gates, Warner found, the county had overburdened the easements, resulting in damage to the Colonies Partner’s property, a risk to public safety, compelling him to conclude the easements had been extinguished. Warner said the county had irresponsibly sought “to walk away from the consequences of” what it had done. He found the testimony and representations of certain county officials, most notably flood control district director Ken Miller, to lack credibility, and he opined that the county had defrauded the Colonies Partners in entering into the 1999 agreement to have the Colonies Partners construct the storm water basin.
Larson asked Norton if the county’s legal team had conveyed to the members of the board of supervisors how soundly the county had been defeated in the Warner trial. Norton said the board had been so informed. Larson asked Norton if the county’s “legal team disagreed with Judge Warner?”
“I have testified to that effect, yes,” Norton said. Norton said he believed appealing Warner’s decision to the appellate court would likely have proven to be an “uphill battle,” but that the county’s lawyers, consisting of its in-house attorneys, known as the office of county counsel, and lawyers with outside law firms retained by the county were nonetheless advising the board of supervisors to take the matter to the appellate court.
One of the issues the county’s legal team was concerned with, Norton testified, was a report of improper contact between the Colonies Partners and at least one of the judges hearing the case. A complaint along those lines had gone to the California Commission on Judicial Performance. Norton said it was the county legal team’s advice to the board of supervisors that no settlement should be entered into before the outcome of the investigation into those charges was complete and the commission had made its determination. Larson sought to have Norton admit that there was no substance to the allegation. Norton did not. Rather, he said, a credible report to that effect had been received from one-time Hesperia Mayor Jim Lindley, who was also a county employee.
“Did any of you [county lawyers] have an evidentiary basis to make the allegation?” Larson asked. “Who saw it?”
“I have a general understanding,” Norton said. “James Lindley told another member of county counsel that Mr. Burum had been bragging about playing golf with one of the judges.”
Larson tried to shed discredit on a legal theory Norton and other county lawyers were touting in resisting making a settlement with the Colonies Partners and appealing Warner’s ruling, the so-called Ellena defense. The precedent-setting 1977 case of Ellena vs. the State of California involved a situation not too unlike the situation with regard to the Colonies Partners property involving severance damage compensation for property near Lytle Creek that was devastated during prolonged rainstorms in 1969. Using the Ellena case, the county was set to maintain that the $18 million paid to the Colonies Partners as the consequence of an inverse condemnation lawsuit filed against the California Department of Transportation for the state utilizing 40 acres at the top of Colonies Partners property included severance damage compensation for any impacts from the construction of the freeway. Since the 20th Street Storm drain was put in place to alleviate freeway flooding, according to the Ellena defense theory, the Colonies Partners was not eligible to recover any further damages from the county for its construction of the 20th Street Storm Drain. Larson referenced internal communications among the county’s lawyers in which the strength and weakness of the Ellena defense was discussed, in particular one memo from a county lawyer, Paul Watford, in which he questioned the Ellena precedent’s applicability to the Colonies Partners property. Lawyers with another firm working for the county, Jones Day, were far more confident the Ellena defense would work. To Larson’s pointed question regarding Watford’s expression of doubt, Norton said, “I’m still confident the Ellena argument is very strong, notwithstanding Paul’s concerns. I agreed more with Jones Day than I did with Paul Watford. While the Ellena defense is strong, it is not an ironclad theory, I always thought.”
Larson continued to work Norton over, returning to the subject of the viability of the appeal, getting him to acknowledge that appeals in general are statistically unsuccessful and that the county had “slim chance” of overturning Warner’s decision. And Larson returned again and again to the coup he had scored last week when he got Norton to acknowledge that in the aftermath of the $102 million settlement he had come to the conclusion that it could be seen as “objectively reasonable.”
On redirect examination of Norton, Mandel asked a set of questions to demonstrate that in the years since the settlement was made, Norton has been handling the county’s efforts to recover from its insurance carriers a significant portion of the money paid out in the $102 million settlement, putting him the position of having to now maintain the settlement was reasonable to carry out that assignment. Indeed, in response to Mandel, Norton indicated his assertion of the settlement’s reasonableness came about because of his role in pursuing the indemnity recovery.
By the end of his time on the witness stand, Norton, who had maintained his equanimity throughout the ordeal which had lasted for five-and-a-half days, was mentally exhausted. He had hewed, for the most part, to a narrative consistent with the prosecution’s version of events, but was continuously subjected to the whipsaw effect of Larson refocusing on the statements he had made before the grand jury and in other venues that were consistent with his role in pursuing the county’s indemnity claim. The toll upon Norton became evident toward the end of his testimony, when Mandel sought to display for the jury one last time that Norton had been an advocate of the county staying the course by continuing to fight the Colonies Partners in court by appealing Warner’s decision and refusing to settle the lawsuit.
“It was your opinion that [dissenting from Warner’s decision] had a substantial chance on appeal?” Mandel asked.
“I am not so sure about that, actually,” Norton responded.
On Wednesday afternoon and Thursday morning, the prosecution sought, and to a degree did, regain its footing with the testimony of former county counsel Ronald Reitz.
Reitz, who began as deputy counsel in 1978, promoted to supervising county counsel after that and then headed the office’s litigation unit as assistant county counsel before becoming county counsel – the county’s top in-house lawyer – in September 2003, testified that he regularly attended the closed door sessions of the board of supervisors during his tenure as county counsel. During that tenure, he said, the Colonies litigation was a major topic of discussion. He said that in addition to the closed sessions of the board, he also met with Postmus, then the chairman of the board of supervisors, and Biane, the vice chairman, at weekly “chair meetings,” that is, sessions during which ongoing issues facing the city were discussed. He said the Colonies litigation was a frequent topic in these sessions.
Reitz said he had not been involved directly with the Colonies litigation before he became county counsel, but that upon taking the county’s top legal position, he was brought up to speed very quickly with regard to it. He said he also learned in relatively short order that Biane was in contact with the Colonies Partners. “It came up a lot,” Reitz said. “It was frequent, no question about it.”
Cope asked Reitz if he had gleaned from his constant interaction with Postmus and Biane that they were in frequent contact with Burum. Reitz said he had, and he indicated the two leaders of the board had to some degree fallen under the Colonies Partners’ sway. On one occasion, Reitz said, Biane told him that Burum had informed him that the attorneys representing the Colonies Partners were top-of-the-line litigators who had won 40 straight cases they had taken to trial.
“I had Mitch [Norton] check that out,” Reitz said. “It wasn’t accurate at all.”
Reitz said Biane’s contact among the Colonies Partners appeared to be Burum rather than Dan Richards, the other co-managing principal with the company.
Early on, Reitz said, he recognized that Postmus, too, had contact with Burum.
“After he would come back, he would make a comment about something Jeff Burum was saying,” Reitz said.
Reitz said he could recall only a single conversation with Kirk regarding the Colonies issue, and that Kirk had said “You can’t handle the Colonies case like a regular case. It’s a political issue.”
Cope asked Reitz how he responded. He said, “We wouldn’t get involved in political issues. We only handle legal issues.”
Reitz said he had a few other conversations with Ovitt regarding the Colonies case but that Kirk was not present.
Cope asked about a meeting that took place on March 25, 2005 at Biane’s office in Rancho Cucamonga that initially involved Postmus, Biane, Burum, Richards, former state senator Jim Brulte, Norton, two lawyers with the law firm Munger Tolles & Olson who worked for the county, Paul Watford and Steven Kristovich, as well as two lawyers working for the Colonies Partners, Scott Sommer and Heidi Timken. After the lawyers for both sides held forth about a then-recently delivered tentative appellate court decision that reversed Judge Peter Norell’s 2003 ruling that the county’s flood control easements on the Colonies property had been abandoned, Postmus had directed the attorneys for both sides to leave the conference room while Brulte, who had been retained by the Colonies Partners, refereed a negotiating session in which Postmus and Biane accepted a settlement proposal to close out the litigation in return for $22 million in cash and handing over some surplus county flood control property in north Rancho Cucamonga valued at $55.5 million.
Both Watford and Kristovich were adamantly opposed to the terms of the settlement and wrote a memo in which they cataloged their objections and recommended against the full board’s ratification of what Postmus and Biane had accepted.
Cope asked, “Before the Munger Tolles memo was written, did Mr. Biane and Mr. Postmus approach you about the intention of Munger Tolles in reporting on that meeting?”
“They approached me to tell me to make sure they [Watford and Kristovich] didn’t put anything in writing about that meeting,” Reitz said.
“Who approached you?” Cope asked.
“Supervisors Postmus and Biane,” said Reitz.
“Did they approach you at the same time?” Cope asked. Reitz said they had come together to his office. “They told me to make sure they [Watford and Kristovich] don’t put anything in regard to that meeting in writing,” said Reitz. “It was a real brief meeting. It wasn’t an unpleasant encounter. It was sort of a matter of fact request. It was not just ‘Don’t disseminate this memo.’ They didn’t want any memo at all.”
The memo Watford and Kristovich authored was presented to the full board at its next closed meeting. During the meeting, Kristovich and Watford told the board, Reitz said, that any liability at the most “would be split four ways,” meaning among Caltrans, the City of Upland, the region’s transportation agency and the county. “Our outside attorneys never thought we had more than 20 or 25 percent liability, if there was liability,” Reitz said.
“Did you ever see any documentation to justify this amount?” Cope asked in reference to the proposed $77.5 million settlement.
“No,” said Reitz.”
Cope asked about a change in Postmus in the aftermath of his return from a trip to China in 2005. Testimony earlier in the trial placed Burum in China during that trip.
“It seemed real clear to me and others that once he came back from China he did take the lead in pushing for the settlement,” Reitz said. “Before it had been Mr. Biane. After he [Postmus] came back, there didn’t seem to be any question he was the one pushing for the settlement.” Reitz said that Postmus’ determination to settle the case was apparent at both closed session meetings of the board and in the chair/vice chair meetings.
Reitz said there was around that time another negotiation session involving county officials and the Colonies Partners where Postmus excluded the county’s lawyers from the deliberations. On that occasion, Reitz said, retired California Supreme Court Justice Edward Panelli was serving as a go-between, with the Colonies Partners’ representatives in one room in the county government center and the county’s contingent, involving members of the board of supervisors and the county’s lawyers, sequestered in a separate room. At one point Postmus ordered the county’s lawyers to leave the room, Reitz said. When it was pointed out that under California’s open public meeting law, known as the Brown Act, the board could only meet in such a circumstance in the presence of lawyers to receive legal guidance and that having the lawyers leave would constitute a violation of the Brown Act, Reitz said Postmus “said he didn’t give a damn about the Brown Act.” Reitz said this echoed a statement Panelli had made in his introductory remarks for the negotiating session, something to the effect that “you can’t literally follow the Brown Act and get anything done.”
Cope inquired as to how it was that Panelli, whose use as a mediator was advocated by the Colonies Partners, was chosen to serve as the mediator. Reitz said that Norton had told him that “Postmus had selected Panelli, which was pretty unusual.”
Reitz said that in early 2006, Postmus was evincing extreme impatience with the county’s attorneys’ unwillingness to accept the terms of settlement being pushed by the Colonies Partners, to the point that he, with the backing of Biane and Ovitt, was on the brink of eliminating the office of county counsel and outsourcing the county’s legal service providers so a settlement could be hatched without legal resistance.
Reitz said that on February 14, 2006, Postmus had told him he needed to fire Norton.
On another occasion in that time frame, Reitz said, Postmus told him he needed to control the outside law firms working for the county.
The culmination of Postmus’ hostility toward the county’s attorneys came on April 24 or 25, 2006, Reitz said, at an administrative budget meeting that involved the board of supervisors, members of the county administrative office, all of the county’s various department heads and each department’s senior finance staff member, a confabulation, Reitz said, of somewhere between 75 and 100 people at which each of the department heads was called upon to present their work plans for the budget. Postmus was late in arriving at the meeting, Reitz said. Agitated and angry, Postmus remarked that Reitz wasn’t doing his job because he would not make a recommendation on settling the Colonies lawsuit, Reitz said. When the county counsel office vis-à-vis the budget came up, Reitz said, Postmus said he wanted Reitz “to carry out a study on preparing to contract out the functions of the county counsel’s office as part of the budget presentation that would come back in June.” Reitz said no vote was taken, as in these meetings direction was given by consensus. He said that when Biane and Ovitt assented to what Postmus had suggested, it took on the weight of an official directive that he was obliged to follow or otherwise be insubordinate.
“There was no way I was going to do that study,” Reitz said. “I resigned before the week was out.” Reitz indicated the directive was given to him on April 24 or 25 and he tendered his resignation and left the county on April 28, 2006.
There are two juries hearing the case. One of those juries is considering the criminal charges against Erwin. The other jury is hearing the matter in relation to Burum, Biane and Kirk. On Thursday afternoon, with the jury for Burum, Biane and Kirk absent from the courthouse, the jury for Erwin heard testimony from Alan Mohill, a civil attorney from Temecula, under direct examination by Cope. Mohill had represented Erwin in his responses to lawsuits filed against him by the County of San Bernardino and the San Bernardino County Professional Attorneys Association. Cope had him review invoices he had sent to Erwin for that work and email communication he had with Erwin relating to the billings and the cases. Mohill attempted to raise attorney client privilege in avoiding the questions but was met by a finding from Judge Smith that the privilege had been waived, and he was ordered to answer Cope’s questions.
Some of the invoices went to Erwin’s political action committee, Committee For Effective Government, in some cases to an address at a post office box in Highland and in other cases to the Santa Margarita address for Betty Presley, the treasurer for the political action committee. Other invoices were sent to two political action committees controlled by political consultant David Ellis, the Neighborhood Preservation Coalition and the Committee Against Corruption at the same address in Tustin.
While Erwin generally faces the same charges as the other defendants, there are a set of charges lodged against him distinct from the others pertaining to his failure to report income and gifts on the statements of economic interest disclosure forms he was required to fill out in his role as assistant assessor in 2007. Those charges were filed against him as felonies. He now has a motion pending before Smith, due to be heard next Tuesday April 18, to have those counts thrown out entirely, based upon his attorney Raj Maline’s contention that they were improperly charged.
A state appellate court decision published in January holds that such charges as Erwin faces, failing to report accurately information on a Form 700 statement of economic interest, are properly charged as misdemeanors, not felonies. According to the motion, the five counts should have originally been charged as misdemeanors, but because they were not, the four-year statutes of limitations attached to those charges have lapsed, and refilling them would not be allowed if the motion is granted.
Erwin is charged with 12 felonies. If Judge Smith grants Maline’s request, five of the charges would be dismissed. They include three counts of perjury and two counts of filing false or forged documents.

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Sentinel 04-07-17

In rapid order this and last week, what registered with some as a significant cultural shift in San Bernardino County took place, with the conviction of one and reduced charge guilty pleas of two of the sheriff’s deputies charged with having used excessive force in the April 9, 2015, beating of Francis Pusok.
On March 30, the jury that had heard the case against San Bernardino County sheriff’s deputies Michael Phelps, Nick Downey and Charles Foster on felony charges of assault under the color of authority deadlocked 8-4 in favor of conviction against Phelps and Downey and convicted Foster. Four days later, with the district attorney’s office and the two defendants’ attorneys set for an April 21 pre-trial hearing on a second trial, Phelps and Downey entered guilty pleas to misdemeanor disturbing the peace charges, and the case, minus a yet-to-be filed appeal of Foster’s conviction, was brought to a close.
Yet even before the jury returned with its verdicts, the San Bernardino County law enforcement establishment shuddered with a series of convulsions and serpentine twists no less extraordinarily improbable than Pusok’s experience almost two years ago that started out as what should have been for him a non-encounter, when he found himself outside his own Apple Valley neighborhood at the home of an acquaintance when deputies arrived with a search warrant. Pusok, who had previous felony and misdemeanor convictions on resisting arrest, animal cruelty and attempted robbery charges, escalated the chance circumstance into a mad and unnecessary dash for escape, first through both the incorporated and unincorporated areas of Apple Valley and the unincorporated area of Hesperia, the theft of a horse, a wild ride across some extremely rugged terrain in the area of Bowen’s Ranch and Deep Creek Hot Springs with several deputies, disembarked from their vehicles and in foot pursuit, before the misadventure concluded with Pusok being thrown from the horse on a chaparral-strewn hilltop, then being swarmed upon by one arriving deputy after another and being pummeled while he lay on the ground, with the last stages being videoed by a Los Angeles-based news helicopter.
In delivering his closing arguments, the prosecutor trying the case, Robert Bulloch, offered what, it seems, two thirds of the jury concurred with, an observation that the San Bernardino County Sheriff’s Department embodies an ethos in which those in authority believe they have license to apply physical force to achieve their objectives. During his closing argument and in his rebuttal to the closing statements of attorneys Michael Schwartz, Kasey A. Castillo and Heather Phillips, representing Downey, Phelps, and Foster, respectively, Bulloch engaged in an animated and free-ranging condemnation of the accused, referencing Scripture and the parable of the Good Samaritan, and at one point asserting, “We have to have the will to take on the machine of the San Bernardino County Sheriff’s Department” which he said was home to a “culture of violence” maintained through a “code of silence.”
That resulted in a firestorm of criticism being leveled at Bulloch, originating within the law enforcement community, with which, as a prosecutor, Bulloch routinely coordinates. Most vociferous was SEBA, the Safety Employees Benefit Association, which represents the San Bernardino County’s sheriff deputies. SEBA President Laren Leichleiter demanded that Bulloch apologize for and retract the aspersions he said Bulloch had cast upon the deputies he represents.
“Law enforcement is a complex profession and its members confront perilous situations,” Leichleiter said. “Deputies must make split-second decisions during dangerous circumstances that are later exhaustively scrutinized. We back our members and understand the precarious position in which they were placed.”
In an official pronouncement, SEBA propounded, “The Sheriff’s Employees’ Benefit Association is outraged by the comments made by deputy district attorney Robert Bulloch, who without warrant, made a sweeping indictment of all our members who work diligently to protect our community. The statements made by deputy district attorney Robert Bulloch regarding a ‘culture of violence’ perpetuated by the San Bernardino County Sheriff’s Department are reprehensible and baseless. Bulloch used inflammatory language and antics to sway a verdict, at the expense of every deputy in this county. Furthermore, Bulloch’s comments about having the ‘will to take on the machine of the San Bernardino County Sheriff’s Department’ flies in the face of the spirit of collaboration in the public safety sector. Bulloch’s focus should remain on the facts at hand, not inflict undue damage on those who put their lives on the line every day for other’s (sic) protection. He owes the hard-working deputies of San Bernardino County an apology.”
San Bernardino County District Attorney Mike Ramos, who employs Bulloch as one of his deputy prosecutors, was elected with SEBA’s support when he defeated former district attorney Dennis Stout in 2002 and has relied upon SEBA endorsements and political contributions ever since. With few exceptions, he has consistently backed the sheriff’s department in those circumstance where officer activities have fallen into question, the exceptions being those cases where independent videographic evidence, such as that in the Pusak case, reached the media or in matters where testimony against deputies from other deputies was available. In all officer involved shootings by members of the sheriff’s department or any municipal police departments in San Bernardino County, for example, with the lone exception of deputy Ivory Webb’s 2006 shooting of a surrendering airman Elio Carrion caught on video, Ramos has made findings the shootings, many of them fatal, were justifiable.
Having declared his candidacy for reelection in 2018 in which he is being challenged by one of his own deputy prosecutors, and faced with the contretemps brewing between Bulloch and SEBA, Ramos sided with SEBA. The day after closing arguments in the Downey, Phelps and Foster case, Ramos utilized social media to state, “As district attorney, the remarks that were made in closing arguments regarding the alleged ‘culture of violence’ brought on by a ‘code of silence’ do not reflect my views or my longstanding support and faith in the San Bernardino County Sheriff’s Department,” Ramos said in his statement. “I want to make it very clear that I have the utmost respect for and confidence in their organization, at every level. Our deputy sheriffs are the most hardworking, ethical and dedicated law enforcement professionals in the nation.”
With the fate of Foster, Phelps and Downey yet hanging in the balance as the jury deliberated, Bulloch, at Ramos’s instigation, fired off the demanded-for apology to Leichliter by email, in which he abjectly wrote, “I personally and sincerely apologize to each and every deputy in the San Bernardino County Sheriff’s Department for the comments I made in my rebuttal argument. While it was my position and intention that my comments be limited to the three deputies charged in this particular case, I can certainly see that the way it read in the press could be construed that I was painting with a broad brush across all the San Bernardino Sheriff’s Department. That was never my intention.”
Bulloch’s retreat notwithstanding, the following day the jury returned with a verdict of guilty against Foster, whose arrival at the Pusok arrest scene came well after the suspect was on the ground. The jury further deadlocked 8 to 4 in favor of conviction against Phelps and Downey, who were in the thick of the arrest from shortly after Pusok was thrown from the horse.
Foster’s conviction and the jury hanging with regard to Phelps and Downey was remarkable from a multitude of standpoints.
Historically, the district attorney’s office rarely files charges against law enforcement officers stemming from action in the line of duty. And within the subset of cases thus filed, convictions are just as rare. Cases filed against law enforcement officers in San Bernardino County share at least one of four features, consisting of the act having been caught on video; a level of heinousness or egregiousness that shocks the senses; victimization that includes another law enforcement officer; and sexual crimes by officers against underage or vulnerable females.
In the 1980s, former district attorney Dennis Kottmeier was unable to get a conviction against one of his own investigators, Tom Dawson, when he charged him with misappropriation of the district attorney’s department assets.
Traditionally in San Bernardino County, law enforcement officers have been granted license to employ whatever degree of force they alone deem appropriate in their contact with citizens. There is an increasingly wider perception that the level of force used on occasion is unnecessary or crosses the threshold into brutality.
In San Bernardino County, charges against police officers and sheriff’s deputies for excessive use of force are exceedingly rare, and charges against police or sheriff’s officers for falsifying their police reports to downplay that use of force are virtually unheard of.
The most celebrated cases relating to excessive use of force in San Bernardino County prior to the Pusok matter were the prosecution of sheriff’s deputy Ivory Webb, accused of shooting an unarmed U.S. Air Force airman back on leave from Iraq in 2007, and the prosecutions of two former Adelanto police officers, Thomas Chandler and Kenneth Gailey, charged in the previous decade with trying to beat a confession out of one suspect and beating another before forcing him to lick his own blood off a booking room floor.
In the case of Webb, he was caught on video at the end of a pursuit of Luis Escobedo, reaching at times 120 miles per hour through the unincorporated county area between Ontario, Montclair and Chino on January 29, 2006 after Escobedo slid out of control and wrecked his Corvette. On that video, taken by a nearby resident who turned his video camera on in the aftermath of the crash, Webb can be seen pointing his gun at Carrion, who is on his hands and knees and appears to be complying with Webb’s profanity-laced commands, before Webb, rather inexplicably, opened fire, wounding but not killing Carrion in a hail of fire. Ramos, who called the video “shocking,” filed charges against Webb and assigned the case to one of his more experienced prosecutors, Lewis Cope. But Cope put on a rather lackluster case against Webb, prompting charges from many quarters, including within the district attorney’s office itself, that Cope was purposely, at Ramos’s direction, throwing the case. Cope was consistently outhustled, outmaneuvered and outlawyered by Webb’s attorney, Michael Schwarz, considered a premier litigation specialist in the area of defending peace officers in criminal matters within the State of California.
Previously, the San Bernardino County District Attorney’s Office, then led by Ramos’s predecessor, Dennis Stout, took up the case against Chandler and Gailey, but ran into a buzz saw of opposition when local police and deputy sheriff’s unions closed ranks to protect two of their own, making sure that Chandler and Gailey had the strongest legal team available to protect them, while officers worked pro bono as defense investigators on the case, going over virtually everything with a fine toothed comb. They found some anomalies in the way the matter was being handled, and the case against Chandler and Gailey was dismissed because of prosecutorial misconduct. While the matter was under appeal, the U.S. Attorney’s Office in Los Angeles stepped in and filed charges against Chandler and Gailey, who then pleaded guilty in 1997 to federal civil rights violations.
In 2012, Ramos made a rare, and far less publicized, criminal filing against two San Bernardino County deputies, Michael Parham and Shadia Adham, in connection with the May 20, 2012 beating of a highly intoxicated Mario Madrigal in the backyard of his home in the 4000 block of North F Street in an unincorporated pocket of San Bernardino. After a complaint from a neighbor, Parham and Adham responded with two other deputies, Ryan Cook and John Deen, shortly after 1 a.m. and detained the then 46-year-old Madrigal. When Madrigal became combative and resisted arrest, he ended up on the ground. Upon the deputies attempting to lift Madrigal, he resisted further and Parham repeatedly kicked Madrigal hard in the ribs, saying, according to a later sheriff’s department incident report, ‘Oooh, that had to hurt,’ and ‘You’re gonna fucking hurt in the morning.” Another sheriff’s department report said that Parham was stepping on Madrigal’s head and kicked him in the groin while he was handcuffed.
When a witness to the beating asked Adham for her name, she gave the names of two other deputies in the department, a man and a woman, who were not there. It was the fallout from the other deputies being subjected to the false accusation of having beaten Madrigal rather than the beating itself which led to the charges. Parham was fired by the sheriff’s department in November 2012 as a consequence of the follow-up investigation, which entailed Cook and Deen writing more comprehensive reports than they had originally in order to clear the two deputies who were not on the scene and had been identified as taking part in the incident as a result of Adham’s misidentification of herself and Parham. Adham was charged with a single count of impersonating a police officer, a misdemeanor, but the charge was later dropped. Parham insisted on going to trial on the matter in the summer of 2014, represented by attorney Harry Stern, and on August 27, 2014 was convicted on charges of assault by a police officer and battery.
The Parham and Chandler/Gailey cases entailed extraordinary elements that set them aside from other examples of excessive use of force and police brutality. Parham was undone, essentially, by Adham’s effort to shift the focus of what had occurred from Parham to another law enforcement officer. In the case involving Chandler and Gailey, an audiotape recorded in May 1994 the pair did not know about came into the possession of the prosecutors. In that recording, Chandler could be heard asking Joseph Valdes, who was suspected of abusing his daughter, “Are you going to tell us what we want to hear?” as he and Gailey beat him, twisted his limbs and kicked him. In October 1994, Chandler and Gailey beat Henry Easley, who had been arrested on drug charges, in retaliation for Easley having spat on a fellow police officer. Easley was hit so hard on the head that he started to bleed, at which point Chandler ordered Easley to lick his blood off the floor. A just-hired police officer who had witnessed the beating came forward to inform on and then testify against Chandler and Gailey.
Dan Lough, who was a prosecutor with the San Bernardino County District Attorney’s Office from 1977 until 1985, was then a senior prosecutor with the Riverside County District Attorney’s Office from 1986 to 1994 and assistant district attorney in San Bernardino County from 1995 until 2001, told the Sentinel in the aftermath of the media frenzy over the worldwide broadcasting of the Pusok beating that the reluctance to prosecute law enforcement officers is an outgrowth of the close relationship between the prosecutor’s office and the law enforcement agencies within the prosecutor’s office’s jurisdiction. He suggested that the pass peace officers are given on citizen abuse cases is less a result of prosecutors trying to cover up wrongdoing than a reflection of the practical difficulties entailed in obtaining convictions against law enforcement officers, who are generally viewed more favorably by juries than are run-of-the-mill criminal defendants.
“Police officers are trained as witness and for that reason they make a really good impression on a jury,” Lough said. “In addition, the investigators on these cases are often friendly to the officer.”
Lough was heavily involved in the district attorney’s office’s prosecution of Chandler and Gailey matter, while he was second-in-command under Stout. He said the “quality of evidence” was paramount in prosecuting law enforcement officers. “As the assistant district attorney, I had to personally sign off on all of the cases involving charges against police officers. Before they would be filed they went to me. If you could prove they [the officers] were good for it [i.e., guilty] and there was the evidence to make a case and get a conviction, then I would approve going in that direction. That did not happen often. We passed on [rejected] most of those cases. I saw conduct by officers a lot of time I did not approve of, but I had to evaluate the case from a prosecutorial standpoint as to whether we could prove criminal intent and criminal conduct to a jury. Juries are much more willing to side with the officer. More often than not, the police officers are not going out there to kill or hurt someone. A lot of times they do make mistakes. But does that rise to the level of a crime? For me, it is the provability of a case that translates into willingness to prosecute someone.”
Lough said he understood that officers are intent on maintaining command presence and sometimes overreact to any challenges, real or just perceived, to their authority. That overreaction, he said, can escalate into the use of force. “Very often, the police are concerned about control,” Lough said. “There is a reason for that. Sometimes control comes down to perception or just a feeling. They have been trained to control a situation and when that control drifts away from them, they often act badly. In this society, we have a right to disagree and a right to do certain things even if others do not like it, but if you are interacting with a police officer, and are even within your rights, you might flunk his attitude test, and things can end up going badly for you.”
After the fact, the police officer has a last word of sorts, Lough said, because he can put his description of what occurred into a police report, which has official status. Lough said he often detected in police reports an effort to obfuscate the use of excessive force. “The reports are written in such a way to support the officer,” Lough, who is now retired, said. “Seldom, if ever, do you get the story from the citizen.”
Ramos, who was elected and reelected district attorney with the support of law enforcement, including police administrators, management, and officers, including police employee unions, in his public statements and acts has made little in the way of acknowledgement of the reality of officer-on-citizen violence, instead focusing on citizen-on-officer violence. While this has generally endeared him to law enforcement officers, in some specific cases, as with the case involving Phelps, Foster and Downey, it has struck a discordant note. Since Phelps, Foster, and Downey were identified and charged on September 1, 2015, it has been widely noted by many, including other members of the sheriff’s department, that Foster, Phelps and Downey were among the youngest and lowest ranking of the contingent of officers that converged on Pusok, and that at least five of their sheriff’s department colleagues can be seen in the video raining blows, kicking or stepping upon Pusok after he was in a prone position. One of those officers on the scene was the scion of a former top ranking member of the department who is himself on a career trajectory that will likely take him into the command echelon. This has given rise to the insinuation that Downey, Foster and Phelps were in some measure scapegoated.
Following Foster’s conviction, his attorney, Heather Phillips, told the Sentinel, “Mr. Foster and his family are saddened by the jury’s verdict. This is not what we hoped for and, quite honestly, not what we expected.
“Evidence was presented in the form of an expert witness in an attempt to help the jury understand a deputy’s perspective, as that is the legal standard by which Mr. Foster’s actions must be judged,” Phillips continued. “It appears that the jury ignored that evidence and, instead, bought into the dramatic and improper arguments made by the prosecution.”
Phillips said the trial and closing arguments in particular were marred by improper conduct by Bulloch which deprived her client of fair consideration. “I moved for a mistrial on Monday [March 27] morning and again on Tuesday,” Phillips said. “While the court acknowledged that the prosecution willfully violated a court order in his closing argument, the court denied the motion for mistrial. The motion was renewed on Tuesday, based again on prosecutorial misconduct for what appeared to be an intentional misrepresentation by the prosecution regarding the violated court order on the day prior, as well as a number of religious, irrelevant, and prejudicial remarks during closing arguments that were expressly discussed and ordered not to be mentioned by the Court prior to the trial beginning.”
Phillips said, “Unfortunately, the prosecution chose to present this case in a manner that caused a circus-like atmosphere throughout the trial, bending the rules past their breaking point every time it seemed to suit its case. The combined effect of the prosecution’s inflammatory presentation of the case, coupled with the prejudicial and improper arguments made seem to have distracted the jury from its primary duty: to render a verdict based on the facts, evidence, and principles of law presented to them.”
Phillips said she is committed to making whatever efforts she must to ensure the verdict does not stand.
“We will appeal on those grounds as well as the inclusion of a jury instruction, over objection, that misstated the law and likely served only to confuse the jury on the relevance of a deputy’s state of mind in this case,” she said.
In response to her perception of why her client, Foster, had been convicted while the jury was unable to come to a consensus with regard to Downey and Phelps, Phillips said, “The difference in verdicts is explainable most likely due to the fact that Mr. Foster’s involvement in the incident with Mr. Pusok took place at a time after the contact for which the two co-defendants are charged. The facts and circumstances of the interaction were very different for Mr. Foster, as he was alleged to have committed assault after Mr. Pusok had been handcuffed, while the co-defendants are alleged to have committed assault upon their initial contact with Mr. Pusok.”
Foster was convicted on the basis of atmospherics rather than facts, Phillips asserted.
“If the jury had been presented with this case in a non-prejudicial and proper manner, I would trust in the jury system and not appeal the verdict solely because I disagree with it,” Phillips said. “However, it seems an inescapable conclusion that the jury was swayed by the unfortunate way in which the case was presented, over many defense objections. It was presented as an attack on the sheriff’s department in general so as to attack the credibility of the defense’s expert witness, despite the fact that the San Bernardino County District Attorney’s Office has retained the very same expert to prosecute more than a dozen cases. Apparently, the sheriff’s department and anyone who has ever worked for it cannot be trusted, unless it would be beneficial for the district attorney’s office to do so. The prejudicial and improper closing arguments simply sealed Mr. Foster’s fate, in that he would be convicted on exaggerated theories of what happened, rather than the actual evidence.”
Phillips said, “I will file a motion for judgment notwithstanding the verdict in the near future and, if it becomes necessary to ensure my client’s right to a fair trial is protected, an appeal to the California Court of Appeals.”
Michael Schwarz, who represented Downey and has had a consistent string of success in representing police officers throughout California and particularly in San Bernardino County heretofore, told the Sentinel this week the atmospherics and the dynamics of the law, or its interpretation, as it relates to law enforcement officers in San Benardino County is changing, as is it elsewhere. That is most apparent, he said, in the liberties taken by the prosecution.
“To be blunt, considering how the jury was instructed in accordance with the law, and closing arguments, I was surprised it wasn’t a not guilty verdict,” he said of the 8-4 verdict for conviction of his client and Phelps.
As to Mr. Bulloch’s closing arguments and rebuttal, Schwarz said, “I thought they were highly inappropriate and unprofessional.”
Did he believe Bulloch’s statement had crossed the line to prosecutorial misconduct?
“Yes,” said Schwarz. “I made three motions for a mistrial during closing arguments.” Beyond Judge Dwight Moore’s denial of that motion, Schwarz said he will not pursue the matter. “My client pled guilty to a drastically reduced charge of disturbing the peace. “My role in the criminal proceedings is over.”
Law enforcement officers are no longer considered sacrosanct, Schwarz said, in San Bernardino County and elsewhere.
He said that what is going on here is “a microcosm of what is going on in parts of this country, if not the entire country. Anyone who has the experience of going through a criminal trial must be afforded a presumption of innocence and the only exception to that is in the case of police officers.”
The images caught on the video and broadcast to the world created a perception of guilt that hovers over the deputies, Schwarz said.
“The video is a window into part of the story,” he said. “It is never the entire story. The law mandates that the jury base its decision on the perspective of a police officer on scene, and not from the vantage point of a detached, two-dimensional video. Unfortunately, the public doesn’t see it that way.”
The verdicts belie a larger reality in San Bernardino County, which as recently as a decade ago was one of the last bastions of Republicanism in the Golden State. California, from which three Republican U.S. Presidents hailed in the 20th Century, and which was celebrated as “Reagan Country” a generation ago, has been growing more and more Democratic, with the Democrats now holding supermajorities in both houses of the state legislature, while occupying the Governor’s Mansion and the office of Attorney General. San Bernardino County had defied that trend and over much of the last two decades, all of its district attorneys, all of its sheriffs and consistently two thirds or four fifths of the members of the board of supervisors during that time have been Republicans, although ostensibly, but only ostensibly, those positions are considered non-partisan. But more than five years ago, in conservative San Bernardino County, the voter registration numbers crossed over in favor of the Democrats. At present, the Democrats in San Bernadino County have widened that lead. As of Sunday, 366,847 of the county’s 915,919 voters, or 40.1 percent, were registered Democrats, while 290,523 or 31.7 percent, were registered as Republicans. With Democrats being the progenitors of prison realignment and ending incarceration for significant portions of the population convicted of non-violent criminal offenses, liberalizing drug laws and reforming the bail bond system among other rejections of the law and order ethos that once dominated the society, a new attitude toward the law and lawgivers is in ascendency, putting lawmen at a social station no higher than other professionals, denuding them of their patina of invulnerability to the rule of order they are licensed to enforce. In this way, Charles Foster has attained a status he would rather have not had as a significant San Bernardino County historical personage, the first of its law enforcement personnel to have felt the tangible impact of members of his profession now being deemed to be of no higher standing in the eyes of the law than the general citizenry, including its various and sundry miscreants, they are called upon to police. -Mark Gutglueck

With all four walls closing in on Oxford Preparatory Academy, there was this week a slight glimmer of hope for the embattled charter school, the first turnaround in a consistent succession of blows the institution has sustained for more than a year. This week, the Advisory Commission on Charter Schools in Sacramento considered providing a positive recommendation to the California Department of Education with regard to Oxford’s final chartering extension request, which is due to be considered in May. After a hearing in which advocates for the charter school spoke in support of extending the charter and others, including representatives of the Chino Valley Unified School District, spoke in opposition to extending the charter, the commission voted 4 to 3 in favor of making the chartering extension. According to the commission’s bylaws, however, such a recommendation cannot be made on a simple 4-3 majority vote, but must be done by a 5 to 2 margin or greater.
Nevertheless, the record of the discussion of the commission and majority vote will be provided to the Department of Education.
Breathing space for the once-vaunted charter school has long been in short supply. Oxford Preparatory Academy soared into the academic stratosphere earlier this decade, utilizing the educational formula of its founder, Sue Roche, who had been afforded the trust of the Chino Valley Unified School District with the school board’s unanimous January 2010 approval of Oxford’s charter to operate in Chino for a two-year term from July 1, 2010 to June 30, 2012. Oxford distinguished itself as the highest performing school in San Bernardino County, and Oxford’s charter school petition was renewed in December 2011, again with a 5-0 unanimous vote by the Chino Valley Unified School Board, for a five-year term from July 1, 2012 to June 30, 2017.
Though Oxford continued to outperform the vast majority of other schools, public and private, in the state and expanded to three campuses, Chino Unified School District Superintendent Wayne Joseph, who had been instrumental in convincing the school board to back Roche in her effort to create Oxford in 2010, became aware that Roche was attempting to cash in on the success of Oxford. Roche had created two for-profit entities, Yorba Linda-based Edlighten Learning Systems and a Nevada corporation, Educational Excellence, in which she was the principal, and arranged with Barbara Black, whom she had installed as her successor as Oxford’s executive director, to have Oxford contract with both Edlighten and Educational Excellence for the provision of administrative services as well as education-related materials. Roche was able to do so because of her ability to dominate Oxford’s corporate board as it was previously composed. Upon Joseph’s recommendation, on March 17, 2016, the Chino Valley Unified School Board denied Oxford’s charter renewal petition, asserting Oxford was demonstrably unlikely to successfully implement the program set forth in the petition, that the petition failed to describe a reasonably comprehensive description of 8 of 15 required elements, and the petition failed to provide legally required affirmations and assurances in compliance with state law, most notably with regard to the conflicts of interest inherent in Roche’s attempts at profit-taking.
Oxford Preparatory appealed to both the San Bernardino County Board of Education and the California State Board of Education. Both boards elected against taking any action on the petition, sending Oxford Preparatory Chino Valley back to Chino Valley Unified to pursue rechartering under the aegis of a revised petition. In August 2016, San Bernardino County Superintendent of Schools Ted Alejandre called upon the California Department of Education to initiate with the assistance of the state’s Fiscal Crisis Management and Auditing Team an audit of Oxford Preparatory Chino Valley pursuant to Education Code section 1241.5 (c). The findings of that audit, published on November 22, 2016, cataloged how Roche, in the characterization of the auditors, deliberately and with calculation created Edlighten and Educational Excellence “to divert and launder funds from Oxford Preparatory Academy,” in dodging accountability through a “daisy chain” of payments between for-profit companies which employed her family, friends and associates. The audit said Roche purposefully hid or obscured financial transactions and operations in such a way that the auditors, not to mention Chino Valley Unified officials and even Oxford’s own in-house employees, could not easily track them. Those contracts, the audit said, imposed management service fees up to 10 percent, funneling charter school dollars from Oxford Preparatory Academy schools, such that Oxford was charged “for services that already existed.”
Oxford Preparatory paid Edlighten $4.2 million in management fees between January 2013 and June 2016, according to the audit. Those numbers were steadily growing, from $821,490 in 2013, to $1.2 million in 2014 and $1.3 million in 2015. Edlighten was on track to take in more than $2 million from the academy in 2016, but as a result of the cancellation of Edlighten’s contract with Oxford in May 2016, Edlighten’s payments were cut off at $834,522 in 2016.
The issue of renewal was heard by the Chino Valley Unified School District for the second time on November 28, 2016, with the school board following Joseph’s recommendation and voting 5-0 vote to deny the appeal. On January 3, 2017, the San Bernardino County Board of Education voted unanimously not to receive the Oxford Prep Chino Valley appeal or establish a timeline for review. On January 31, 2017, Oxford submitted a last ditch petition to the California Department of Education. The California Department of Education will hold a public hearing on the matter in May and make a determination most likely before the expiration of Oxford’s charter in June. In preparation of that, Oxford sought to have the California Advisory Commission on Charter Schools review the matter to hopefully forward a positive recommendation on the requested rechartering to the Department of Education.
At the hearing on Wednesday, April 5, Andrew Vestey, the newly appointed chairman of the board of Oxford Preparatory Academy, said he did not see the “audit as the end for Oxford.” Rather, Vestey said, “We see it as a road for change.” He said upon reviewing the audit, Oxford moved with alacrity in correcting its course. “In less than two weeks we removed the chairman of the board, executive director and management team, all who had ties to the founder,” Vestey said. “Next, we turned our focus to the task of rebuilding,” including he said, finding an interim management team. “We looked internally first and soon realized that Denise Pascoe, chancellor of our Mission Viejo campus, met all requirements,” said Vestey “She is ethical, with no ties to the previous management team. Just two weeks later Mrs. Pascoe was selected as interim director. The board chose Mr. Andrew Crowe to step into the role of interim managing director. Neither Mrs. Pascoe nor Mr. Crowe had any authority over the [past] governing or operations. Simply put, they were not part of the problem. This was important because the new board understood we needed to send a clear message that illegal and dishonest behavior has no place at Oxford. Today Oxford has an experienced and highly qualified board to lead us through this transition.”
Chino Valley Unified’s attorney, Steven Chidester, conversely called upon the commission to support denying the charter extension. Saying “Local boards as well as parents and teachers have a right to expect that charter schools will hue not just to the law but to their charters,” he said that “beginning in 2012 the charter school actively act[ed] to evade the school district’s oversight. Oxford’s leadership withheld facts regarding Edlighten. Oxford’s management, with the help of the Oxford board, repeatedly lied to Oxford’s own auditors. Oxford’s governance structure is essentially the same as when Oxford engaged in financial mismanagement and Oxford’s actions continue to raise rather than address concerns about Oxford’s integrity and transparency.”
Chidester then referenced a matter that complicated Oxford’s effort to rehabilitate its reputation.
“Only 12 days ago,” said Chidester, “on March 24, the district obtained copies of two different account and security loan agreements, each for one million dollars, between Oxford and the California Credit Union, signed by executive director Barbara Black on August 31, 2016, that not only raise doubts about Oxford’s claimed strong financial position but raise questions about Oxford’s transparency because Oxford has never before provided documentation of transparency and respect for California law. On March 10, 2017, the district submitted a public records act request to Oxford for a copy of the March 2, 2017 board of directors meeting agenda packet. To this day, 26 days later, the district has received no response and no documents from Oxford. The district respectfully and with sincere sympathy for Oxford students and families asks for a nonrenewal recommendation, not because the district is anti-charter or out to get Oxford, but because the district has had its serious concerns about Oxford’s governance and finance. Oxford should not be renewed because two separate California state agencies, the Fiscal Crisis Management and Audit Team and the California Department of Education, in addition to the Chino Valley Unified School District have found that Oxford has not been transparent, that Oxford has failed to commit to its responsibility for the stewardship of public funds and that Oxford has failed to prove themselves deserving of the public trust.”
Oxford Board of Directors Vice-Chairwoman Sandra Garner told the commission that Childester’s remarks were applicable to the previous management at Oxford, which has been supplanted with a new team intent on salvaging the core values that Oxford represents but which were sullied by the actions of a few who are no longer present.
“The trajectory of some of these children’s lives will be forever changed if Oxford Chino closes its doors,” said Garner. “Some students will land on their feet and do well but others will suffer great harm. As educators and parents we have all seen a child with great potential and dreams suddenly go sideways because of one decision that no one can ever take back. These are the children we are fighting for today. With your help we can get this right. At this point it really comes down to one question: ‘Do you trust this board?’”
She insisted Oxford has put the self-dealing of the past behind it. “New board members took office at the end of last year,” she said. “I was convinced this board could make the tough calls and have the insight to see what was wrong and how to fix it. They acted quickly and decisively. They had what was needed to take charge of Oxford and turn this around. Does anyone really think these board members are going to put their careers and pensions at risk to allow anyone to do something illegal? This is the board you want to be in charge. This is the board who will not let you down. We ask for your vote.”
The pleas from Oxford’s proponents made a positive impression on several of the seven members of the commission present.
Commissioner Caitlin O’Halloran said she, for one was convinced that Oxford deserves support.
“I think what we’re hearing collectively around this dais is the desire on the part of the school, the commitment on the part of the organization, to engage with somebody, a third party, and to bring that [financial accountability] forward,” said O’Halloran. “At least in the responses that I have seen in writing and heard today, if I weren’t satisfied that the overwhelming majority of the Fiscal Crisis Management and Audit Team issues had been addressed, I wouldn’t be making the statements that I am today.” Commission Chairman Brian Bauer then made a motion “that this school be recommended for renewal before the state board satisfying the requirement that’s been mentioned numerous times.”
The motion passed, 4 to 3, with commissioners Brian Bauer, Caitlin O’Halloran, Dr. Mark Ryan and Wesley Sever in favor and Curtis Washington, Cindy Chan and Jon Gundy opposed. “So the item doesn’t move forward with an official recommendation for anything,” said Bauer. “To move out of this commission with a recommendation, it requires five votes. Nonetheless, there’s enough of a transcript of what’s transpired, which is going to be part of the record, anyway, for the state board that you can present.” -Mark Gutglueck

Stephen Larson

By Mark Gutglueck
Week Thirteen of the Colonies Lawsuit Settlement Public Corruption Trial featured an epic confrontation between two skilled, knowledgeable and well-prepared attorneys over facts, issues, interpretations and events underlying the criminal case.
Deputy San Bernardino County Counsel Mitch Norton, whose testimony began last week, had been a strong key witness for the prosecution under direct questioning by California Supervising Deputy Attorney General Melissa Mandel. He provided an overarching and detailed description of the civil litigation the Colonies Partners had pursued against the County of San Bernardino and its flood control district from 2002 until 2006. That case served as the backdrop for the criminal charges that would eventually be filed against two former members of the board of supervisors, Bill Postmus and Paul Biane, the chief of staff of another board member, Mark Kirk, the former president of the county sheriff’s deputies union, Jim Erwin, and one of the principals in the Colonies Partners development consortium, Jeff Burum.
This week, Burum’s attorney, Stephen Larson, began what is expected to be an extended and two-pronged cross examination of Norton intended to not just simply mitigate whatever damage Norton inflicted under direct testimony on Larson’s client and his codefendants but to explore other legal ramifications of the civil litigation and its settlement which Mandel did not dwell upon and which the defense contends delegitimizes the prosecution’s entire case.

Mitch Norton

The Colonies Partners, which purchased 434 acres in northeast Upland from the San Antonio Water Company in 1997, sought to develop that property both residentially and commercially. Of significance in that effort was that as the first phase of the project, consisting a residential subdivision, was coming to fruition, the California Department of Transportation, known by its acronym Caltrans, was moving ahead with the construction of the below-grade 210 Freeway extension through that area. This was of both benefit and hindrance to the Colonies Partners. One benefit was that the northernmost strip of the 434 acres the Colonies Partners had purchased would be needed by Caltrans for freeway right-of-way. The outcome of Caltrans’ effort to condemn, take by eminent domain and utilize less than ten percent of the property acquired by the development company was that the Colonies Partners was paid $18 million – $2 million more than it had paid for the entire 434 acres – for the roughly 40 acres of land used for the footprint of the freeway. The terms of the agreement between the Colonies Partners and Caltrans for the purchase of the land used for that span of the freeway included a clause that the Colonies Partners accepted this payment as compensation for any damage the Colonies Partners may have sustained as a consequence of the severance, taking and use of that property. Another benefit to the Colonies Partners was that the immediate proximity of the freeway to the company’s land greatly enhanced the value of the commercial subdivision the company was purposed to establish. The hindrance to the Colonies Partners was that the development of the freeway and the accompanying improvements in the area resulted in the need to create storm water infrastructure. The county had recorded flood control easements on the Colonies property in 1933, 1934 and 1939 when the property was owned by the San Antonio Water Company, which gave the county the right to use 31 of those acres as a water holding basin and to use another 30 acres on the property for flood control purposes, pursuant to arrangements between the county and the property owner.
Controversy would subsequently erupt when the county conferred a $102 million settlement on the Colonies Partners to end litigation over this matter. The substance of that controversy is the lynchpin of the corruption case and pertains to whether the Caltrans damage clause in the $18 million payment to the Colonies Partners covered the county’s liability for its flood control district’s use of existing easements for greater-than-historical amounts of flood water that would be directed through the county’s catchment basins as a result of the new and larger storm drain improvements built to control flooding flowing off of what was then the newly-constructed freeway.
The City of Upland had land use authority within its jurisdiction and had the power of approval of the Colonies Partners’ residential and commercial subdivisions. The county flood control division, at the behest of the City of Upland and Caltrans, had constructed the 20th Street Storm Drain, which was designed to channel rainwater from the watershed area north of the freeway as well as water accumulating within the trough of the 210 Freeway itself. Relying on the easements from the 1930s, the county placed the terminus of the 20th Street Storm Drain on the Colonies Partners property. In giving approval to the Colonies Partners’ first residential phase, known as the Colonies at San Antonio, the City of Upland had not made clear which entities bore responsibility for the provision of drainage and flood control infrastructure. In 1999, the county and the Colonies Partners had entered into an agreement relating to the Colonies Partners constructing a water retention basin, but subsequent issues relating to the channeling of storm water onto the Colonies property and what the Colonies Partners perceived as interference with its development plans instigated a dispute with the county that led to the litigation which began in 2002.
As that litigation dragged on, the Colonies Partners engaged in increasingly more intensive efforts to bring the litigation to a close on terms it considered favorable. This included, according to prosecutors, efforts to pressure Bill Postmus, who in 2005 and 2006 was the chairman of the county board of supervisors and the chairman of the San Bernardino County Republican Central Committee, and Paul Biane, who in 2005 and 2006 was the vice chairman of the county board of supervisors and the vice chairman of the San Bernardino County Republican Central Committee, to settle the lawsuit. That pressure, prosecutors allege, included creating “hit piece” mailers which dwelled upon Biane’s financial difficulties and Postmus’s drug use and homosexuality, and threatening to post them to voters throughout San Bernardino County. According to prosecutors, one-time San Bernardino County sheriff’s deputies’ union president Jim Erwin had participated in conveying those extortionary threats, having done so as part of his effort to assist Colonies Partners co-managing principal Jeff Burum in achieving a settlement of the litigation. On November 28, 2006, the board of supervisors in a 3 to 2 vote, with Postmus, Biane and then-supervisor Gary Ovitt voting in the affirmative, approved a $102 million payout to the Colonies Partners to settle the lawsuit. Beginning four months later, in March 2007 and running until the end of June 2007, Burum and the other managing principal in the Colonies Partners, Dan Richards, made three separate $100,000 contributions to political action committees which prosecutors allege were either openly or secretly controlled by Biane, Erwin and Mark Kirk, who was Ovitt’s chief of staff, along with two $50,000 donations to two political action committees secretly controlled by Postmus. By early 2007, Postmus, who had successfully run for county assessor in 2006, was serving in that capacity and had hired Erwin to serve as assistant assessor. The contributions to the political action committees were disguised bribes, prosecutors allege, made in return for the $102 million settlement. Prosecutors allege the bribe to Kirk was made in return for delivering Ovitt’s vote in favor of the settlement. Postmus and Erwin were charged with participating in an extortion and bribery scheme in February 2010. Both entered not guilty pleas, but in February 2011, Postmus entered guilty pleas to 14 political corruption charges and agreed to turn state’s evidence. He then served as the star witness before a grand jury which in May 2011 handed down a 29-count indictment alleging conspiracy, extortion, bribery, perjury, conflicts of interest, and income reporting violations that named Burum, Biane, Kirk and Erwin. That indictment superseded the charges lodged against Erwin the previous year.
During Norton’s single day of testimony last week, Mandel questioned him in such a manner as to bring about an illustration of the underlying situation and the basis and much of the substance of the legal wrangling that had been ongoing between the Colonies Partners and the county. This included descriptions of and references to the flood control easements, the degree to which they played a vital role in the dispute, and the victory the county had scored after the judge who heard the first phase of the litigation, Judge Peter Norell, was overturned in 2005 by the appellate court on his 2003 ruling that the county had abandoned those easements. The county’s victory on appeal significantly compromised the Colonies Partners’ strength in the litigation, according to Norton. He further corroborated elements of the prosecution’s case by giving detail with regard to a March 25, 2005 meeting at Biane’s Rancho Cucamonga office. During that meeting, Norton, as deputy county counsel, and the county’s outside attorneys, Paul Watford and Steven Kristovich, provided to Biane and Postmus interpretations of the status of the litigation, including the appellate court’s tentative but not yet finalized decision reversing Norell’s finding with regard to the easements. Competing interpretations were offered by the Colonies Partners’ legal representatives, Scott Sommer and Heidi Timken, who were present at the meeting with Burum and his colleague in the Colonies Partners, Dan Richards, along with the Colonies Partners’ lobbyist, the-then recently termed out California State Senator Jim Brulte. After the lawyers concluded their briefing/debate, they left the conference room, Norton testified, and he gave a description of what he was able to witness inside the glass-walled meeting room as Brulte refereed and guided the negotiating session that ensued, in which Postmus and Biane were outnumbered and outgunned. Norton testified that Biane, had gone into the meeting anxious to use the county’s advantageous strategic position derived from the appellate ruling on the easements which essentially eradicated the Colonies Partners’ contention that the county was seizing its property without having the right to do so. But after the one-sided negotiating session with Brulte, Burum and Richards, Norton testified, Biane and Postmus emerged with a proposed $77 million settlement, giving the Colonies Partners $22 million in cash and some surplus county flood control property valued at $55 million. Norton testified how that proposal was opposed by Watford and Kristovich and all of the county attorneys in the loop on the matter, and that Watford and Kristovich authored a memo counseling the entire board of supervisors to reject it. Postmus and Biane sought to keep the memo from being distributed to the other members of the board, Norton testified. When the board pushed toward finalizing the $77 million settlement, Norton testified, Watford and Krisotovich and their law firm, Munger Tolles & Olson, resigned. The subsequent public revelation of what had occurred resulted in the deal not going through, Norton testified.
Norton last week gave further testimony about the pressure the Colonies Partners were exerting in seeking to move the board toward a settlement in its favor, including using what he termed “inappropriate” benchmarks in making appraisals to raise the claimed value of its property and inflate its loss claims.
This week, on Monday, Norton was again testifying on direct examination by Mandel, unmolested by defense counsel. In that forum, he continued to provide an account of events, tinged with his interpretation that both generally and in specific detail comported with the prosecution’s theory of guilt.
One such indicator was the degree of intensity with which Postmus was shepherding, indeed stampeding, his board colleagues and the entire county toward a settlement on the Colonies Partners’ terms. By late 2005, Postmus had commandeered from Biane, who had earlier been the board member most intent on bringing closure to the Colonies Partners’ lawsuit, the lead in getting the matter resolved. That effort came during phone calls Postmus made to him, Norton testified, as well as during in-person one-on-one contact he had with the then-board of supervisors chairman, during closed session meetings with the other supervisors present, as well as at meetings with members of the county’s legal team.
One of those phone calls from Postmus came at about 3 p.m. on December 14, 2005, Norton testified. He had been so struck by it that he had memorialized it in a “memo to file” he said he believed he had written that day. Mandel displayed that memo to those in the courtroom, including the jury hearing the case against Burum, Biane and Kirk, and a separate jury that is to decide Erwin’s fate, using the courtroom’s video and visual display screens.
In that memo, Norton said that Postmus had called him to ask “where we stand on the mediation.” Norton replied that “at this point we are waiting for the hearing on Monday to get the matters consolidated.”
The issue of consolidation pertained to the county’s efforts to involve Caltrans and the City of Upland, as well as the regional transportation agency, San Bernardino Associated Governments, all of which had a hand in creating the flood control issues impacting the Colonies Property, into the negotiations or the litigation to achieve what Norton referred to as a “global settlement.” In this comprehensive settlement, Norton said, the ColoniesPartners’ true damages, if any, would be recompensed in accordance with each agency’s differing level of responsibility. But Norton’s memo makes clear that Postmus was not concerned with safeguarding the county’s interest and was more focused on advancing the Colonies Partners’ efforts to achieve a settlement on its terms.
“Well, you got an email from the Colonies lawyers, right?’ Norton’s memo quotes Postmus as having asked. The memo then says that Norton told Postmus “We would not agree to go with Justice Panelli.” Norton testified that the legal team did not approve of using former California Supreme Court Justice Edward Panelli to mediate a settlement because Panelli was generally in his mediation services less focused on the issues than on arriving at a compromise, and that the county’s legal team felt that the issues in the Colonies matter favored the county. Using Panelli, with his focus on accommodation rather than issues, Norton said, would be likely to lead to a settlement far less favorable to the county than was likely to be had under some other mediator’s guidance. Panelli had been the mediator the Colonies had suggested should be used. In the memo, Norton pointed out that Postmus tried to simply blast through the county’s lawyers’ objections to Panelli. “Well, you would not agree to go with Justice Panelli – the board hasn’t said so,” Postmus said, according to the memo. Norton said he then attempted to refocus Postmus to the legal team’s conclusion that using Panelli was not in the county’s best interest. “We would recommend not using Panelli,” Norton told Postmus, according to the memo. This provoked Postmus. “You guys have had your gig,” Postmus then replied. When Norton said that the entire board had not voted to authorize unilateral negotiations, Postmus snapped, “There are three votes on the board to get this past us and we need to get rolling.”
Mandel asked why Norton had made note of the conversation in the memo. Norton testified that the phone encounter with Postmus was “jarring” and “I found his demeanor very strange and out of character and irritating. I wanted to document it because I wanted to have a very clear record of it moving forward on what he said and how I replied.”
Norton said Postmus was becoming “rude, short-tempered and impatient” throughout this time and was evincing anger and extreme disrespect toward members of the county’s legal team who were attempting to be methodical and deliberate in their handling of the litigation. One such manifestation came during what Norton referred to as the “Valentine’s Day Massacre” on February 14, 2006. Norton, along with the assistant county administrator who had responsibility over the county flood control division, Norm Kanold, came with Tom Malcolm and Jeffrey Kirzner, two of the attorneys with the law firm Jones Day, which had replaced Munger Tolles & Olson in representing the county in the Colonies Partners litigation the previous year, to meet with Postmus to discuss issues arising out of a mediation session that had taken place with Panelli some 11 days previously, on February 3, 2006.
Postmus was “abhorrent” in his comportment during the meeting, Norton said. He said Postmus “accused me of being a monkey wrench in whatever type of settlement we were trying to achieve.”
Mandel asked Norton how he had responded. Norton said in a “respectful manner” he told the board chairman “We’re evaluating all of our options and trying to make sure whatever settlement we achieve is acceptable to the county.”
When Kirzner was giving his presentation, Norton said, Postmus was especially disrespectful. “He would talk over Mr. Kirzner saying, ‘Blah, blah, blah,’ as if to say, ‘There is no importance to what you are saying.’ It was amazing.”
Norton testified that on March 10, 2006, he and Kirzner had a meeting with supervisor Josie Gonzales in which they discussed the upcoming trial in the case which was no longer being heard by Norell but would go before Judge Christopher Warner.
“We had a conversation about the upcoming trial in April of that year and the settlement under consideration and all of the mediation issues being discussed by the parties,” Norton said. “She informed us that she would prefer to take the case to trial as opposed to settling.”
It was at that time that the Colonies Partners settlement demands reached toward the $100 million mark, Norton said. He said Gonzales near that time indicated that Biane and Postmus were the only members of the board inclined to support the settlement at that figure.
Provided with documentation from a closed session of the board of supervisors on April 4, 2006, Norton confirmed there had been direction from the board majority authorizing a $78.5 million settlement with mutual releases and that there had been subsequent objections to it by the Jones Day firm. To Mandell’s question, Norton indicated that Postmus had not disclosed to the board or the legal team that he had spent three hours in a meeting with Burum’s public relations team just prior to that settlement being approved. “He did not disclose that at any time,” Norton said.
Norton testified that on April 11, 2006, Jones Day brought a senior member of the firm’s home office in Cleveland, Brian Toohey, to a meeting with the board to emphasize the “ethical significance” of the firm’s objection to the proposed $88.5 million settlement.
“I don’t think it really moved Bill [Postmus] at all,” Norton said.
During the trial in Warner’s court, Norton testified, he saw Jim Erwin in the gallery and that at one point Burum coordinated Erwin’s interaction with the press and that Erwin gave a statement to reporters.
Mandel asked Norton if Ron Reitz, who was then chief county counsel had resigned during the trial.
“He did,” said Norton, saying he remembered it occurring in either April or May of 2006. Mandel asked if Norton knew why Reitz resigned.
Norton said he did have an understanding of why Reitz left, having gleaned the reason from multiple conversations over the years. Mandel, however, stopped short of asking Norton what the reason for Reitz’s departure was.
To Mandel’s questions, Norton indicated that the next county counsel hired to replace Reitz was Dennis Wagner, who had been Postmus’ private attorney, and that he learned of Wagner’s hiring when Burum told him about it.
Norton testified that on July 31, 2006 Judge Christopher Warner entered his intended statement of decision following a trial over the issues dividing the county and the Colonies Partners, and that it was not favorable to the county. He characterized it as “Armageddon [and] very harsh.”
He said the county had made written objections to Warner’s findings and decisions, which he had participated in drafting as an assistant to the Jones Day legal team. Those findings included referencing “fraudulent” dealings by the county and criticism of the county’s flood control district director, Ken Miller. “I believe the legal team expressed disagreement with Judge Warner on those issues,” he said.
Mandel asked if Norton “became aware that day or shortly thereafter that Mr. Postmus and Mr. Biane spoke to Mr. Burum’s public relations team?”
“This is the first I heard of it, so no,” said Norton.
Norton confirmed the accuracy of closed session memos showing that as of August 15, 2006, just a little over two weeks after Warner’s statement of intended decision, he and another deputy county counsel, Charles Scolastico participated in the drafting of a history of the litigation to outline the issues to be taken up on appeal. Included in this was “substantive inconsistencies with the court of appeal opinion holding that all easements still exist for omnibus flood control.”
Warner had heard the matter as a bench trial, serving in the capacity of both judge and jury. A central tenet of his decision was that the county no longer had a valid claim to the flood control easements, not because it had abandoned them as Norell had ruled, but because it had overused them. Warner had used the term “surcharged,” which had been provided to him by Colonies Partners attorney Scott Sommer to convey the concept of overuse.
“Was it your position the county should, and did you advise the board they should, wait for the Warner decision to become final and then appeal it?” Mandel asked.
“I believe so,” said Norton.
Norton further testified that Dennis Wagner while serving as county counsel “had submitted a written document to the California Office of the Commission on Judicial Performance,” that is a complaint, and that “the correspondence identified a concern regarding the two judges [Norell and Warner] who had been presiding over the quiet title trial.”
Norton testified that during settlement negotiations in October and November, Postmus was using his Blackberry device to communicate with outsiders outside the negotiating room.
Norton testified that as the board was heading toward adopting the $102 million settlement in late October and November of 2006, the board had been informed that the county could be subjected to a taxpayer lawsuit as a consequence. He said Postmus “was not mindful of the risks going forward of exposing the county to a taxpayer challenge” and had said, “Be that as it may, it is still preferable to settle the lawsuit and deal with those consequences at a later date.”
Norton testified that the Colonies Partners and its attorneys were not forthcoming with the documentation of the losses the Colonies Partners were claiming until the very last minute before the settlement was voted upon, which did not give adequate time to examine that documentation.
“Without evidence and without documentation of the damage claims Colonies was advancing, a settlement at such a high number would be hard to justify,” he said.
Norton said he was advising against the settlement because “other agencies [the City of Upland, the regional transportation agency and Caltrans] should be legally encouraged to contribute to any settlement the county would pay in respect to the Colonies.”
When Mandel asked Norton why he had advised against the settlement but then prepared and worked to pursue a validation of the settlement once it was passed by the board of supervisors, Norton justified it thusly, “The validation action was a very important tool to enable the county to perform the settlement agreement. We had to approve the settlement in order to protect the county’s interest and the taxpayers’ interest. At the bottom, we had to take the necessary steps not to be in default of our obligation under the settlement. Because of the $80 million [in bonds issued to eventually pay the Colonies Partners in addition to the first $22 million cash installment put up in November 2006], it was an important part of enabling the county to perform its obligation under the settlement and not be in breach.”
With Mandel’s direct examination of Norton concluded on Monday, and no court proceedings on Tuesday or Wednesday, the cross examination of Norton began on Thursday. Entrusted with the first sally against Norton, his credibility and the breadth and depth he had contributed to the prosecution’s narrative was Burum’s lead attorney, Stephen Larson. The Larson-Norton confrontation featured two combatants with impressive educational, legal, professional and experiential backgrounds. Larson, 52, attended Georgetown University and USC Gould School of Law, passing the bar at the age of 25. After two years of private practice, he went to work in the U.S. Attorney’s Office and was elevated to the federal bench in 2005 where he remained for nearly four years before returning to private practice with the law firm of Girardi Keese. In 2011 he moved to the law firm Arent Fox in Los Angeles as a partner and shortly thereafter became the lead attorney in Arent Fox’s complex litigation division. He formed, with Robert C. O’Brien, the law firm of Larson O’Brien in 2016. In addition to his domestic law practice, he practices in international courts and he is vice president and lead counsel for the Ontario Airport Alliance.
Norton is a year younger than Larson, a summa cum laude graduate of UCLA and Georgetown University Law Center. He has been practicing law since the age of 28. Considered among the leaders of the county’s staff attorneys, he is on a career trajectory toward becoming chief county counsel in San Bernardino County.
Going into their head-to-head confrontation on Thursday, Norton found himself at a distinct disadvantage. A litigator by profession, he was thrust into what is for him the rare position of being a witness cross examined by a hostile attorney. That attorney, Larson, was being called upon to dig into a set of facts and circumstances of tremendous moment to his wealthy client, Burum, who has spared no expense all along in providing his legal team with the information, background and preparation needed to advance his civil case and now finds himself in a situation of tremendous extremity, engaged in the fight of his life to not only clear his name and avoid prison but prevent the State of California and the County of San Bernardino from forcing his company and all of its investors to disgorge the $102 million paid out to it more than a decade ago. More disadvantageous yet, Norton found himself in the highly problematic circumstance of having been the county’s lead in-house attorney representing it in its arguments, assertions and court papers that the Colonies Partners’ claims were invalid prior to the settlement, while having been, and remaining, the county’s lead in-house attorney in representing it in the effort after the settlement to recover from its insurers the money the county claims is owed to it over its indemnification policies that are applicable to its $102 million payout to the Colonies Partners. In this way, in attempting to recover from the county’s insurance carriers, Norton has, on occasion, filed court documents, and made assertions in court that the county was justified in having conferred the $102 million settlement on the Colonies Partners. Making the matter more problematic still is that while one of its insurers, Travelers Insurance, provided the county flood control district $9.5 million to satisfy its indemnification responsibility with regard to the Colonies Partners’ lawsuit settlement, the California State Association of Counties Excess Insurance Authority has rejected the county’s claim. In the legal action for recovery the county has pursed, lawyers for the California State Association of Counties Excess Insurance Authority have propounded the prosecution’s theory that the settlement vote was tainted by conspiracy, graft, extortion, bribery, collusion and political corruption, which they claim absolves the authority of having to make good on its indemnification of the county. This has put Norton in the position of taking up at least a portion of the position of the Colonies Partners’ lawyers in arguing that the county had wronged the company.
Present in the courtroom during all of Norton’s testimony was Andrew Prout, a lawyer from the firm Theodora Oringher, which is serving with Norton as co-counsel in the effort to force the California State Association of Counties Excess Insurance Authority to make good on its indemnification commitment. Prout made occasional objections to the questions thrown at Norton, all of which Judge Michael Smith overruled.
Larson, a skilled examiner made more effective still by his imperious bearing and resonant baritone, refrained from the tactic of questioning Norton at a frenetic pace as he had previously done with another prosecution witness, former supervisor Dennis Hansberger. Instead, Larson proceeded with an air of calm deliberation, giving Norton, for the most part, the opportunity to choose his words carefully and run through the relevant issues raised in the questions he was asked. On occasion, though, Larson made use of a show of impatience, particularly when Norton appeared to avoid or move away from the subject Larson was inquiring about. On one occasion, Larson made use of indirection, essentially asserting that Norton and other county lawyers had failed to disclose to the board of supervisors that there was a risk of loss to the county if it continued to litigate the matter with the Colonies Partners. When Norton said that he had made that disclosure and read through a document and found the passage where that caveat had been provided, Larson pounced and referenced verbiage a few lines down which he took Norton to task over. Larson also offered up changes of pace in his questions, asking what came across as general or almost philosophical questions with regard to legal concepts or practices and then punctuating such an opening with a riveting and hard-edged and even barbed point of inquiry on a specific issue. Larson in this and other ways sought to keep Norton off balance. Larson further sought to shape Norton’s responses to both his own client’s as well as the other defendants’ benefit, by layering into his questions assertions of fact that undergirded the defense’s theory of innocence. Norton to some extent allowed Larson to proceed in this manner, but qualified some of his answers or phrased them in such a way to state that he was answering to accommodate the question and the spirit of inquiry rather than the facts. At one point, Norton from the witness stand attempted to question Larson with regard to an element in one of the questions he had been asked. Larson would not indulge the question at all. At another point, Norton lightly chided Larson, saying his questions were based on “hypotheticals.” Nevertheless, by the day’s end, Larson was indeed able to wring from Norton statements and admissions that undercut a portion of the prosecution’s assertions and even some of what Norton had himself added to that narrative. Remarkably, Norton managed to hold up under Larson’s sometimes vicious cross examination without losing his equanimity, basic credibility or dignity. And rather subtly, Norton managed to use his disadvantageous position as the individual being questioned, to deliver the suggestion that he possessed a more comprehensive, accurate and nuanced understanding of the civil case than Larson, Judge Warner, Judge Norell and several others.
Larson sought to make headway with Norton by having him acknowledge that the county’s attorneys had overvalued the appellate court’s reversal of Norell’s ruling with regard to the abandonment of the easements and had misrepresented the degree of its significance to the members of the board of supervisors, in so doing referencing that the county had still lost at trial before Judge Warner afterward. Norton stood by his belief that the appellate court’s ruling “meant that the Colonies would not be able to successfully advance the inverse condemnation claim.”
Inverse condemnation is a government’s taking of private property without just compensation for it.
“But the inverse condemnation case was alive and well after that tentative decision, correct?” Larson asked.
“Yes,” said Norton.
“That was bad advice,” Larson asserted.
“Given the full context of the pending tentative decision and circumstances, I would not agree that was bad advice,” Norton said.
When Larson pointed out that as a matter of law, in an inverse condemnation case the governmental entity taking the property must pay a price on the property as valued when put to its highest and best use, Norton acknowledge that was so, but still managed to contest Larson’s suggestion that all of the property the county needed to use would have been obtained through inverse condemnation.
Larson got Norton to acknowledge that though the lawyers had reservations about members of the board holding settlement discussions with the Colonies Partners principals, it was permissible for those meetings to be held.
“There is nothing illegal or inappropriate about that from an ethical perspective, right?” Larson asked.
“Correct,” said Norton.
Larson referenced the meetings between Postmus and Biane and Richards and Burum outside the presence of the attorneys, and asked, “Did you state an objection to that?”
Norton said, “No, not that I recall.”
Larson then scored his biggest coup of the day when he delved into the outcome of the trial before Judge Warner and how that carried over to the $102 million settlement. He referenced Norton’s use of the term “Armageddon.”
Norton said of the trial “It’s fair to say it was going badly.”
Larson then referenced another phrase Norton had used, in which he said Warner’s ruling represented “changing the landscape.” Norton acknowledged having said both.
When Norton was questioned about the $102 million settlement before a grand jury in 2009, he had come to accept it as being, he said “objectively reasonable,” he acknowledged. Norton explained that based on the “risk and exposure of going forward, I would describe it as objectively reasonable given the extremely negative language in Judge Warner’s tentative decision. It having become finalized would have exposed the county to about $300 million [in potential damages]. A compromise on that claim for one third on the dollar was objectively reasonable given all the factors at that time.”
Larson asked Norton to provide the basis of his and the Jones Day law firm’s advice to the board of supervisors to spurn the $102 million settlement and appeal Warner’s decision. Norton said the leverage to be gained in the settlement talks was one reason, the belief that Judge Warner had defied the appellate court by essentially repeating Judge Norell’s ruling that the county no longer held the flood control easements was the second reason and a third reason was that there was yet a pending complaint pertaining to judges Norell and Warner to the Commission on Judicial Performance.
Larson challenged Norton with regard to the latter two. Larson pointed out that Warner’s ruling that the county no longer had the easements was based on his contention the county had overused or surcharged the easements, while Norell had said the easements were abandoned for having not been used. The differing reasoning the judges used notwithstanding, Norton said, the bottom line was that the appellate court said the county still had the easements.
Larson strongly suggested the basis of the judicial performance complaint had been based on erroneous information provided by one-time Hesperia Mayor Jim Lindley. Norton, however, indicated that he did not believe the information was inaccurate and he said the basis of the complaint came from sources and information other than that originating with Lindley.
Larson pressed Norton on whether the board of supervisors had been informed that continuing with the litigation had carried with it the potential of defeat and a substantial monetary loss to the county. Detecting some softness in Norton’s response that a disclaimer had been made but “I don’t have a specific recollection of a specific conversation,” Larson asked, “Did you give them a realistic assessment of the risks and benefits of pursuing litigation and the odds or percentages of failure?”
Recognizing at once that he had been presented with a rare opportunity to derogate Larson, Norton did not squander it.
“I can almost guarantee you that I didn’t give them odds,” Norton responded.
Larson cited and displayed for the jurors and courtroom observers a November 1, 2006 email Norton had sent to Paul Watford, who had resigned as the outside counsel representing the county on the Colonies matter in 2005, about a mediation session that was to take place later that day, following by not quite two weeks a previous mediation session on October 19. Larson got Norton to acknowledge he “never had authorization from the board of supervisors to discuss with Mr. Watford that mediation session.” Larson then focused on the email’s contents. “I’ll call in the next day or so and give you the post-mortem,” Norton had written. “We’ve taken their draft agreement generated after the 10/19 session and added a panoply of what I like to call poison pills. We even added a ‘mediator’s certificate’ for Panelli to warrant that it’s fair equitable and legal. We’ll see how that goes over. Also, still huge is their refusal to produce any documents to substantiate their damage claims until after the agreement is signed and performed. That may swing the two swing BOS [board of supervisors] votes back.”
Larson focused on the “poison pills” reference, averring that Norton was actively seeking to sabotage any concordance that might have been forming between the supervisors and the Colonies Partners.
Norton said, “My objective was to protect the county’s interests as best I could. If that meant putting provisions into the agreement to give the members pause before going forward with the agreement, that was my purpose. It is my job to give the county the best foot going forward. I did not try to sabotage the settlement or keep it from going forward.” He said the use of the phrase “poison pill” essentially conveyed “the fact that I don’t think Mr. Burum or Mr. Richards are going to like them. That’s the meaning.”
Norton is due back on the witness stand Monday morning.
It is anticipated that Larson will focus some of his cross examination on Norton’s previous testimony before the grand jury and the demonstrable differences in that testimony with assertions in documents relating to the county’s efforts to force the California State Association of Counties Excess Insurance Authority to honor its indemnification of the county with respect to the Colonies Partners lawsuit settlement. There is a further expectation that Larson will attempt to have Norton shed light on supervising deputy district attorney Lewis Cope having actively obstructed him from informing the grand jury of exculpatory evidence during his testimony before that panel..

A legislative committee this week pushed further toward law nearly identical California State Senate and Assembly bills that would in many cases eliminate the imposition of monetary bail on criminal defendants.
Senator Robert Hertzberg (D-Van Nuys) and Assemblyman Rob Bonta, D-Oakland have authored legislation that, if passed, either does away with bail on accused criminals involved in non-violent acts or takes the income of the accused into consideration when setting bail. Under the law, instead of necessarily being consigned into detention facilities, those arrested or awaiting trial would be placed into home detention and/or be outfitted with electronic monitoring ankle bracelets that would allow authorities to monitor their location and travel.
At present, California law gives judges some degree of latitude with regard to the decision to impose bail but requires that they remain within the relatively rigid standards laid out in pre-determined but slightly different bail schedules for each of California’s 58 counties.
The legislation would give officials at the county level the discretion of imposing bail and releasing those arrested upon a determination that they represent little or no risk to public safety.
According to the California Legislative Counsel, “Existing law provides for the procedure of approving and accepting bail, and issuing an order for the appearance and release of an arrested person. Existing law requires that bail be set in a fixed amount, as specified, and requires, in setting, reducing, or denying bail, a judge or magistrate take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or at a hearing of the case. Under existing law, the magistrate or commissioner to whom the application is made is authorized to set bail in an amount that he or she deems sufficient to ensure the defendant’s appearance or to ensure the protection of a victim, or family member of a victim, of domestic violence, and to set bail on the terms and conditions that he or she, in his or her discretion, deems appropriate, or he or she may authorize the defendant’s release on his or her own recognizance. Existing law provides that a defendant being held for a misdemeanor offense is entitled to be released on his or her own recognizance, unless the court makes a finding on the record that his or her release would compromise public safety or would not reasonably ensure the appearance of the defendant as required.”
With regard to AB 42, which is a companion bill SB 10, the California Legislative Counsel states, “This bill would implement a revised pretrial release procedure. The bill would require, except when a person is arrested for certain felonies, that a pretrial services agency conduct a pretrial risk assessment on an arrested person and prepare a pretrial services report that includes the results of the pretrial risk assessment and recommendations on conditions of release for the person immediately upon booking. The bill would require the pretrial services agency to transmit the report to a magistrate, judge, or court commissioner and the magistrate, judge, or court commissioner, within an unspecified number of hours, to issue an oral or written order to release the person, with or without release conditions, subject to the person signing a specified release agreement.”
Furthermore, according to the Legislative Counsel, “The bill would require, if a person is in custody at the time of his or her arraignment, the judge or magistrate to consider the pretrial services report and any relevant information provided by the prosecuting attorney or the defendant and to order the pretrial release of the person, with or without conditions, subject to the person signing a specified release agreement. If the judge or magistrate determines that pretrial release, with or without conditions, will not reasonably assure the appearance of the person in court as required, the bill would require the judge or magistrate to set monetary bail at the least restrictive level necessary to assure the appearance of the defendant in court as required. The bill would authorize, if the judge or magistrate has set monetary bail, the person to execute an unsecured appearance bond, execute a secured appearance bond, or deposit a percentage of the sum mentioned in the order setting monetary bail.”
The new legislation is not universally applicable to those arrested and it authorizes a prosecuting attorney to file a motion seeking pretrial detention of individuals arrested, jailed or awaiting trial with regard to serious crimes, including all capital crimes when the prosecuting attorney alleges that the facts are evident or the presumption of guilt overwhelming. Upon the filing of such a motion by a prosecutor, the legislation requires that there be a hearing to determine whether the person pending trial should be released, unless the person in custody waives the hearing. The bill requires that a court make at least one of several specified findings to justify someone being detained pretrial.
All of the state’s counties would be required to establish a pretrial services agency to gather information about arrested individuals, conduct pretrial risk assessments, and prepare individually tailored recommendations to the court regarding release options and conditions.
Corrin Rankin, the spokeswoman and legislative affairs co-chair for the California Bail Agents Association told the Sentinel, “From where we sit, we see this as history repeating itself. In 1978 AB 2 was introduced by Majority Leader Howard Berman aimed to do the exact same thing as AB42 and SB10. Governor Brown passed the bill and after five years the bill sunset and was realized to be a complete failure. There is a long history of the judicial pendulum swinging too far to the right and then too far to the left. For some reason, in California we can’t get it down the middle where it should be. Assembly Bill 2 failed, and if this passes, which I do not believe it will, in three to five years’ time it will fail.”
Rankin continued, “Lawmakers implemented something very similar to this in New Jersey in January and about 30 days later they discovered they couldn’t pay for it and now they [the New Jersey Legislature] are talking about raising property taxes to cover the cost. This sounds warm and fuzzy and for a lot of people it sounds like something everyone should support, but when it comes down to raising people’s property taxes, then people will have a different view about it. What bail bondsmen do is they assure the person who has been accused shows up for court. We have the ability under the current law to pick them up and take them to jail or to court.”
AB 42 and SB 10 will transfer that function and law enforcement, will have to pick up the slack, Rankin said, resulting in large numbers of criminal defendants who will not show up in court, either for trial or sentencing.
“That [serving bench warrants on those who fail to appear] is a low priority for the police,” she said. “These will go to the back of the line of what police officers do. So the odds are the courts will be waiting a long, long time for law enforcement officers to go pick those who fail to appear in court up. That is what bail bondsmen do. We actively pick them up from their homes or find them wherever they are and return them to court. That is one of the services we provide. In the current bills there is no provision or legal authority pretrial to act in that manner. As bail bondsmen, our accountability and our performance requires that we deliver every single day. Just about everybody shows up at their first court appearance. It is down the line, where they don’t like where their case is headed or about to be sentenced that they skip out.”
With regard to the legislature, Rankin said, “I appreciate what they are trying to do. I understand the need to improve the bail system. Unfortunately, as this bill is written, it just needs to be scrapped. They need to bring us to the table so we can shape something that will work, not something that will be shown to be a complete failure within three to five years. So we’re not going to just sit back [and let this pass]. We want to educate them and let them know that this is the exact same thing that failed before. Why do something that has already proved to be a failure? The way it is written now, the counties will not be able to bear the cost. Why do they [legislative reformers] have such a problem with the way it is now? This is something, where, if you cannot afford it, you buy an insurance policy, which is what bail is, a type of insurance.”
Rankin also took issue with the concept of putting the criminally accused under the supervision of the state, which she likened to the policy of a “Third World” regime. “You are talking about ankle monitors and urine tests,” she said. “Who wants to live like that? That is not freedom. These are people who have been accused of a crime but haven’t been convicted who will be living like a parolee. That is not helping people. We should all be working together to do the right thing for society. Their [lawmakers’] argument is that this [AB 42 & SB 10] is in the best interests of the minority communities. That argument baffles me because sixty percent of the bail bond businesses in California are minority and/or woman owned. We’re talking about hardworking people who abide by the law and work within the system. The penal code encourages people to own their own businesses. Now we have members of the legislature, elected officials, slandering our profession in the press every day. These are legal businesses that we operate. We provide a service that is outlined in the California Constitution Article 1 Section 12. We invested into our businesses because the California Constitution says surety bail shall be required.
“They [lawmakers] are now willing to circumvent the Constitution and sacrifice our community of hard working, law abiding minority business owners, supposedly in order to ‘help minorities,’” Rankin said. “In other words they are willing to hurt minorities in order to help minorities. It makes no sense. Many of us have made years of investments and have long term leases on office spaces. What are we supposed to do after, as Assemblyman Rob Bonta likes to put it, they starve us out? Are we supposed to go on welfare or file bankruptcy? Will we be considered a minority community worthy of consideration then? This legislation, if it passes, will put many minority entrepreneurs out of business with no regard to the sacrifices we’ve made for our communities. The California Constitution provides for surety bail. That is why we are in this business to begin with. The State of California tells us in the Constitution that this method of pretrial release is what they want. That is why we do it.”
There has been what is referred to as bail bond reform in Washington, D.C., Kentucky and New Jersey. Substantial efforts in that direction have also taken place in San Francisco, Santa Clara and Santa Cruz counties. This reform movement grows out of the perceived need to limit mass incarceration and eliminate disparities in the justice system’s treatment of the wealthy versus the poor. This movement is reflected in the consideration that since 2012, every state in the nation has made adjustments to pre-trial custody release policies. Statistically, approaching 40 percent of those arrested and jailed are not convicted of the crime for which they are being held. In a significant number of those cases, an individual released from custody on bail put up by a bondsman loses in its entirety the percentage paid to the bondsman to secure the bail.
Bail is money put forth or pledged to ensure that a suspect who is released from custody will appear for trial or later court dates. When the bail set is beyond an arrestee’s means, he or she will often arrange with a bail company to put the bond up, typically for a fee that is near ten percent of the bail amount. If the accused fails to appear, the bond is forfeited to the state. Once the individual is acquitted or the charges are dropped or the person is convicted and sentenced, the bail money put up on his or her behalf is returned, either to the bail company that put up the money or the person charged, if he or she was able to collect the money on his or her own. In the case where an individual obtained bail from a bail bond company, even upon acquittal, exoneration or the dropping of charges, the ten percent paid to the bail bond company is not returned to him or her. In this way, an innocent person can lose money by being processed through the justice system.
According to the Public Policy Institute of California, the median bail in California is $50,000.
Moreover, reformers maintain, the financial onerousness of the bail system can result in the innocent remaining incarcerated until they are vindicated, such that many who are not in fact guilty of a crime plead guilty to get out of jail.

By Count Friedrich von Olsen
All this talk about the 100 year anniversary of the start of American involvement in what we now call World War I but which, when I was young, we called The Great War has me whistling and singing songs from the hit parade of 1917. If you look me up, I’ll seranade you by voice in person. In the meantime, you can enjoy the lyrics on the printed page!

I’m a Yankee Doodle Dandy
A Yankee Doodle, do or die
A real live nephew of my uncle Sam’s
Born on the Fourth of July
I’ve got a Yankee Doodle sweetheart
She’s my Yankee Doodle joy
Yankee Doodle went to London
Just to ride the ponies
I am a Yankee Doodle boy

You’re a Grand Old Flag
You’re a high flying flag
And forever in peace may you wave
You’re the emblem of
The land I love
The home of the free and the brave
Every heart beats true
For the red white and blue
Whenever there’s a boast or brag
Should old acquaintance be forgot
Keep your eye on the grand old flag

Keep the Home Fires Burning,
While our hearts are yearning.
Though the lads be far away
They dream of home.
There’s a silver lining
Through the dark clouds shining,
Turn those dark clouds inside out
Til the boys come home

John Rains, a former soldier, married the wealthy Maria Merced Williams after he arrived in California as a cattle and sheep driver in 1847. The couple purchased the 13,000 acre Rancho de Cucamonga. In 1860, they commissioned the building of the Rains House by Ohio brick masons who utilized bricks made by Joseph Mullaly from the red clay on the site. Its flat roof was waterproofed by tar from the brea pits in Los Angeles. An open flume carried water from springs through the kitchen, into the patio, and under the house to the orchard, thereby providing cooling for the structure. The original house had an entry hall, a parlor, and three bedrooms in the front, with a patio area flanked by a dining room, a kitchen, a padré’s room, and two guest rooms.

Silverfish (Lepisma saccharina) are not fish at all but rather small, primitive, silvery light grey and blue wingless insects in the order Thysanura.
Nocturnal, silverfish are typically half an inch to an inch long, have two long cerci and one terminal filament at the tips of their abdomens, and have two small compound eyes and long antennae, and move in a wiggling motion that resembles the movement of a fish. Living for two to eight years, silverfish are agile runners and can outrun most of their predators on horizontal surfaces, but, lacking additional appendages, are not fast enough to climb walls at the same speed.
They avoid light and inhabit moist areas, and can be found in attics, basements, bathtubs, sinks, kitchens, and showers.
Silverfish engage in a mating ritual involving the male and female standing face to face, touching their quivering antennae, followed by the male running away, to be chased and caught by the female, at which point the bugs stand side by side and head-to-tail, with the male vibrating his tail against the female, before laying a spermatophore, a sperm capsule covered in gossamer, which the female takes into her body via her ovipositor to fertilize her eggs. The female lays groups of fewer than 60 oval-shaped, whitish, 0.031-inch long eggs at once, deposited in small crevices.
After hatching, the nymphs moult, shedding their exoskeleton, and continue to do so into adulthood, perhaps as many as 60 times in their lifetime.
Silverfish consume matter that contains polysaccharides, such as starches and dextrin in adhesives, book bindings, carpet, wallpaper, clothing, coffee, dandruff, glue, hair, some paints, paper, photos, plaster, cotton, dead insects, linen, silk and sugar. They can live for a year or more without eating if water is available. Considered household pests due to their consumption and destruction of property and the contamination of food, they are not recognized as transmitting disease. Earwigs, house centipedes, and spiders are known to be silverfish predators.

Black and white together can be very bold and look great with hints of other colors like silver or pink. It’s primordial when you see black and white together because the colors are so traditionally stark. But, as usual, the new generation knows how to make traditional extraordinary. They can mix, match and mismatch outfits with a creative flair. They’re mixing black skirts with white tops, black dresses with white sandals, and black denim with white sneakers. It’s nice to see the younger set take on the black and white in new ways. The young people know how to twist things around with their black and white graphics etc.,  and women always know how to add a hint of some color when wearing black and white, handling it in a very tasteful way, too. Take the color silver, which makes black and white look refreshing and neat. If you think there’s nothing going on in fashion, take a look at the young people out there expressing their daring through their dressing. Have an awesome time mixing and matching traditional color this weekend.

“Women think of all colors except the absence of color. I have said that black has it all. White too. Their beauty is absolute. It is the perfect harmony.” – Coco Chanel