10:29 PM PDT on Tuesday, August 2, 2011

By DUANE W. GANG
The Press-Enterprise

Special Section: San Bernardino Co. Probe

From the moment that 2,769 pages of grand jury testimony became public in a sweeping San Bernardino County corruption probe, defense attorneys accused prosecutors of presenting one-sided evidence.

Stephen Larson, an attorney for Jeff Burum, one of four people the grand jury indicted, said the “transcripts reflect numerous instances of the prosecutors actually dissuading the grand jury from hearing evidence from the other side.”

More than once, grand jurors asked for more information only to be told that prosecutors were not required to present all relevant evidence, according to transcripts.

Grand juries serve on the front end of a criminal inquiry as an alternative to police or district attorney investigators, conducting interviews with witnesses and filing charges. Defense attorneys make their case at trial.

In the Colonies investigation, the grand jury had a list of 45 witnesses and reviewed hundreds of pages of evidence.

At one point, the jurors asked whether former San Bernardino County Supervisor Dennis Hansberger received any campaign contributions from Burum.

Hansberger had already testified, and a prosecutor told jurors the former supervisor had a plumber at his house.

According to the transcripts, Deputy District Attorney Lewis Cope told the grand jury that Hansberger could be summoned back, “although there is no guarantee for how he might be dressed.” He was never called back to answer the question.

Prosecutors defended their actions in presenting the evidence. Assistant District Attorney Jim Hackleman said material that defense attorneys presented on behalf of their clients was given to the grand jury for review, but it did not dissuade the panel from indicting Burum and the others.

For instance, the grand jury received a 24-page letter from one of Burum’s attorneys detailing evidence favorable to him.

In May, the grand jury issued a 29-count indictment against Burum and three former county officials in connection with San Bernardino County’s $102 million legal settlement with developer Colonies Partners, where Burum is a co-managing member.

Also charged are former Supervisor Paul Biane; Mark Kirk, former chief of staff to Supervisor Gary Ovitt; and Jim Erwin, a former assistant assessor who was a Colonies consultant at the time of the settlement.

Prosecutors contend the deal was obtained through a conspiracy involving bribery and extortion. All have denied wrongdoing.

Different Path To Trial

Typically, prosecutors file a criminal complaint and a judge decides after a preliminary hearing whether the evidence is sufficient for trial.

During the hearings, those accused of crimes can have lawyers. They have the right to tell their side of the story, present evidence, call witnesses and cross-examine others.

But if a case goes before a grand jury and the panel votes for an indictment, the preliminary hearing process is bypassed. Grand jury proceedings are secret, and there is no judge or opposing counsel present.

The Legislature and various state Supreme Court cases over the years have provided additional protections for those who are targets of a grand jury inquiry.

Prosecutors presenting evidence to criminal grand juries in California must present exculpatory evidence — information “reasonably tending to negate guilt,” according to a state Supreme Court decision on the matter. Prosecutors say they provided that information in the Colonies case.

Laurie Levenson, a Loyola Law School professor, said criminal grand juries are not used that often in California and are most often tapped in high-profile cases. They offer prosecutors advantages.

“They have the secrecy. They are in control. You don’t have a judge running the proceedings, and you don’t have opposing counsel,” she said.

“The criticism is the grand jury will indict a ham sandwich if you ask them,” said Levenson, a former federal prosecutor. “It is just meant to be a screening mechanism. A smart prosecutor won’t just jam a case through because ultimately you have to try it.”

What They Didn’t Hear

In the Colonies case, the offices of the district attorney and the attorney general — jointly prosecuting the corruption probe — presented evidence to a 19-member criminal grand jury. One member was later excused, leaving 18 to determine whether to issue the indictment.

Central to the prosecution’s case is $400,000 in campaign contributions from Colonies Partners to five political action committees with ties to Biane, Kirk, Erwin and former Supervisor Bill Postmus. Prosecutors contend the donations, made in 2007, were bribes in exchange for the three votes needed for the Colonies settlement.

The grand jury had asked whether Burum made donations to Hansberger, who voted against the settlement, in the months after the deal.

Hansberger already had concluded his testimony, and Cope, one of the prosecutors on the case, said the grand jury could call the former supervisor back if they had 12 votes, according to the transcripts. In counties the size of San Bernardino, 12 is the minimum number of votes a grand jury needs to make decisions.

“Mr. Hansberger, this morning — the report I have is that he has a plumber that is at his home. He is happy to return should you desire it,” Cope said. “It’s just a matter of timing.”

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