From left, Paul Biane, Jim Erwin and Jeff Burum have their GPS ankle braclets removed Wednesday morning in the hallway of the San Bernardino Superior Court. A judge ordered the Colonies defendants’ electronic monitoring and travel restriction order be lifted. (Courtesy photos)
CORRUPTION IN SAN BERNARDINO COUNTY
By Joe Nelson and Mike Cruz, Staff Writers
Created: 08/31/2011 10:05:07 AM PDT
SAN BERNARDINO — A San Bernardino Superior Court judge on Wednesday lifted an electronic monitoring and travel restriction order for four defendants in a sweeping county corruption case, while prosecutors announced they are appealing the dismissal of some of the charges against the defendants.
Prosecutors said they filed their appeal on Tuesday contesting Judge Brian McCarville’s Aug. 19 ruling, in which he dismissed five of the seven counts against Rancho Cucamonga developer Jeff Burum and one count of misappropriation of public funds against each of the other three defendants: former county Supervisor Paul Biane, Supervisor Gary Ovitt’s former chief of staff Mark Kirk, and former assistant assessor Jim Erwin.
In light of the appeal, Judge Michael Smith granted a motion by prosecutors to stay the trial proceedings until the Fourth District Court of Appeal in Riverside issues its ruling. He also agreed to cease electronic monitoring of the defendants and lift their travel restrictions.
After the proceedings, Burum and the other defendants lifted their legs onto a wooden courthouse bench to have their GPS ankle bracelets removed.
Supporters, business associates and friends of the defendants, who packed the courtroom, cheered and applauded.
“I think it’s going in the right direction,” Erwin said of the case, moments after being freed of his ankle bracelet. “It feels good to have it off.”
Smith lifted the travel restrictions on condition that each defendant notify prosecutors and the court whenever they plan to leave the state and when they are to depart from and return to California.
The defendants were previously limited to several counties in Southern California. Smith reminded them Wednesday that their first priority was making court appearances, or else he would revoke their bail.
“Do you understand zero tolerance?” Smith asked the defendants. “Yes sir,” they collectively replied.
Erwin’s lawyer, Rajan Maline, said obviously he wasn’t thrilled with the stay, but the process allows for that. He was pleased to see the restrictions eased for Erwin, who has maintained his innocence since the beginning.
“Clearly they’re not a flight risk,” Maline said. “They’re eager to have their day in court.”
Prosecutors said they agreed to ease the restrictions against the defendants in light of the appeal and the stay.
Deputy District Attorney Lewis Cope, who heads up his office’s Public Integrity Unit, confirmed the appeal was filed Tuesday but would not discuss how the decision was made to appeal McCarville’s ruling.
“I think it’s inappropriate to get into our strategy and thinking process,” Cope said. The appeal, he said, is not a criticism of the judge.
“We believe we have a different legal position than what he ruled upon,” Cope said.
A ruling from the appellate court could take several months, lawyers said. But Smith did allow discovery – the process in which
attorneys on both sides exchange information and evidence in preparation for trial – to continue.
“We need to complete all the discovery as soon as possible,” Smith said during the hearing. That, he said, would enable the court to set realistic timetables for any future motions and pave the way for trial once the stay is lifted.
Defense lawyers said they looked forward to reading the additional discovery.
A criminal grand jury handed down a 29-count felony indictment against Burum and the three former county officials on May 9, charging them with criminal conspiracy, bribery and conflict of interest, among other charges.
Prosecutors allege they conspired to gain a $102 million legal settlement for Burum’s company, Colonies Partners LP, in exchange for $400,000 in bribes.
The landmark settlement ended a nearly five-year legal battle between the county and Colonies over flood control improvements at the developer’s 434-acre development in Upland. Prosecutors allege the settlement was tainted by bribery, blackmail and extortion.
All four defendants deny any wrongdoing.
Former county Assessor and Board of Supervisors Chairman Bill Postmus, who voted in favor of the Colonies settlement, pleaded guilty in March to criminal charges against him in the Colonies scandal and a separate scandal at the Assessor’s Office, of where he was accused of running a political operation out of at taxpayer expense.
On Aug. 19, McCarville dismissed five of the seven felony counts against Burum and purged from the conspiracy count some of the predicate crimes comprising the charge. McCarville also dismissed one felony count of misappropriation of public funds for each of the other three defendants.
“The dismissed charges reflect an overreach by the prosecutors, and today’s decision to remove electronic monitoring and to lift certain travel restrictions illustrates the significantly changed circumstances of this case,” said Burum’s attorney, Stephen G. Larson, following the hearing. He declined to comment on the prosecution’s appeal of McCarville’s ruling.
Kirk’s attorney, Paul Grech, said he believes the appellate court will sustain McCarville’s ruling.
McCarville is the judge who initially presided over the case before he was transferred to the court’s civil division.
One thing the appellate court should make clear, Grech said, is where the case now stands, and if McCarville’s paring of the indictment on Aug. 19 affects the admissibility of evidence in the case.
“Mr. Kirk wants to clear his name. So far we are pleased by the pace of the litigations and the rulings we’ve had in court,” Grech said. “And we’re looking forward to fighting the remaining charges aggressively.”