Scales of Justice

Saturday, November 2, 2013 – 07:30 p.m.
Last Modified: Monday, November 4, 2013 – 10:00 p.m.

Discovery (the turnover of evidence or case-related materials) compliance by prosecutors, a year’s-long chronic issue, continues to plague the highly-publicized Colonies criminal case.

Official court records reveal another of many clashes occurring, between defense attorney’s and state prosecutors, in the case involving the $102 million settlement, between San Bernardino County and Colonies Partners.

The latest dust-up, which occurred during a September 27, 2013 hearing, before Superior Court Judge Michael Smith, involves electronically-stored materials seized, by Federal Bureau of Investigation agent’s, during the execution of a series of September 2011 search warrants.

Defense attorney’s became aware of the incident by way of just turned over discovery they received in September 2013. Even though prosecutors received the material in May 2012.

The problem? Defense lawyers allege that materials a federal government agent turned over to county prosecutors, is covered by a protective order requiring the documents to be reviewed by a court-appointed special master, prior to.

A process that never happened.

Court records show Smith ordered prosecutors to seal-off the materials in-question.

To read the U.S. District Court orders, click here:

Order Appointing Special Master

Order Re – Appointment of Special Master to Review Seized Materials

The following is the actual Superior Court hearing Minute Order:

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Case FSB1102102 Defendant 3644003 ERWIN, JAMES HOWARD – Actions/Minutes

Action DateAction TextDispositionHearing Type
12/13/2013 8:30 AM DEPT. S19HEARING(AFTER CERT/HTA)RE: STATUS CONFERENCE  ACTIVE SENTENCING 
09/27/2013 8:30 AM DEPT. S19HEARING(AFTER CERT/HTA)RE: STATUS  DISPOSED SENTENCING 
Minutes
MICHAEL A SMITH, J-JUDGE
CLERK: DDA-DOLORES AMADOR
CERTIFIED COURT REPORTER: FM-FRANCES MACIAS CSR# FM-10918
BAILIFF C STALLINGS
APPEARANCES
DEPUTY DISTRICT ATTORNEY R. LEWIS COPE PRESENT.
ATTORNEY RAJAN MALINE PRESENT.
PURSUANT TO SECTION 977 PC, COUNSEL PRESENT WITHOUT DEFENDANT.
DEFENDANT NOT PRESENT.
PROCEEDINGS
ACTION CAME ON FOR PRE DISPOSITION HEARING
DISCUSSION HELD REGARDING DISCOVERY NOT YET
PRODUCED BY THE PROSECUTION.
DEFENSE COUNSEL RECORDS THAT RECORDS SUCH AS THE
BRENMER REPORT PREPARED ON 6/27/12 WAS JUST
RECEIVED AND SEARCH WARRANT NUMBERS RECEIVED TODAY
THAT WERE ISSUED 6/19/12. COUNSEL INDICATES THIS
INFORMATION ALONG WITH TEXT MESSAGES BETWEEN
POSTMUS AND BREMNER IS RELEVANT INFORMATION AND
EXCULPATORY EVIDENCE.
PROSECUTION INDICATES THAT AS DISCOVERY HAS COME
IN THEY HAVE PRODUCED IT. AS FAR AS THE THREE
SEARCH WARRANTS – PRODUCTION OF WARRANTS ARE NOT
OPPOSED ONCE THEY ARE ORDERED UNSEALED.
REQUEST FOR INDEX OF DISCOVERY STILL OUTSTANDING
IS DENIED AT THIS TIME.
COURT ORDERS SEARCH WARRANT SBSW12-0427
SBWS 12-0498 AND SBSW 12-0836 UNSEALED AND COPY
OF WARRANTS ANY RETURNS PROVIDED TO DEFENSE
COUNSEL AND ANY DOCUMENTS/ITEMS SEIZED PROVIDED
TO DEFENSE COUNSEL.
FURTHER DISCUSSION HELD REGARDING ITEMS RETAINED
BY THE FBI IN 2007 AND ORDER ISSUED BY
JUDGE OTERO IN FEDERAL COURT (ORDER RECITED INTO
THE RECORD).
COURT ORDERS THE DISTRICT ATTORNEYS OFFICE TO
SEGREGATE DOCUMENTS RECEIVED FROM INVESTIGATOR
ZEITLIN REFERENCED IN THE BREMNER REPORT; SHALL
NOT REVIEW THEM FURTHER; SHALL NOT DO ANY OTHER
INVESTIGATION BASED UPON THE INFORMATION IN THOSE
REPORTS PENDING FURTHER ORDER OF THE FEDERAL COURT
OR THIS COURT PENDING ANY FORMAL MOTION TO BE
FILED.
DISTRICT ATTORNEY AND ATTORNEY GENERALS OFFICE
IS ORDERED TO GIVE NOTICE OF ANY PROCEEDINGS IN
FEDERAL COURT.
MATTER CONTINUED BY STIPULATION.
HEARINGS
HEARING RE: STATUS CONFERENCE SET ON 12/13/2013 AT 8:30 IN DEPARTMENT S19.
DEFENSE COUNSEL MAY APPEAR PURSUANT TO PC977 AT NEXT HEARING.
TIME WAIVERS
REMAINS STAYED.
CUSTODY STATUS
OR TO CONTINUE.
CASE CUSTODY – OR
============= MINUTE ORDER END ================
============= MINUTE ORDER END ================

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