Mark Kirk, the former chief of staff for San Bernardino County Supervisor Gary Ovitt, left, and his defense attorney Peter Scalisi react after Kirk is found not guilty of all charges in the Colonies corruption case verdict hearing at San Bernardino Superior Court in San Bernardino, Calif. on Monday, Aug. 28, 2017. Defendants kirk, Developer Jeff Burum and former San Bernardino County Supervisor Paul Biane were found not guilty after a marathon trial that has lasted nearly eight months. (Photo by Rachel Luna, The Sun/SCNG)
By Joe Nelson | firstname.lastname@example.org | San Bernardino Sun
PUBLISHED: December 18, 2017 at 3:12 pm | UPDATED: December 18, 2017 at 10:57 pm
A former top San Bernardino County official filed a $35 million malicious-prosecution claim against the county Monday, alleging his reputation was destroyed due to trumped up criminal charges against him and three other co-defendants, all of whom were either acquitted or had their cases dismissed.
The claim by Mark Kirk, who was former county Supervisor Gary Ovitt’s chief of staff, is a precursor to a lawsuit.
Kirk contends that former Assistant Assessor Adam Aleman and county Supervisor Josie Gonzales helped district attorney investigators launch the criminal investigation that led to an indictment in May 2011 against him and three others — Rancho Cucamonga developer Jeff Burum, former county Supervisor Paul Biane, and former Assistant Assessor Jim Erwin.
Gonzales declined to comment Monday.
County spokesman David Wert said, “The county carefully considers all claims and acts in the best interests of everyone involved.”
The four were accused of conspiring to deliver a $102 million legal settlement in favor of developer Colonies Partners in November 2006. Burum is a co-managing partner of Colonies.
Prosecutors alleged bribery drove the settlement, which ended a nearly 5-year legal battle over flood control improvements at Colonies Partners’ 434-acre residential and commercial development in Upland.
But after more than six years of criminal proceedings in San Bernardino Superior Court, the Fourth District Court of Appeal in Riverside, the Ninth Circuit Court of Appeals in Pasadena and the state Supreme Court, Kirk, Burum and Biane were acquitted in August. A month later, prosecutors dropped their case against Erwin after his jury announced it was “hopelessly deadlocked” and prosecutors said they faced “unresolvable witness problems.”
Kirk claims that prosecutors “either knew — or should have known — that numerous witnesses were offering false and perjured testimony, including Aleman, Gonzales, and (district attorney investigator) Bud Randles.”
Kirk alleges that he and the others were prosecuted in retaliation for the Colonies’ civil litigation and for Colonies Partners exercising “First Amendment rights of political expression.” Along with malicious prosecution, he also alleges negligence, breach of contract, false arrest/imprisonment, and intentional infliction of emotional distress, and claims district attorney investigators fabricated evidence.
Aleman and Gonzales were problem witnesses during the 8-month trial. Gonzales had been impeached multiple times regarding, among other things, her accounts of seeing defendant Burum in China in 2006. Evidence showed he was stateside during Gonzales’ China trip.
Aleman testified he lied to the grand jury, did not know what perjury was when he testified and was working with investigators as part of a plea deal in connection with crimes he committed at the Assessor’s Office.
Per his plea agreement, Aleman agreed to cooperate with the state and local prosecutors in their criminal investigation and testify against the defendants at trial in exchange for having his charges reduced to misdemeanors.
On Dec. 1, he was sentenced to six months in jail and ordered to surrender at the West Valley Detention Center in Rancho Cucamonga on Jan. 24 to begin serving his sentence.
Neither Aleman nor his attorney, Grover Porter, have responded to repeated requests for comment.
Following the trial, some jurors said prosecutors came nowhere close to proving their case. At least two jurors said they believed Aleman was lying. One expressed sympathy for Kirk.
“Mark Kirk’s jurors told us that he was innocent of all charges, and they all felt so bad for him and his family that he and Paul Biane, Jeff Burum, and Jim Erwin were even charged in the first place,” Kirk’s attorney, Peter Scalisi, said in a statement Monday.
Prosecutors and district attorney investigators, Kirk alleges, failed to “act reasonably” so as not to cause him undue harm and manipulated witness testimony, including that of former county assessor and former Board of Supervisors Chairman Bill Postmus, initially a targeted defendant in the case who, like Aleman, entered into a plea agreement with prosecutors in March 2011 in exchange for leniency.
Prosecutors were never able to prove that $400,000 in contributions to political action committees tied to the three county supervisors who approved the Colonies settlement were bribes. Postmus, Biane, and Ovitt approved the settlement. Supervisors Gonzales and Dennis Hansberger voted “no.”
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