Shaky witnesses, evidence problems mar Colonies corruption trial – San Bernardino County Sun

Ten weeks into the Colonies corruption trial in San Bernardino, hard evidence showing a wealthy developer bribed former county officials has yet to emerge, and prosecutors remain vexed by shaky witnesses in the nearly decade-old case.

Since the trial began on Jan. 4, 19 witnesses for the prosecution have testified, but solid evidence backing allegations that defendant and Rancho Cucamonga developer Jeff Burum paid $100,000 bribes to each of the other three defendants has not been produced.

This court has bent over backward to allow the prosecution to bring in a circumstantial case. We are now at the two-month anniversary of the start of this trial, and we have yet to hear a single piece of evidence from anyone saying that anybody was bribed, Burums attorney, Stephen G. Larson, told Judge Michael A. Smith Wednesday, March 8, outside the jurys presence.

Also charged in the case are former county Supervisor Paul Biane, former Assistant Assessor Jim Erwin, and Mark Kirk, former chief of staff for erstwhile county Supervisor Gary Ovitt.

Several key witnesses called to testify, including county Supervisor Josie Gonzales, who begins her fourth day of testimony on Monday, appear to have done little to advance the prosecutions case, and no documented evidence proving a quid pro quo occurred among the defendants has emerged so far during the trial.

Gonzales inconsistent testimony regarding the year she claims she encountered Burum in China is the most recent hurdle prosecutors have had to clear. On Tuesday, she said the year was 2005, but when Burums attorneys produced evidence she was stateside in 2005, she recanted and said the year was 2006. Burums attorneys allege Gonzales is lying and made the story up, and question why prosecutors are eliciting the testimony about the China trip from her.

Deputy Attorney General Melissa Mandel said during Wednesdays court proceedings that it was improper for the defense to assert that prosecutors knew something was wrong with Gonzales testimony but introduced the evidence anyway. She said there were other conflicting accounts about the trips to be explored, and that is what the trial was for.

Gonzales testified before the indicting grand jury in 2011 the China encounter was in 2006, but three years later, when challenged by Burums attorney in a court motion that Burum was not in China in 2006, changed her story and said it was 2005.

Burum has maintained he was never in China in 2006. His former attorney, John Vandevelde, included that information in a letter that was submitted to the grand jury in April 2011 in a packet of exculpatory evidence.

Gonzales testimony is merely one example of the problems prosecutors have faced with witnesses.

Kirk, for example, stands accused of using his influence to deliver Ovitts vote approving the settlement in exchange for a $100,000 bribe. Ovitt, however, testified repeatedly that was not the case, and that it was his decision alone. He said his concerns over public safety issues at Colonies property, potential damages hitting the $300 million mark, and that the Colonies property being left in limbo because of the lengthy civil litigation were among the reasons he approved the settlement.

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Witness Matt Browns testimony and cooperation became so problematic for prosecutors it prompted Judge Smith to declare him a hostile witness.

Brown, Bianes former chief of staff, could not recall much of what he testified to during the April 2011 grand jury proceedings, let alone things that were said and done more than a decade ago during the Colonies civil litigation with the county. He often became testy with Mandel during her examination of him and refused to take home transcripts of his grand jury testimony to refresh his memory because he was sick, saying he was going to go home and go to bed.

In cooperation with district attorney investigators, Brown secretly recorded conversations with Biane and former Board of Supervisors Chairman Bill Postmus to try and get them to admit they were bribed, to no avail.

Postmus was initially a targeted defendant in the case, but in 2011, per a plea agreement with prosecutors, pleaded guilty in the Colonies case and agreed to turn states evidence in exchange for having all but two felonies hes charged with dropped.

Los Angeles criminal defense attorney Mark Geragos, who said hes been monitoring the Colonies trial for about the last month, said in a telephone interview Friday that prosecutors appear to be facing an uphill battle, especially given Gonzales testimony, which he said wen sideways.

What is going on in Judge Smiths courtroom right now is not looking good for the prosecution, Geragos said.

District Attorney spokesman Christopher Lee declined to comment Friday.

At this time, it would be inappropriate to comment, Lee said in an e-mail.

Geragos, whose past celebrity clients include the late pop singer Michael Jackson, actress Winona Ryder, and Whitewater figure Susan McDougal, defended Vartan Kouladjian, one of two brothers accused of trying to bribe Gonzales former chief of staff in 2007 and 2008 in exchange for his helping them clear development hurdles for their Bloomington auto auction business. The jury deadlocked in 2011 and a mistrial declared.

In my experience, jurors want to see something tangible, they want hard evidence, and there just doesnt seem to be any in this case, Geragos said of Colonies. And you combine that with witnesses going sideways, thats a real problem for the prosecution.

Former Riverside County District Attorney Grover Trask, an expert in public corruption, said such trials tend to be long in duration. Prosecutors, he said, have the burden of painting a picture for the jury to show how the alleged corruption played out and the players involved by slowly rolling out evidence that is oftentimes circumstantial at best.

Its a question of getting all the circumstantial evidence together, connecting all the dots and that they lead to one reasonable conclusion, Trask said. Its a winding, curving road and it is sometimes difficult to see whats at the end until you put everything together.

Defense attorneys, on the other hand, have the challenge of convincing jurors, some of who may have unfavorable opinions about public officials, that their clients are innocent, Geragos said.

Literally, people dont like politicians or anything that reeks of public corruption, said Geragos. Thats one of the reasons I think we saw Trump get elected. He was an outsider and not a politician doing business as usual. I think there is an element of society that feels the system is broken.

Still, the burden of proof remains on the government, said defense attorney Dean Steward, who represented former Upland Mayor John J.P. Pomierski in his federal bribery case. Pomierski pleaded guilty to one count of bribery as part of a plea agreement and was sentenced to two years in federal prison in August 2012.

It comes down to the strength of the governments case, Steward said. The defense doesnt have to produce a single witness. Its on the government to prove every charge beyond a reasonable doubt.

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Shaky witnesses, evidence problems mar Colonies corruption trial - San Bernardino County Sun