Petition for Writ denied

According to a notification just received from the Fourth District Court of Appeal, the petition for Writ of Mandate filed to overturn Judge Smith’s ruling on the Johnson Motion was summarily denied by the court today.  The Colonies Four have been on a PR campaign in the months since the petition was filed suggesting the court was highly likely to grant the petition.  However, Larson’s more recent filing suggested the defense was not nearly as confident as they were publicly.  I suspect Larson knew where it was headed and filed yet another motion to delay.

15 thoughts on “Petition for Writ denied

  1. Without a doubt the defendants thought the COA was going to rule the DA/AG violated their rights under Johnson. I am sure they are all very disappointed, as are many of their supporters.

  2. Three days later, I haven’t seen any coverage about this in the local media.

    They are certainly up to date on current events, with The Sun reporting today that “2 shot, 2 stabbed in overnight violence in San Bernardino.” Likewise, the Press Enterprise is keeping us appraised on important news, informing us today that “Transgender veteran sues barber who refuses haircut.”

    Given the past one sided coverage of The Colonies prosecution by these publications, I would think that they would pounce on this ruling and enlighten their readers.

  3. This is very bad news for three of the Colonies Four. Those three are Jeff Burum, Jim Erwin & Paul Biane. As those in the know recognize, the case against Mark Kirk is nowhere near as strong as it is against the others. As battered as the prosecution will be by the time this goes to trial – and the prosecution deserves to be battered – several facts are going to be very problematic for the defense when they are presented before a jury. What is perhaps the most interesting question, not too mention the most crucial question, is: “Will Stephen Larson allow his client – Jeff Burum – to testify?” No matter how well prepared Mr. Burum is, there are five or six questions he will be asked that will leave him as a deer in the headlights. On the other hand, if he does not testify, the jury will make assumptions about his guilt, despite the judge’s admonition to them that they cannot consider his unwillingness to testify as probative. The more than $3 million Mr. Burum has paid Stephen Larson and his firm so far and the more than $2 million he has yet to pay will not save him.
    When Mr. Burum falls, Mr. Erwin and Mr. Biane will drop like dominoes.

    • You assume the prosecution witnesses are sharp and can handle tuff cross examination. You forgot about all those emails that say one thing and sworn declarations that say something else. You forget about all the other obvious screw ups by the DA in other cases.

  4. Jake Hanson:

    I do not agree that this is the “bad news” that you do; all it means is that the case is moving forward. The prosecution still has to prove their case in a courtroom, and has yet to take the first step in doing so.

    For many years, Mike Ramos cheerleaders such as Red Anon and Repairman have touted rulings that did not result in the dismissal of charges as victories. You seem more sophisticated than they were; can you explain why this is “bad news?”

    I believe that Jeff Burum will testify; according to Judge Warner’s ruling, in that trial he was a very credible witness. I agree that if he did not it would not look good to the jury.

    I would be interested in hearing what “facts” you feel will be “very problematic for the defense.” My opinion is that it’s the prosecution who is going to have the problems, particularly establishing motive. The defendants will be there to defend themselves and the prosecution will not be able to mislead the court like they misled the Grand Jury.

    I also believe that having a star witness who admitted using meth dozens of times during the timeframe he will be testifying about and once showed up to court under the influence of meth is going to be “problematic” for the prosecution. So is the fact that he told the FBI that no bribery took place.

  5. Motive? Is that really a problem the prosecution is going to have? Observer of the myths is in trouble.

    • Anonymous:

      The Colonies had imposed liability on the county pursuant to Judge Warner’s ruling; all that remained to be determined was how much money the county was going to have to pay.

      What is The Colonies motive to commit bribery to obtain an amount of money that is less than the county’s own experts said could be owed if the court awarded the damages? Why not just let the court award the damages?

      I’ve heard several hypothetical reasons, such as fearing an appeal of Judge Warner’s ruling. Having read the ruling several times, I would not be worried about that, and I don’t think The Colonies were either.

      I’ve also heard that they were somehow concerned about the upcoming Board of Supervisors election. Again, that theory is irrelevant if they allow the court to award the damages.

      And based on everything I have read and heard, The Colonies were not desperate for money.

      Given the facts, not “myths,” I believe the prosecution is going to have a difficult time establishing motive.

  6. Motive to defraud? How about this for a motive: put your friends in government to ensure continued development, low assessments etc etc
    When did having fellow Republicans in the government hurt Republican businessmen in their efforts to further line their pockets?
    That’s part of the motive, short term gains of course, but in the long run, the government of SB County was being sold to friends of Posrmus, who got caught

    • As I understand your comment, you believe that “SB County was being sold” to insure “continued development, low assessments, etc etc.” If this was a response to discovery between attorneys, it would be objected to as irrelevant and over broad,

      The prosecution is accusing these defendants of bribing various people to approve the settlement of a lawsuit, not claiming that Bill Postmus gave “low assessments” to “friends” when he was Assessor.

      The prosecution needs to establish that The Colonies had a motive to commit bribery to receive an amount of money that the defendants own experts and attorneys have stated was a far lower amount than they would have received if the court had awarded damages.

      They are also going to have to prove that legal and fully reported contributions to Political Action Committee’s that were made many months after the settlement was reached constituted the bribes.

      My opinion for many years is the prosecution is going to have a difficult time proving this case in a courtroom. and I continue to look forward to the day they finally have to start doing so.

  7. I look forward to the day the defense stops filing frivolous motions. As I understand it, they were anxious to put this in front of the jury and wanted to do so expeditiously. Why the sudden change? They file motions to continue this case every hearing.

    Sounds like a typical defense attorney getting paid very well to prevent the jury from seeing the merits of the case. whatbis shocking is these defense attornies publicly stated they wanted to get their case to the jury but their actions show differently. I think the writing is on the wall.

    • Check the facts; the single biggest delay in this case was the result of prosecutors appealing a ruling they didn’t like.

      And I believe what the defendants inferred was that they were anxious to get the case back to the Superior Court and proceed with the legal process, not necessarily to immediately “put this in front of a jury.”

      One of the defendants motions resulted in the dismissal of the conspiracy charges against all defendants, a ruling that was upheld by the Appellate Court. In another, a Superior Court judge stated that he was troubled with the prosecutors conduct, but ruled that it did not rise to the level where the case should be dismissed. Neither of those motions sound “frivolous” to me.

  8. Again I ask, who was responsible for diverting massive amounts of water onto Colonies property in the first place? How were they punished?. If this was acknowledged as wrong, how should the wronged parties have righted the wrong? If I were a juror, I would want to know this. Define the cause of first action, then examine the cause of second action.

    How can the judge and prosecution keep the key questons out of the case?

    Larson has successfully delayed the case for a couple of years and seeks to have the case dismissed. Failing that, he still has a case.

    Let me be more clear. If the public servants who diverted this water were so stupid as to think they had a right to, then they exposed SANDBAG et al to great liability. If they knew it was illegal and did it anyway, it was a crime. The statute of limitations certainly has run out, but so much the better. Larson can use discovery and force these individuals to come to court and explain why they did what they did. They can not take the fifth amendment due to satutes but will be subject to perjury if they do not tell the truth.

    After that testimony, Burum et al will be relieved of duty of proof as to why they curcumvented normal civil remedies. On the contrary, they will be considered victims of a perpetrated crime and their actions will be judged as to their efforts to mitigate the effects of a crime.

    At he same time, SANBAG, the County of Riverside, the Riverside County District Attorney’s office and the California Attorney General’s office will be forced to admit that a crime occurred against the defendents. All these agecies will have to explain why they took no action to punish the original crime but seek to prosecute the victims for trying to get out from under the admitted crime in the wrong way.

    Jury foreman, please read the verdict.

  9. As concisely as I can put it: The county’s defense in the underlying case – the one brought by the Colonies Partners against the county and its flood control district – hinged on the three flood control easements recorded on the Colonies property in the 1930s. Earlier in that litigation, Judge Norell ruled that the county had abandoned the easements. Abandonment occurs as a consequence of under-use or non-use of the easement(s) in question. This was a major victory for the Colonies Partners, to the point that it severely crippled the county. But Judge Norell was reversed on that point precisely by the appellate court. This shifted the momentum of the litigation to the point that the case was nearly dead. Judge Warner replaced Judge Norell and heard the matter as a bench trial. He resuscitated the case by ruling that the easements no longer existed, not because they had been abandoned but because they had been extinguished. Extinguishment occurs as a consequence of overuse or abuse. This led to Judge Warner’s conclusion and ruling in favor of the Colonies Partners. While he had entered his ruling in favor of the Colonies Partners, Judge Warner had not yet assessed damages when the $102 million settlement was made by Mssrs. Postmus, Biane and Ovitt. At large, however, was the issue of Judge Warner’s ruling. There was a logical absurdity involved: One judge (Judge Norell) looking at a set of facts concluded that the county had underused or not used the easement. A second judge (Judge Warner) looked at the same set of facts and concluded the county had overused the easement. The county was on the brink of appealing Judge Warner’s decision to the same appellate court that had previously concluded the easements still existed. How likely was it that the appellate court, which already concluded the easements remained valid, would reverse itself and say the easements no longer existed? Not very! Anyone with any understanding of the issues involved understood that the gist of the Colonies complaint and its causes of action came down to the county flood control district channeling water onto the Colonies Partners property, which for six previous decades or thereabouts had been flood control property. Yet, if the easements continued to exist, the county had the right to do just that. The county was about to pull the trigger on Judge Warner’s ruling when the case was settled out from underneath everyone by the 3-2 vote of the board of supervisors.
    The prosecution maintains that the board majority was in part induced to make that settlement vote by Mr. Burum first extorting supervisors Postmus and Biane. Extortion by threatening to publicly expose the former’s drug use and what was for his Republican constituency an unconventional sexual orientation. Extortion by threatening to expose the latter’s inability to live within his own financial means. That was the stick. The prosecution further holds that Mr. Burum also used a carrot – bribes, i.e., financial rewards – $100,000 each in the form of political donations to Mr. Postmus and Mr. Biane in return for their votes supporting the settlement after the fact. A third carrot was provided, the prosecution maintains, to Mr. Kirk, in the form of an identical $100,000 political donation in return for having secured the vote of his boss, Supervisor Ovitt.
    I happen to think that there are some rather weak elements in the prosecution’s case, particularly in regard to Mr. Kirk. I think the prosecution is going to have a tough time in showing that he was responsible for his boss voting as he did. It would require a show of evidence that it is hard for me to imagine exists. Even if it does exist, I would be astounded if the prosecution can produce it. But as for Mr. Burum, if this goes to trial, he will, or his lawyer will, have to decide on whether he is to testify. If the decision goes to having him plead the Fifth, then I think that introduces some problems for him. Here is a guy generously handing out money to people, some who were even more generous in handing him public money. Now he is unwilling to explain his generosity and the reason for it? Especially given all of this to-do about it? Here is his big chance to explain his innocence and he is remaining mum? The judge can instruct the jury not to make any presumption about Mr. Burum’s reticence, but his silence will sound louder than 102 million thunderclaps. So, what if he does agree to testify? He will be asked if in the late summer and early fall of 2006 he was getting ready to use his constitutional right of free speech to tell his fellow citizens that both Mr. Postmus and Mr. Biane had engaged in behavior that many people would consider to be disqualifications for public office. Will he lie and say he wasn’t doing just that? The prosecution is prepared to show he wasn’t just making idle conversation on a bar stool someplace but had gone to considerable expense in hiring private investigators to dig up this hidden information. They have the testimony of a professional writer, Patrick O’Reilly, to show Mr. Burum paid him a substantial amount of money to put the information those private investigators had compiled into a highly readable and believable form so it could be sent to voters throughout the county. When Mr. Burum is asked why he decided not to at last exercise his free speech rights by sending those mailers out, what will he say? When he is asked if he actually made $100,000 donations to Bill Postmus and Paul Biane in the months after they voted to settle the case for $102 million, will he deny making those donations? After he acknowledges he did make those donations and he is asked why, will he have a ready answer? I think he will. I think he will say something to the effect that after all those years of litigation he wanted to put the ill-will behind everyone and show that there were no hard feelings and we can all just get along. To the direct question of whether he made those donations to supervisors Postmus and Biane as a reward for their votes in approving the settlement, he will say he did not. But the next question will be how it came to pass that he was ready to spend close to $100,000 or maybe even more to keep Mr. Postmus out of office and ruin Mr. Biane’s future political potential and, less than a year later, he provided them with $100,000 each so they could stay in office. How will he answer that question with the jury hanging on every word? What could he possibly say to acquit himself? And then will come the coup de grace: The prosecutor asking what came between the two events, the threat to smear Mssrs. Postmus and Biane and the $100,000 donations. Will Mr. Burum hesitate and not answer? Will his attorney object to the form of the question? With the courtroom riveted, the prosecutor will then restate the question: “Mr. Burum, between the time you had those mailers prepared but did not send them out and the time you made the $100,000 donations to Mr. Postmus and Mr. Biane, did they vote to settle the lawsuit you had brought against the county for $102 million?”
    At that point, the defense’s effectiveness in painting Bill Postmus as pathetic drug addict will have the exact opposite impact they had hoped to achieve. Everyone in the courtroom will recognize that Mr. Burum had exploited Mr. Postmus’s vulnerabilities. What answer will Mr. Burum be able to summon up that will not lead everyone listening to the conclusion that he first extorted and then bribed Bill Postmus and his sidekick, Mr. Biane?
    If this case goes to trial, Mr. Burum is in trouble.

  10. I agree with everything Jake had to say. Let me add some other points.

    In the years since the $102 million settlement, our society has changed drastically. Heck, in light of yesterday’s massscre, the Colonies Boys should thank their lucky stars the trial is not going on now.

    In this period of time, society has become much softer and sympathetic towards both gays and drug addicts. That was proven with the proposition two years ago that released thousands from jail. We now recognize that gays are bullied and what Burum did was clearly bullying over sexual preference.

    After the settlement the bullying continued. Erwin revealed that Biane is bisexual and named his boyfriend. His blog is full of tweaker and butt buddy references that went on for years after the indictment. There are numerous threats towards Ramos and his staff along with many others. Erwins blog is the gift that keeps on giving. He’s made it easy for the prosecution to show a pattern of behavior that continues to this day.

    Burum is not a sympathetic character in all of this. He will come actoss as a sleezy developer who paid to play.

    If they ever take the jury on a field trip to the big hole in the ground, the average teacher, postal worker, retiree, or truck driver is never going to beleven it is worth $102 million, never mind $300 million.

    And in these years since the settlement, we have Donald Trump along with a long list of convicted corrupt government officials. Yep, we are tired of government corruption and it seems the only way to fight it is through the court process. How many public officials can you name who got a jury verdict in their fsvor.

    There is no doubt the prosecution has made some mistakes. But I don’t see that mistakes leading to a not-guilty verdict. I think despite claims to the contrary, Larson does not want Burum to face a jury.

    • After the field trip to the “big hole in the ground,” the defense can point out that there are appraisals valuing the 72 acres of land at over $1 million per acre, show other transactions where land in the area sold for over $1 million per acre, and point out that that in the settlement The Colonies gave this land to the County.

      Then they could point out that the county also received the improvements to the land necessary to make it into a flood control basin, provide the county approved plans, and show their costs to do so back up by
      third party documentation, including bids and invoices.

      Finally, they could point out that they imposed liability on the county in a trial in Superior Court, all that remained to be determined was how much money the county owed them, and that county attorneys have said on the record that the settlement was a good deal that saved the county money.

      My daughter is a high school teacher in San Bernardino County, and I believe that she would place more weight on these facts than what she observed on the field trip.

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