Feb. 19--SAN BERNARDINO -- An Upland attorney's allegation that prosecutors withheld key evidence from the grand jury in the Colonies corruption case, which he said would have cleared his client of any wrongdoing, has long been a sticking point among defense attorneys since certain court reforms were passed in 1990, a criminal law expert said Tuesday.
Defense attorney Stephen Larson, in a set of motions filed last month, accused San Bernardino County prosecutors of manipulating the grand jury by giving an unfair and one-sided presentation of facts in the case. He cited 20 pieces of exculpatory evidence or things prosecutors did that was prejudicial to his client and prevented the grand jury from fulfilling its role as being an "independent bulwark" of justice and not a rubber stamp for prosecutors.
Larson represents Rancho Cucamonga developer Jeff Burum, who along with three former county officials stands accused of engaging in a conspiracy of bribery and blackmail to secure a landmark $102 million legal settlement from the county in November 2006 with Burum's real estate investor group, Colonies Partners LP.
Also charged in the case are former county Supervisor Paul Biane, former Assistant Assessor and labor union president Jim Erwin, and Mark Kirk, former chief of staff for Supervisor Gary Ovitt.
All four defendants deny any wrongdoing, and have been battling it out with prosecutors in court for the last four years. The case has been stalled due to appeals that reached all the way to the state Supreme Court. The case is still simmering at the Fourth District Court of Appeals in Riverside, which has yet to decide whether to grant Larson's request to kick the case back to Superior Court so the defense can proceed with trial.
"The prosecution's conduct in this case -- particularly when considered cumulatively over the course of the entire grand jury proceeding -- unmistakably interfered with the grand jury's independence and impartiality, rendering the entire proceeding a violation of Mr. Burum's rights," Larson said in his motion.
"The reality is, as the old saying goes, any prosecutor can get a grand jury to indict a ham sandwich if they want," said Mark Arnold, a San Jose-based criminal defense attorney and criminal law expert. "They're the only ones presenting the evidence to the grand jury and can get the grand jury to return whatever the prosecutor wants them to return."
The mantra "a grand jury would indict a ham sandwich if asked by a prosecutor" was coined by New York State Chief Judge Sol Wachtler more than a century ago, was quoted and immortalized by author Tom Wolfe in his book "The Bonfire of the Vanities," and has been much repeated in the legal community ever since.
Arnold said that Larson's filing of the motion, called a "Johnson motion," is a common practice among defense attorneys who firmly believe their clients have been indicted due to insufficient presentation or withholding of exculpatory evidence, Arnold said.
"Johnson motions are perhaps the most common motions made after a grand jury indictment," Arnold said. "Johnson says, in theory, that because prosecutors are the only ones presenting evidence, that if they're aware of exonerating information, they have to present that to the grand jury."
But it's a rarity that judges grant such motions, Arnold said.
"Either the exonerating information was not sufficient enough or relevant enough to overturn the indictment," Arnold said.
The District Attorney's Office, which has teamed with the state Attorney General's Office in prosecuting the case, has repeatedly declined to comment about the case during the criminal proceedings.
The issue became even more of an issue for defense attorneys, and the filing of Johnson motions more prevalent, following the passage of Proposition 115, or the Crime Victims Justice Reform Act, in 1990. The law eliminated the right for defendants to have a preliminary hearing to establish probable cause for criminal charges if their indictments resulted from grand jury proceedings.
Among the 43 witnesses who testified during the month-long grand jury proceedings in April and May of 2011, some of the most problematic testimony, Larson says in his motion, was from county Supervisor Josie Gonzales.
Gonzales testified that she arrived in China roughly two weeks before the settlement was reached in November 2006 and was confronted by former Sen. Jim Brulte, who at the time was working as a political consultant for Burum. She said Brulte asked her if she would like to go out for a night on the town with him and another unnamed person/persons, and that she spotted Burum standing and waiting in the hall.
She testified that Brulte's invitation scared her and that she thought it would be "dangerous" to go out with them given the ongoing Colonies settlement negotiations. She testified that she told Brulte she would meet him in an hour, but never showed, and hid out in her hotel room for the remainder of the night.
The problem with Gonzales' testimony, Larson argues in his motion, is that Burum was never in China in 2006.
"Gonzales spun a tale of intrigue and sinister back-room strategies based entirely on her own inadmissable speculation," Larson said in his motion. "Not only did the prosecution elicit improper testimony, it withheld evidence that contradicted Supervisor Gonzales and would have undermined her credibility before the grand jury."
Gonzales said in an interview Monday that her encounter with Brulte and Burum was in 2005, not 2006. She said it was the first China trade mission hosted by the county's economic development agency.
"In 2006 we had a completely different format," Gonzales said Monday. "I said it so many times and it's been so long. It was the first time I went, and that was in 2005."
But according to grand jury transcripts, Gonzales said she never encountered Burum during her September 2005 trip to China.
"Are you aware of Mr. Burum being present during that particular China trip?" prosecutor Lewis Cope asked Gonzales.
"No," Gonzales replied.
County spokesman David Wert said in an e-mail Tuesday that the county's economic development agency hosted no trips to China in 2005, and that the first trip was in 2006.
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