Defense attorneys in the Colonies criminal case are accusing the offices of the San Bernardino County District Attorney and the State Attorney General of misconduct by “lying,” “misrepresentation,” and “manipulation” of witnesses and evidence presented to a Grand Jury in 2011.
According to defense attorney and former Federal Judge Stephen Larson, the intentional omission of exculpatory evidence, evidence that would tend to clear the defendants, was known by the District Attorney and Attorney General, and was purposely excluded from the Grand Jury proceedings. Defense attorneys argue that the exclusion of that evidence caused the Grand Jury to bring indictments against defendants Paul Biane, Jeffrey Burum, James Erwin, and Mark Kirk nearly five years ago.
In Grand Jury proceedings, prosecutors brought forward many witnesses regarding the $102 million settlement of the Colonies Civil Case.
Previously, a civil case brought by the Colonies Partners against the County of San Bernardino argued that the redirection of flood control water onto Colonies Partners property without proper easements was an illegal taking of private property by a government agency. In 2007, Judge Christopher Warner held that the Colonies Partners were entitled to damages from the County in that case, the second time the county had lost in court. This led to County Supervisors approving the settlement.
Prosecutors maintain that the settlement was excessive and ridiculous, contending that the only explanation was corruption and bribery.
But, since 2007, the county of San Bernardino, through its staff and hired attorneys, has claimed and provided evidence that the $102 million Colonies settlement was a bargain for the county and that damages from a civil trial could have resulted in a judgement of up to $321 million. The county has successfully argued that case in binding arbitration before several judges and in 2014 was awarded $14 million in reimbursement from insurance claims and is now pursuing full reimbursement from other insurance policies. An indemnification lawsuit seeking damages against CALTRANS, SANBAG, and the City of Upland was unceremoniously dismissed by the County Board of Supervisors without explanation in 2013.
This information was never presented to the Grand Jury according to court documents and the Attorney General and District Attorney denied knowledge of this evidence at the time of the Grand Jury in 2011. But newly released emails between county lawyers in the county civil case and District Attorney and Attorney General, and interviews released last November between prosecutors and county attorneys prior to the Grand Jury prove that prosecutors were indeed aware of the county’s legal position and undeniable evidence of the legitimacy of the original $102 million settlement.
Defense attorney Rajan Maline in his presentation accused the prosecution of misrepresentation to both the Grand Jury and the Court this week. “They rigged the Grand Jury” stated Maline in his presentation, “This is a miscarriage of justice. They know they withheld exculpatory evidence and then denied it to this court.”
Prosecutors, Assistant District Attorney Lewis Cope and Assistant Attorney General Melissa Mandel, have defended their handling of the Grand Jury proceeding first by denying knowledge of the county’s position that the settlement was legitimate in July 2014 hearings on the defenses “Johnson” Motion. That motion for dismissal was denied at the time by Judge Michael Smith.
The recently released evidence that proves the prosecutions knowledge, which they continued to deny up to December 18th of last year, caused the defense to refile their Johnson Motion for dismissal due to the new evidence that prosecutors had refused to release up until last month.
Defense Attorneys were forced to file a motion with the court in November to compel prosecutors and the county to disclose the aforementioned documents.
Defense attorneys for Paul Biane and Mark Kirk joined the arguments by Larson and Maline requesting dismissal of the Grand Jury Indictment due to prosecutor’s intentional decision not to present clearly exculpatory evidence to the Grand Jury in violation of case law.
No decision by the Judge was made as of the filing of this story.