For over six months the Colonies Four defendants, Jeff Burum, Mark Kirk, Jim Erwin and Paul Biane, embarked on a campaign of threats, intimidation and harassment against county, state and federal prosecutors and the witnesses in the case against the four. On Wednesday, San Bernardino Superior Court Judge Michael Smith ruled against the defendants in their attempt to have the case dismissed for prosecutorial misconduct. He also declined to dismiss a total of 28 felonies filed against the four defendants.
Erwin, who is charged with 13 felonies in all, stands accused aiding and abetting bribery where he used blackmail techniques to gain the votes of two former members of the San Bernardino County Board of Supervisors in the $102 million Colonies settlement. He allegedly threatened to expose one for being homosexual and the other for being bi-sexual. He also allegedly threatened to expose both for substance abuse issues.
Erwin owns a local blog, which is the main source of the threats and intimidation since his first arrest. Starting in January, Erwin posted personal attacks, threats of retaliation and other intimidating comments. Days into the hearing, Erwin allowed comments about the lead prosecutor, Supervising Deputy Attorney General Melissa Mandel, calling her “a shi**y lawyer but definitely boneable” and a “dyke prosecutor.”
Mandel was hardly the only member of the prosecution team to be harassed by the defendants. All of the prosecutors in the case were threatened with losing their California State Bar cards as well as a percentage of their retirements and arrest if they continued with the prosecution.
An FBI special agent was threatened with criminal charges and accused of misconduct and disciplinary action, when in reality, he received a promotion. The District Attorney investigators on the case were threatened with termination, criminal charges and civil suits.
Perhaps the most egregious comment was, “Let’s all build the gallows in the courtyard while the trial proceeds upstairs. And then march the ones that do not prevail downstairs and six steps up the wooden stairs for all to watch.”
But it was not the only threat. Ken Holtz, a fired San Bernardino County Sheriff’s Deputy who is close to Erwin and a frequent commenter on the blog, labeled the District Attorney’s political consultant, Dave Ellis as a high value target. “I’ll get back with you later Ellis. Lots more foundational work to do for making you a HTV for civil court. . . . YEAH, David I’ve been playing with you for awhile it’s been easy work.”
In another diatribe by Holtz, he threatens one of the main witnesses, Bill Postmus. He wrote, “Just remember dummy your going to prison no matter what, and spend time with Bubba voluntarily or otherwise. Your going to be wearing a green jumpsuit. Green means ‘rat’ or ‘child molester’ to the general population.” In other postings, Holtz threatened Postmus and another prosecution witness, Adam Aleman, with rape.
There is also an ongoing investigation into charges that Burum and his attorney, Stephen Larson, authorized an illegal phone hacking of Postmus’ cell phone. Prosecutor’s served a search warrant on the PI firm hired to get the goods on Postmus. The defendants claimed it was an illegal search of the defense camp. According to a tweet by San Bernardino Sun Reporter Joe Nelson, “Smith said it is ‘absolutely clear,’ based on evidence, that investigators searched PI firm to trace source of phone hacking.”
In the end, Judge Smith saw the defendant’s trail of terror for what it was. Smith sent a clear message to the defendants he was not buying into their allegations of prosecutorial misconduct. All motions for prosecutorial misconduct were denied.