As they wait, observers and prosecutors say the case's trajectory - and the aggressiveness of future public corruption cases - could hinge on the fate of bribery accusations prosecutors are trying to reinstate against a high-profile Rancho Cucamonga developer.
Should the state's highest court decide to review the 4th District Court of Appeal's Oct. 31 ruling, it would be deciding if five bribery charges and a public officer crime charge should be reinstated against Rancho Cucamonga developer Jeff Burum.
If the Supreme Court rejects the request by prosecutors, the criminal case, which has remained in limbo for the last 14 months during the appeals process, will commence as it now stands.
"All of this pretrial scrimmaging is as important as the trial itself because, as you can see with Mr. Burum, it will define what this case will be," said Loyola Law School professor Laurie Levenson.
Leverage may be one reason prosecutors are fighting so hard to resurrect the bribery charges against Burum, Levenson said.
But even if prosecutors get what they ask for, the strategy could backfire, she said.
"They want a bigger hammer to use against Burum, maybe to force him into a deal and to get the attention of the other defendants, but for the same problems the judge had with the bribery charges, a jury may have as well," Levenson said.
Burum and three former county officials stand accused of conspiring to secure a landmark $102 million legal settlement for Burum's investor group, Colonies Partners LP, in November 2006 in exchange for bribes. Also charged are former county Supervisor Paul Biane, former Assistant Assessor Jim Erwin, and Mark Kirk, former chief of staff for Supervisor Gary Ovitt.
All four defendants deny any wrongdoing.
The landmark legal settlement ended nearly four years of contentious legal battle between Colonies Partners and the county over who was responsible for flood control improvements at a 432-acre residential and commercial development in Upland that was bankrolled by Colonies Partners, in which Burum was a co-managing partner.
Prosecutors appealed an Aug. 19, 2011, ruling by San Bernardino Superior Court Judge Brian McCarville, who dropped five of seven felony charges against Burum, four of them bribery charges, after determining prosecutors applied inappropriate statues in charging him. McCarville also dropped one public officer crime charge against Burum, Biane, Erwin and Kirk.
On appeal, the 4th District Court of Appeal in Riverside affirmed McCarville's ruling on the bribery charges levelled against Burum but reinstated a charge of misappropriation of public funds against Biane, Erwin and Kirk that McCarville initially dropped.
In addition, the appellate justices found that McCarville erred by not dropping a conflict-of-interest charge against Burum and Erwin, as well as two bribery charges levelled against Erwin.
In its petition to the Supreme Court, the state Attorney General's Office, which is jointly prosecuting the Colonies case with the District Attorney's Office, argues that California's bribery laws have not evolved with national legal standards and conflict with other court decisions.
McCarville held in his ruling that a person accused of giving bribes cannot also be charged with aiding and abetting the receipt of a bribe. The appellate court agreed.
Prosecutors, however, are arguing that the state's bribery laws are outdated and conflict with previous rulings by the state Supreme Court.
"Because the Court of Appeal's holding specifically limits the manner in which prosecutors can charge bribery crimes, it will have a chilling effect on public corruption prosecutions and cause the issue to evade review," Supervising Deputy Attorney General Melissa Mandel wrote in the petition. "The mastermind of a massive bribery scheme was given a free pass by the Court of Appeal, while his underling (Erwin) continues to face criminal liability for the identical conduct."
Mandel further stated that the state's bribery law has not been meaningfully considered in more than 50 years, and that "another half century may pass before the opportunity to do so arises again."
". . . This high-profile corruption case is being closely watched, and will be used as a benchmark to inform the conduct of both public officials and those seeking to influence them as to what acts they can commit without subjecting themselves to prosecution," Mandel wrote in her petition.
On Tuesday, Burum's attorney, Stephen Larson, filed a petition with the Supreme Court opposing the prosecution's request, saying the appellate court's ruling does not rise to the level of warranting a review by the state's highest court.
"The Court of Appeal's decision is entirely consistent with every published case addressing these already well-settled issues," Larson wrote in his petition.
He said the case law prosecutors used to make their argument did not apply to bribery and was irrelevant to the appellate court's decision.
Larson also said the argument by prosecutors that the state's bribery laws conflict with prior rulings by the Supreme Court fail because prosecutors did not cite any such rulings.
"Indeed, the only cases that have addressed this question have squarely held that a bribe-giver cannot be charged with aiding and abetting the alleged receiver of bribes," Larson wrote in his petition.
Levenson said a rejection by the Supreme Court to review the appellate court's decision could be a blessing in disguise for prosecutors.
"One of the things I was worried about was that jurors would see this as overcharging. If (prosecutors) go in with the current charges, the jurors may give more credibility to the case," Levenson said. "If the case is more focused, it could help the jury."
Though a rejection by the Supreme Court would obviously hurt the prosecution's case, all would not be lost, Levenson said.
"They would still have a viable charge - a charge that may lend itself better to the actual evidence in the case," she said.
Christopher Lee, spokesman for the District Attorney's Office, declined to comment.
"While we appreciate the opportunity to comment and respect your ethical duty to be fair and balanced, please understand that it would be inappropriate for us to comment on a pending case," Lee said in an e-mail.
Larson also declined to comment Friday, saying only that Burum is innocent and anxious to prove that at trial.
"Mr. Burum is not pleading guilty to anything because Mr. Burum is not guilty of anything," Larson said. "Mr. Burum is very committed to seeing his innocence established in the trial court."
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