Grand Jury testimony given by Rancho Cucamonga developer Jeff Burum in 2009 could prove beneficial to his defense and should have been provided to a criminal grand jury in April, according to Burum's attorney.

The transcripts, released last week, detail Burum's March 2009 testimony before the county's civil Grand Jury in which he described how attorneys for his firm, Colonies Partners LP, impeached nearly every witness called by San Bernardino County's lawyers in the months leading up to the county's decision to settle with Colonies.

In testimony, Burum said attorneys representing the county were giving the Board of Supervisors bad advice and telling them they were winning in court despite evidence to the contrary, according to the 130-page transcript.

"It is fundamentally unfair and, in our view, contrary to the law, that the grand jury was not provided with copies of Mr. Burum's testimony prior to being asked to return the indictment," Burum's attorney, Stephen Larson, said in a telephone interview.

None of Burum's 2009 testimony was provided to a special criminal grand jury, which indicted Burum and three former county officials, including former Colonies consultant Jim Erwin, in May on charges of conspiracy, bribery and conflict of interest, among other charges. Prosecutors allege the county's landmark $102 million settlement with Colonies Partners in November 2006 was tainted by bribery and extortion. A federal investigation is under way as well.

Five of the seven charges against Burum, including all bribery-related charges, were subsequently dismissed after a judge determined the criminal statutes used to charge Burum were either erroneously applied or the statute of limitations had lapsed for charging Burum with such crimes. Judge Brian McCarville also dismissed one felony count of misappropriation of public funds against the other three defendants - former county Supervisor Paul Biane, former assistant assessor and union boss Erwin and Mark Kirk, former chief of staff for Supervisor Gary Ovitt.

During his 2009 testimony, Burum laid out his interpretation of the nearly five-year legal battle over who was responsible for flood-control improvements at Colonies' Upland development, which resulted in two Superior Court rulings in the developer's favor.

"I'm going, `Are they in the same courtroom I'm in, because they're getting killed every day?"' Burum said during his testimony.

He said Colonies made strong headway during the 2006 trial, and the county resorted to having a witness go on the stand and attack his character.

Burum said what made him angriest - when he broke off communication with county supervisors - was when the county forced him to build a flood control basin on Colonies' property with enough storage capacity to protect residents from a 100-year flood, then reversed its position after the trial court ruled the basin's construction was the county's responsibility.

On appeal, the county unsuccessfully argued that the basin was not needed, and that its existing earthen berm easement was sufficient. The county requested construction on Colonies' property be halted until the conclusion of litigation, a move Burum said was an attempt to bankrupt Colonies and force and end to the lawsuit.

The judge denied the county's motion for a stay on the construction of the basin, allowing Colonies to proceed with the second phase of its residential development, Colonies at San Antonio.

Settlement encouraged

As the trial moved forward, so did settlement talks between the county and Colonies' attorneys. Burum said during his testimony that he pushed to settle the lawsuit for a discounted value, despite what he said could have been upwards of a $750 million judgment that could have bankrupted the county had it lost to in court.

Though initial damage estimates by Burum's camp ranged between $250 million to more than $300 million, efforts were under way in 2006 to change state law so that when the government abused a private property owner the government was held to the same standards as the private sector. As to damages, that would mean three times the amount of whatever the jury awarded.

"So ... if we continued down the road at ($250 million), the verdict against the county could be a $750 million verdict against the county, which would bankrupt the county," Burum said during his testimony. "Everyone in political circles also knew this. This was a hotly contested issue."

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