Forrester Mark Stewart to take the Fifth next Tuesday In Nutting Trial
In every trial the first position heard is that of the prosecution and the case seems to lean in their favor, but soon the defense takes over and a counter is made against the prosecutor's assertions. The trial of Supervisor Ray Nutting is no different as the tide changed when the defense took the reins on Wednesday to refute the prosecutor.
In what looked like a lopsided battle between the DA’s office, that was reinforced by the State Attorney’s office, versus a single private lawyer from Placerville, turns out to be lopsided in favor of the small town lawyer David Weiner. Even before the co-prosecutors finished their case in prime, the defense handily poked numerous holes in their case. In part, it was excellent lawyering from the defense table, and in another part it seemed the evidence and testimony favored the defense’s positions.
As in most cases, the day-by-day testimony into minutia obscures the main issue and then both side wrap up by summarizing the prior testimony in closing arguments. Due to this, we will attempt to summarize some issues so that readers can understand the significance of recent testimony.
Two subtle, but critical issues are ‘intent’ and a technical issue of bail ‘solicitation.’ Much of the prosecutor's case seems unrelated to the charges but are tied to the concept of intent of a violation of omitting the income on a disclosure form. In another part, the issue is about bail money and if it was solicited by Ray Nutting. A different issue brought in is what the prosecutor called “unaccountable” income of Ray Nutting in 2009, but the significance of this issue is unclear in the legal context of the prosecutor’s case.
Nutting is alleged to have failed to report income on a state required disclosure form. It is undisputed that the disclosure was not made but that it is a common clerical error made often by many elected officeholders. Nutting maintains it was an inadvertent minor oversight that has since been corrected. The state oversight agency (FPPC) in charge of such forms seemed to agree and sighted Nutting for the minor error and assessed a minor fine. Even the El Dorado County District Attorney has been notified by the same agency of similar errors on likewise forms. The FPPC also took the DA Vern Pierson’s errors as technical, but innocent, errors and issued him a warning. But the DA’s office took another view of the errors on Nutting’s disclosure and posits that it was an intentional hiding of the grant participation.
This is a major distinction as an inadvertent omission is seen as a minor thing, but if it was intentional, it is a major issue that, if convicted could lead to Nutting losing his office. Much of the testimony heard in the prosecutor’s case is an attempt to prove “intent” of Nutting’s omission on the disclosure form. The prosecution is alleging that Nutting intentionally hid the grant income because he was embarrassed by taking a state grant while running on a conservative platform of small government.
Proving what was in Nutting’s mind is the purpose of much testimony including political opponents of Nutting for the Supervisor’s seat of former Supervisor Helen Bauman and failed opponent George Turnboo. The prosecutor brought in these two to tell how the disclosure would have hurt Nutting’s election chances if disclosed, thereby proving a legal basis to substantiate that Nutting had reason to hide the grant income. When questioned by the prosecutor, both testified that the disclosure would have hurt Nutting’s election chances if disclosed. But under cross examination by the defense, both seemed to impeach their own prior testimony.
Bauman had implied that her campaign would have attacked Nutting on the disclosure had she known of it. But she was asked in she had ever even looked at the disclosure document in question. She admitted that she had not. It is presumed that the defense will use this in closing to say that it did not matter if Nutting had disclosed, or not disclosed, because Bauhman admitted that she had never looked at them and could not have made a campaign issue of the grant income because she never checked.
Turnboo was even weaker in supporting the prosecutor's case that Nutting hid the grant income because it would hurt his election chances when he admitted under cross-examination that Nutting had told Turnboo of Nutting’s participation in the grant program. Turnboo defended his assertion that Nutting still was hiding it because he only told Turnboo about it in private. But he also admitted that he did not use the grant income as a campaign issue in what many called a bitter race between the two for the Supervisor's office.
Nutting maintains that he was always a vocal, and public, supporter of the grant program. As the defense took over making it’s case they called a number of witnesses to show that Nutting publicly acknowledged his participation in the program and encouraged others to participate, countering the prosecutor's allegation that he had intentionally hid his participation.
The former executive coordinator of the El Dorado County Fire Safe Council, Vicki Yorty, testified that Nutting never hid the fact that he was receiving grant money from the California Forest Improvement Program (CFIP, also called Proposition 40 funds). She also testified that Nutting had actively promoted the program at aFire Safe Council meeting.
Mark Almer, a member of the Grizzly Flat Fire Safe Council also testified that Nutting mentioned he was participating in the program at one of their meetings. Almer continued by testifying that Nutting said the funds were available to property owners that would help in the reduction of hazardous fuels.
Rodney Pimentel, another local participant in the fuel reduction program testified that Nutting was totally for the program and never made it a secret that he was receiving Prop. 40 money.
A retired human resource professional who headed up the Happy Valley Fire Safe Council for two years, Jill Kunder, testified that Nutting had announced the program at one of their meetings, although she knew of the program earlier.
The prosecution's assertion that Nutting intentionally hid grant income was supported by a couple of political opponents, that are bias by their very nature of political competitors with Nutting for office, was significantly impeached under cross examination. Then the defense effectively entered into the record several examples of Nutting’s openness about the program and his participation in it. It looks like the prosecutor will have a very difficult time convincing the jury that the omission on the form was because Nutting was hiding his participation in the program.
Adding to the prosecutor's difficulty in showing that Nutting hid the grant because he was a “small government conservative politician” was undercut by a recent state report about the effectiveness of the program. About a month ago the state released a report about the program that acknowledged that prior fire management efforts had contributed to a significant rise in the intensity and damage cause by recent fires. The report titled, "Investing in forests reduces megafires and saves millions" a Cost-benefit analysis in Sierra Nevada showed savings of up to 3 times to pay for treatments up front. That the problem is the overgrowth of the “understory” of brush. The report went into detail about the cost of fighting fires, when the overgrowth of forest material causing “megafires” like the recent fire near Yosemite, was three time more costly than the cost of removing the understory and then fighting common forest fires. I other words, using the grant program resulted in a 66% reduction in expenses to taxpayers.
Before the trial started or the state released this report, Nutting said that he supported the program in part because of the reduced risk to firefighting personnel when fighting “megafires” noting his recent participation in the memorial and support services for Amanda Wilkinson-Misner, the pregnant widow of firefighter Sean Misner who was killed fighting an intense Yarnell Hill Fire in Arizona in 2013.
Having completed their refutation of the prosecutor's assertions that Nutting hid the grant income, the defense moved into a question of Nutting votes as a Supervisor had undue influence on other agencies’ approving the grants used by Nutting. This is a complex technical issue we will cover in a subsequent stand-alone article.
The defense left this issue and then moved onto another allegation that Ray Nutting had committed fraud by completing some work after the contract period had ended, but before the work was inspected.
At issue was the fact that Nutting had an extended program end date of April 15, 2009 but some work, applying herbicide, was completed after that date and before the inspection on May 25. 2009. The cause of the delay was that the herbicide is a systemic that requires the plant to be actively growing and cannot be applied if raining or even if overcast. The prosecution has charged that Nutting had committed felonious fraud by applying the herbicide after the contract period but still getting a partial reimbursement for the work. The prosecution entered into evidence several documents showing the contract end date and the application of the herbicide after that date.
As part of the program’s requirements is the mandatory need for a state licensed Professional Forester to write the individual fire-fuel abatement plan and then oversee the implementation of the plan when it involves private citizens. In the contract the DA is charging Nutting with was overseen by forester Mark Stewart. In other testimony, Mark Egbert, who manages both the El Dorado County and Georgetown Divide resource conservation districts, said said he found Stewart to be thorough, diligent and truthful.
The defense called Mark Stewart to explain why the herbicide was applied late. Stewart testified that the original CFIP agreement with Nutting was to expire on Feb. 28, but Nutting said he didn’t think he could finish applying a herbicide in time and wanted Stewart to ask for an extension through the end of June. Initially Patrick McDaniel, who is Cal Fire’s Amador-El Dorado Unit Vegetation Management Program coordinator, told them they could get an extension. It was later approved through April 15, 2009. However, Nutting was then advised to apply the herbicide as late as possible.
Stewart then called McDaniel for another extension, but was told he couldn’t get a written extension to the contract but that Nutting had 45 days to turn in the invoice. Stewart testified that he interpreted that to mean that McDaniel would work with landowners to ensure the herbicide work got done even though it was past the expiration date. Using that interpretation, the invoice didn’t need to be turned in until May 29. On May 25, the property was inspected by McDaniel with Nutting and Stewart present.
Stewart testified he believed that McDaniel had the authority to approve the oral extension of the contract as long as the work was completed within the required 45 days. He also testified that the invoice was never kicked back or refused by Cal Fire as inappropriate.
Stewart also testified that he used a ‘template’ for reporting and changed the information as needed for individual reports. It has been said that sometimes the form was not always change completely and this sometimes resulted in some minor errors seen on some reports.
Then Stewart produced a document of a report of Nutting’s work and pointed a check-box that was unchecked. This line of testimony was quickly objected to by the prosecution claiming it was not disclosed in discovery, but this was just one line of questioning that was to be stopped dead. Shortly after this exchange the defense asked Stewart if he was “threatened” by the prosecution to which he said “yes.” This result in an explosive objection by the prosecution.
Soon, Stewart's testimony was interrupted. After sidebar meetings with the lawyers from both sides, the judge dismissed the jury and advised Stewart that before he continued that he was advised to seek legal advice as he was potentially exposing himself to criminal prosecution. This lead to an abrupt halt in testimony and adjournment until early the next day when lawyers from all sides were ordered to appear before the judge in private to discuss the testimony of Stewart.
On Thursday morning, after the private meeting, the court announced that the case would continue at 1:30 in the afternoon. This bombshell alerted the press and they came in force for the afternoon hearing. Local reporters were joined by those from the Sacramento Bee, News 13, and Fox 40. One television reporter was told by their producer to get to the courtroom right away as the case may end that afternoon. News 13 appeared with a video camera that cost upwards of $50,000 to capture the unfolding testimony.
But the afternoon testimony from Stewart was anti-climatic as he appeared in court with his new legal counsel a few minutes minutes before the jury was called back. At that time he told the judge that he intended to exercise his 5th amendment rights, the right to not incriminate himself. At that point the judge scheduled Stewart to appear in court at 8:30 am on the next court date, Tuesday the 6th, and he also noted that he make no decision on the standing objections made by the prosecution about Stewart’s testimony until that time.
After this, he was dismissed and the jury was called back to continue with other testimony.
The first witness to take the stand in the afternoon was Nutting’s wife. She was called to address where $26,040 came from that the DA called “unaccounted” income into Ray Nutting’s bank account. Under testimony elicited by the defense she explained that her husband’s account had been subpoenaed by the DA’s office, and that her personal account, her business account, and her 10 year old son’s account had also been subpoenaed by the DA. Using the DA’s own accounting and her recollection, she recounted where the $26,040 had come from. She listed rent income, line of credit transfer, the sale of a teenage son’s car, transfers from her business account, the repayment of a loan, gifts from an elderly relative as the source of the money that had been questioned by the prosecution.
The testimony then moved to bail money. Unknown to most is an obscure restriction prohibiting elected officials from soliciting bail money from some people, that would otherwise be completely legal for a private citizen.
Mrs. Nutting testified that the money used for bail of her husband was not solicited by Ray Nutting. She went into some detail on who gave money and the circumstance of the money being received. She testified that the money used was give to her by two people and that not only was it unsolicited, but was a surprise. She testified in detail about the actual transactions. She also testified that other monies were returned in a matter of hours as the bail money was already paid by other means.
It seemed her testimony was complete as the prosecution declined to cross examine her. It would seem the defense is going to demonstrate that the monies used as bail money was legally obtained and used. And that any other funds that may have been solicited were inconsequential as it was never used for bail. The prosecution's response is unknown as they declined to ask Mrs. Nutting any followup questions.
The final testimony for the week was when the defense called another Professional Forester that worked on the grant program for Nutting. That witness was Gary Gould, a well known Registered Professional Forester licensed since 1972. Gould was called to explain why certain reports had differing numbers. The prosecutors is alleging that the discrepancy in the forms was a sign of Nutting’s guilt.
Gould explained that the form was correctly filled out originally and was revised only after being objected to by the DA. He went on to explain that he had changed the number to meet the oral request by Cal Fire, but that he maintained that they are now incorrect! He then noted that the form itself has the directions that the form should use either actual or contract cost depending on which was the lower number. He showed that the from said this on the official form. He added that the 2010-2012 form was change only this April after the authorizing agency asked him to change it.
He maintained that the form was originally completed correctly and a letter from him to the authorizing agency was entered into evidence that told the agency that the form was completed as directed on the form itself and that if they wanted him to fill it out”incorrectly” then they should have told him that in the first place.
Gould went on to testify that the actual difference was really unimportant as it was clarified under cross examination that regardless of the numbers of actual cost or contract maximum cost were used it did not change the amount reimbursable to Nutting at all.
The Judge then adjourned until Tuesday Morning.
-- To be continued --