Defense up to bat in Nutting trial
May 2, 2014
It was the defense's turn at Supervisor Ray Nutting's trial on Wednesday, preceded by the prosecution's last two witnesses and closing with allegations that the District Attorney's investigator had threatened a defense witness.
The day's events began with prosecutor James Clinchard of the El Dorado County District Attorney's Office introducing into evidence several maps of Nutting's property and copies of documents filled out by Nutting that qualified him for grant funding.
LeeAnne Mila was then called to testify. Mila works in pesticide use enforcement for the El Dorado County Department of Agriculture. Examining some of the forms signed by Nutting, Mila affirmed there had been some minor errors in filling them out. But under questioning by defense attorney David Weiner, she admitted the errors were minor.
Cal Fire Camino Assistant Chief Christopher Anthony, a return witness, described the work done at Nutting's ranch, including thinning, pruning and slash disposal. He testified he visited Nutting's ranch on May 8, 2009, to issue a burn permit for 15 acres and witnessed 30 to 50 small burn piles.
Clinchard closed by introducing into evidence four exhibits, including a warrant of arrest with bail set at $55,000, a receipt for a bail amount of $55,000, and documentation of a search done by the El Dorado County Treasurer-Tax Collector Office and the California Secretary of State showing no license for a brush clearing by Nutting.
With those details out of the way, Weiner began Nutting's defense by calling a series of witnesses, many of whom are or were involved with fire safe councils in the county.
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Vicki Yorty, who is the former executive coordinator of the El Dorado County Fire Safe Council, said Nutting never hid the fact that he was receiving grant money from the California Forest Improvement Program (CFIP also known as Proposition 40), adding that he had actively promoted the program at a council meeting.
Mark Almer, a member of the Grizzly Flat Fire Safe Council said the same, noting that Nutting mentioned he was participating in the program at one of their meetings, and funds were available to property owners that would help in the reduction of hazardous fuels. Rodney Pimentel, who owns a lumber company and is a participant in the fuel reduction program himself, said Nutting was totally for the program and never made it a secret that he was receiving Prop. 40 money.
Clinchard then asked each witness if they had attended any of Nutting's campaign events and if Nutting publicized in his campaign literature that he had received Prop. 40 money. At that, Weiner asked the witness, "when you go to meetings … fire safe meetings or other meetings where people are concerned about fire safety, do you normally go into each other's checkbooks?" A question that drew laughter from the audience.
Jill Kunder, a retired human resource professional who headed up the Happy Valley Fire Safe Council for two years, testified that Nutting had announced the program at one of their meetings, although she knew of it earlier. Saying she had visited his property before and after he received the Prop. 40 money, she commented that after it was cleaned of the brush, the area was clear and looked like "it could breathe."
Jan Bray, a retired Cal Fire Forester, said she also visited Nutting's ranch in 2009 on behalf of the CFIP program. Saying the Nutting ranch was in a high or very high fire danger area, she noted when she inspected it there were piles of brush ready to be disposed of. She was also asked about an amended agreement with Nutting that was sent to him with an expiration date of April 15, 2009. That agreement was later discussed in more detail by a different witness.
Ray Nutting's brother Tom then got a thorough going over by Clinchard who seemed as interested in his affairs as he was in Ray's. Saying he owns 350 acres, Tom testified the Happy Valley Trust was set up to protect his ranch which is separate from Ray's. Claiming to be the sole beneficiary and manager of the trust, Tom said Ray's role is only as a trustee along with two others and Ray receives no financial benefit from the position. Tom went on to testify that he received two CFIP grants. Ray was reimbursed for some bulldozer work done under the first CFIP grant but none under the second. Nonetheless, he noted the DA went through his bank records from 2006 up to just a few months ago.
The next witness was Mark Egbert who manages both the El Dorado County and Georgetown Divide resource conservation districts. Under questioning by Clinchard, he testified there had previously been a relationship between his organization and the Sierra Coordinated Resources Management Council (SCRMC), but it had since been terminated. SCRMC is the joint powers association that cuts the reimbursement checks for Prop. 40 money. He said his districts had no input into who got grants, saying Cal Fire ran the program. He also said he wasn't previously aware that Nutting was involved with the CFIP program although Nutting had once questioned Egbert about the relationship between his districts and SCRMC.
Egbert was also questioned about the honesty and professional capabilities of forester Mark Stewart who had done some work for his districts. In response, Egbert said he found Stewart to be thorough, diligent and truthful. Later it became apparent why the DA asked the question.
Egbert was then questioned by Pete Williams of the state Attorney General's Office. He asked if his members were also members of SCRMC between the years 2009-12, to which Egbert answered yes. Al Hubbard and Carlan Meyer, both previous members of SCRMC, had signed Prop. 40 grant checks. In particular, Hubbard had signed a check to Nutting for $22,000 in 2009. However, in their testimony on April 24, both asserted no special favors were granted Nutting in awarding the grants.
The defense then called the last witness for the day — Mark Stewart — who ended up throwing the prosecution a curve. Working prior as a registered professional forester, which included work for Nutting, he said the process Cal Fire used for selecting grantees for CFIP was to contact foresters for a list of clients doing CFIP projects and ask them to submit the names of interested clients. Cal Fire would then rank and pick the most cost-effective ones, he said.
In 2009 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 in order to kill the new growth and to avoid having to apply it twice.
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 said 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. At that time, McDaniel and Stewart determined how much acreage could actually be invoiced. The invoice, according to Stewart, was turned in May 28 or 29.
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 was then asked by Weiner to produce a copy of the extension to the CFIP. Stewart noted that because the box on the form requiring the invoice to be submitted by April 15 had not been checked, it gave Nutting an additional 45 days to do so.
Weiner went on to say that Stewart had been threatened with prosecution for conspiracy by DA investigator John Gaines on April 13, 2013, when he interviewed Stewart.
With that bit of news, Judge Timothy Buckley set the jury free for the day and then met with the attorneys, with Clinchard complaining the oral agreement was never discussed by Stewart before the grand jury and the document had not previously been disclosed.
After discussing the matter, Judge Buckley decided Weiner could bring up what Gaines said to Stewart at Thursday's trial, but couldn't use the word "threatened."
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