The San Bernardino County Safety Employees Benefit Association, or SEBA, distributed the mailer last month, encouraging voters to vote yes on Measure R, which proposes to slash pay and benefits for county supervisors to $60,000 a year.
The flier features the mugshots of Burum, former Assistant Assessor Jim Erwin and Mark Kirk, former chief of staff for Supervisor Gary Ovitt.
It also features an inset photo of a wanted flier for former Supervisor Paul Biane, a defendant in the corruption case who authorities said failed to promptly surrender on the day he was indicted as he agreed to do.
The photos appeared along with the word "INDICTED" appearing above them.
Burum's attorney, Stephen Larson, told Judge Michael A. Smith that the flier had been sent to potential members of the jury pool and could hinder his client's shot at a fair trial.
Smith said his hands were tied.
"I don't think I have any jurisdiction to tell SEBA what it can and can't do," Smith told Larson.
Larson said he has subpoenaed documents from the labor union trying to find out who's behind the mailer, and if investigators from the District Attorney's Office, which the union
"It's one thing to use a convicted defendant's (photograph) in a flier like this, but these individuals, as a D.A. should know, are innocent until proven guilty," Larson said.
Reached by telephone Friday, SEBA President Laren Leichliter said the District Attorney's Office had no input on the flier and that he and his political consultant, David Ellis, were solely responsible for its contents
"What he's (Larson) trying to insinuate with the D.A.'s investigators is false. They had nothing to do with it," Leichliter said.
Ellis, who is also District Attorney Michael A. Ramos' political consultant, said Friday he and Leichliter took the proper safeguards when crafting the flier.
"We were very careful the way we worded the flier, and SEBA's counsel approved it," Ellis said.
Larson finds the whole situation disconcerting.
"It raises a grave concern that the district attorney's political consultant, David Ellis, is behind that hit piece. He should know better," Larson said.
Friday's hearing was the first pre-trial hearing in the criminal case since the state 4th District Court of Appeal in Riverside on Wednesday released its final decision affirming Superior Court Judge Brian McCarville's August 2011 dismissal of all bribery charges against Burum and the dismissal of some charges against the other defendants.
When prosecutors and defense attorneys appealed McCarville's ruling in October 2011, the pre-trial criminal proceedings were suspended. Prosecutors argued for the reinstatement of the dropped charges against Burum and the other defendants. Defense attorneys requested that some or all of the charges against their clients be dropped due to lack of evidence.
Larson said he is ready to proceed to trial and is looking forward to fighting the remaining two charges against his client: conspiracy to commit a crime and misappropriation of public funds.
"The remaining counts are legally meritless, and we intend to demonstrate that in the next round of motions," Larson said.
Prosecutors declined to comment Friday on whether or not they will petition the state Supreme Court to review the appellate court's ruling. They have until Dec. 10 to do.
Smith set Dec. 10 as the date for defense attorneys to file any motions challenging the prosecution's evidence and the strength of the case.
If prosecutors decide to petition the state Supreme Court, the pre-trial proceedings would be suspended again. If prosecutors decide to proceed to trial, any motions filed by defense attorneys or prosecutors will be heard on Jan. 11.
Erwin's attorney, Rajan Maline, said he plans on filing several motions challenging the merits of the prosecution's case.
Erwin now stands charged with 14 felony counts including criminal conspiracy, bribery, misappropriation of public funds, perjury and failure to file his tax return.
Biane faces 11 felony counts including bribery, asking for/receiving a bribe, conflict of interest and misappropriation of public funds.
Kirk faces nine felony counts including criminal conspiracy, bribery and misappropriation of public funds.
Larson said he isn't sure if he'll argue that the SEBA mailer and the extensive publicity surrounding the case warrants a change of venue.
"That's something we would have to address once we get closer to trial," Larson said. "It's unclear at this point if there ever will be a trial."