The retrial of two Fresno women accused of embezzling from the Genesis child welfare agency started Monday when lawyers filed a thick stack of legal motions to limit the amount of evidence jurors will hear.
The 40 pretrial motions seemed fitting, considering the criminal case against Elaine Bernard and her sister, Carol Dela Torre, will likely go down as one of the longest and costliest in Fresno County Superior Court history.
Bernard's lawyer, Douglas Foster, said Monday he filed a public records request to learn how much money has been spent by prosecutors on the 61/2-year-old case. But the only document made public by the District Attorney's Office is a bill from Stuart Harden, a certified fraud examiner. At $220,000, that bill alone exceeds the $180,000 allegedly embezzled.
Harden said he has worked 1,313 hours -- so far -- on the case. In the second trial, as in the first, Harden will be a key prosecution witness.
To avoid "the humiliation of another trial," Foster said, Bernard is willing to plead guilty to a felony, serve time in jail, pay restitution and lose her license as a social worker. But she doesn't want to go to prison, he said.
"She's not guilty, but she wants to get this behind her for the sake of the children," Foster said, referring to the Genesis clients.
Assistant District Attorney John Savrnoch, however, said Monday that prosecutors aren't offering plea deals to Bernard or Dela Torre that don't include prison.
Bernard, 48, makes $155,000 a year as Genesis' chief executive officer. Dela Torre, 47, earns $145,000 a year as Genesis' clinical director. If convicted, they would lose their social worker licenses and could be sentenced to prison.
The case against them began in late 2001 when two former employees told authorities that money earmarked for abused and neglected children was being used to finance the defendants' shopping sprees and vacations.
Their first trial ended in a mistrial in May 2007 when 11 out of 12 jurors said they were guilty of a 16-count indictment that charged them with theft, tax evasion and filing false state income taxes. But to reach a verdict, all 12 jurors must vote for either guilt or innocence.
The second trial could offer surprises.
Monday, both sides filed motions to exclude some of the evidence that Judge W. Kent Hamlin allowed in the first trial. Judge John Vogt is presiding over the retrial.
For example, Bernard's lawyer Foster doesn't want jurors to see a video of Bernard's home and storage shed that shows her massive collection of designer clothes. Jurors in the first trial got to see the collection, which included Bernard's expensive underwear.
W. Scott Quinlan, who represents Dela Torre, filed a motion to prevent jurors from knowing that Bernard and Dela Torre received $50,000 raises from the Genesis board of directors after investigators raided the child welfare agency in January 2002. The raises were intended to help the women repay money owed to the agency, prosecutors contend. The board has consistently supported the two sisters, who founded the agency.
Among the prosecution's motions, chief deputy district attorney Regina Leary and senior deputy district attorney Michael Elder are trying to keep jurors from learning that Bernard and Dela Torre have repaid Genesis. Jurors in the first trial learned that Bernard repaid Genesis $132,434 and Dela Torre repaid $48,533.
The prosecution initially accused the sisters of skimming more than $500,000 from Genesis between 1996 and 2001. Though Leary and Elder and a team of investigators have pored over documents that filled more than 500 boxes, they told the court Monday that the Genesis board has refused to report the exact amount of the alleged embezzlement.
One of the prosecution's motions asks Vogt to compel the Genesis board to reveal the information.
Vogt is expected to take three weeks to rule on the pretrial motions. Once that is done, jury selection will begin.
Defense lawyer Michael Idiart, who is not connected with the case, said filing 40 pretrial motions seems reasonable, given the nature and complexity of the criminal case.
Vogt has urged both sides to negotiate a plea agreement to avoid a lengthy trial. Idiart, a former Fresno County assistant district attorney, said the judge can encourage a plea agreement by letting both sides know what sentence he likely would hand down.
But Idiart admits the case is politically charged -- especially if the allegations of embezzling money from neglected and abused children are true. "No one wants to be seen as letting them off easy," Idiart said. "It would be a lot easier [to give a plea deal] if the judge and the DA are on the same page" about sentencing.
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