More than six years after investigators raided her child-welfare agency, the chief executive of Genesis is willing to plead guilty to a felony to end the long embezzlement case -- if she is granted probation.
Her lawyer, Douglas Foster, offered the deal Wednesday in Fresno County Superior Court. It would mean Elaine Bernard would have to give up her state license to be a social worker, but prosecutors said she should go to prison.
"The defense wants a walk," prosecutor Michael Elder said. "It would not be in the public's best interest to not try the case again."
Judge John Vogt urged both sides to reach a deal, however.
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"I'm not sure everyone would agree that this case needs to go to trial," Vogt said.
Bernard, 48, and her sister, Carol Dela Torre, 47, the nonprofit's clinical director, face a 16-count indictment that charges them with theft, tax evasion and filing false income taxes between 1996 and 2001. Their first trial in Fresno County Superior Court ended last May in a mistrial after five months of testimony.
Vogt said another trial would be costly to the prosecution, the defense, the court staff and the jurors who would have to listen to months of testimony.
Bernard's offer -- just weeks before the start of the sisters' second trial on June 16 -- comes as the District Attorney's Office is facing severe budget cuts.
John Savrnoch, an assistant district attorney, said the prosecution is open to plea discussions, but any agreement involving probation for Bernard "is out of the question."
He also said the District Attorney's Office's financial situation is irrelevant and not a reason to make a deal with Bernard.
"It would not be a good public policy to turn a blind eye to this type of theft," Savrnoch said.
For more than six years, prosecutors Regina Leary and Elder and a team of investigators have pored over documents that filled more than 500 boxes to make a case that Bernard and Dela Torre used Genesis credit cards and checks for expensive vacations and shopping sprees. Some of the money has been repaid: $132,434 from Bernard and $48,533 from Dela Torre, court records show.
Bernard, who makes $155,000 a year as Genesis' chief executive officer, said she paid about $250,000 to a lawyer who defended her in the first trial. For the second trial, Vogt has appointed Foster to represent Bernard at taxpayer expense. He determined she couldn't afford a lawyer.
Bernard, who didn't attend Wednesday's hearing, said afterward: "I have never denied making mistakes."
She also said she knows that pleading guilty to a felony would mean giving up her state license to help disadvantaged children.
"I want to get this behind me and move on with my life," she said. "The emotional toll of another trial would be too much for me and my staff and the children."
Vogt, a former Fresno County prosecutor, said he admired Elder's and Leary's dedication to the case. Still, he pushed for them to reach a deal.
The prosecutors wouldn't budge, saying the defendants' theft of public money earmarked for abused, neglected and disadvantaged children was even more extensive than alleged in the indictment.
"It's more than $1 million," Elder told the judge.
Dela Torre's lawyer, W. Scott Quinlan, and Foster said Elder's figure is wrong.
The defense lawyers said if Bernard and Dela Torre are convicted at trial, they still would be eligible for probation because they have no prior criminal record and have a lengthy record of community achievement.
"This case is defensible," Foster said.
Quinlan said his client is innocent, and he is prepared to go to trial.
An investigation into the pair's activities started in late 2001, when two former employees first went to the FBI. Soon afterward, the District Attorney's Office took over the case.
Leary said in court Wednesday that the defendants repaid Genesis some of its money in February 2003. The repayment was an admission of guilt, she said.
But the defense has always contended that the Genesis board of directors allowed Bernard and Dela Torre to use corporate credit cards any way they needed to make the corporation a success. The women immediately paid the bill once it was tallied, the defense contends.
Since the first trial, Bernard said Fresno County and others have continued to send children to Genesis.
She also said she believes the District Attorney's Office has a vendetta against her.
"It's like they want to break me and take my soul," Bernard said. "But that will never happen."
If a new restitution figure is determined, Bernard said she would gladly pay it to avoid a prison term. "It doesn't make sense," she said. "How could I pay restitution if I'm in prison?"
But if a plea agreement isn't reached, Bernard said she isn't afraid of going to trial.
"This case does not define who I am," she said.