Document holds up start of Genesis trial

Lawyers today will resume debating complex legal issues that have delayed jury selection in the trial of three people charged with embezzling more than $500,000 from a Fresno foster care and group home business.

At issue is a written agreement that says chief executive officer Elaine Bernard; her ex-husband/handyman, Rene Bernard; and her sister, Carol Dela Torre, the clinical director, repaid Genesis for their personal expenditures.

The agreement also says Genesis board members and their lawyers conducted their own investigation and concluded there was was no fraudulent intent by the defendants because their personal purchases on corporate credit cards were "not unauthorized."

The defense says the agreement is crucial to their case.

The prosecution also contends the agreement is key evidence, but it wants the investigation's conclusions edited out.

Whether the entire agreement can be evidence in a trial is one of about 20 motions in limine that Judge William Kent Hamlin must resolve before jury selection begins. A motion in limine (pronounced lim-in-nay, Latin for "threshold") is usually made when the simple mention of a piece of evidence would prejudice either the defendants or the prosecution.

For the past two weeks, Hamlin has ruled on several such motions to keep the focus on the defendants, and not on the actions of the Genesis board of directors.

On Thursday, Hamlin stopped the pretrial proceedings in Fresno County Superior Court to give both sides, as well as Genesis' lawyer, Linda Kollar, time to compose legal arguments for or against using the repayment agreement as evidence.

Michael Idiart, who has been practicing criminal law in Fresno for 31 years, said it's unusual for pretrial motions in criminal cases to last this long. "But this is an usual criminal case," he said.

Most criminal cases have a few hundred pages of documents, so pre-trial motions typically take one to three days, Idiart said.

The Genesis case has more than 40,000 pages of documents, lawyers said. The trial is expected to last two months.

"This is a document-heavy case," Idiart said. "The judge is doing the right thing to see what evidence comes in and what doesn't. This way the trial will run smoothly and jurors aren't inconvenienced."

Among his pretrial rulings, Hamlin will prohibit the prosecution from telling the jury the defendants' actions deprived foster children of services from Genesis.

The judge made his ruling after defense lawyers Roger Nuttall, W. Scott Quinlan and Scott Baly argued that Genesis has plenty of money in the bank and that children's services never were diminished.

In another motion, defense lawyers wanted the judge to prevent prosecutors Regina Leary and Michael Elder from telling the jury repeatedly that the money was allegedly embezzled from a charitable trust.

The judge ruled that the prosecutors can say Genesis is a charitable trust, but the judge warned them to limit their reference to "charitable trust" because it could prejudice the jury.

The motion in limine regarding the repayment agreement has everyone's attention, especially that of Leary, who called Genesis' internal investigation "a whitewash," or the board members' attempt to protect the defendants.

Leary contends the agreement proves the defendants used corporate credit cards for personal use, which is prohibited by law because Genesis receives government money tax free and holds assets in trust for the benefit of the children it serves.

Because of this nonprofit status, Leary argued, Genesis cannot legally authorize the use of funds for personal benefit other than employee salaries.

Defense lawyers, however, say the repayment agreement shows the defendants never intended to steal.

The issue is sticky because Hamlin initially ruled that Genesis documents related to the corporation's investigation are protected from becoming evidence because they are the product of work conducted between attorneys and Genesis board members.

Hamlin said the repayment agreement is not a work product. But the judge has been reluctant to allow the agreement in evidence because of its reference to the Genesis investigation and its conclusion, which favors the defendants.

In this case, Hamlin said he wants a jury to decide whether the defendants intended to steal from Genesis — not the Genesis board of directors.