Thursday, March 29, 2007

No, Elaine, an 'abuse of power' is when you embezzle money from a foster care agency and use it to buy designer clothing

Judge refuses to dismiss jurors:
Genesis panel sees a video of a search of Bernard's belongings.
Lopez, Pablo. Fresno Bee, March 29, 2007.


Mar. 9--A judge on Thursday denied the requests of two jurors to be dismissed from the trial of two women accused of embezzling $500,000 from the Genesis group home and foster care agency.

Fresno County Superior Court Judge William Kent Hamlin also ruled that the jury could watch a video of investigators searching an apartment and storage locker filled with designer clothes, furniture and other items belonging to defendant Elaine Bernard, Genesis' chief executive officer. Bernard said she fought back tears as the 30-minute video was shown in court.

"I felt raped, violated, seeing men with gloves pawing through my things," she said during a break. "It was wrong, wrong, wrong. An abuse of power."

Prosecutors say that Bernard and her sister, Carol Dela Torre, the nonprofit organization's clinical director, used business checks and corporate credit cards to skim $500,000 between 1996 and 2001, and that they squandered taxpayer money on vacations and shopping sprees.

Defense lawyers say that Bernard and Dela Torre have admitted using the corporate credit cards for personal purchases and have repaid Genesis. The Genesis board of directors investigated and found that the sisters were allowed to use the credit cards and did not intend to steal, the defense contends.

The sisters have pleaded not guilty to a 17-count indictment on charges of theft, embezzlement and tax evasion.

The trial is taking longer than expected, with witnesses scattered all over the country, and with dozens of boxes of business documents entered as evidence. The case had been expected to conclude in mid-March, but Hamlin said this week it likely will last well into April.

In a letter Wednesday, one juror had slammed the district attorney's case, saying the prosecution "has wasted a huge amount of my time and taxpayers money (court cost) on insignificant details, repetitive examination and allegations of wrongdoing by someone that is not on trial." That juror also told the judge he needed to travel to take care of hurricane damage that destroyed his former home in Mississippi, and that he has paid in advance for a cruise with his wife in May.

Hamlin ruled Thursday that the juror had not shown why he could not wait until after the trial to take care of his personal affairs. Hamlin said keeping the juror was "a close call" because of his strong feelings toward the prosecution, but the juror told Hamlin he would be able to set aside his opinions and make a fair decision based on the facts of the case.

The other juror had told the judge Wednesday that her participation in the trial had become an emotional hardship. She said she doesn't get paid when she misses work for the trial, so she has been working before testimony begins and after it finishes. She also said she cares for her mother and daughter and had planned to work extra while her business partner cares for his wife, who has a surgery pending in early April -- the main reason she declared hardship.

On Thursday, Hamlin asked the juror to approach her business partner about appearing in court or sending a letter to discuss whether the surgery could be done later. The juror agreed.

The entire jury then watched the video that investigators made five years ago when the District Attorney's Office launched the Genesis investigation. The defense team had tried to block the video, but Hamlin ruled it to be "highly probative circumstantial evidence."

The video shows that Bernard is "approaching an obsession" with designer labels, Hamlin said, even if prosecutors can't prove that each item in her home and storage locker was purchased with Genesis money. Regina Leary, a chief deputy district attorney, said the video is a key piece of evidence, because it shows Bernard's penchant to purchase expensive clothing with Genesis money.

Hamlin ruled that prosecutors could not show video of a search of Dela Torre's home, however. Hamlin said there has been no firm evidence to show that the small collection of clothing, shoes and other items inside the residence was purchased with Genesis money. Bernard said the video shown to jurors was an unfair depiction of her home.

At the time, she was living in an apartment because she and her husband, Rene Bernard, had divorced. The divorce was finalized Sept. 10, 2001, court records show. "When I saw my daughter's Mickey Mouse pillow on the ground, I almost lost it," she said. "They didn't need to invade my family's personal life."

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