California Trials: Playing The Laminated Card Trick
The California State Bar Court Review Department recommends a suspension for the following
Darryl Wayne Genis was asked by a superior court judge four consecutive times, in part and collectively, whether he had touched, moved, or hid opposing counsel’s document during a trial recess. Genis repeatedly, and then categorically, denied the allegations. Videotape evidence from the courtroom showed otherwise and demonstrated that Genis had not been honest in his responses to the judge.
In these proceedings, the hearing judge admonished Genis, an experienced criminal defense attorney admitted to practice law in 1980, after concluding that Genis’s false statements were unintentional and resulted in no significant harm. OCTC contends the contrary is true. It argues that Genis acted deliberately to conceal a material fact from the court, and seeks a minimum of 90 days’ actual suspension. Genis did not cross-appeal, but in his responsive brief on review, he challenges culpability and requests dismissal of the entire proceeding…
Even if an admonition were a permitted option, we recommend discipline of 60 days’ actual suspension as a fair and appropriate sanction given the facts of this case, the standards, relevant case precedent, and Genis’s prior 30-day actual suspension.
What happened in the course of a DUI trial
Trial commenced on July 9, 2014. [Prosecutor] Greene called Dean Warden, an expert criminologist, to testify for the prosecution. During Genis’s cross-examination of this witness, Greene found it helpful to refer to a laminated placard, given to him by a former supervisor, which listed numerous evidentiary objections. During the morning recess, Warden remained seated in the witness box. Greene stepped out of the courtroom, but left his belongings on the prosecutor’s table, including his open laptop computer, his trial binders, and his laminated placard. Greene testified he was fastidious with his papers, keeping them in the binders and not loose on the table. He also testified that no one else was sitting with him at the prosecutor’s table that day.
During the recess, Genis walked over to Greene’s area three times. On each occasion, he looked at Greene’s materials, and in one instance, he took out his cell phone and appeared to take pictures. On his third visit to Greene’s table, he picked up Greene’s laminated placard, looked at it, and then placed it under several papers under the blotter at the end of the prosecutor’s table.
At some point, Greene reentered the courtroom and spent the remainder of the recess in the back of the room reviewing emails and texts on his phone.
Trial resumed and Genis continued with his cross-examination of Warden. Greene began looking for, but could not find, his placard of objections. During the lunch break, Greene mentioned the missing placard to Warden. Warden told him that during the morning recess, he saw Genis pick up a sheet of paper from Greene’s side of the table, look at it, and then place it under the blotter.
The attorney was found not guilty of criminal contempt for his denials to the judge.
Genis was asked by Judge Hill multiple times whether he touched, moved, and/or hid Greene’s materials. Each time, Genis answered, “No.” On the fourth inquiry, the exchange was explicit. Judge Hill specifically asked Genis if he touched and hid Greene’s “placard” “under the matt [sic]” and Genis categorically denied it. Judge Hill reviewed the videotape of the courtroom and found that Genis did what he denied doing.
Like Judge Hill and the hearing judge, we also reviewed the videotape. It shows Genis walking over to the prosecutor’s table three times, surveying the materials on Greene’s desk, taking out his cell phone and directing it at something on the desk, touching a document among Greene’s materials, and moving it from where he found it and placing it underneath something.
Noting prior discipline, the review department proposes a stayed one-year suspension with 60 days served and two years of probation. (Mike Frisch)