Attorney Steve Balash is seeking a new trial for Benjamin Lee Bettencourt — sentenced to five years last year for the death of a passenger in his van during a drunk-driving accident — alleging ineffective representation by Bettencourt’s former defense attorney, Darryl Genis. Balash argued in court papers that Bettencourt should have been called as a witness in his own defense. Because he was not, Balash charged, Genis provided no direct evidence that the victim — Jennifer Clark — grabbed the wheel from Bettencourt and caused the crash herself. Likewise, Balash contended that Genis provided no evidence Bettercourt was diabetic, a fact which could have been used to challenge blood alcohol readings that indicated he was drunk at the time of the accident.
At the time of the accident, Bettencourt was a paraplegic stemming from a prior car crash that left another passenger dead. In that crash, no intoxicants were involved, but Bettencourt was convicted of reckless driving. In his pleading papers, Balash also complained that Genis and his prosecutorial counterpart Kevin Duffy insulted each other so relentlessly that the judge had to repeatedly intervene.
Genis explained in court papers that if Bettencourt had testified — given scheduling particulars idiosyncratic to this case — there would have been an 11-day gap between his first and last days of testimony, which would have given the prosecution undue time to prepare a detailed cross-examination. Ultimately, Genis said, Bettencourt could have testified if he wanted to. “Benjamin Lee Bettencourt is a very intelligent young man who is not a shrinking violet,” Genis stated. He also strongly recommended Bettencourt not take the stand. “The first rule of lawyering is to never let your client testify unless there’s no other way,” he said.
Genis himself has been no shrinking violet and has clashed with several judges as well as the District Attorney’s Office. Responding to complaints from several judges and prosecuting attorneys about over-the-top courtroom behavior, Genis was suspended by the state bar for 90 days. On appeal, the number was reduced to 30, which Genis served last fall.