SAN JOSE -- A Santa Clara County judge took the extraordinary step Monday of dismissing sexual assault charges lodged against a prominent real estate mogul by his wife -- after finding she had fabricated the entire bizarre incident -- ending a weeklong court battle fraught with twists and turns, including last-minute accusations of special treatment for the superrich.
Ellena Berg, Clyde Berg's 37-year-old wife, had accused the 74-year-old multimillionaire of a horrific crime that could have sent him to prison for the rest of his life -- outfitting her with a spiked dog collar and leash, chaining her at gunpoint to a bed for two days and sexually assaulting her with a golf putter when she was nine months pregnant.
In dismissing the charges, Judge Ron M. Del Pozzo said Ellena Berg's testimony "is not worthy of belief." During her sporadic stints on the stand, interrupted by frequent 15-minute breaks, the tall, thin, blonde Swedish native fled the courthouse twice in great emotional distress. She was voluntarily hospitalized this past weekend in Good Samaritan Hospital's's mental health ward.
"Whether it's a product of just flat-out lying or a product of being mentally ill, which she'd been for a long, long time," the judge said, "what was clear to this court was this witness was unworthy of belief."
The judge said he and the Santa Clara County District Attorney's Office reached the same conclusion independently over the lunch hour Monday after five days of testimony -- that there wasn't enough evidence to hold Clyde Berg over for trial. Technically, Del Pozzo granted the prosecution's request for a dismissal, but he said he would have dismissed the case anyway. The judge noted the rarity of his decision, estimating that 95 percent of preliminary hearings are pro forma because the standard of proof is so low, with defendants being held to answer on the charges.
Wealth no factor
Ellena Berg remained stoic as the judge recited a long list of reasons he found her story "ridiculous," folding her arms tightly across her chest as the drubbing wore on. Later, when her attorneys spoke up in her defense and accused the District Attorney's Office of bowing to the "political and economic power" of her husband, she dissolved into tears.
Clyde Berg, his cane leaning against the defense table, looked visibly relieved, smiling slightly for the first time since the hearing began Tuesday.
Prosecutors vehemently denied the accusation, saying in a statement, "We make prosecutorial decisions based on the evidence in the case, not the money in the defendant's bank account. The only role wealth played in this case was to demonstrate that money is not the ticket to a happy life or a harmonious marriage."
Clyde Berg declined to comment Monday, but he has insisted the DA's Office treated him unfairly and should have dismissed the case far sooner. All along, he has contended he was the victim of a greedy scam aimed at getting around a restrictive prenuptial agreement.
Del Pozzo essentially agreed it was a money grab. If Clyde Berg had been convicted of felony domestic violence and sexual assault, he could have gone to prison for more than 15 years to life. Ellena Berg would have stood a far better chance of winning a lawsuit seeking punitive damages for what she described as a decade of abuse, capped off by the bizarre incident in September at their spacious home overlooking the San Jose Country Club.
Clyde Berg is the brother and business partner of billionaire Carl Berg, one of the richest people in the United States. The brothers developed campuses for many of the valley's signature companies and recently sold their firm for $1.3 billion.
'Tongue can't dial'
The judge cited several clues he noted in deciding Ellena Berg was being deceitful. Monday morning, she testified that she couldn't remember or she used words to that effect, more than 44 times in less than 90 minutes. She didn't know the couple's wedding date or her husband's birth date even though she said she was still in love with him. Continually, noted the judge, she kept stalling on the stand to give herself time to think.
However, Ellena's attorneys angrily told the court that she was suffering from post-traumatic stress disorder as a result of the abuse and had been ill-treated by the prosecution. They also said they would ask the state Attorney General's Office to refile the charges, which veteran lawyers said is extremely unlikely.
But despite the judge's scathing ruling, it is unlikely the DA's Office will turn against Ellena Berg and file the little-used charge of making a false report against her, sources familiar with the case said.
It was Ellena Berg's explanation of how she called 911 after retrieving a cellphone she'd hidden under her mattress with her hands cuffed behind her back that the judge found particularly preposterous.
At one point, Ellena Berg "goofed," according to the judge, when she was asked by defense attorney Kurt Seibert to demonstrate how she braced herself when she slid out of bed. In a Perry Mason-type moment, she had re-enacted her motion -- but with her arms in front of her body, not behind her, as they would have been if she really had been cuffed.
Del Pozzo was most scathing when it came to her claim that she made the 911 call by pressing the raised "send" button with her tongue.
"That tongue testimony was ridiculous," the judge said, adding a ditty in the manner of famed O.J. Simpson lawyer Johnnie Cochran: "If the tongue can't dial, there's not going to be a trial."
Contact Tracey Kaplan at 408-278-3482. Twitter.com/tkaplanreport.