Tom Girardi's dementia diagnosis likely to be battleground in criminal case
By Harriet Ryan, Matt Hamilton,2023-02-03
Tom Girardi is expected to wake Monday morning in the memory care unit of an Orange County assisted living facility. After breakfast and the medications he has been prescribed for dementia and other ailments, the 83-year-old is to be driven to a downtown Los Angeles courthouse.
There, federal prosecutors have said, Girardi will be taken into custody and brought before a magistrate judge who will formally advise him of his indictment on five counts of wire fraud.
What will happen next is unclear. Will the man who ruled L.A.'s legal world for decades know where he is? Will he be able to understand the charges against him and assist in his defense? Or will Alzheimer’s disease prevent him from ever going on trial?
The charges announced against Girardi this week were a long time coming, and in the end, they may be too late to hold him accountable.
Girardi’s defense is likely to challenge his competency to stand trial in L.A. and in a second criminal case filed in Chicago, where he faces eight additional wire fraud counts.
Under federal rules, a judge can appoint a medical expert to examine a defendant to help determine whether he is “unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.”
If he is found incompetent, experts say, Girardi is likely to return to the dementia ward while his co-defendants — the chief financial officer of his former law firm and his son-in-law — continue to trial.
Several high-profile cases in recent years have touched on competency issues. Despite a diagnosis of early onset Alzheimer’s, former L.A. County Sheriff Lee Baca was sentenced to three years in federal prison for his role in a scheme to obstruct an FBI investigation of corruption and civil rights abuses in L.A. County jails. Last month, an L.A. Superior Court judge ruled that former adult film star Ron Jeremy was “not competent” to stand trial on dozens of rape and sexual assault charges.
“I’ve had cases where people faked it and they got caught, other times it is very obvious” the person is incompetent, said former federal prosecutor Ariel Neuman, now a defense attorney. He said the expectation is that prosecutors will scrutinize defendants' claims. “They don’t have to just accept representations about competency,” Neuman said.
U.S. Atty. Martin Estrada alluded to that when announcing the L.A. indictment on Wednesday, saying of reports about Girardi’s mental decline: “Competency has not been evaluated by a federal criminal court.”
Girardi’s legal team first introduced the idea that he was too impaired to participate in court proceedings more than two years ago, when evidence initially emerged that he had stolen from clients.
At a December 2020 hearing before a federal judge in Chicago concerning millions of dollars missing from settlements for Indonesian air crash victims, Girardi appeared with two recently hired criminal defense attorneys who said that their client, then still a lion of the legal world, had severe cognitive problems.
“I'm unsure that he understands either the nature or the gravity of the current situation or the past events that have … transpired,” one of the defense attorneys, Evan Jenness, said.
Jenness, who still represents Girardi, did not respond to messages seeking comment.
After a lawyer advocating for the cheated clients called the apparently sudden mental problems “a sham” by Girardi, Jenness countered, “I've been practicing for over 30 years, so I'm very familiar with clients who are, quote/unquote, faking it. I do not believe that Mr. Girardi is doing so.”
The next month, his younger brother, Robert, went to court asking that he be installed as Girardi’s conservator, explaining in a sworn declaration, “My brother is not capable of making rational decisions with respect to his financial responsibilities and offers solutions and opinions that are factually impossible.”
A judge signed off on the conservatorship and Girardi moved into a Burbank care facility. As part of the conservatorship, a forensic psychiatrist examined Girardi and diagnosed him with “late onset” Alzheimer’s. The psychiatrist indicated that Girardi was experiencing delusions and “severely disorganized thinking.”
That led to a suggestion of malingering from an unlikely source, the State Bar of California.
Although the agency had mishandled complaints against Girardi for decades, its lawyers were finally preparing to sanction him and questioned whether the dementia claim was a way to elude accountability.
“The evidentiary record is sparse,” State Bar lawyers wrote, asking for the appointment of “a neutral medical examination.” They pointed to public appearances Girardi had made in the months before his firm collapsed, which, they argued, “belie the allegations that Girardi is now incapable of caring for himself such that a conservator must be appointed.”
The State Bar’s request was denied and Girardi remained in the conservatorship, eventually relocating to an Orange County nursing home to be closer to his brother, a dentist in Seal Beach.
He has been rarely seen in public, even as the court docket has filled up with hundreds of lawsuits and bankruptcy claims stemming from the misconduct at his firm.
When a federal judge in Chicago discussed whether Girardi would testify in 2021 in a contempt hearing regarding the plane crash money, his attorneys initially indicated his cognitive problems prevented him from coming.
But later, they submitted a declaration signed by Girardi under penalty of perjury indicating he would invoke his 5th Amendment right against self-incrimination if called to testify.
The judge accepted the declaration in August 2021, and that document could become a key event as prosecutors and defense attorneys battle over Girardi’s competence, according to legal experts.
“That declaration is a point in time where someone could say, at least he was competent at that date,” said Vicki Podberesky, a criminal defense attorney in Los Angeles.
If Girardi’s lawyers, as expected, ask for a hearing into his mental state, both sides can present evidence, including testimony from family members and other medical professionals.
“If the government expert says, ‘Look he isn’t doing great, but he has enough mental capability to understand what is going on and to have his constitutional rights respected,’ there could be a battle,” said former federal prosecutor Nathan Hochman, who defended Baca.
One potential piece of evidence is a recording of a class for lawyers Girardi helped teach on Nov. 21, 2020, less than a month before his lawyers first asserted that he suffered from significant cognitive problems.
During the session, put on by the Consumer Attorneys of California and later cited by the State Bar, Girardi was a genial host, telling the virtual audience, “I’ve been a moderator several times and I think I get more out of this than any of you,” according to a recording of the program obtained by The Times.
But at several points, Girardi appeared to lose track of what he had said. About an hour into the 90-minute class, he offered “a little hint” about jury selection — known as voir dire.
“Before final argument, I think it’s very wise to go back and read voir dire,” he said. Two minutes later, he again offered the same tip: “The only other thing I was going to say was, to maybe, before final argument, read voir dire.”
The panelists showed no reaction and a spokesman for CAOC said there was no indication before, after or during the class that Girardi was having cognitive difficulties.
This story originally appeared in Los Angeles Times .
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