Tom Girardi’s dementia diagnosis is likely a legal battleground

Tom Girardi is due to wake up Monday morning in the memory care unit of an Orange County assisted living facility. After breakfast and medication he has been prescribed for dementia and other ailments, the 83-year-old is to be driven to a courthouse in downtown Los Angeles.

There, federal prosecutors said, Girardi will be taken into custody and brought before a magistrate who will formally notify him of his indictment on five counts of wire fraud.

What will happen next is unclear. Will the man who ruled the Los Angeles legal world for decades know where he is? Will he be able to understand the charges against him and help defend him? Or will Alzheimer’s disease ever prevent her from being judged?

The charges announced against Girardi this week have been a long time coming, and in the end, it may be too late to hold him accountable.

Girardi’s defense is likely to challenge his ability to stand trial in Los Angeles and in a second criminal case filed in Chicago, where he faces eight more counts of wire fraud.

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 properly assist in his defense”.

If 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 their trial.

Several high-profile cases in recent years have touched on jurisdictional issues. Despite being diagnosed with early-onset Alzheimer’s disease, former LA County Sheriff Lee Baca was sentenced to three years in federal prison for his role in a scheme to obstruct an FBI investigation on corruption and civil rights violations in LA County jails. Last month, a Los Angeles 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’s very obvious the person is incompetent, said former federal prosecutor Ariel Neuman, now an attorney for defense. He said prosecutors are expected to consider the defendants’ claims. “They don’t have to just accept representations about jurisdiction,” Neuman said.

American Atty. Martin Estrada alluded to this when announcing the indictment from Los Angeles on Wednesday, saying of reports of Girardi’s mental decline: “Competence has not been assessed by a federal criminal court.”

Girardi’s legal team first introduced the idea that he was too impaired to participate in legal proceedings more than two years ago, when evidence initially revealed he had stolen from clients.

At a December 2020 hearing before a federal judge in Chicago regarding millions of dollars missing from settlements for victims of an Indonesian plane crash, Girardi appeared with two recently hired criminal defense attorneys who said that their client, then still a lion of the legal world, had serious cognitive problems.

“I’m not sure he understands the nature or gravity of the current situation or past events that have… transpired,” said one of the defense attorneys, Evan Jenness.

Jenness, who still represents Girardi, did not respond to messages seeking comment.

After a lawyer defending cheated clients called Girardi’s seemingly sudden mental issues a ‘sham’, Jenness replied, “I’ve been practicing for over 30 years, so I know clients very well who are, in quotes/without quotation marks, semblance. I don’t think Mr. Girardi does it.

The following month, his younger brother, Robert, went to court to ask that he be installed as Girardi’s curator, explaining in an affidavit: “My brother is not capable of making rational decisions regarding its financial responsibilities and offers solutions and opinions that are in fact impossible.

A judge approved the conservatorship, and Girardi moved into a care facility in Burbank. As part of the conservatorship, a forensic psychiatrist examined Girardi and diagnosed him with “late onset” Alzheimer’s disease. The psychiatrist said Girardi had delusions and “severely disorganized thinking”.

This led to a simulation suggestion from an unlikely source, the California State Bar.

Although the agency had mishandled complaints against Girardi for decades, his lawyers were finally preparing to sanction him and wondering if the dementia allegation was a way to escape responsibility.

“The evidentiary record is sparse,” state bar attorneys wrote, asking for the appointment of a “neutral medical examination.” They pointed to public appearances Girardi had made in the months leading up to his company’s bankruptcy, which they said “disprove allegations that Girardi is now unable to care for himself, so that a curator must to be named”.

The state bar application was denied, and Girardi remained under conservatorship, eventually moving to an Orange County nursing home to be closer to his brother, a dentist in Seal Beach.

He was rarely seen in public, even as the court docket filled with hundreds of lawsuits and bankruptcy petitions stemming from his company’s misconduct.

When a federal judge in Chicago discussed whether Girardi would testify in 2021 at a contempt hearing over the money from the plane crash, his attorneys first said his cognitive issues l prevented them from coming.

But they later submitted a statement signed by Girardi under penalty of perjury saying he would invoke his 5th Amendment right against self-incrimination if called to testify.

The judge accepted the statement in August 2021, and that document could become a key event as prosecutors and defense attorneys fight over Girardi’s jurisdiction, legal experts say.

“This statement is a time when someone could say, at least he was competent on that date,” said Vicki Podberesky, a criminal defense attorney in Los Angeles.

If Girardi’s attorneys, as expected, request 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’s not doing great, but he has enough mental capacity to understand what’s going on and enforce his constitutional rights,’ there could be a battle,” he said. former federal prosecutor Nathan Hochman. , who defended Baca.

One potential piece of evidence is a recording of a course for lawyers that Girardi helped teach on November 21, 2020, less than a month before his lawyers first claimed he suffered from significant cognitive issues. .

During the session, hosted by the Consumer Attorneys of California and later cited by the State Bar, Girardi was a brilliant host, telling the virtual audience, “I’ve been a moderator a few times and I think I get more out of it. than any of you,” according to a recording of the show obtained by The Times.

But on several occasions, Girardi seemed to lose sight of what he had said. About an hour into the 90-minute class, he offered “a little hint” about jury selection – known as a voir dire.

“Before closing argument, I think it’s very wise to go back and read voir dire,” he said. Two minutes later, he again offered the same advice: “The only other thing I was going to say was, maybe, before closing argument, to read voir dire.”

The panelists showed no reaction and a CAOC spokesperson said there was no indication before, after or during the class that Girardi had any cognitive difficulties.