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Is Tom Girardi’s dementia an act? Court to hear evidence

Tom Girardi spent his career schmoozing with other lawyers about big cases, often in a smart suit at a choice table in his private club.

But earlier this year in meetings with attorneys preparing to defend him against federal wire fraud charges, the 84-year-old seemed decidedly out of his depth, according to a court filing.

“He was unable to recall his attorneys or that he was represented by the Federal Public Defender’s Office,” his lawyers wrote in June about a series of four meetings. Girardi, living in a senior care facility in Orange County, wore the same sweater with holes in it two days in a row, they wrote, and “appeared to struggle to retain factual information, including that his firm no longer existed and he was no longer a practicing attorney with cases to work on.”

Was the disgraced legal legend’s behavior evidence of pronounced dementia — or a canny performance?

That question will be the subject of a competency hearing Wednesday before U.S. District Judge Josephine Staton, who must determine whether Girardi should proceed to trial or be confined to a government facility for additional evaluation. Girardi’s lawyers say he has little short-term memory and is legally incompetent to go before a jury. Prosecutors contend that is largely an act and Girardi has been feigning dementia for years to dodge accountability for stealing millions of dollars from clients.

They are expected to argue that before he fell into investigators’ cross hairs, there was little evidence he was slipping mentally. Among the evidence they cite are 2019 video outtakes apparently from “Real Housewives of Beverly Hills,” the reality show on which he and his estranged wife, Erika, appeared.

‘Real Housewives of Beverly Hills’ star Erika Jayne talks about her estranged husband, attorney Tom Girardi, during an exclusive interview with The Times.

“Defendant is seen regaling his ex-wife and her friends with stories of his trials and his encounters with celebrities” such as John Wayne, Sammy Davis Jr., Frank Sinatra and Don Rickles, they wrote in a filing last week.

They claim the diminished figure he presents to his lawyers and medical experts is “an artfully constructed self-serving portrait.”

“His purposeful manipulation of these proceedings to avoid the consequences of a trial in this matter directly demonstrate how cunning and capable he truly is,” prosecutors wrote.

The judge is expected to hear testimony from four experts: a neurologist and neuropsychologist hired by the defense and a second pair hired by the prosecution. Lay witnesses who have spent time with Girardi may also be called to the stand.

The experts spent hours with Girardi, interviewing him and conducting tests that can identify mental deficits and in some cases malingering, feigning or exaggerating illness. Their detailed reports were submitted to the judge, but remained sealed from public view. Court filings have alluded to their findings.

“Neuropsychologists retained by both parties agree that Mr. Girardi is in fact impaired and has been for a period of time,” wrote his attorneys in June.

There is disagreement about the degree of impairment, with a defense neurologist describing it as “moderate dementia,” while a prosecution neuropsychologist has diagnosed him with “mild cognitive impairment.”

A lawyer for Girardi first disclosed severe memory problems in December 2020 as his firm was collapsing and federal authorities and investigators from the State Bar of California were launching investigations of misappropriation of settlement money. A psychiatrist subsequently diagnosed him with Alzheimer’s disease as part of conservatorship proceedings in state court.

Though Girardi is still under a conservatorship in which his younger brother handles his affairs, Staton, the judge in his criminal trial, is not bound by the diagnoses or the state court judge’s determination.

The criminal competency standard was established by the U.S. Supreme Court in a 1960 decision that held that it was not enough for a defendant to have some memory of the events in question and be “oriented to time and place.”

The “test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him,” the court ruled.

Dr. George Woods, an Oakland psychiatrist who frequently consults on competency matters but is not involved in the Girardi case, said evaluating a defendant like Girardi includes some fairly straightforward analyses: Does he know and understand the charges against him? The possible sentences? Can he explain the role of the judge and the jury?

But assessing whether the defendant can meaningfully help his lawyers on his case is more nuanced.

“That is the real kicker,” he said. “Can you rationally assist the attorney in the preparation of your defense?”

Girardi is accused of wire fraud in connection with the alleged embezzlement of $15 million from client settlement funds in the case before Staton. A second indictment in Chicago alleges wire fraud and contempt of court stemming from more than $3 million in misappropriated settlement funds. The Chicago court will use the evidence submitted in the L.A. competency proceedings.

The dual cases are complex, involving a half dozen cases playing out over a decade and numerous financial transfers. The competency question includes whether a defendant can understand and make strategic choices in his case, which could range from agreeing to a plea deal to taking the witness stand to devising a particular defense.

“If you can’t remember what you did, your sequencing, then you can’t help your attorney, you can’t tell them how you thought about it and how it worked,” said Woods, who has lectured on competency at Berkeley Law.

In the months before his diagnosis, Girardi continued to run his Wilshire Boulevard firm, Girardi Keese, and according to prosecution filings, he was deeply involved in all aspects of the business, including the negative effects COVID-19 was having on revenues.

“Unfortunately, the ‘working at home’ is not working. Our income has been reduced by 90%,” Girardi wrote to his staff in September 2020. He told employees, “We have to come back to the office and start settling all of the smaller cases (up to $200,000.00)….”

The next month, he gave an one-hour interview on trial strategy during which he told the host, a fellow lawyer, of their shared profession, “We do a lot of good.” In November 2020, he moderated an online panel on complex litigation over Zoom, though a Times review of the session showed him appearing to lose his train of thought at times.

It was at a hearing the next month that a criminal defense attorney he had recently hired, Evan Jenness, told a judge demanding information about missing settlement funds that Girardi had severe memory problems and that she was “unsure that he understands either the nature or the gravity of the current situation or the past events that have … transpired.”

Even after that, Girardi lived by himself in a 10,000-square-foot Pasadena mansion for nine more months, and during that time he continued to entertain guests. In the spring of 2021, he explained to visitors how a break-in at his home had occurred a few months earlier, even showing them a damaged window, according to prosecutors. In a later visit, “defendant and his former employees enjoyed several bottles of wine that defendant served them while they had lunch,” prosecutors wrote.

If Staton finds Girardi is incompetent, he will be temporarily committed to federal custody “for a reasonable time, not to exceed four months.” During that period, officials would “determine whether there is substantial probability that in the foreseeable future, the defendant will attain capacity to permit the trial to proceed.”

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