Tom Girardi’s lawyers asked a federal judge to toss his conviction because he wasn’t competent enough to understand his own criminal trial.
On Aug. 27, a jury convicted Girardi of four counts of wire fraud after three weeks of trial. Federal prosecutors in Los Angeles had alleged Girardi, the estranged husband of Erika Jayne of “The Real Housewives of Beverly Hills,” stole at least $15 million from his own clients to support a lavish lifestyle. But federal public defenders insisted that Girardi, 85, had dementia.
The motion comes after U.S. District Judge Josephine Staton, of the Central District of California, found Girardi competent to stand trial. In her Jan. 2 competency order, Staton found Girardi was “clearly feigning cognitive impairment” by late 2020 and early 2021, during which much of the events in the government’s case took place.
Staton also rejected requests from Girardi’s lawyers to question him privately at the end of each day of trial to assure he understood the proceedings.
“The court did not meet its ongoing obligations to ensure that Girardi was competent to stand trial, and Girardi was not competent,” his lawyers wrote in Tuesday’s new trial motion.
The motion also attaches a sealed declaration that one of Girardi’s public defenders, Alejandro Barrientos, attempted to file during trial, explaining that his client was “unable to remember what happened from one trial day to the next, or even from one witness to the next.”
Staton had rejected his request to file the declaration.
“It’s the logical next step,” Julian André, a former federal prosecutor in Los Angeles who has been following the Girardi trial, called the new trial motion. “It’s probably the best move they have, which is to continue to play the competency card.”
Whether it’s successful, he said, is uncertain. That’s especially true given that Girardi testified in his own defense at trial. The new trial motion cites that testimony, during which Girardi didn’t know the name of his own attorney or the lawyers at Girardi Keese who worked on the client matters at issue in the government’s case, even though he witnessed at least one of them take the stand.
But the government, and the judge, could just as well see parts of Girardi’s testimony as evidence of malingering, said André, of McDermott, Will & Emery in Los Angeles.
The motion attaches a declaration from Tanya McAlprin, a caretaker who drove Girardi to and from his assisted living facility and the downtown Los Angeles courthouse during each day of trial. On the drive to his trial, she wrote, he would repeatedly ask questions “suggesting that he believed that he was going to court as an attorney to represent a client,” such as whether anyone from the office was at the courthouse, or which department he should go to.
“On occasion, while driving Mr. Girardi to court, I would ask him what he had done the previous day,” she wrote. “He would tell me that he had done things like gone golfing, had dinner, and met with clients.”
After trial, Girardi would ask her to drive him to his home in Pasadena, California, or to the Jonathan Club, and, when she didn’t, he “would become angry” and threaten to fire her.
“On at least four occasions, he attempted to open the car door and leave while we were stopped at traffic lights or stop signs,” she wrote. “For this reason, I usually used the child lock to prevent him from opening the car while I was driving.”
By the end of the day, he forgot he’d spent the day at trial, she wrote. Since the guilty verdict, Girardi has not appeared upset, sad or emotional about the prospect of going to prison, she wrote.
“He does not appear to have any memory of the jury’s verdict or the trial at all,” she claimed.
‘Do It Anyways’
During trial, Girardi’s lawyers also blamed the former CFO of his firm, Girardi Keese, for stealing from clients to support a lifestyle of home remodeling projects and an escort.
That CFO, Christopher Kamon, who was charged in Los Angeles alongside Girardi but faced a separate criminal trial on Jan. 21, pleaded guilty on Tuesday to two counts of wire fraud and agreed to pay $3.1 million to victims. He is expected to enter his plea this Friday.
Each morning, the plea agreement states, Girardi would call Kamon to find out the balances of Girardi Keese’s bank accounts, including client trust accounts. Kamon would tell Girardi when the firm’s operating accounts were low, and Girardi would instruct him to pull money out of the client trust accounts, the plea agreement says.
“Defendant Girardi would identify cases to debit the money from and instruct defendant Kamon to identify the withdrawal as ‘attorney fees’ from the cases,” the plea agreement says. “If defendant Girardi instructed defendant Kamon to transfer attorney fees from a case in which fees had already been taken, defendant Kamon would so inform defendant Girardi. Defendant Girardi would instruct defendant Kamon to ‘do it anyways.’ This was a common practice at Girardi Keese of which other senior lawyers in the firm were aware.”
The plea agreement pertains to the 2023 indictment against both Girardi and Kamon, as well as separate charges brought in 2022 alleging Kamon stole from Girardi Keese using fake vendors and invoices. That trial was scheduled to begin Oct. 22.
U.S. District Judge Josephine Staton. Credit: Joe Barnet via Wikimedia Commons
Kamon, who has been incarcerated for two years, faces a maximum of 40 years in prison for the two counts in his plea deal.
Kamon’s attorney, Michael Severo, of the Severo Law Firm in Pasadena, did not respond to a request for comment.
Girardi, Kamon and another defendant, David Lira, a former Girardi Keese partner and Girardi’s son-in-law, face separate charges of stealing $3 million from victims of the Lion Air crash in 2018 in Indonesia. Last month, federal prosecutors in Chicago said they might not pursue the charges against Girardi, depending on his prison sentence in California.
U.S. District Judge Mary Rowland of the Northern District of Illinois has scheduled a Dec. 19 hearing for an update.