In unsealed order, Judge Staton says ex-lawyer Tom Girardi is exaggerating his mental decline
Girardi, who is married to RHOBH's Erika Jayne, is accused of orchestrating a massive Ponzi scheme that victimized his clients out of millions of dollars.
The California federal judge who declared disbarred California lawyer Tom Girardi competent to stand trial believes he’s exaggerating his mental condition.
Filed publicly on Friday, the 52-page order from U.S. District Judge Josephine Staton says while 84-year-old Girardi “suffers from a mild-to-moderate cognitive impairment, he is competent to stand trial under the relevant legal standard.”
Staton called the timing of the disbarred lawyer’s purported mental decline “highly suspect” and said she “finds persuasive the government’s experts’ conclusions that Defendant is exaggerating his symptoms and partially malingering.”
“Defendant was clearly feigning cognitive impairment or, at the very least, exaggerating the symptoms of a mild cognitive impairment in mid-December 2020 and in early 2021,” Staton said. His fakery then “is probative as to whether he is feigning now.”
The judge cited Girardi taking a phone call from his third wife, Real Housewives of Beverly Hills star Erika Jayne during an interview with a prosecution expert as undercutting his claim that he doesn’t remember Jayne.
She also cited voicemails Girardi left his co-counsel in lawsuits in Chicago over a deadly plane crash, as well as emails he sent his law firm staff imploring them to return to the office during the COVID shutdown because the firm wasn’t making as much money as it had been. She said Girardi’s “purported denial of knowledge of the charges made against him (and/or the purported failure to remember such charges once reminded of them) is wholly lacking in credibility.”
“Indeed, most likely drawing on decades of experience as a civil trial attorney, Defendant demonstrated an extensive understanding that far exceeds that of an average criminal defendant. He showed a knowledge of the substance of the charges, the factual allegations underlying those charges, how those charges might relate to the operations of Girardi Keese, how to defend against those charges, how a trial proceeds, the role of the others involved in the trial (prosecutor, defense counsel, judge, jury), and the likely consequences if found guilty.”
“At their zenith,” Staton said, Girardi’s “superior cognition and his abilities as a civil trial attorney would have been likely to result in an exceptional ability to participate in his own defense.”
“But any actual diminishment of these abilities or of his cognition is not as severe as Defendant presents it and, stripped of the feigning and/or exaggeration described by the experts and found by the Court herein, Defendant retains the ability ‘to assist properly in his defense,’” according to the order.
Staton filed the order under seal on Monday and gave prosecutors and Girardi’s public defenders five days to say what they wanted to stay sealed from public view. The order filed Friday is not redacted anywhere. It mentions Girardi saying “f**k you” to Assistant U.S. Attorney Ali Moghaddas during the compentecy hearing in September, calling it “a notable event.”
The order also says Girardi’s neuroimaging “is not dispositive as to the ultimate issue of whether Defendant is competent to stand trial.”
“Indeed, the neuroimaging does not provide particularly helpful insight into the Defendant’s present cognitive condition at all,” according to the order.
Instead, Staton said Girardi’s “comprehensive neuropsychological test results” don’t support his expert’s opinions that his short-term memory is severely impaired. At the same time, Girardi’s “writing and recordings” leading up to his public downfall in Decemeber 2020 show him “communicating well, seemingly without any (or with very mild) cognitive impairment.”
“Specifically, correspondence from mid-2020 attributed to Defendant appear to provide reasons to Defendant’s clients as to why certain settlement funds had not yet been distributed to them. These letters do not suggest cognitive impairment of their author,” according to the order.
Staton also said Girardi’s performance in an October 2020 podcast “is inconsistent with a claim that he suffers from a mental impairment making him incompetent to stand trial.”
“Defendant engages in a conversation with the host on the topic of jury selection and the importance of jurors. Overall, his performance is cogent and intelligent,” Staton wrote.
The judge said Girardi’s behavior during a November 2020 panel discussion “is similar.”
“These recordings are strong evidence that Defendant suffered from, at most, a mildly limiting cognitive impairment as of September through November 2020,” she wrote. “Indeed, from the Court’s non-expert perspective, these videos show no more than normal age-related decline.”
Additionally, Girardi left voicemails for his co-counsel Jay Edelson in December 2020 “that demonstrate he understood that allegations of fraud had been made against him and/or Girardi Keese.”
“The first voicemail was left less than two weeks before the hearing in which his competency was first questioned. The second, more detailed message, was left less than two weeks after the hearing,” according to the order. “These voicemails show, contrary to the claims of Girardi Keese’s counsel and his own counsel, that Defendant understood the nature of the civil lawsuit filed by Edelson, PC, and understood the nature of the civil contempt hearing in the Lion Air case.”
The voicemails were played during Giardi’s competency hearing before Staton in August and September. In one, Girardi tells Edelson, “I think there’s been some miscommunication here” and that no money was to be distributed to clients until all of it had been received from the lawsuit settlements. “Don’t be mean to me. I’m a nice guy,” Girardi said, adding that he didn’t want “problems.”
Girardi told Edelson in another voicemail, “Let’s work everything out in a nice way, please.”
Girardi also left voicemails for former colleagues in early 2021 “suggesting they start a new practice together,” Staton said in her competency order, which “demonstrated that Defendant understood that Girardi Keese was no longer operating.”
“Overall, the evidence of Defendant’s conduct and performance in 2020 and 2021 is highly inconsistent with the claims of cognitive impairment made in the mid-December Lion Air hearing and at the time of the initiation of the conservatorship proceeding,” the judge wrote.
Staton dismissed reports from Girardi’s housekeeper and daughter as only showing mild impairment and/or coming after “a motivation to exaggerate his symptoms had already arisen.” The one Girardi witness she credited was Richard Marmaro, a retired Skadden Arps partner who testified that he saw Girardi at the federal courthouse in March 2020, confused and mistakingly believing he was in state court.
“This is a specific example of an incident that calls into question Defendant’s cognitive functioning. But a single episode of confusion cannot carry the weight Defendant gives to it,” the judge wrote.
At the same time, an attorney who worked with Girardi during the last 17 months of his practice and described interactions that Staton said demonstrate Girarid’s cognitive abilities. Also, a January 2021 police body camera video of Girardi after a burglary at his home shows him having “some trouble in recalling some names and details,” but “he is able to walk through the home with the officers, recount what he had seen, and convey details regarding the residence itself.”
“With effort, he was able to provide contact information of family members, attorneys, and his assistant by consulting a paper list,” Staton wrote.
The judge also emphasized that the first report of Girardi’s mental condition came during conservatorship proceedings in 2021, after Girardi had been accused of massive embezzlement.
“There were no contemporaneous anecdotal reports (i.e., text messages, emails, letters) of Defendant’s alleged cognitive decline from 2017 through the end of 2020,” according to the order.
The order summarizes each expert who testified. In her summary of prosecution expert Diana Goldstein’s testimony, she wrote that Girardi “refused to silence his cellphone, and took a call from his wife” during his interviews with Goldstein.
“Specifically, after having said earlier he did not remember having a third wife, he answered a phone call from the woman who had in fact been his third wife for twenty years, accurately remembering she was leaving for Spain on that day to film a television show and accurately identifying her as an ‘ex,’” the judge wrote.
Staton’s summary of Ryan Darby’s testimony says Girardi’s “decline in hygiene was noted to coincide with his forensic evaluations beginning in April 2023.”
“Most notably, Defendant ‘began wearing the same burgundy sweater to all evaluations (actively searching for the sweater in the dirty clothes if needed),’” Staton wrote, quoting Darby’s report. “This behavior was not noted previously, and Dr. Darby found particularly probative the fact that, according to the assisted living staff, Defendant would search out the same clothes day after day.”
I discussed Girardi’s situation live on TV the other night. Here’s the full video:
Previous coverage:
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"as well as emails he sent his law firm staff imploring them to return to the office during the COVID shutdown because the firm wasn’t making as much money as it had been."
This guy. smh