Judge rejects Tom Girardi's defense lawyer expert as hearing over mental state approaches
An Aug. 23 hearing is to determine if the estranged husband of Real Housewives of Beverly Hills star Erika Jayne is competent to be tried for his criminal fraud charges.
Disbarred California power lawyer Tom Girardi’s mental competency hearing will include testimony from experts, but a longtime criminal defense attorney who recently evaluated him for his public defenders won’t be one of them.
Kate Corrigan’s opinions of Girardi’s competency “are not helpful,” and her four recent meetings with Girardi don’t constitute a sufficient basis for expertise under the Federal Rules of Evidence, according to an order from U.S. District Judge Josephine L. Staton in Los Angeles.
“The Court sees no benefit in deviating from the normal practice of relying on statements of defense counsel of record rather than on the expert opinion testimony of another criminal defense lawyer,” according to the seven-page order.
Staton said at a July 21 hearing in Los Angeles that she has “the greatest respect for Ms. Corrigan” but doesn’t believe she can provide relevant insight to the key issues, which include “whether or not, perhaps, the defendant is malingering.”
Assistant U.S. Attorney Ali Moghaddas told Staton she “hit the nail on the head.”
“That really is the central issue: Is Mr. Girardi faking, or is he not?” Moghaddas said.
The courtroom discussion confirmed that two experts who evaluated Girardi for the U.S. Attorney’s Office in the Central District of California concluded he’s at least partly faking or exaggerating his mental condition. One is Diana Goldstein, a neuropsychologist in Chicago. The other is Ryan Darby, an assistant professor of neurology at Vanderbilt University Medical Center in Nashville, Tennessee.
Girarid’s lawyer J. Alejandro Barrientos told Judge Staton that prosecutors are “assuming that the court is going to accept the malingering opinion of Dr. Darby or Dr. Goldstein.”
“We think there are very foundational flaws in the analysis by those experts,” said Barrientos, a deputy federal defender who is representing Girardi with Georgina Wakefield and Craig A. Harbaugh. He said a forthcoming defense brief will detail “some pretty serious flaws” with the analysis, and “I think the court will ultimately reject the malingering opinion.”
Scheduled for Aug. 23 at the new federal courthouse in downtown Los Angeles, the hearing will be the first time Girardi has appeared in public since his Feb. 6 arraignment before U.S. Magistrate Judge Karen Stevenson at the nearby Roybal Federal Building.
The stakes are high: If Judge Staton deems Girardi incompetent, the case against him is essentially over unless the 84-year-old’s mental condition improves. If Staton says he’s competent, Girardi’s attorneys can appeal her ruling to the 9th Circuit U.S. Court of Appeals.
From ‘you are going to love me in 30 days’ to disbarment
Girardi was for decades a dominant plaintiff’s lawyer in national class actions and mass torts. His work inspired the movie Erin Brockovich, and he was a go-to kingmaker in Los Angeles legal circles because of his influence in judge appointments and his access to big cases. His marriage to Real Housewives of Beverly Hills star Erika Jayne brought him fame outside the legal world, and it unraveled about the time as the years-long Ponzi scheme that prosecutors say drove the operations of his law firm, Girardi Keese LLP.
As the California State Bar revealed, Girardi had been accused of misconduct many times previously, but the first noticeable action against him didn’t come until December 2020 when a federal judge in Chicago found he and his firm in civil contempt for misappropriating client money from lawsuits over the deadly Lion Air Flight 610 crash in the Java Sea in October 2018.
Soon, a doctor had diagnosed Girardi with dementia and Alzheimer’s disease. Girardi’s brother, Robert Girardi, a dentist in Long Beach, took control of his affairs through a court-appointed conservatorship, and Girardi Keese LLP was taken over by a court-appointed receiver and engulfed in bankruptcy proceedings that continue to this day. In the nearly three years since, the mansion Girardi shared with Erika that was featured on Real Housewives — it’s located in Pasadena, not Beverly Hills — has been sold and much of its contents auctioned, with proceeds helping pay the trustee and the more than $500 million owed clients, former co-counsel and other creditors. Among those caught up in the aftermath has been Tricia A. Bigelow, a retired state appellate justice who had a four-year romance with Girardi that ended in 2016, which Erika Jayne posted about on social media after their own breakup. Bigelow turned over to the bankruptcy trustee several pieces of jewelry gifted to her by Girardi after the trustee discovered they were paid for with law firm money.
The same day L.A. prosecutors announced their indictment in February 2023, prosecutors in the Northern District of Illinois announced an indictment over the Lion Air embezzlement that charges Girardi with eight counts of wire fraud and four counts brought under the federal law that criminalizes contempt of court.
The Illinois indictment describes the “lulling” tactics Girardi used to dupe his clients into believing money forthcoming, including sending one a letter in May 2020 that said in part, “I think you are going to love me in 30 days.” Prosecutors say that was Girardi’s way of “falsely implying and promising” that the client would soon see a payout.
Former Girardi Keese Chief Financial Officer Christopher K. Kamon is a co-defendant in the Illinois indictment, along with former Girardi Keese partner David R. Lira, who is Girardi’s son-in-law.
Lira also faces possible disbarment in California under misconduct charges the California State Bar announced on June 16 over the Lion Air embezzlement. Former Girardi Keese partner Keith D. Griffin also is charged in relation to the Lion Air case as well as a separate alleged embezzlement of more than $369,000 from a settlement over a 2014 crash in San Bernardino, California, between a car and a dump truck that killed two young people and injured several others.
Girardi was disbarred last year.
Kamon, who is not an attorney, is the only one in custody: He was arrested in November 2022 after he returned to the United States from the Bahamas, for a wire fraud case in the Central District of California that accuses him of stealing money from Girardi Keese in a separate scheme that prosecutors say Girardi didn’t know about.
Kamon waived his grand jury indictment so is only charged via information, which signifies cooperation with prosecutors. He hasn’t been in court since his January arraignment: His trial date is Nov. 7 under a stipulation reached in March between prosecutors and his attorneys at Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates.
‘A large amount of discovery has been produced’
Girardi’s competency evaluations in California will be used in his Illinois case, but Girardi’s attorneys there also have reserved the right to object and seek further competency evaluations. At a June 21 status conference, Illinois prosecutors “reported a large amount of discovery has been produced and a voluminous production of emails is forthcoming,” according to a docket entry.
Girardi’s federal defenders in California hired neuropsychologist Stacey Wood, a professor at Scripps College in Claremont, California, to evaluate Girardi. They also retained Helena Chui, a neurology professor at the University of Southern California, and Corrigan, a licensed California lawyer since 1987 and a partner with Corrigan Welbourn Stokke, APLC, in Newport Beach.
Their reports haven’t been filed publicly, but prosecutors revealed Corrigan’s involvement in a June 23 motion that asked Judge Staton to exclude her as an expert witness. It was the first indication that they may argue what some people have long speculated: That Griardi is feigning his condition. The filing said Corrigan’s opinions “are unreliable because she is not qualified to identify malingering, which may be an issue in this case.”
Girardi’s lawyers said in their 17-page opposition that Corrigan is not offering a medical opinion, but given her background, she “is more than qualified to opine about what is required of a criminal defendant to properly assist in his defense.”
Girardi wore “the same holed sweater two days in a row” when meeting with Corrigan, and he “was unable to recall his attorneys or that he was represented by the Federal Public Defender’s Office.”
“Mr. Girardi 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,” according to the June 30 filing.
In court last week, Barrientos said the legal question for Judge Staton goes beyond possible fakery by Girardi. He dismissed the malingering issue by saying “the question at the end of the day is not whether the defendant is displaying symptoms that are not exactly correlative to his condition, it's whether or not he can assist in his defense.”
Judge Staton asked what would happen if she determined Girardi is not faking his condition.
“If that were the case, does the government concede that, ‘OK, he’s not competent to stand trial?” the judge asked.
“I don’t think we’re there yet,” said Moghaddas, who attended the hearing with Assistant U.S. Attorney Ranee Katzenstein. He said if Girardi “truly believes President Carter is our current president right now, then we have problems. … But that’s still going to be a problem for the medical experts to evaluate.”
To support Corrigan as an expert witness, the defense cited United States v. Merriweather, a 2013 case out of the Northern District of Alabama in which an uninvolved criminal defense attorney, Jack Earley, opined on the mental compentecy of a robber who murdered two women after taking hostages at a bank.
Earley, a longtime California public defender, was allowed to testify in the hearing, but Judge Staton said last week that under her review of Merriweather, “it was very unclear what Mr. Earley even added as a defense expert.” Staton said Corrigan’s evaluation of Girardi offers nothing she won’t find in the evaluation by his own lawyers. Her July 26 order said the Alabama case is distinguishable because prosecutors there didn’t object to Earley’s testimony, while prosecutors in Girardi’s case object to Corrigan’s.
“Moreover, although the court relied on Mr. Earley’s testimony regarding the defendant’s ability to work with his defense counsel, that testimony could have just as easily come from the preferred source: the defendant’s own counsel, as the expert had less time with the defendant, having observed him on only one occasion,” according to the July 26 order. “Thus, the Court is unpersuaded by Merriweather’s acceptance of attorney-expert testimony as to mental competency.”
Staton also dismissed the defense’s argument that “should their opinions of Defendant’s competence differ from his own, that could cause Defendant to question their loyalty to him, thereby impairing the attorney-client relationship.”
“Given the defense filings on the issue of competence to date, the Court does not believe that this is likely to become an issue,” Staton wrote. She quoted the defense’s motion to declare Girardi incompetent, which is sealed from public view: “Multiple defense counsel spanning multiple years reach the same conclusion: Girardi cannot assist in his defense.”
Privacy issues play such a prominent role in the litigation that Girardi’s defense lawyers got a copy of Dr. Goldstein’s report before prosecutors. Prosecutors agreed to the procedure to allow them to make redactions in accordance with Girardi’s privacy rights, but they later said Girardi’s lawyers had redacted too much, including Girardi’s answer to a question about his alcohol consumption and his responses to questions about his criminal charges.
Judge Staton on July 7 ordered the defense to provide Goldstein’s unredacted report to Dr. Darby, the prosecution expert who prepared the rebuttal to the defense’s evaluation. If Darby wants to reference the redacted material, the defense will get first look “for the purpose of making any necessary redactions,” Staton said.
“Similarly, the government may request in camera review of any disputed redactions,” according to the order.
Prosecutors object to sealing of incompetency motion
Prosecutors currently are objecting to the defense’s sealing of the incompetency motion, calling it “inappropriate and unnecessary.”
“Many of the conclusions and observations in the brief have already appeared in the press and public filings, including defendant’s own filings that directly quote from sealed expert reports,” prosecutors wrote, citing the defense’s reply to the motion to exclude Corrigan.
Girardi’s lawyers want the motion to stay sealed, saying prosecutors have “failed to identify any important public interest that would be advanced by the public filing of information that is already public.” Unsealing the motion would mean having to determine which portions to redact, which “would needlessly distract from the substantive matters being litigated, especially where the purported benefit of doing so is ensuring public access to information that is already public.”
“More importantly, this matter has already received extensive media coverage due to Mr. Girardi’s prior prominence in the legal profession and his prior marriage to a reality television star. In the event a trial is ultimately necessary, the Court should protect Mr. Girardi’s right to a fair trial by declining to encourage scandal-driven media coverage at this time,” according to the filing.
Staton is a former Morrison & Foerster LLP partner and Orange County Superior Court judge. She was appointed to the federal bench in 2012 by President Barack Obama and spent her first 12 years in Santa Ana before relocating her chambers to Los Angeles in 2022.
She indicated last week that she’ll allow testimony from lay witnesses such as staff at Girardi’s care facility, former legal staff, litigation funding lenders and other lawyers whose testimony may help her understand how Girardi’s mental state has changed over time.
“I think we handle this the way we would in a bench trial,” she said. “There’s a lot in this case about credibility.”
The hearing may take multiple days. It’s possible Corrigan could testify as a lay witness, but Staton also seemed to warn against late-stage evaluations by saying, “You can hire any number of people to come in and now meet with Mr. Girardi and make observations about him.”
Girardi’s lawyers and prosecutors will file witness lists in the coming weeks, and Staton will decide the scope of testimony as it comes in, in accordance with Rule 403 of the Federal Rules of Evidence.
“I’ll want to see what it is and how it comes in. At the point where it becomes clearly cumulative, I can deal with that,” the judge said. “Let’s start with the experts, and then let’s move from there. And I’ll keep an open mind.”
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