Prosecutors cite 'etiquette' of Tom Girardi's courtroom f-bomb when arguing he's competent
The competency briefing is finalized in Girardi's wire fraud case in Los Angeles. Briefs also were filed in John Eastman's state bar misconduct hearing. Find them all here.
Federal prosecutors say disbarred lawyer Tom Girardi’s use of a profanity in his mental competency hearing demonstrates his competency for trial on client embezzlement allegations because he said it quietly.
Prosecutors say Girardi’s decision to mutter “f— you” at a prosecutor examining one of his medical experts was done so “that no one in the courtroom other than his counsel and the prosecutor heard it.”
“Far from demonstrating severe, or even moderate dementia, defendant demonstrated an understanding of the limits of acceptable courtroom etiquette,” according to a new filing Friday in U.S. District Court in Los Angeles.
The 16-page brief is the final salvo from the U.S. Attorney’s Office as it seeks to have Girardi declared competent to stand trial on a five-count criminal indictment that accuses the former Real Housewives of Beverly Hills husband of defrauding clients out of $15 million at the same time he enjoyed unrivaled power as a national plaintiff’s attorney and influence peddler in the California judiciary.
Prosecutors say Girardi is exaggerating his mental impairment and clearly understands the case against him and can follow the proceedings.
Friday’s brief follows a Nov. 17 brief from Girardi’s lawyers that said experts have established that the 84-year-old “suffers from dementia and is unable to rationally participate in his defense.”
“The defense corroborated these opinions with people who observed Girardi’s impairment firsthand,” according to the brief, including Girardi’s former housekeeper, Isabel Mancilla; Girardi’s golfing buddy, retired Skadden Arps partner Richard Marmaro; Girardi’s friend Rick Kraemer, a trial services professional in Los Angeles; and Amber Ringler, Girardi’s former travel coordinator and a close friend of his wife, Real Housewives of Beverly Hills star Erika Jayne.
Prosecutors, however, say Girardi’s argument “ignores the simple fact that his clinical presentation demonstrates that he is presently competent.”
“Defendant’s efforts to mire these proceedings in the weeds of test scores and statistics merely obscure the true measure of defendant’s ability to understand the proceedings against him and assist meaningfully in his defense,” according to Friday’s brief from Assistant U.S. Attorneys Ali Moghaddas and Scott Paetty.
The brief is the final chance for prosecutors to persuade U.S. District Judge Josephine Staton that Girardi is mentally competent to stand trial. It follows approximately 150 pages of pre-trial briefing, three days of testimony in August and September as well as an initial 11-page post-hearing brief on Oct. 27 from prosecutors that said the defense testimony “not only failed to undercut the government’s showing, it often supported it.”
Two experts testified for prosecutors: Vanderbilt University neurology professor Ryan Darby and Diana Goldstein, a Chicago neuropsychologist. Both said Girardi is competent and also exaggerating his condition, and they identified “material inconsistencies in his clinical presentation” that they say demonstrates malingering.
That includes Girardi stating “a variety of excuses for his criminal conduct” and discussing “matters that only recently transpired,” according to prosecutors’ Oct. 27 brief. “He further described, rationally and specifically, how he would defend himself against such allegations.”
Girardi’s lawyers said Darby and Goldstein “offered their speculation” that Girardi is not only feigning moderate dementia, but he’s doing it “so convincingly that he duped everyone around him,” despite Darby and Goldstein both agreeing that Girardi has mild dementia.
Darby testified that neuroimaging isn’t used to assess cognitive impairment, but he testified “the exact opposite” in another case in Texas two years ago, “confirming there that he had used neuroimaging to assess the defendant’s cognitive impairment.”
“The only apparent difference between then and now is that the neuroimaging supported Dr. Darby’s opinion there but undermines it here,” according to the brief, which adds that the defendant Darby said should exhibit “mild cognitive impairment” died of end-stage dementia and Parkinson’s Disease nine months after Darby’s testimony.
Goldstein, meanwhile, “has no board certification, no formal education, no specialized training, and no research on older adults.”
“She is a generalist who neither focuses on older adults, nor regularly evaluates people with dementia,” according to the brief. “In her 24-year career, she has evaluated just 10 individuals with dementia. This lack of expertise undermines the reliability of her evaluation.”
Girardi’s lawyers said Goldstein “evinced a deliberate attempt to not only shade the facts but shape them to the government’s narrative” by challenging witnesses who seemed convinced Girardi has dementia.
That includes Marmaro, who told Goldstein about a “shocking” incident at the Los Angeles federal courthouse in March 2020 in which Girardi appeared confused and thought he was in Los Angeles County Superior Court. According to Goldstein’s notes, she told Marmaro that the California State Bar and U.S. Attorneys Office “are calling B.S. re: dementia,” but Marmaro “remained undeterred,” saying “I was 100 percent certain he’d lost it.”
“His certainty of Girardi’s dementia conveniently didn’t make into Dr. Goldstein’s report,” according to the defense brief. “The only part of his response included the report was Marmaro’s caveat that he wouldn’t ‘swear on [his] kid’s lives.’”
Girarid’s lawyer said Goldstein citing the U.S. Attorney’s Office in her interview with Marmaro “is a telling omission, given that Dr. Goldstein knew Marmaro’s son is an AUSA in this district.”
Much of the defense brief details testimony from Darby and Goldstein that Girardi’s lawyers elicited in cross-examination, including Darby’s lack of explanation for how he assessed whether Girardi is faking his condition. It also mentions Goldstein’s admission of “several errors” during her testimony, and included as a footnote a recitation of her apologies.
Darby also “admitted on cross examination he was not offering an opinion that Girardi’s neuroimaging contradicted Girardi’s presentation. Indeed, he conceded Girardi ‘would currently meet criteria for a diagnosis of mild to moderate dementia’ if taken at ‘face value,’” wrote Girardi’s lawyers, Deputy Federal Public Defenders Craig Harbaugh and J. Alejandro Barrientos.
But prosecutors say Darby’s and Goldstein’s own interactions with Girardi are crucial, and both said Girardi told them he didn’t steal anything while. Girardi also acknowledged to Darby “that Girardi Keese clients may not have received all the funds to which they were entitled.”
Girardi Keese is the now-bankrupt law firm that Girardi operated until his public downfall in late 2020, after a federal judge in Chicago held him in contempt for embezzling money from clients in lawsuits over a deadly plane crash.
Erika Jayne publicly left him around that same time, and he soon was living at an assisted living center, diagnosed with dementia and Alzheimer's disease and in a conservatorship operated by his brother Robert Girardi a dentist in Seal Beach.
Along with the California indictment, Girardi faces charges in the Northern District of Illinois for alleged embezzlement related to the plane crash lawsuits. His former chief financial officer, Christopher Kamon, also is charged in California and Illinois, as is former law partner David R. Lira, who is Girardi’s former son-in-law, and former Girardi Keese partner Keith D. Griffin.
Illinois prosecutors filed a superseding indictment in November.
Girardi lost his license to practice law in California in 2022. Lira and Griffin also face possible disbarment by the California State Bar. Griffin’s hearing was in October; State Bar Court Judge Phong Wang has 90 days from then to rule.
Meanwhile, Girardi’s competency for trial hinges in large part on whether Judge Staton believes he’s feigning his condition as prosecutors and their experts say he is.
A 2010 Barack Obama appointee, Staton saw him in person for three days in August and September when he appeared for the hearing. He shuffled in and out of the courthouse each day wearing oversized pants and a jacket while staring somewhat vacantly but also, sometimes, with a vague smirk. A caretaker at his assisted living center testified that he spends his days sitting at a table reviewing old case files that he treats as current cases.
Testimony also established that Girardi has had recent contact with Erika Jayne: Goldstein testified that Girardi answered a call from Erika as she was meeting with him for the assessment. She said she heard Erika answer yes when Girardi asked if she was going to Spain, and she later confirmed the trip occurred by watching an episode of Real Housewives of Beverly Hills. Girardi also said he didn’t recognize a photo of Erika, but the photo was when “she wasn’t wearing any make up and this was pre-plastic surgery,” Goldstein said.
Girardi never spoke to reporters except to my friend and former Los Angeles Daily Journal colleague Justin Kloczko when he said, “Hey, Joe” in the hallway outside Staton’s courtroom. His courtroom outbursts were limited to the profane utterance that prosecutors referenced in Friday’s brief and in their original Oct. 27 filing, which said the court “further observed defendant’s ability to process information firsthand when he hurled an expletive under his breath at the prosecutor.”
Girardi’s experts were Helena Chui, a University of Southern California neurology professor; and Stacey Wood, a neurology professor at Scripps College who said she’s assessed the mentally competency of 30 to 40 criminal defendants.
Wood testified that Girardi is incompetent to stand trial, but prosecutors pointed out in their Oct. 27 brief that Chui “readily conceded that she was not asked to conduct a competency evaluation, nor does she have any expertise in that field.”
“She further admitted that she has never conducted a forensic evaluation before, nor does she have any forensic evaluation training,” according to the brief. “And while Dr. Wood purportedly conducted a forensic evaluation, she conceded during cross examination, that she both failed to consider relevant evidence of defendant’s malingering and, in some cases, failed to adequately explain or even acknowledge his inconsistent presentation.”
Prosecutors say Girardi’s responses “can only be attributed to malingering rather than genuine memory impairment.”
Still, prosecutors said they’re open to “strategies” that can assist Girardi during the case such as “repetition” and “cueing.”
“While the government maintains that such assistance is unnecessary given his clear ability to track the proceedings in real-time, it is nonetheless amenable to such aids during further proceedings,” prosecutors wrote.
Judge Staton has not said when she will issue her ruling.
I went live on LiveNOW from Fox today to discuss Girardi’s case. Here’s the video, followed by a video of Girardi leaving court in August.
Court documents:
Aug. 2: redacted defense motion for incompetency
Aug. 2: redacted prosecution opposition
Oct. 27 prosecution post-hearing brief
Nov. 17 defense post-hearing brief
Previous articles:
July 31: Judge rejects Tom Girardi's defense lawyer expert as hearing over mental state approaches
John Eastman state bar briefs
Meanwhile, the final briefs are in for former Trump election lawyer John Eastman’s California State Bar disciplinary hearing. The former Orange County, California, local is facing possible disbarment for pushing false election fraud theories ahead of the attempted insurrection on Jan. 6, 2021.
“His misconduct, committed in the course and scope of his representation of former President Trump, shocked the conscience of the nation, and is of such exceptional gravity that only disbarment will suffice,” prosecutors wrote.
“Respondent’s misconduct strikes at the very heart of what it means to be a lawyer – he misused his license in a grave and injurious manner designed to undermine our democracy,” they continued.
Here’s the full brief from California State bar counsel.
Eastman’s brief says the case “has an Orwellian cast to it: the government has spoken, and if you disagree, then you must be lying.”
“Two plus two equals five, after all, and if the government says so, you must not only repeat the lie, but you must come to believe it as well,” according to the brief from Eastman’s lawyer, Randy Miller.
“In sum, Dr. Eastman held an honest and objectively reasonable belief that he was properly advising his client while at the same time discharging his duty to zealously represent that client within the bounds of the law,” Miller concluded.
Eastman spoke with reporters, including me, after the first day of state bar hear back in June in downtown Los Angeles. Here’s the video.
Speaking of videos, I continue to rack up the TV appearances. I’m becoming a regular on LiveNOW from Fox, where I’ve been discussing Young Thug’s RICO trial and other legal news such as an appellate court upholding actor Jussie Smollet’s convictions for his 2019 hate crime hoax and actor Jonathan Majors’ domestic violence trial in New York.
I was on air this afternoon to discuss not only Girardi but the inmate charged with stabbing Derek Chauvin, the former police officer convicted of murdering George Floyd. I post all the appearances on my YouTube channel.
Support my work with a donation
Meanwhile, I’ve created a Patreon account for people who’d like to support my work through a monthly donate. I plan to use the money to pay for court documents. I also am hoping to pay small fees to a great marketing service that will clip my interviews into short videos that can be posted on YouTube, TikTok and Instagram to juice the algorithms and bring more subscribers and views to my main sources of income: YouTube and the Legal Affairs and Trials with Meghann Cuniff mailing list.
Thank you for your support. I will be back next week with more coverage of Young Thug’s trial, and more coverage of Los Angeles federal courts.
Thank you for supporting my independent legal affairs journalism. Your paid subscriptions make my work possible. If you’re not already a paid subscriber, please consider purchasing a subscription through Substack. You can also support me through Venmo (MeghannCuniff), CashApp ($MeghannCuniff) and Zelle (meghanncuniff@gmail.com). Thank you!