Diminished capacity a tough sell to Girardi jury, outside lawyers say

It will be tough for 85-year-old Tom Girardi to rely on a diminished capacity defense to overcome the government's evidence against him in his $15 million wire fraud trial because emails, letters and voicemails have shown him communicating directly with former clients about why they were not being paid the full sum of their agreed settlement funds, say attorneys who are following the trial.

Criminal defense and personal injury attorneys not involved in the Los Angeles trial opined Friday that the government's case - which is expected to rest Monday - has been constructed in a compelling way for jurors because the prosecutors told a complete story of an alleged scheme that tracked back years before Girardi's claims of cognitive impairment arose. U.S. v. Girardi et al., 2:23-cr-00047 (C.D. Cal., filed Jan. 31, 2023).

"The government did a good job ... building their case in a way to minimize the impact of any potential mental incapacity. That's why they started the story with the first victim who retained Girardi in 2010 whose settlement was stolen in 2013," McDermott Will & Emery partner Julian L. André said in a phone interview.

On Aug. 7, Assistant U.S. Attorneys Ali Moghaddas and Scott Paetty opened the trial with Joseph Ruigomez, who told jurors he and his mother spent six years trying to recover over $10 million from the disbarred plaintiffs' attorney.

Among the reasons Girardi gave Ruigomez via letters and voicemails, along with three other client victims who settled cases with him in 2019 and 2020, were: the checks were awaiting judges' signatures, he had to meet with certain judges and because their personal injury claims were taxable, he had to fight with the IRS to exempt them from the purported law.

"That's a real crack in the armor for the defense because their whole defense is hinging on the fact that he recently and progressively became more cognitively deficient," Louis J. Shapiro, a criminal defense attorney in Century City, said about Ruigomez's presented case. "How do you explain something in 2010? That's why, I think, that's probably going to be the evidence that the jury turns on, on that point."

Girardi's counsel - Federal Defenders Charles J. Snyder, Samuel O. Cross and J. Alejandro Barrientos - began their defense with Girardi's neurologist, Dr. Helena Chui, who first studied his brain months after Girardi Keese crumbled in 2021. She told jurors on Thursday that a 2017 car accident he was in likely progressed a moderate cognitive impairment she analyzed in MRI scans she studied at the time. However, she was not asked by the defense to study scans prior to 2017, which the government pointed out during cross-examination.

Commenting attorneys said it would be hard for a jury to buy the diminished capacity defense because of the evidence the government established with Ruigomez, and Girardi's communications with each of the victims.

"Girardi's defense that he was incompetent at the time is unlikely to gain him an acquittal because these crimes date back to 2010, when he clearly was competent and had no cognitive deficiencies," Taylor & Ring LLP partner David M. Ring wrote in an email.

André said that for each of the alleged victims, the government has "established knowledge and tied it directly to Girardi. You have statements that he himself is making to these victims or other attorneys at Girardi Keese regarding payments to these victims. That puts him right in the center of it."

During opening statements, Girardi's counsel said part of their defense will show how Girardi Keese's former financial chief and severed defendant in the case, Christopher Kamon, was taking advantage of Girardi's deteriorating health and heading the alleged scheme behind his back.

However, the commenting attorneys said this would not likely persuade jurors.

"To blame it on somebody else in the law firm might be an argument in the alternative, but it's ultimately not going to fly much because Girardi was managing partner. As managing partner, you're essentially put on constructive notice of what's going on. You don't get a pass because somebody else under you is doing something," Shapiro said. "That willful ignorance is not a defense to specific intent."

Based on his experience in criminal defense, Shapiro added that sometimes the defense goes to trial knowing their client has a real possibility of losing the case, but plays what he referred to as "the long game" to minimize a sentence.

"It could be the defense is aware that there's going to be a conviction here, at least on some of these counts. Therefore, maybe doing this trial, at the very least, allows the judge to get a feel for the whole case and what was going on. Maybe the judge will buy into the fact, for the purposes of sentencing, that Girardi had some issues back in 2010, but most of the problems with the clients came more recently and therefore, maybe that that will help," Shapiro said.

U.S. District Judge Josephine L. Staton is presiding over the case.