Girardi's lawyers seek new trial, say judge didn't ensure competency

Attorneys for Thomas V. Girardi have asked a federal judge for a new trial on grounds the district court in Los Angeles did not meet its "ongoing obligation" to ensure he was competent to stand trial.

The 85-year-old defendant's decision to testify just as his counsel was ready to rest their case was one of several events during trial that they cited as evidence of his incompetency that the judge should have considered.

"The defense attempted to submit an in camera filing regarding Mr. Girardi's decision to testify and his competency," Deputy Federal Public Defender J. Alejandro Barrientos wrote in the motion filed Tuesday afternoon. "That attempted filing included a declaration by defense counsel demonstrating that Girardi was unable to remember what happened from one trial day to the next, or even from one witness to the next.

"But the court rejected the defense's in camera filing," Barrientos wrote.

In August, a jury unanimously found Girardi guilty of four counts of wire fraud that amounted to around $15 million dollars stolen from four of his clients between 2010 to 2020. His convictions carry a maximum sentence of 20 years in federal prison and large fines for each count. Sentencing is set for Dec. 6. U.S. v. Girardi et al., 2:23-cr-00047 (C.D. Cal., filed Jan. 31, 2023).

Barrientos argued that U.S. District Judge Josephine L. Staton should vacate the jury's guilty verdict because events that unfolded throughout the month-long trial - particularly Girardi's decision to testify - showed he did not understand the proceedings.

"Before trial, the defense requested that the court conduct in camera competency inquiries during trial to ensure that Girardi understood the nature of trial proceedings and their progression over time and was able to assist in his defense. The court declined to conduct the requested inquiries," Barrientos wrote.

In January, Staton rejected the defense's claims that Girardi was too mentally incapacitated to stand trial after having held a competency hearing last year.

In 2021, Girardi's attorneys said, he was diagnosed with late-onset Alzheimer's disease and dementia. The reported diagnosis was revealed months after Girardi's law firm, Girardi Keese, collapsed amid allegations of fraud and unpaid debts.

While referencing a 1975 U.S. Supreme Court ruling that reversed a trial court's competency determination, Drope v. Missouri, Barrientos said a trial court must always be alert to circumstances that suggest a change that could render a defendant unable to meet the competency standards.

"The court did not meet its ongoing obligation to ensure Girardi was competent to stand trial, and Girardi was not competent," Barrientos wrote.

At the end of the trial, Girardi's attorneys told the judge they were ready to rest their case but needed to consult with him. Then, in a surprising move, Girardi took the stand for about 40 minutes and repeatedly denied any wrongdoing or that he intentionally withheld money from his clients. He swore to the court that "every client got every penny they were supposed to get," despite testimony from two ex-clients who said they have still not received the full sum of their settlements.

When confronted with the allegations during a cross examination by Assistant U.S. Attorney Ali Moghaddas, Girardi said he did not see testimony and evidence from any of the four client victims because he wasn't in the courtroom. However, Girardi sat with his attorneys every day of trial and was sometimes seen taking notes while witnesses were testifying.

Girardi's attorneys said that although Girardi was taking notes, he was unable to remember what happened during the trial.

"It is especially notable that, despite the court's observation of Mr. Girardi's note writing during trial, Mr. Girardi was still unable to keep track of the progress of proceedings over time," Barrientos wrote.

While on the stand, Girardi also said he believed his law firm was still open, claimed to not know who his attorneys were and stated that funds for a client in 2020 had to be held back because she had a drug problem. However, that client never testified of such a problem and said one of the main excuses Girardi gave her was that her wrongful death claims were taxable and he was in the process of getting the requirement removed.

Barrientos said Girardi's testimony, along with "incomplete information" from the government's neurologist experts during the competency proceedings last year, should have triggered the court to reevaluate Girardi's competency.

"In light of all this, the 9th Circuit's decision in U.S. v. Dreyer required the court to further inquire into Mr. Girardi's competency and, to the extent it was not already clear, further inquiry would have shown that Girardi was not competent. It does not matter that government experts previously opined that Girardi was competent," Barrientos wrote.

Girardi was also defended by Deputy Federal Public Defenders Charles J. Snyder and Samuel O. Cross.

In addition to Girardi's mental health, the defense shifted blame to his law firm's former financial chief, Christopher Kamon - a severed defendant in the case.

While on the stand, Girardi referred to Kamon as "the guy in charge of accounting" who took advantage of him and "was pretty clever in stealing millions of dollars" from the firm.

Kamon has been in custody and insistent of his innocence since 2022. However, a plea agreement, signed by Kamon and his attorney, Michael V. Severo, was filed by the government prosecutors on Tuesday. A change of plea hearing is scheduled for Friday before Staton in which Kamon is expected to plead guilty.

If Kamon stands by the document in court, he will plead guilty to two wire fraud charges and forfeit a personal money judgment of $3.1 million in exchange for dismissal of the rest of the indictment. However, he may still be subject to fines or restitution.

Severo, a private practitioner in Pasadena, did not respond to an email or voice message by press deadline Wednesday.