Saturday, May 8, 2021
Dead 95-Year-Old Woman’s Trusted Hemet Lawyer Arrested: Did He Steal Her $320,000 By Faking Trust Account Changes?
Trent Wayne Thompson, 44, was arrested following a Riverside County District Attorney's Office investigation that also snared another attorney, Quinton Ray Swanson, who allegedly conspired to aid his co-defendant and business partner.
The legal system is supposed to protect the vulnerable, but too often it is manipulated into exploiting them. From coast to coast, guardianship and conservatorship abuse — where seniors are cheated and stripped of their liberty and property — is a glaring, yet underreported, example of this insidious phenomenon.
Britney Spears and Joann “Mama B” Bashinsky, have brought the issue to national attention, which long has been needed. But as a Florida resident, I’ve been aware of this disturbing practice for some time. I’ve taken measures to protect my family from this kind of abuse, but too many Americans remain unaware of just how widespread and terrible guardianship abuse and conservatorship abuse truly are.
Guardianship abuse may more correctly be thought of as guardian, medical and legal abuse, because without unethical, predatory individuals in all of those fields working together, such abuse is impossible carry out. It takes more than a corrupt guardian to do these terrible things — it takes a corrupt guardian, a corrupt lawyer, a corrupt doctor, often a corrupt nursing home or hospital and, finally, corrupt judges.
Guardianship laws and conservatorship laws are well-intentioned, designed to protect the truly incapacitated and vulnerable from those who would take advantage of them. But as Florida’s, and indeed America’s, guardianship-abuse epidemic shows, this system that was put in place to protect individuals from exploitation is far too often subverted to actually exploit them.
Legislators in Florida are trying to fix the problem, but there’s still a long way to go, and the issue needs far more attention at the national level from Congress. When a system designed to protect people can be easily twisted into a weapon to cause harm, there’s a serious problem. It’s time we end that problem in the guardianship system.
Full Article and Source:
Opinion: Florida should put guardians abuse scammers out of business
Friday, May 7, 2021
Sally W. Cicerone said she was planning to retire at the end of the year anyway and that the accusations are unproven
|Sally Cicerone faces an accusation by state regulators that could take away her license.|
By Tony Saavedra
One of Orange County’s most prolific probate conservators, accused of transferring thousands of dollars without consent from the account of a dead client whom she no longer represented, has surrendered her state license.
Sally W. Cicerone of Laguna Hills must resign as a fiduciary from 43 existing cases and can no longer take any new clients under the agreement approved in April by the state Professional Fiduciaries Bureau.
The bureau, a division of the California Department of Consumer Affairs, accused Cicerone of repeatedly transferring money out of financial accounts for the Santa Barbara-based Brouhard Trust even though she no longer represented the client. She also failed to notify the probate court of the transactions. The agreement becomes effective July 27.
Planning to retire anyway
Cicerone, reached Wednesday by telephone, said she had been planning for six years to retire at the end of the year anyway. As for the state accusations, she said, “Nothing has been proven to be true.”
Fiduciaries are appointed by a judge to make decisions for someone who the court deems is incapacitated. The fiduciary typically has full control over the client’s finances as well as other aspects of his or her life.
State records show Cicerone managed $26.7 million in client assets in 2017.
The families of many of Cicerone’s clients have complained for years about her financial practices.
Transferred funds to attorney’s account
In the Brouhard case, Cicerone allegedly transferred more than $63,500 out of the trust and placed it in her attorney’s trust account without proper consent. She also closed out the client’s checking account and transferred the $33,574 balance to her attorney’s account. When notified of errors and poor record-keeping, she charged thousands of dollars to correct it, the complaint said.
The attorney was not named in the accusation but was identified as Jeffrey Vanderveen in a separate appellate court ruling. Together they charged the trust $3,425 in traveling fees to attend a court hearing on the improper transactions in Santa Barbara.
Vanderveen declined to comment.
Probate system abuse
Cicerone worked in a field that is unfamiliar to most people, the probate system. The court system, when operated correctly, protects the elderly or mentally disabled from being exploited. However, the system can be abused by high-priced conservators, lawyers and other professionals who drain the estates and isolate the clients from their friends and families.
Among those unhappy with Cicerone is the family of late Orange County Superior Court Judge Betty Lou Lamoreaux, whose name adorns the county’s family law complex.”Petitioner has already demonstrated that she inflates her time and thus fee requests, bills for services she has not performed, bills for services performed by others, intentionally and fraudulently falsified her time sheets … and neglected the conservatee,” Lamoreaux’s family alleged in a court declaration.
For instance, documents show Cicerone billed $250 to visit Lamoreaux and take delivery of a new leather recliner in April 2017. But in a sworn declaration, Cicerone contractor Julie Sebestyen testified that it was she who visited Lamoreaux and monitored the chair delivery, not Cicerone.
Duff McGrath, Lamoreaux’s nephew, said, the family was pleased with the outcome.
“However, we would have preferred it had gone to a hearing because
she would have been found guilty,” McGrath said. “Our aunt would have
been appalled at how her estate was treated by Sally Cicerone. She would
have been pleased that (Cicerone) can no longer commit fraud on the
elderly of Orange County.”
ORLANDO, Fla. — A retired engineer who spent seven years in guardianship after being diagnosed with frontal lobe dementia has had all his rights restored by a judge who found no evidence he “lacks the capacity to make his own decisions and care for himself.”
A different judge determined Doug Keegan was incapacitated, stripped away his rights and put him under the care of a professional guardian in 2014.
Keegan’s family hired an attorney after they became concerned about his heavy drinking and objected to his marriage to a woman from Kenya, who they alleged was exploiting him.
Both Keegan and his ex-wife deny that was true.
“It’s a nasty business”
After trying to get his rights restored for years, Keegan finally prevailed and is speaking out about what he considers serious flaws in Florida’s court-appointed guardianship system.
“Let’s shine a light on it and let’s stop it. It’s a nasty business,” Keegan said.
Keegan said he had never heard of guardianship before a stranger showed up at his condo to evaluate his mental health.
“All of the sudden, they’re coming into your house and they’re walking off with everything you own,” Keegan said.
Keegan lived for seven years under the control of professional guardians and their attorneys.
Guardians and attorneys are paid from the assets of those under their care.
Keegan’s guardians and attorneys were paid more than $200,000 from the sale of his condo and car and from his significant retirement savings.
Keegan, who was 54 years old at the time, was put into a memory care unit at an assisted living facility before breaking down a door and being banned from that facility.
His bike was his only form of transportation.
Keegan wasn’t allowed money, only a restricted debit card to make purchases from at a few stores that don’t sell alcohol.
“I’m allowed Denny’s, McDonald’s, Subway, Golden Corral, Chick-Fil-A. And then there’s a Dollar Tree I can go to,” Keegan said when we first interviewed him late last year.
In her order restoring Keegan’s rights, Judge Leticia Marques said Keegan’s living situation offered proof of his ability to care for himself.
“The guardian himself placed the ward in a living situation in which he must care for himself and make the daily decisions involved in doing so. The ward has done so for a significant period of time. The annual accounting receipts indicate he regularly dines out, he has a membership at Planet Fitness, goes for haircuts, dental visits, etc.,” the order said.
“He scored perfect”
Judge Marques granted Keegan a hearing based on a cognitive evaluation performed by Dr. Gil Lichtshein, a psychiatrist who examined Keegan last year.
The I-Team reported late last year that other judges refused to consider Dr. Lichtshein’s report after Keegan’s guardian’s attorney Kyle Fletcher objected to the psychiatrist being hired to perform the exam by Keegan’s attorney without Fletcher’s knowledge or approval.
“I don’t know whether he’s competent or not, but I just know this… he didn’t do a thorough job,” Fletcher told the I-Team in December.
“He scored perfect. To me it doesn’t warrant any further workup,” Dr. Lichtshein said of Keegan after his release from guardianship.
Fletcher said in December he didn’t believe Keegan was capable of caring for himself.
“He’s incapacitated, which means he actually doesn’t understand anything you say,” Fletcher said.
Keegan’s attorney Leslie Ferderigos disagrees.
“This is a man that has been living on his own in a motel across the street from a large liquor store. And I got the guardian to admit he only sees Doug once every three to four months,” Ferderigos said. “So to me, if you believe someone doesn’t have the capacity, you certainly wouldn’t be allowing them to live in the manner that they’re living.“
Attorney Fletcher based his opinion of Keegan’s incapacity on a 2015 diagnosis.
“Dementia is not something that improves with time”
“Dr. Sieg, who is a psychiatrist, in other words, he’s a medical doctor, determined that he had frontal lobe dementia,” Fletcher said.
Dr. Sieg’s report says he didn’t talk to Keegan’s regular doctor.
Keegan said Dr. Sieg interviewed him at his home for less than an hour before diagnosing him with a serious, degenerative brain condition.
“There was no objective testing. There was no MRI or brain scan or anything along those lines. And they kept sitting on this diagnosis,” said Ferderigos.
Dr. Lichtshein recently testified in court that Keegan isn’t incapacitated and never had dementia.
“If he really had dementia or some major cognitive impairment years ago, he wouldn’t be better today. He would be the same or worse. Dementia is not something that improves with time, it only intensifies or worsens with time,” Dr. Lichtshein said.
The judge agreed.
Her order said, “Dr. Lichtshein testified that he found no evidence of the Ward being cognitively impaired or limited in any way in making decisions. The court is satisfied with his explanation that he conducted no further testing or inquiry because the Ward did not evidence any signs of impairment warranting further testing.”
“I was at the office when I got the order and I ran out of the room and was telling everybody ‘Oh my God he’s free!’” Ferderigos said.
Fletcher said in court he was concerned that Keegan would make bad decisions again if his rights were restored.
“Guardianships are not made to be AA programs. Guardianships are not made to pick and choose who you’re supposed to marry. That is way over-reaching,” Ferderigos said.
Before the judge’s ruling, Fletcher filed a motion asking the judge to reconsider holding a hearing to restore Keegan’s rights, based on attorney Ferderigos hiring Dr. Lichtshein without properly consulting him and other technical arguments.
“It should not be that contentious. You’re talking about somebody trying to restore their rights. Why on earth would somebody be zealously objecting to that, when there’s a doctor’s report saying this person is fine?” said Ferderigos.
Fletcher also submitted a final $20,000 bill to the court, charging Keegan $375 an hour for his services.
Keegan says he hopes, in the future, others won’t pay the high price he has, as a result of Florida’s broken guardianship system.
people like you and me and others to look at the mechanisms of what’s
going on and say ‘all right, we need to change this.’ We need to change
Charlotte Woman And Her Co-Conspirator Are Sentenced To Prison For Stealing $300,000 From An Elderly, Dementia-Afflicted Victim
Department of Justice
June 15th Is World Elder Abuse Awareness Day
CHARLOTTE, N.C. – Acting U.S. Attorney William T. Stetzer announced that a Charlotte woman and one of her two co-conspirators were sentenced to prison today for their involvement in a $300,000 embezzlement scheme perpetrated on an elderly, dementia-afflicted victim.
Acting U.S. Attorney Stetzer is joined in making today’s announcement by Robert R. Wells, Special Agent in Charge for the FBI in North Carolina, Tommy D. Coke, Inspector in Charge of the of the Atlanta Division of the U.S. Postal Inspection Service (USPIS), which oversees Charlotte, and Chief Joseph Hatley of the Mint Hill Police Department.
U.S. District Judge Max O. Cogburn Jr. sentenced Donna Graves, 58, to 97 months in prison and two years of supervised release. On October 2, 2020, a federal jury convicted Graves of conspiracy to commit wire fraud and money laundering conspiracy. Grave’s co-conspirator, Gerald Maxwell Harrison, 54, of Mint Hill, N.C., was ordered to serve three years in prison, followed by three years of supervised release. Harrison pleaded guilty in May 2020, to wire fraud conspiracy, interstate transportation of stolen property, and money laundering conspiracy. In addition to the prison terms imposed, Judge Cogburn also ordered Graves and Harrison to pay $298,407.85 as restitution, jointly and severally.
A third co-conspirator, Elizabeth Robin Williams, previously pleaded guilty to wire fraud conspiracy, interstate transportation of stolen property, and money laundering conspiracy and is currently awaiting sentencing.
According to filed court documents, evidence presented at Graves’ trial and witness testimony, including testimony provided by Harrison, from January 2015 through September 2019, Graves, who was the ringleader of the criminal conspiracy, conspired with Williams and Harrison to engage in a scheme to defraud a victim identified in court documents as “K.T.” The victim was an elderly widow who lived alone and suffered from dementia and other physical and mental challenges. During the relevant time period, Graves and her co-conspirators exploited K.T.’s vulnerabilities and defrauded the victim through a web of forged documents, lies, and deceptions.
According to evidence presented at Graves’ trial, beginning in 2014, Graves and Williams provided housekeeping services for the victim through a business owned and operated by Graves. Over the course of the scheme, the co-conspirators isolated the victim from her friends and family, induced the victim to give them power and control over her personal affairs, and fabricated a power of attorney purporting to give Graves and Williams control over the victim’s financial affairs. Once they gained access and control, Graves, Williams, and Harrison moved the victim out of her residence in Indian Land, South Carolina, first to an apartment in Charlotte, and later to a rental home in Mint Hill, refusing to let the victim’s friends and family know where she was living.
According to court records and trial testimony, Graves, Williams, and Harrison engaged in numerous illegal and unauthorized financial transactions that substantially depleted the victim’s money and property. Specifically, the co-conspirators emptied the victim’s bank accounts and used the money to pay for personal expenses, and “maxed out” at least one credit card in the victim’s name. The co-conspirators also fraudulently transferred or attempted to transfer the victim’s Indian Land residence to themselves by creating a quit claim deed purporting to gift the residence to Harrison; they then attempted to sell the residence and intended to split the proceeds amongst each other. They also pawned the victim’s jewelry, and they stole the victim’s federal benefits. Additionally, Williams unlawfully used the victim’s money to set up other businesses in her name, including a business selling handbags online and a business selling weight loss-related services. As a result of the fraudulent scheme, the co-conspirators defrauded the victim of approximately $300,000.
According to court documents and information presented at today’s sentencing hearing, over the course of the scheme, Graves and her co-conspirators failed to provide the victim with proper medical care, which greatly diminished the victim’s health. Furthermore, once the victim’s money was depleted, the co-conspirators abandoned the victim, who was later moved to a nursing home in New York, where she passed away in large part due to the mental and physical deterioration she had suffered in the hands of Graves and her co-conspirators.
In announcing Graves’s sentence, Judge Cogburn said the defendants knew that the victim was vulnerable and that this was a shameful manipulation of a person. Judge Cogburn also said the defendant’s made “the last part of her (the victim’s) life the worst part of her life.”
Graves will be ordered to report to the federal Bureau of Prisons to begin serving her sentence upon designation of a federal facility. Harrison is currently in custody. A sentencing date for Williams has not been set. Williams faces a maximum penalty of 20 years in prison and a $250,000 fine for the wire fraud conspiracy charge carries. The statutory maximum penalty for the money laundering conspiracy charge is 20 years in prison and a $500,000 fine, and the interstate transportation of stolen property charge carries a maximum prison term of 10 years and a $250,000 fine.
In making today’s announcement, Acting U.S. Attorney Stetzer commended the Mint Hill Police Department, the FBI, and USPIS for their investigation of this case.
Assistant United States Attorneys Kenneth M. Smith and Caryn D. Finley, of the U.S. Attorney’s Office in Charlotte, are prosecuting the case.
June 15TH Is World Elder Abuse Awareness Day
June 15, 2021, is World Elder Abuse Awareness Day (WEAAD). First launched in 2006 by the International Network for the Prevention of Elder Abuse and the World Health Organization at the United Nations, the purpose of WEAAD is to raise awareness about abuse and neglect toward the elderly and to prevent elder exploitation.
According to the National Council on Aging, elder abuse is a silent problem that robs seniors of their dignity, security, and – in some cases – it costs them their lives. “Up to five million older Americans are abused every year, and the annual loss by victims of financial abuse is estimated to be at least $36.5 billion.”
Combating elder abuse and financial fraud targeted at older adults is a key priority of the Department of Justice and the U.S. Attorney’s Office for the Western District of North Carolina. Elder abuse is an intentional or negligent act by any person that causes harm or a serious risk of harm to an older adult. Elder abuse is a serious crime against some of our nation’s most vulnerable citizens, affecting at least 10% of older Americans every year.
Together with our law enforcement partners, the Justice Department
and the U.S. Attorney’s Office are committed to combatting all forms of
elder abuse and financial exploitation through enforcement actions,
training and resources, victim services and public awareness. Visit the
Justice Department’s Elder Justice Initiative to learn more about available resources, including how to report elder abuse and financial exploitation.
Thursday, May 6, 2021
TALLAHASSEE — Florida’s legal system would have more power to act against people who abuse the elderly or disabled adults and seek to profit from their actions, under newly approved legislation awaiting a signature from Gov. Ron DeSantis.
Two “Protection of Elderly Persons and Disabled Adults” bills cleared the House and Senate with ease during the legislative session, which ended Friday. The legislation would make it easier for the state to investigate and prosecute individuals for the abuse, neglect, exploitation and aggravated manslaughter of seniors and disabled adults. It also would allow courts to remove people convicted of those crimes from the victim’s will or estate.
Previously, prosecutors might have found that a caregiver or family member was abusing an elder, but weren’t able to remove the individual from the victim’s will.
“Unfortunately, through real-life circumstances of cases here in Florida, we became aware of the fact that we needed to provide greater protections,” said Rep. Colleen Burton, R-Lakeland, the House sponsor of the legislation. “I believe it will make Florida a safer place for vulnerable adults by increasing penalties for those who seek to... harm them.”
Burton cited noteworthy instances of alleged abuse in Florida, including the case of Rebecca Fierle, the former Orlando guardian accused of abusing and neglecting a 75-year-old man who died in 2019 at a Tampa hospital while on a feeding tube. The man, Steven Stryker, died after Fierle signed a “do not resuscitate order” allegedly against his wishes and the protests of his daughter, a health-care surrogate and a psychiatrist, according the Orlando Sentinel.
The new legislation was sponsored in the Senate by Sen. Danny Burgess, R-Zephyrhills.
Elder abuse often comes from family members or others who have close relationships with the victim, said Zayne Smith, associate state director of advocacy for AARP Florida, which supported the bills.
“This bill allows the courts to close the door on people that are set to gain from doing some type of illegal activity with an older person,” she said, adding that it allows victims to reinstate inheritance and benefits to the individual if they wish.
The legislation also gives state attorneys more leeway to investigate abuse crimes by clarifying what kind of conduct is prohibited, she said.
“Before the bill passes, the
ability for them to investigate or prosecute some of these crimes... was
difficult,” Smith said. “The prosecutors and investigators had a lot of
loopholes they had to jump through, so this new bill gives them the
ability to do these full investigations and prosecute these crimes.”
Audit finds California Bar failed to efficiently reform its system to investigate and discipline bad lawyers
|People walk past the entrance of The State Bar of California office Thursday, April 29, 2021, in Los Angeles. (AP Photo/Ashley Landis)|
by: Associated Press
The State Bar of California inefficiently reorganized its discipline system, leading to a bigger backlog of cases and allowing bad lawyers to keep practicing longer while under investigation, a state audit said Thursday.
The regulatory arm of the courts responsible for licensing and disciplining lawyers took significantly longer to resolve complaints and disciplined fewer lawyers, the report said.
“The increase in the backlog and the time to complete investigations, despite the decline in discipline, indicate that the State Bar’s reorganization has not improved its efficiency or effectiveness,” Auditor Elaine Howle said.
The bar “strongly disagrees” with some findings but welcomed recommendations for improvement, interim Executive Director Donna Hershkowitz said.
The bar, which licenses more than 250,000 lawyers in the state, operates largely out of public view. But it was in the spotlight six years ago after it fired then-executive director Joseph Dunn for “serious, wide-ranging allegations” against him. Dunn turned around and filed a whistleblower lawsuit, alleging the bar’s chief prosecutor had understated the backlog of cases.
While Dunn lost his case in arbitration, the state auditor had criticized the bar in 2015 for drastically reducing its backlog and imposing less severe punishment on attorneys who cheated clients or violated their duty.
The bar, which has long struggled with clearing its cases, reorganized its discipline system in response to the audit.
Changes it put in place, however, have contributed to a new backlog in cases dragging on more than six months, the report found.
The audit said staff who investigate discipline had gone from being specialists in areas of the law to generalists and their caseloads doubled. Some of the most senior attorneys were promoted into supervisory positions.
The backlog increased 87% — from nearly 1,500 cases at the end of December 2015 to almost 2,800 cases at the end of June 2020, the audit found. During that same period, the time to investigate cases increased 56%.
“These delays allow attorneys under investigation to continue practicing law while their cases are pending, increasing the potential for harm to the public,” the auditor said.
The bar’s annual discipline report sent Tuesday to lawmakers said a drop in cases filed last year because of the pandemic allowed its staff to reduce the backlog by 5% before the end of last year.
The bar also said it had made greater improvements in closing cases it prioritized where a bad lawyer — or someone masquerading as an attorney — posed the greatest threat to the public.
The audit also found the Bar disciplined attorneys “at a dramatically lower rate for reasons it cannot adequately explain.” The total number of cases from 2015 through 2019 that led to discipline — ranging from a slap on the wrist admonishment up to disbarment — declined 54 percent, the audit said.
In 2015, 16,885 cases were closed with 864 lawyers — or 5% — disciplined. In 2019, only 399 lawyers — or 3% — were disciplined of the 15,738 cases closed.
The audit also found that the bar couldn’t assess the effectiveness of its changes because it abandoned a plan to evaluate the results of the reorganization.
Exploitation and intimidation of an elder person
Thomas Mitchell McCollum was indicted in April for exploitation and intimidation of an elder person, terroristic threats and family violence simple battery for a December 2019 incident.
According to a January 2020, FCN article, a 73-year-old victim told deputies that her son, McCollum, had allegedly been taking and hiding her electronic items, TVs and iPad, and would demand money from her in “intimidating and threatening text messages” before returning the items.
“If the demands he sent were not met, then he would demand more money with a deadline for the money to be paid to him otherwise the amount owned would rise again,” a sheriff’s office incident report states.
Deputies also learned
that from Jan. 3 to Jan 5, McCollum had allegedly blocked the woman’s
vehicle from exiting her driveway, until she agreed to “go to the ATM
with him and [withdraw] money for him.”
Wednesday, May 5, 2021
During Older Americans Month, we celebrate older Americans and the key role they play in sharing the wisdom and experience that inform today’s decisions and actions, and fostering the connection and engagement that build strong, resilient communities. And, we recognize our responsibility to ensure that every American has the opportunity to age with dignity.
The COVID-19 pandemic has imposed tremendous hardships on our Nation’s older Americans. Older adults — particularly those from communities of color — have comprised the majority of deaths from COVID-19, with more than 80 percent of all deaths to date occurring in persons 65 and older. Many older Americans have also suffered extreme social isolation from being separated from friends, family, and community resources throughout the pandemic. In spite of this, older Americans have stepped up to support their families, friends, and neighbors. They are among our essential workers, volunteers, and donors, bolstering their communities and inspiring others to do the same. I am committed to ensuring older adults are central in our country’s recovery efforts.
My Administration recognizes the value of our older adults and supports the issues most important to them, such as Medicare, Social Security, lowering the price of prescription drugs, and long-term care options — including Medicaid’s home and community-based services programs. The American Rescue Plan puts the needs of older Americans at the forefront of our country’s path to recovery, starting by mounting a national vaccination program to quickly and efficiently deliver lifesaving vaccines, prioritizing our older citizens.
The American Rescue Plan also provides much needed support to skilled nursing facilities, so they can improve infection control and vaccination rollout capability by partnering with quality improvement organizations. The law allocates funding to support mitigation, clinical care, infection control, and staffing in long-term care facilities during the pandemic. The law also provides significant funding to support older adults who receive home and community-based services through Medicaid to help them remain safe and independent in their own homes and communities throughout the pandemic.
And, the American Rescue Plan adds substantial funding to programs authorized under the Older Americans Act. These programs also connect older adults and their caregivers to food, health care, and other home and community-based services. The American Rescue Plan also calls for the establishment of the National Technical Assistance Center on Grandfamilies and Kinship Families, to give much needed aid to those older Americans who have stepped up to parent the next generation of Americans. Finally, the plan enhances the Elder Justice Act and ensures Adult Protective Services can be used to protect the safety of all adults as they age.
As our country works to put COVID-19 behind us, we know there is more we must do to ensure that older Americans can live and age with dignity. We are committed to ensuring older Americans can easily access appropriate services they need to stay safe and healthy as they age.
In this year of peril and promise, older Americans have suffered greatly, and provided inspirational demonstrations of strength. During Older Americans Month, we honor these citizens and their continued contributions. We commit to learning from them, and we pledge to support their futures.
NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim May 2021 as Older Americans Month. I call upon Americans of all ages to celebrate older Americans during this month and throughout the year.
IN WITNESS WHEREOF, I have hereunto set my hand this third day of May, in the year of our Lord two thousand twenty-one, and of the Independence of the United States of America the two hundred and forty-fifth.
JOSEPH R. BIDEN JR.
|Garnder's name was published in relation to a pending disciplinary hearing, which indicates she is the subject of an alleged ethical violation.|
ST. LOUIS (KMOV.com) -- An investigation by the state's Chief Disciplinary Counsel has found probable cause that St. Louis Circuit Attorney Kim Gardner committed professional misconduct, after complaints made by the legal team representing former Governor Eric Greitens.
A state website published Tuesday Gardner’s name in relation to a pending disciplinary hearing, that indicates she is the subject of an alleged ethical violation. The Circuit Attorney will likely face a disciplinary panel to weigh the allegations and make a finding. Ultimately punishment would be decided by the Missouri Supreme Court and could range from an admonishment to suspension or revocation of her law license.
It's not known yet the exact nature of the violations. A request for comment from Kim Gardner's office went unanswered Tuesday evening.
Attorneys representing former Governor Greitens filed complaints against Gardner's law license shortly after the conclusion of the criminal case back in 2018.
Then-state representative Paul Curtman also filed a bar complaint, but recently told News 4 he had been informed his complaint was not moving forward. Allegations from the Greitens team claim Gardner had an ethical obligation to correct the record during a deposition of private investigator William Tisaby. Gardner hired Tisaby who conducted interviews with the woman at the center of the invasion of privacy charge against Greitens. Tisaby has since been charged with six counts of perjury and one count of tampering with evidence, after a special prosecutor found Tisaby had lied under oath. But Gardner was with Tisaby in those instances and allegations indicated she had a professional responsibility to ensure that Tisaby's statements were correct. She has claimed she was not representing Tisaby and therefore did not have to do so.
Attorney Alan Pratzel is the Chief Disciplinary Counsel for the state and his office is the entity in charge of investigating complaints against lawyers in Missouri. It is an agency of the Missouri Supreme Court, funded by lawyers’ dues, not taxpayer funds, and is separate from The Missouri Bar.
"Complaints do happen," said Peter Joy, Professor of Law at Washington University School of Law. He told News 4, on average, a lawyer may be the subject of three to five complaints. "If they investigate and find no basis for it, that's the end of it," Joy said of the disciplinary process in Missouri.
For example, in 2018, the Office of Chief Disciplinary Counsel received 1,748 complaints and opened 685 formal investigations. Though disciplinary actions may be taken in another year, in 2018, investigations resulted in 16 lawyers being disbarred, 23 being suspended, and 92 receiving written admonitions, among other outcomes.
Either way, generally speaking, Joy says a lawyer never wants to have a complaint taken even one step further.
"I think it’s safe to say that lawyers uniformly don't want to be in
that position and you certainly don't want to be in the position of
losing your ability to have a livelihood as a lawyer, which would happen
if you get a suspension or disbarred." Joy said.
Judging from her social media posts, Madison Kohout has had quite the interesting, and sometimes rocky, life.
And at the still-tender age of 19, she is already living in retirement.
It came about completely by accident, when Kohout moved to Arkansas from Oklahoma into an apartment she had rented online, sight unseen.
She fell in love with the affordable two-bedroom when she arrived, but in her excitement she didn’t notice the sign outside the apartment complex until she had been living there for about a week.
“When I went out to my car, I started meeting some of my neighbors,” she told Insider. “To my surprise, they were all over the age of 65.”
Still, it took a little longer to get fully clued in, she said.
“The first week of moving here was crazy!” Kahout told Newsweek. “I was busy with finding a job and setting up my apartment, I didn’t even notice! I thought it was a bit weird that all of my neighbors were significantly older than me. After my first week I saw a sign in front of the apartments, and it had clicked!”
The sign read, “Senior Citizen Apartments.”
“I realized I accidentally moved into a retirement village,” Kohout told Insider.
Her April 17 retelling of her story on TikTok garnered more than 3.4 million views and 600,000 likes in a video she captioned, “this is not even a joke LMAO,” and drew at least one call for it to be turned into a sitcom. Kohout herself has labeled it a Hallmark movie. Can the producers be far behind?
“How is life at the old folks’ home, you might ask? Let me show you,” she recounted in one recent video, quipping almost conspiratorially. “When I get home it’s usually always super quiet. Because most of my neighbors are asleep by the time I get home. But one major perk is that I can play music whenever I want to, because some of them can’t hear.”
But that’s not nearly all. She gets first dibs on the juiciest town gossip, and everyone asks her about her day — while feeding her home-cooked meals.
“Another fun thing is, whenever I get to come home after a long day,
everyone asks me how I’m doing,” she said. “Anyway that’s how my life is
going here at the old folks’ home. And just remember, if you’re
struggling with rent, start your early retirement.”
Tuesday, May 4, 2021
By Nate Day
The two have long been involved in legal drama over the singer's conservatorship -- a legal guardianship that gives Jamie control over her finances and everyday life. The conservatorship has been in effect since her public breakdown over a decade ago.
Court proceedings have grown more intense lately with Spears herself planning to address the court soon, while interest in the case has also grown and the #FreeBritney movement has gained more followers demanding the signer be released from the conservatorship.
Now, the claims of dementia have come to light in a documentary set to air in Britain this week by journalist Mobeen Azhar, according to Daily Mail.
|Britney Spears' father Jamie has reportedly claimed that she has dementia. (Getty Images)|
The outlet reports that Jamie, 68, claims his daughter, 39, suffers from the cognitive decline condition as justification for his ongoing control over her assets.
Per DM, Azhar calls claims of dementia "a bit out there" in "The Battle For Britney: Fans, Cash and a Conservatorship," even comparing it to a "conspiracy theory."
"There are a couple of fan sites who said they have got hold of paperwork surrounding the conservatorship," said the journalist. "You have to tick a box justifying the reason and the box that is ticked, it says: 'The order is related to dementia placement or treatment as specified.'"
|Britney Spears is currently under a conservatorship and has been for 12 years. (Photo by Axelle/Bauer-Griffin/FilmMagic)|
Spears plans to personally address the court in an upcoming hearing. It's currently unclear if her address has anything to do with the reported dementia allegation.
The pop star's court-appointed lawyer, Samuel D. Ingham III, told the court in a hearing on Tuesday that he planned to submit a request for the "Toxic" singer to "address the court directly" on an "expedited basis" in 30 days.
"The conservatee has requested that I seek from the court a status hearing at which she can address the court directly," Ingham III told Judge Brenda Penny.
Reps for the star and her father did not immediately respond to Fox News' request for comment.
Pharma Bro’s Former Lawyer Disbarred and Banned from Practicing After Voluntarily Resigning Law License
by Colin Kalmbacher
“Pharma Bro” Martin Shkreli‘s former lawyer has been allowed to resign from practicing law in New York State.
Evan Louis Greebel, a former attorney with the law firm of Katten Muchin Rosenman LLP, received permission to voluntarily “resign as an attorney and counselor-at-law” from the Supreme Court of the State of New York, Appellate Division, Second Judicial Department in a Wednesday order “in lieu of further proceedings in connection with his conviction” on securities fraud charges in December 2017.
Greebel was previously sentenced to 18 months in federal prison after an 11-week-long trial in which prosecutors referred to him as a “corrupt lawyer” in connection with his role in Shkreli’s efforts to defraud pharmaceutical company Retrophin, Inc. to pay off family debts. The duo was accused of working together in order to use Retrophin’s cash and shares in order to stave off investors in Shkreli’s failed hedge funds.
The now-former attorney made note of the extent and seriousness of his criminal activity in the Wednesday court order.
The combination farewell/mea culpa document reads:
[Greebel] acknowledges in his affidavit that he is currently the subject of an investigation by the Grievance Committee for the Ninth Judicial District, and that the allegations include at least the following acts of professional misconduct: Upon a jury trial in the United States District Court for the Eastern District of New York, on December 27, 2017, he was found guilty of conspiracy to commit wire fraud and conspiracy to commit securities fraud, and on August 17, 2018, he was sentenced, inter alia, to 18 months’ imprisonment on each offense, to be served concurrently, followed by 3 years of supervised release. The respondent further acknowledges that his convictions constitute “serious crimes” under JudiciaryLaw § 90(4) and constitute a finding of misconduct under the Rules of Professional Conduct, requiring the imposition of discipline. He attests that he cannot successfully defend against these facts and circumstances.
In other words, Greebel agreed that he was convicted of federal crimes and has no defense against the allegations made against him by law enforcement. Those allegations led to a conviction which in turn led to an inquiry into Greebel’s professional conduct. But the court’s order said the professional conduct inquiry into Greebel did “not include any allegations that he willfully misappropriated or misapplied money or property.” In other words, the professional conduct matter appeared to be more concerned with the fact that a conviction occurred than it did with the underlying substance of the conviction.
By allowing Greebel to resign, the committee’s professional conduct investigation is now canceled.
“The Grievance Committee contends that the resignation fully complies with the requirements of 22 NYCRR 1240.10 and, therefore, recommends its acceptance,” the decision notes. “In view of the respondent’s disbarment, on the Court’s own motion, the hearing before the Special Referee, as directed by decision and order on motion of this Court dated May 26, 2020, is discontinued.”
The intermediate appellate court’s decision to grant Greebel’s resignation means he is immediately disbarred and his name is being “stricken from the roll of attorneys and counselors-at-law.”
A separate request from Greebel to have his name stricken retroactively from “the date he ceased practicing law, March, 1, 2016, or alternatively, the date of his conviction, or alternatively, the date of his interim suspension [in 2019]” was denied.
The order is silent as to whether or not Greebel may some day be able to reapply for readmission to the bar. New York law appears to allow reapplications for admission in some cases of resignation after seven years.
Read the court’s full order below:
FOR IMMEDIATE RELEASE
EAST ST. LOUIS, Ill. – A woman who abused her employment with an in-home health care company and stole the identities of her elderly clients is heading to prison. Erica S. Rose, 31, of East Saint Louis, Illinois, was sentenced today to one year and one day in federal prison and two years of court supervision after her release. Rose pled guilty to conspiracy to commit bank fraud and wire fraud and aggravated identity theft last November.
In 2018, Rose worked for a company called CareLink and gained access to the homes of her elderly victims as their hired caretaker. While inside, she stole social security numbers and other identifying information and passed the stolen information along to her co-defendant, Ashley McKinney. McKinney allegedly used victims’ funds and identities to withdraw money from ATMs, deposit fraudulent checks, and even purchase a car online for over $28,000.
There is an outstanding warrant for McKinney’s arrest in this case.
As part of her sentence, Rose was ordered to pay $9,864.71 in restitution.
The investigation was conducted by detectives from the Edwardsville Police Department, Belleville Police Department, Swansea Police Department, and St. Clair County heriff’s Office. The case is being prosecuted by Assistant United States Attorney Luke J. Weissler.
Monday, May 3, 2021
HARBOR SPRINGS — Bars of sunshine escaped the December clouds the day police reports say a local woman, Elise Page, drove to Traverse City for an impromptu shopping spree.
First stop was Francesca’s, a women’s clothing store at the Grand Traverse Mall, and bank statements show on Dec. 10 Page then swiped a debit card for purchases at Victoria’s Secret, Carter’s, Old Navy and Target, with an end-of-day stop at Costco.
Court documents and bank statements show, however, none of the money she spent in those stores was hers.
The money, according to investigators, belonged to George Pappas, a 95-year-old World War II veteran who a judge had assigned to Page just weeks before, naming her the legal conservator over his finances.
“I needed a bookkeeper and I got a good recommendation about this lady, that she was someone who could help me out,” Pappas said. “But I didn’t really know what a conservator was. What am I supposed to do with whatever she bought at Victoria’s Secret?”
In December Pappas had gone to City Hall to pay his electric bill, police documents Pappas provided the Record-Eagle show. When his check was returned with a note that said it had been written on a closed account, a utilities clerk grew suspicious and called law enforcement.
Page has since been charged with several felonies in 57th Circuit Court, including embezzlement from a vulnerable adult and using a computer to commit a crime, court records show.
A hearing is scheduled for Monday and her attorney, listed as Jonathan Steffy, did not return a call seeking comment.
But Pappas isn’t the only one who doesn’t understand how probate court appointments work — attorneys and probate court staff say until someone has a family member impacted, confusion over the process is common.
The State Bar of Michigan defines a conservator as someone appointed by a probate court judge to manage another person’s property and finances in the event age, illness or injury preclude the person from handling the job themselves.
A guardian is assigned when the court decides someone is not competent to make their own housing and medical decisions; the same person can legally serve in both roles. A guardian ad litem is an attorney appointed by the court to research the need for a conservator or guardian, or to investigate when something goes wrong.
Elder advocates say even with this investigative option, rules governing probate court appointments have long been weak on oversight and are ripe for abuse, with criminal acts often going undiscovered.
“I’ve been a cop for 33 years, I was a detective downstate and this is the first guardianship or conservatorship case I’ve seen,” said Harbor Springs Police Chief Kyle Knight.
Theft from the vulnerable
Financial abuse by court-appointed conservators and guardians is more common than people know, said Ann Arbor attorney Bradley Geller, who added that a single perpetrator can have dozens, even hundreds of victims.
Knight and Lt. Todd Troxel, a detective with the Petoskey Department of Public Safety, found money missing in at least two conservatorship appointments assigned to Page — Pappas and that of another man, Isaiah Gill of Petoskey, officials said.
Geller, an elder law advocate who wrote a handbook on guardianship and conservatorship, sued the State of Michigan and its probate courts in 2019, for what he says is systemic fraud in the state’s administration of conservatorship and guardianship cases.
In May, a three-judge panel with the U.S. Court of Appeals for the Sixth Circuit dismissed the case, citing a procedural error.
Geller said that doesn’t change the fact that Michigan can be a worst-case-scenario for the thousands of vulnerable adults who every year fall victim to unscrupulous conservators and guardians dodging the rules and gaming the system.
For example, standard probate court protocol is to require a conservator to have a surety bond issued by an insurance company only if the value of the assets they’re managing is large enough to warrant it.
True to form, the order appointing Page as Pappas’ conservator signed Nov. 3 by Emmet County Probate Court Judge Valerie K. Snyder states, “Bond will be considered after inventory is filed.”
Conservators have 56 days to file an initial inventory with the court.
Bank statements and police documents show this lag time allowed Page to close Pappas’ account with Citizen’s Bank, open a new account with 4Front Credit Union, transfer money and receive debit cards in her and Pappas’ name.
Page then used the debit card to withdraw about $10,000 in cash from Pappas’ bank account, bank statements and police documents show, and spend another $3,900 at lingerie, electronic cigarette and fast food retailers, among other purchases.
“Mr. Pappas put his trust in the system and unfortunately the system let him down,” Knight said. “It’s sad and it’s wrong.”
Investigators say Page arrived voluntarily at the Harbor Springs Police Department Jan. 12, where officers had a warrant for her arrest. When Knight confronted Page, saying he didn’t believe the questionable expenditures were accidental, a case supplemental report shows Page responded, “I f---ed up.”
“At this time Page advised me that she took the money and goods intentionally to get caught up with the bills and purchase some items for her benefit,” the supplemental report reads. “Page admitted responsibility.”
If the court had required a bond in advance of the inventory deadline, it would have functioned as a kind of financial guarantee, Geller said. Without one there is no easy or quick way for Pappas to get his money back.
“The abuse is incredible in these cases,” Geller said. “Who knows what disappears in those initial 56 days.”
State: No training? No problem
The requirements to be a conservator in Michigan are few: state law gives probate court judges power to appoint “any competent person over 18 or a professional conservator to serve.”
Professional conservators — those incorporated with the state as a business — also must be competent and older than 18 but the term “competent” is not well-defined, no background checks are required, Geller said, and neither is even the most minimal training, education or certification.
Staff with the Michigan Guardianship Association, a trade group based in Coldwater, said they have no record of Page being a member.
“We frankly have no knowledge of her,” said Marissa Gonczar, board administrator. “To be clear, even if she was a court-appointed conservator, it does not mean she was serving as a professional guardian. A guardian has to meet certain statutory requirements to meet the definition of ‘professional.’”
Gonczar did not elaborate on what those statutory requirements are, but did say MGA would, in theory, support an improvement of the guardianship system in Michigan.
The need for more strict oversight of conservators and guardians has not escaped notice of Michigan Attorney General Dana Nessel, who in 2019 launched the Michigan Elder Abuse Task Force.
More than two decades ago the state’s Supreme Court launched a similar task force, tapping 25 people from the courts, senior services and advocacy groups to serve.
Geller was one and said in 1996 many reforms were discussed, including requiring training and certification as well as surety bonds, yet little of substance was accomplished, he said.
Nessel and Michigan Supreme Court Justice Megan Cavanaugh announced the more recent task force and went on a statewide listening tour in the fall of 2019. They made a stop in Traverse City, where attendees shared personal stories of abuse in conservatorship and guardianship cases.
Nessel’s task force —larger than its 1996 precursor and made up of 80 people from 55 organizations including MGA — has since released its recommendations.
Topping the list: Requiring minimal training and surety bonds for professional guardians.
So far, that hasn’t happened.
“There is legislation with the legislative service bureau to make this a reality,” said AG spokesperson Lynsey Mukoel. “The hope is to have that introduced in the near future.”
A flaw in optional background checks
While Geller said the state does not require background checks of guardians or conservators, documents filed in the Pappas’ case show Emmet County Probate Register Deb Niswander did request a criminal background check on Page.
An investigation by the Record-Eagle found no criminal convictions for Page, though records in Emmet County’s 90th District Court reveal a history of financial lawsuits going back to 2004.
“Any history of financial issues should absolutely be taken into account when considering someone as a conservator,” Mukoel said, when asked about the recent criminal charges lodged against Page.
Page was sued in small claims court by a local florist, Flowers from Kegomic, in 2006 for non-payment, though owner Wendy Kuebler said once the certified letter was mailed, Page came into the store with a check and the case was dismissed.
Schelde’s Restaurant sued Page in 2004, court records show, as did Check and Cash USA. Arrow Financial Services sued her in 2007, that case was dismissed, though the company received a default judgment against Page and her husband, Timothy Page, in 2008, court documents show.
Bayside Family Medicine, Vital Care Home Medical Equipment and Boyne Country Urgent Care also sued the couple in 2009 and 2010, with cases either dismissed, dismissed with prejudice or the disposition wasn’t included in court records.
Midland Funding LLC received a judgment against Page in 2016, the most recent entry regarding Page in district court records.
A criminal background check would not necessarily have flagged these cases, even though they are public record, officials said.
Pappas regains control of his finances
Pappas, who lives independently in an apartment, runs errands in his Toyota Prius and has been known to rake a neighbor’s acreage when the leaves go untended, disputes he ever needed a conservator.
A sergeant in the U.S. Army Air Force’s 341st fighter squadron, Pappas served in the Pacific during World War II, and trained as a radar specialist and a radar mechanic.
In September Pappas said he asked Lisa Cunningham, a social worker with the Veterans Affairs Administration, for help with some very specific tasks — getting the brakes on his car fixed, having some dental work completed and planning for his burial and funeral.
“I needed a little help with a few things, not a complete takeover where my money ended up gone,” he said.
Pappas said Cunningham reached out to the probate court, which sent the social worker a list of conservators and guardians that included Page, then Cunningham visited Pappas at his apartment, discussed the process and filed a petition with the probate court Oct. 1.
In April, court documents show Pappas was able to extricate himself from a court system he says was “asleep at the wheel.”
The conservator appointed to replace Page had filed an objection, though an attorney for Pappas and a guardian ad litem were able to prevail on Pappas’ behalf.
He no longer has a conservator, and now handles his own affairs with the help of a family member who lives downstate, records show.
Pappas said he still is waiting for an accounting of his money, however, and hopes to learn more during an upcoming probate court hearing in June.
“She stole from me,” Pappas said. “She did it a little bit at time, over and over. Now I’m not sure who I can trust.”
Cunningham and Niswander declined requests to comment for this story, citing privacy issues and ongoing litigation.
“She stole from me. She did it a little bit at time, over and over. Now I’m not sure who I can trust.” George Pappas
Grace Pryor and Stepp family react to District Attorney's removal
The voice of victims has been heard.
District Attorney Greg Newman has been removed from office in only the third case of its kind in North Carolina history.
Superior Court Judge Robert C. Ervin issued his order April 27, permanently removing the top criminal prosecutor for Henderson, Polk and Transylvania counties from his elected office, finding Newman engaged in “willful misconduct in office” and “conduct prejudicial to the administration of justice which brings the office into disrepute,” under N.C. General Statute 7A-66.
The decision was made nearly two weeks after a three-day removal hearing April 12-14 in Henderson County Superior Court.
"Finally, justice was served," said Grace Pryor, one of the so-called "Newman victims," who claims she was sexually assaulted while a student at Brevard College and Newman refused to prosecute the two men. He instead blamed her for what she was wearing, she claimed.
"We were put first today, and I think that's the most important part. Victims just want to be put first and we want to be heard," she said.
Under the law, Newman was required to vacate his office immediately April 27, and his $137,000 salary is now ceased. Gov. Roy Cooper is tasked with appointing an acting district attorney until the next election in November 2022.
The term “willful misconduct in office” has been defined as “the improper or wrongful use of the power of his office by a judge acting intentionally, or with gross unconcern for his conduct, and generally in bad faith,” Ervin wrote in his 30-page order.
“Conduct prejudicial to the administration of justice,” is defined as “conduct which a judge undertakes in good faith but which nevertheless would appear to an objective observer to be not only unjudicial conduct but conduct prejudicial to public esteem for the judicial office,” Ervin wrote in his order, citing multiple instances presented in the hearing with which he agreed.
The rare removal process started when a grassroots group of families of victims in cases of alleged child rape, murder and other serious crimes, filed an affidavit Feb. 11 in Henderson County Superior Court under the little-known state law G.S. 7A-66.
It sought to have Newman removed from office due to his alleged pattern of “chronic and unrepentant misconduct,” claiming he mishandled cases and failed to prosecute felonies.
“Mr. Newman is proud of the fact he has been able to serve the people of Henderson, Polk and Transylvania counties since 2013. His office has done great things while he has served as the elected DA,” David Freedman, one of Newman’s defense attorneys, said April 27.
When asked if Newman had anything to say regarding Ervin’s finding in the 30-page decision, Freedman said, “Mr. Newman has always had great respect for the judicial system of North Carolina.”
Those who started the petition to remove Newman from office feel otherwise.
Peggy McDowell filed the G.S. 7A-66 affidavit without a lawyer, but she was supported by more than a dozen families who said they were seeking justice on their own because Newman had been acting out of self-interest rather than in the best interest of the public.
One was her daughter, Joanne McDowell, a former UNC law student, who now lives in Canada. Joanne McDowell claimed she had to flee the country to protect her child from sexual abuse by his father and four years later was charged by Newman with felony child abduction, which she calls a “vindictive charge.”
“Newman's expulsion proves that endemic corruption plagues North Carolina's legal system," McDowell said. "For years, Newman's victims begged for relief from the N.C. Attorney General, N.C. State Bar, and N.C. Court of Appeals, but these institutions repeatedly protected the wrong people. Now that ongoing harm has been established, N.C. must assist Newman's victims and investigate systemic corruption.”
Valerie Owenby, now 22 and living out of state, also supported the removal petition and was a witness at the hearing. She claims she had been raped from ages 5-12 by a Hendersonville neighbor, James Sapp, but Newman pleaded down the felony to a misdemeanor in 2015 without notifying her or her parents and without letting her face the accused in court.
That disciplinary order became a central pillar in the removal hearing, along with two other incidents of misconduct.
In a brief text April 27, Owenby wrote the Citizen Times, “I’m overwhelmed by how happy I am right now.”
“The justice system worked. The court carefully evaluated the evidence. And at the end of the day Mr. Newman's conduct warranted removal from office,” said James Cooney III, a Charlotte attorney, who with Isaac “Ike” Northup of Asheville, was appointed by Ervin to present evidence as independent counselors in the removal hearing.
“So while it was a good day for the justice system, it is tempered by the fact that there was conduct that led us to this point,” Cooney said.
How the removal happened
The rare removal hearing was neither a civil lawsuit nor a criminal inquiry, but rather an inquiry. While Newman hired defense attorneys Freedman and Stuart Brooks, Cooney and Northup did not volunteer and were not paid for their services, Cooney said.
“We have no dog in this fight,” Cooney told the courtroom in his closing arguments April 14 in response to claims by Newman that the hearing was politically motivated. “This is not being driven by politics of any kind. This is being driven by our duty to the law. That is the only thing that any one of us is concerned about.”
The start of the removal process: Removal process for District Attorney Greg Newman will move forward, judge rules
|Independent counsel James Cooney speaks during opening statement - Newman removal|
He reiterated that any citizen has the ability to call for the removal of a district attorney outside of an election under certain conditions, including “willful misconduct in office.”
The list supporting the removal process included a wide range of “victims.” Donna Few, of Transylvania County, claimed Newman withheld evidence and did not conduct a proper investigation into the killing of her son, Hank Few, in 2012. Kim Shepherd, of Hendersonville, claimed Newman refused to convene a grand jury in the shooting death of her brother, James Stepp III, in 2019.
Newman, 59, a Hendersonville native and UNC Asheville graduate, had worked in private practice in Hendersonville and also served as mayor before he was appointed in 2013 by then Republican Gov. Pat McCrory to serve as district attorney for prosecutorial district 42. Newman was elected uncontested in 2014 and again in 2018.
“Now that ongoing harm has been established, NC must assist Newman's victims and investigate systemic corruption," McDowell said via email.
How rare is it to remove a DA in N.C.?
The hearing was unusual in that only two district attorneys had been removed in this process before.
In 1995, District Attorney Jerry Spivey, a white man, was removed from office in Wilmington after several petitions under G.S. 7A-66 were brought against him for using a racial slur against a Black man while drinking at a bar one night.
In 2012, Durham County District Attorney Tracy Cline was removed under the statute for making false statements against a judge.
Cline’s predecessor, Mike Nifong, was disbarred in 2007 after the N.C. State Bar found him guilty of multiple ethics violations in his handling of the notorious Duke lacrosse investigation, and then he resigned as district attorney.
By state law, the DA removal process must move quickly. The affidavit to remove Newman was referred out of Henderson County Superior Court by Judge Peter Knight, to Judge Ervin of Morganton.
According to his March 17 order, Ervin found probable cause for a public hearing to proceed on the grounds of “willful misconduct in office,” and “conduct prejudicial to the administration of justice, which brings the office into disrepute.”
The three-day hearing April 12-15 centered on disciplinary actions against Newman, in which Ervin found “probable cause for believing that charges allege in the state bar proceedings may be true,” including:
- A Jan. 4, 2021 State Bar Disciplinary Hearing Committee’s three-year stayed suspension of Newman’s law license for lying to a judge and violating the N.C. Crime Victims’ Rights Act and the Rules of Professional Conduct in Owenby’s 2015 child rape case.
- A reprimand, or written warning, entered against Newman on May 4, 2019 by the State Bar’s Grievance Committee for being found in conflict of interest when he struck the guilty plea of drug charges against a person known as “C.B.,” someone Newman had represented previously when as a private defense attorney.
- A case involving “vindictive prosecution” that is now pending before the state Supreme Court. This case involved Leonard Schalow, who was charged in 2014 with the attempted voluntary manslaughter of his wife. It was declared a mistrial due to a technicality and Newman brought a new charge of attempted first-degree murder, under which Schalow was convicted, but it was overturned on double jeopardy violations by the N.C. Court of Appeals. The court called Newman’s actions “prosecutorial vindictiveness.” Schalow has been in jail since 2014 as he awaits his latest trial.
Those who signed on to the affidavit in part cited disciplinary actions against Newman by the N.C. State Bar as the basis for the need to remove him. These include the state bar’s disciplinary actions.
|Defense attorney Stuart Brooks listens to testimony from district attorney Greg Newman|
Newman testimony: 'I would do it the same way again,' Newman doubles down in testimony
In their closing arguments, defense attorneys David Freedman and Stuart Brooks argued that the misconduct cited at the hearing, mainly from past disciplinary actions found by the state bar, don't rise to the level of "willful misconduct," that Newman's office is not in disrepute, and even if it were, the disrepute is not the result of that misconduct as the statute necessitates.
Citing the Spivey removal case in which that DA used a racial slur, Brooks said that was a clear case where the conduct resulted in the prosecutor losing the faith of the public and was clearly “prejudicial to the administration of justice.”
But in Newman's case, Stuart said, “there’s no evidence that the citizens of this county have lost the trust, confidence and respect of Mr. Newman.”
Brooks said, too, that the underlying facts were public record and members of the public or any political opponent could have uncovered them.
More hearing coverage: DA Greg Newman defense: Any misconduct not 'willful,' no disrepute for office
|District Attorney Greg Newman and his wife, Kim, following the third day of Newman removal|
But in his closing comments, independent counsel James Cooney III pointed out several facts that weren’t public knowledge at the time of the 2018 election, including the reprimand from the state bar and the conflict of interest that have been focuses of the case.
Cooney also said that after the court heard Newman admit in the first day of the removal hearing that he admitted to willful misconduct, the hearing could have concluded.
“We have undisputed facts,” Cooney said of the State Bar’s Disciplinary Hearing Committee order issued in January against Newman regarding his false statements in the Valerie Owenby case.
“Defendant's statement that Valerie Owenby had been advised of the plea and did not want to be heard, was false,” Cooney said, citing paragraph No. 37 of the DHC order.
The next paragraph states: “Defendant knew his statement to the court was false.”
“Not should have known, not made a mistake, not was negligent. He knew it was false,” Cooney said, adding that the order states that Newman did not correct his error, and lied about it again in his May 2017 response to the state bar’s letter of notice.
“What is also undisputed is this – Mr. Newman admitted from the witness stand on cross-examination that if he made a false statement to the state bar, knowing it was false, that's willful misconduct. He said that to Mr. Northup directly. It surprised me, but that's what he said.
“The bar has found that as a fact. He has admitted that constitutes willful misconduct. You can stop right there.”
In his April 27 order, Ervin wrote that “the district attorney’s office shall notify the victim of the date, time, and place of all trial court proceedings of the type that the victim has elected to receive notice,” according to state law.
|Click to View|
The state bar’s DHC found Newman did not do that, nor did he allow Owenby the opportunity to consult with the prosecuting attorney to give her views about dismissal, plea or negotiations or sentencing; in short, she was not allowed to have her voice heard.
Ervin further cited comments from Angelica Wind, executive director of Our VOICE, a rape crisis prevention center in Buncombe County, who testified at the hearing about the importance of the victim’s role in cases involving alleged sexual offenses.
|Angelica Wind, executive director of Our Voice, testifies during second day Newman removal|
“Wind opined that it was important for victims to feel involved in the process … part of a victim’s sense of obtaining justice is having their day in court and being able to speak,” and that this opportunity “involves having some recognition that a harm was done to the victim and letting the offender know what he has done to the victim … this is important to the victim’s perception of the administration of justice.”
But Cooney went on to give a timeline of the cases in which Newman undertook acts of willful misconduct, which only became public after the 2018 election so that the public would not have known about them before casting their votes.
He also admonished Newman for victim-shaming a witness the previous day who had testified that Newman did not bring charges against two men she claimed raped her while she was a sophomore at Brevard College, telling her because she was wearing a crop top and was not a virgin that she wouldn’t be believed.
Editorial: Greg Newman's actions should be sufficient for removal
“What (Newman) said about her yesterday before the court was essentially it was her fault. She had made choices in her life. She had put herself into positions where men could take advantage of her. She had done things that led to this, and she needed to change her life,” Cooney said at the hearing.
“What about the men? Why not make a statement about the men that it is not acceptable, simply because a woman has sex with someone on your team to assume that you can have sex with her anytime you want?” Cooney said, angrily pointing at Newman.
Cooney also said on opening day of the hearing that Newman “mischaracterized” the state bar DHC decision that found Newman had lied in the 2015 child rape case – and also found he showed no remorse – by citing a Nov. 25 Citizen Times article in which Newman showed further unrepentance by saying, “I think the panel really doesn’t believe I lied to the court.”
Shea Denning, professor of public law and government for the UNC School of Government and director of the N.C. Judicial College, said while removal of a district attorney under G.S. 7A-66 is unusual, DAs do leave office midterm more frequently to retire or move on to other positions.
In any of those cases, she said, the governor will appoint an acting district attorney until the next election in 2022. The office will continue to be staffed by that appointee and the assistant DAs. Denning said there is no timeframe listed in state statute on when the governor must appoint an acting DA.
Where does this leave those who claim their cases were not properly handled by Newman and his office?
“And there may be instances where it may not be possible because there is a legal barrier or a practical barrier. The legal barrier could arise from principles like double jeopardy. And that might occur even if the case was not resolved by an acquittal in a previous trial.
“The practical barriers are the things, for example, the inability to present the evidence, the lack of witnesses or the lack of physical evidence, all of the practical things that you can think of would make it more difficult to prosecute a case years after it occurred,” she said.
Denning also said that Newman's removal does not preclude him for running for another elected office or from practicing law.