Girardi’s Incompetency Claim Undercut by Timing and an Expletive

Disbarred and indicted plaintiffs’ lawyer Thomas Girardi is scheduled to appear on Wednesday before the same federal judge who last week rejected claims he’s not competent to stand trial, as the focus turns to the next steps in his criminal fraud cases pending in Los Angeles and Chicago.

Judge Josephine L. Staton of the Central District of California in an order unsealed on Dec. 5 found Girardi’s purported denial of knowledge of the charges and his failure to remember those charges once reminded of them “is wholly lacking in credibility.”

The judge announced her ruling in a Dec. 2 court docket entry but sealed her underlying decision to give the parties time to indicate which parts should remain so. The court-ordered competency reports girding that outcome remain under seal and were referenced in her 52-page ruling.

Nothing in Staton’s scheduling order posted on the docket expressly foretells what will be discussed at Wednesday’s hearing.

Girardi and his Chicago co-defendants David Lira—a former Girardi Keese attorney and Girardi’s son-in-law—and Christopher Kamon, the defunct law firm’s former chief financial officer, are also scheduled for an in-person status hearing Jan. 18 on the Northern District of Illinois indictment alleging they stole $3 million in client funds.

“It seems that we’ve finally reached the end of the Tom Girardi playbook,” said Jay Edelson, who was the ex-lawyer’s Chicago co-counsel in the class-action lawsuit filed against Boeing Co. over the deadly 2018 Lion Air 737 Max airliner crash off Indonesia. Edelson’s firm sued Girardi and his namesake firm, accusing the defendants of racketeering. That case was stayed pending the involuntary bankruptcy proceedings initiated against Girardi and the now-shuttered firm in the Central District of California.

“We’ve been confident that Tom would be found competent ever since he was leaving us voicemails trying to bribe our firm into pulling back our suits. But it took the hard work of federal prosecutors to put the lie to Tom, and those around him, who orchestrated this last act for him,” Edelson said.

Prosecutorial Leverage

The ruling means for federal prosecutors, “now they have all the leverage,” said Michael Weinstein, chair of Cole Schotz PC white collar criminal defense and government investigations practice. “As for current case, it’s full steam ahead for prosecution now.”

Staton will set a trial date along with related trial motions, and resolve pretrial evidentiary issues. The judge might encourage parties to talk settlement or plea, “and defense has to decide whether they want to go down that road parallel with prepping for trial,” Weinstein said.

Girardi’s public defenders also must focus on what they could or would potentially argue before a jury, and see also whether he is prepared to do so. “So overall good for government, bad for defense,” he said.

Agustin Orozco, a Crowell & Moring LLP partner and former federal prosecutor in Los Angeles, said it’s important to point out that the prosecutors “only have to prove competency by a preponderance of the evidence, which is much lower than the reasonable doubt standard that needs to be met for criminal convictions. It is very difficult to prove that someone is exaggerating.”

“With that said, the court provides a lot of support for its conclusion, including the fact that Girardi’s neuroimaging was not conclusive, his test results did not support his experts’ conclusions, there was contemporaneous evidence at the time he first claimed incompetency that did not show cognitive decline, and the timing of his symptoms was suspect,” Orozco said.

F-Bomb Hurt

On the third day of the hearing, Girardi flung an verbal expletive at one of his prosecutors. Staton referred to it as a “notable event.”

The prosecutor had asked defense expert and neuropsychologist Stacey Wood if she would “would find significant that an examinee ‘was able to successfully keep secret the fact of multimillion-dollar fraud?’ At this moment, before Dr. Wood answered, the prosecutor asked the Court to note that Defendant had said to him, in a lowered voice, ‘f**k you,’ and he also noted that defense counsel (seated next to Defendant at counsel table) did not contradict the prosecutor’s account,” the judge said.

Wood agreed that Girardi’s statement was significant because it showed “an appreciation of what [the prosecutor was] saying and what he is being accused of,” Staton wrote.

That was one of two important points that really hurt Girardi’s claim he was not competent to stand trial, Orozco said. The second is the portion of the order that focuses on the suspicious timing of his symptoms.

Timely Symptoms

Edelson PC attorneys and the California Bar questioned Girardi’s claims of impairment made so soon after the Chicago judge who presided over the Lion Air matters referred to federal prosecutors Girardi’s failure to distribute settlement funds to families of those killed in the Lion Air crash.

“The timing of Defendant’s reported symptoms is highly suspect,” Staton said.

Girardi on Nov. 21, 2020, moderated a panel and “commented appropriately on the detailed presentations of four other successful trial lawyers. A mere three weeks later, on December 14, 2020, when Defendant was facing a civil contempt sanction and facing accusations that he unlawfully withheld settlement funds from his clients, the very first claim of ongoing mental impairment arose,” she said.

Courts have held that an appeal of an adverse competency determination can’t be filed until after sentencing. But the competency determination isn’t final, said Orozco. “Rather, the question of competency remains open throughout the trial, and may be raised by the defendant, or by the court, at any time.”

The federal Public Defender’s office represents Girardi. The US Attorney’s Office for the Central District of California represents the government.

The case is United States v. Girardi, C.D. Cal., No. 2:23-cr-00047, order unsealed 1/5/24.