An overview of elder abuse from one prosecutor

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An overview of elder abuse from one prosecutors
perspective

• Slidell, Louisiana
• June 15th, 2009
• World Elder Abuse Awareness Day

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Presented by

• Paul Greenwood,
• Deputy District Attorney,
• San Diego County, California

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(No Transcript)
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WARNING!

• The views expressed by the presenter are not
  necessarily those of the San Diego District
  Attorneys Office

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How are we to measure a community?

• By the way we care for our very young, the
  elderly and the defenseless

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All victims deserve our utmost response

• Sadly, some victims are overlooked, ignored,
  disbelieved, or simply are abandoned

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Why should we care?

• Our debt to the heroic men and valiant women in
  the service of our country can never be repaid.
  They have earned our undying gratitude. America
  will NEVER forget their sacrifices.
• President Harry S. Truman
• Inscription at WWII Memorial

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Elder Abuse is...

• A Crime
• Going unpunished
• Predictable
• Affecting both urban rural areas
• Where child abuse DV were 30 years ago
• Escalating

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The aging of America

• Between 1950 2000, the total population
  increased by 87
• Age 65 - by 188
• 85 - by 635
• By 2030 - 65 will triple to over 70 million

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Demographics of living longer

• 71,000 Americans are 100
• By 2010 there will be 114,000
• By 2020, there will be 241,000

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ELDER ABUSE IS EXPLODING

• Fastest growing age group
• No known cure for dementia etc.
• Victims often do not report
• Third fastest growth job is home care
• Minimal background checks
• High temptation, low risk factors

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We need the passage of the Elder Justice Act

• Would be first federal legislation on Elder Abuse
• 110th Congress has introduced S. 795
• Sen. Hatch R-UT Lincoln D-AK
• Emphasis on training, awareness prosecution

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UNDERSTANDING THE DYNAMICS

• Fears of many seniors
• Leads to underreporting
• Feelings of shame
• Concern that exposure will lead to loss of
  independence
• Sometimes accompanied by threats from perpetrator

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Destroying the myths.My top ten.

• Some of these myths affect all forms of elder
  abuse
• Some affect only financial elder abuse

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Myth 1

• Elderly people make terrible witnesses

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AVOID STEREOTYPING OF SENIORS

• Forgetful
• Senile
• Longwinded
• Grumpy
• Disabled
• Fragile

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Myth 2

• If elderly victim refuses to provide information,
  there is nothing that can be done

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• We can still build a case by talking to other key
  witnesses
• Start on the outside and work your way to the
  middle
• Let the DA figure out a way to break through
  victims wall of silence

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LESSONS LEARNED FROM DOMESTIC VIOLENCE

• Self -determination is not the answer

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Why self-determination is a problem

• If not punished, the perp WILL abuse again
• We CAN convict even without the assistance of the
  victim
• Abuse is a crime against NOT JUST the abused

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Myth 3

• If elderly victim gives the money voluntarily, it
  is not a crime

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• There are times when the apparent voluntariness
  has been diluted by fraud, undue influence or by
  exploiting the mental limitations of the victim

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Myth 4

• If the financial institution reimburses the
  elderly victim and then declines to seek
  prosecution, we have no victim

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• Once a victim, always a victim!
• Restitution can NEVER remove the stigma

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Myth 5

• If victim is deceased before we discover the
  theft, we cannot prosecute

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• Wrong!
• Treat such a case as if it were a murder
• There are some situations in which we do not need
  the victim for a prosecution

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Myth 6

• Any case where the elderly victim is involved in
  a home repair there is a dispute over money
  this is ALWAYS a civil matter.

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• Is the contractor licensed?
• Are there other victims out there?
• Did he get the money up front?
• What services did he promise?
• What did he deliver?

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Myth 7

• Suspects of elder abuse crimes NEVER call 911

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• Wrong!
• Dispatchers need training
• As do paramedics

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Myth 8

• There is no point in reporting this incident to
  local law enforcement they wont do anything
  about it.

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• The impact of a letter!
• Persevere

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Myth 9

• Elderly people die from natural causes

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• The importance of an elder death review team

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Deaths in San Diego County

• 20,000 deaths a year
• 52 are reportable
• Criteria is not seen by MD in last 20 days/not a
  natural death
• Out of 11,000 possible cases 7,000 are waived
  automatically.
• Out of 4,000 cases that come in, only 2,700
  autopsies

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Lessons to learn from.

• Dr. Harold Shipman
• Charles Cullen

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Myth 10

• There are more important cases out there that are
  taking up my time

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Building blocks to form collaborative approach

• APS/Ombudsman program
• Law enforcement
• Prosecutors
• Coroner
• Public Health
• Seniors
• Public Guardian/Probate Court
• Elder law attorneys

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APS/ OmbudsmanCreating/promoting referral line

• Every County must have a reporting line
• Billboards
• Posters
• Radio and TV PSAs
• of calls WILL increase

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Law enforcement

• Recognize red flags of elder abuse
• Respond to referral of an elder abuse case
• Take initial report and make sure case is
  assigned to a detective for follow up

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Common reactions among law enforcement

• It is a civil matter - it involves a Power of
  Attorney
• It cannot be a crime - she gave him the money
• It cant be filed - he does not want us to
  prosecute
• The prosecutor wont file the case - the victim
  will make a terrible witness

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Prosecutors

• These cases are worthy
• These cases are provable
• We should get more creative in our charging
• We should not be obsessed with a win-loss record
• We need to talk to APS

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Coroner /Medical examiner

• Train ME Investigators who take calls from police
  after a death
• Establish a protocol for reviewing suspicious
  deaths of elders
• Can instigate an elder death review team

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Public health

• Remind them of their mandated reporter
  obligations
• Develop training at every hospital, E.R., clinic
• Watch for unexplained injuries or inconsistent
  explanations

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Involving seniors

• Reaching them through day centers, senior fairs
  and other workshops
• Provide a positive message!
• Top ten tips for safety
• Door prizes a free lunch
• Use them as volunteers - RSVP, DAs office
• TRIAD

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Public Guardian Probate Court

• They see a lot of financial exploitation red
  flags
• PG can intervene early enough to provide damage
  control
• Probate Court investigators have access to
  information that other LE agencies will never see
• LA Times articles .

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Elder Law attorneys

• Act for client for many years
• Replaced without warning by new attorney
• Obligation to inquire..
• Consult State Bar over attorney/client privilege
  communications

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Building the awareness level 1

• Through public speaking at Rotary, Kiwanis, Lions
  etc
• Front counter personnel at police/sheriffs
  station
• 911 dispatcher
• Banks credit unions Western Union - SB 2010
• Pharmacies

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Awareness level 2

• First responders
• Paramedics
• Fire personnel
• Remember that RP may in fact be suspect
• Are you walking into a crime scene?
• Listen, watch, remember, report

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Awareness level contd 3

• Train the clergy
• Most are unaware of the problem
• Encourage an overhaul in visitation ministry

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Awareness level contd 4

• Use the media to communicate
• TV, Radio talk show, newspaper articles
• Form a multi-disciplinary team
• F.A.S.T
• Elder Abuse Council
• Adult Services Policy Council

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Recognizing the red flags

• Isolation
• The new friend
• Disenchantment with family
• Impaired memory
• Frequent telephone calls/delivery of mail with
  promises of winning

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Recognizing the red flags..

• Switch in doctor or attorney
• Unexplained loss of weight or health
• Blocked visits
• Hovering over client
• Multiple financial transactions which are
  uncharacteristic

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Collecting preserving evidence..

• What is your role?
• Social worker turned investigator?
• Are you uncomfortable handling evidence?

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If you suspect that a crime has been committed,
call in law enforcement immediately

• Time is of the essence
• Crawford vs. Washington
• Preservation of evidence

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Physical and Mental Abuse

• Assaults and batteries
• Aggravated Assaults/Attempted murder
• Sexual assault

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Problems associated with sexual abuse of elderly
/dependent adult

• Delay in reporting
• Victim often cannot provide history
• Physical findings may be clouded
• Resident on resident dementia?
• Employee on resident eye witness?
• Victim allegations how to handle?

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Physical abuse contd

• Neglect

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Classic neglect cases

• Deprivation of medical attention
• Deprivation of food
• Lack of hygiene
• Lack of ventilation, heat or light
• Over-medicated
• Under-medicated

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The classic neglected victim

• Malnourished
• Semi-comatose
• Dehydrated
• Coated with fecal matter/ urine stained
• Inadequately clothed
• Untrimmed toenails, matted hair
• Bed sores

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Cross reference with financial abuse

• Look for signs of financial exploitation
• Documents giving control to suspect -
  POA - Quitclaim deed - New will -
  Correspondence, bank statements
• Check book, ATM, pawn slips

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Physical and mental abuse contd

• Manslaughter - neglect causes death
• Murder
• Intimidation/Mental Psychological Abuse
• False Imprisonment
• Torture
• Robbery and extortion

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Profile of the physical abuser

• Son in his late 30s to late 40s
• Living at home with Mom
• Divorced/ returns or single and unmotivated or
  just out of jail
• Lazy and unemployed
• Drugs, alcohol or gambling
• Feeds habit off Mom
• Sometimes history of mental illness

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Financial Abuse

• Theft
• Credit card fraud
• Real Property transfers
• Home Improvement scams/burglaries
• Work by unlicensed contractors/overcharging
• Telemarketing,sweepstakes e-mail scams
• Investment fraud

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Theft of ..

• Jewelry ends up at pawn shop
• Check from back of check book
• ATM card
• Credit/Debit card
• Your mail

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Current top elder financial scams

• Canadian other foreign lotteries
• Phishing identity theft
• Investment Frauds
• Bogus charities

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HOW TO PROVE STEALING?

• Taking property
• belonging to another
• without consent
• with intent to permanently deprive

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Forms of theft

• By larceny - a taking of property
• By trick - consent is based on deceit or fraud
• By embezzlement - property is entrusted to thief
• By undue influence

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Three prosecutable scenarios

• Classic case of theft from a competent victim
• Theft from an incompetent victim
• Theft from a marginally competent victim by
  undue influence

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SCENARIO 1

• Victim testifies
• Did not give permission
• Did not owe monies to suspect
• Victim is credible

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SCENARIO 2

• Victim cannot testify
• Medical testimony that victim suffers from
  dementia/ Alzheimers/ Parkinson's or some other
  illness that deprives victim of necessary
  understanding
• Incapacity was present at time of transaction

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SCENARIO 3

• Is it theft, a loan, or a gift?
• Victim is marginally competent
• Suspect exploited victims vulnerability
• Victim was unduly influenced or was defrauded

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Undue Influence

• Victim was pushed in a direction that he did not
  want to go.
• The influence by suspect was sufficient to remove
  the voluntariness of the transaction
• No longer free will
• Victim has been evaluated by a geriatric
  psychiatrist/psychologist

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How to prove undue influence?

• Length of relationship
• Place of first meeting
• Prior spending habits
• Prior charitability
• What is left?
• Multiple escalating transactions
• Statements conduct by suspect

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Witnesses

• Bank teller
• Pastor
• Neighbor
• Doctor, pharmacist, optometrist of V
• Family
• Ex- spouse of suspect
• Business contacts of suspect

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Evidence collection

• Bank, credit card statements
• Bank surveillance tapes
• Prior medical records
• Look for the inappropriate purchases
• Ask questions, questions, questions!!!

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Crawford v. Washington

• Creates immediate problems for elder abuse
  prosecutors
• US Supreme Court fundamentally changed the
  meaning of the Sixth Amendment confrontation
  clause

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Grand jury or preliminary hearing?

• Time is of the essence in view of the Crawford
  decision
• Consideration needs to be given for preliminary
  hearings to be used in ALL cases involving
  elderly victims

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Seniors and the court process

• Getting them to court
• Bringing the court to them
• Waiting at court
• Testifying in court
• After court - to prevent further victimization

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Assess the impact of the crime

• Financial
• Emotional
• Residual

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The next step

• Bringing services to the victim
• The one stop shop concept

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A Message to Seniors

• We respect and honor you!
• We commit to seeking justice for you
• We prosecute with
• Passion
• Purpose
• Perseverance

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Please feel free to contact me

• Paul Greenwood
• 619-531-3464
• paul.greenwood_at_sdcda.org