How to Overcome Barriers to Successful Investigation and Prosecution of Elder Abuse Cases – Webinar Notes

Overview (0:20)

  • Overcoming barriers to successful investigation and prosecution
  • Experiences in physical and financial elder abuse cases
  • Importance of multi-disciplinary approach on the issue
  • Common excuses to why cases are not prosecuted

 

Resource Speaker – Paul Greenwood (01:07)

  • Lawyer for 38 years
  • Deputy District Attorney of San Diego County Attorney’s Office
  • Head of the Elder Abuse Prosecution Unit
  • Involved in the prosecution of 600 felony cases of elder and dependent adults abuse
  • Co-chair of CA DA Elder Abuse Committee
  • Assisted with drafting elder abuse legislation
  • Testified before US Senate Special Committee on Aging in 2001, 2007 and 2012
  • Work featured in CBS I am America and NBC Nightly News

 

The Justice Clearinghouse (02:00)

  • Peer-to-peer educational program/resource for justice professionals
  • Year-round virtual conference on justice related topics
  • Events are free-to-attend, with members having 24/7 access to recorded webinars and eligible for certifications which may be used for continuing education credits.
  • Interactive with quick polls, Q&A, and survey

 

Introduction (03:24)

  • This webinar is held on June which is Elder and Dependent Adult Awareness Month
  • June 15th is World Elder Abuse Awareness Day
  • Paul’s Journey in the Elder Abuse field

    • Began January 1996
    • No cases in the first 7 months
    • Used the time going around the county talking with Law Enforcement to investigate the lack of cases and found out the reason as victims were overlooked, ignored, disbelieved or abandoned in such cases.

 

Elder Abuse (09:32)

  • Is a Crime

    • Lots of stories
    • Lack of evidence
  • Going Unpunished
  • Predictable
  • Affects urban and rural areas
  • Where child abuse and domestic violence were 30-40 years ago
  • Escalating together with the aging of America

    • Demographics

      • Between 1950 -2000, elder population increased by 87%
      • Age 65+ by 188%
      • Age 85+ by 635%
      • By 2030, 65+ expected to triple to over 70 M
      • Every day in the USA, 10,000 people turn 65 years old.
      • The US is an aging society, as more people are living longer
      • As of 2010, 114,000 Americans are 100 y/o and up 
      • By 2020, there will be 241,000 American 100 y/o and up
  • Elder Abuse is Exploding (11:51)

    • Fastest growing age group
    • No cure for dementia, Alzheimer’s, Parkinson’s, etc.
    • Victims often do not report

      • Unable
      • Too embarrassed
      • Not discovered they’re victims
    • 3rd fastest growth job is home care
    • Minimal background checks
    • High temptation, low-risk factors
  • Understanding Dynamics

    • Fears of many seniors
    • Leads to underreporting
    • Feelings of shame
    • Concern that exposure will lead to loss of independence
    • Threats from perpetrator

 

Quick poll (14:15)

  • Does your state have a specific statute that refers to victims of elder abuse as…?

    • Elders                           25%
    • Vulnerable Adults        45%
    • Something Else 8%
    • I don’t know                22%

 

Who are the victims? (12:54)

  • Elders – anyone over the age 65+
  • Dependent adults – aged 18-64 with physical or mental limitation that restrict ability to carry out normal activities or protect own rights

 

Law enforcement fall into common misconceptions (though not their fault) (17:31)

  • Myth #1: Elderly people make terrible witnesses (18:16).

    • Forgetful – Elderly are less busy and are more likely to recall
    • Senile
    • Longwinded – Take charge of the conversation and ask questions to get (hopefully) brief answers.
    • Grumpy
    • Disabled
    • Fragile
  • Myth #2: If an elderly victim refuses to provide information, there is nothing that can be done (23:19).

    • Build a case by talking to other witnesses
    • Start on the outside and work your way to the middle
    • Let the DA figure out a way to break through victim’s wall of silence
    • As with Domestic Violence cases, self-determination isn’t the answer

      • “Victim declines prosecution”, “Victims doesn’t want to press charges”
      • Why is self-determination a problem?

        • If unpunished, the perp will abuse again
        • We can convict even without the assistance of the victim
        • Abuse is a crime not just to the abused
      • Profile of the perpetrator / physical abuser (25:46)

        • Son in late 30s to late 50s
        • Living at home with mom
        • Divorced and returned OR single and unmotivated OR just out of jail
        • Lazy and unemployed
        • Drugs, alcohol, gambling
        • Feeds habit off mom
        • Sometimes history of mental illness
  • Myth #3: If elderly victim gives the money voluntarily, it is not a crime (27:30).

    • The “it’s just a civil matter” mindset is pervasive.
    • Apparent voluntariness diluted by fraud, undue influence, or exploiting the mental limitations of the victim
    • Case Study (30:05)

      • A woman used 10-year-old son as part of a scheme to take thousand from two elderly Stanislaus County women.
      • Exploited generosity and appealed to compassion, scamming two elderly women of thousands of dollars.
      • The woman investigated for scamming will not face charges.

        • DA response: Scam is no crime. If money is given freely/voluntarily, there is no theft.
  • Myth #4: A Power of Attorney does not provide a license to steal and plunder (31:52).

    • A family who is the suspect – accelerated inheritance is not a good defense.
  • Myth #5: If the victim is deceased before the theft is discovered, we cannot prosecute (33:01).

    • Treat the case if it were a homicide/murder.
    • There are some situations in which we do not need the victim for a prosecution
  • Myth #6: Any case where the elderly victim in involved in a home repair and there is a dispute over money, this is ALWAYS a civil matter (35:30).

    • Is the “contractor” licensed?
    • Are there other victims out there?
    • Did he get the money up front?
    • What services were promised?
    • What were delivered?
  • Myth #7: Suspects of elder abuse crimes NEVER call 911 (39:06).

    • They call 911 for EMT
    • Listening to 911 tapes is valuable to prosecution.

      • Allows jurors to hear suspect’s voice
      • Gives everyone a sense of the demeanor of the suspect
      • Dispatchers need training on elder abuse
    • Paramedics also valuable to prosecution

      • Great witnesses
      • They see and hear things that NO ONE does
      • Often walk into the crime scene
      • Seen with rose-tinted glasses as heroes
      • Also need training on elder abuse
  • Myth #8: Elderly people die from natural causes (44:50).

    • Important to have an elder death review team

      • Was the death avoidable?
      • Are there lessons to be learned?

        • Cases of

          • Dr. Harold Shipman
          • Charles Cullen
    • 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

        • Overmedicating with morphine
        • Suffocating with a pillow
      • Out of 11,000 possible cases, 7,000 are waived automatically
      • Out of 4,000 cases that come in, only 2,700 autopsies
    • Coroner / Medical Examiner

      • Train ME Investigators who take calls from police after death
      • Establish protocol for reviewing suspicious death of elders
      • Can instigate an elder death review team
  • Myth #9: The Anyway Excuse (47:14).

    • There are more important cases out there, and we don’t have additional resources anyway.
    • The victim was going to die anyway.
    • She was going to inherit anyway.
  • Myth #10: “We don’t have jurisdiction, the crime did not occur here” (48:02).

    • Scams that happen through telephone or mail and the suspect is unidentified.
    • Case Study (49:13)

      • A retired Catholic Priest and former Army Chaplain
      • Frauded by a gentleman who claimed to be an attorney for the Publishers Clearance House.
      • Was advised he will receive $1.6 M by sending a $41,000 check to cover taxes.
      • Sent a check for the taxes, but received a fake check for the prize.
      • Phone number was no longer in operation
      • Lost half his life’s savings

 

The importance of the 3 Cs in building a multi-disciplinary team approach (49:47).

  • Between various agencies/key players

    • Collaboration
    • Cooperation
    • Communication
  • Building Blocks to Form a Collaborative Approach

    • APS / Ombudsman program

      • Creating/promoting referral line

        • Every county must have a reporting line
        • Billboards and posters
        • Radio and TV PSAs
        • # of calls will increase
    • Law enforcement
    • Prosecutor

      • Encourage that cases are provable and worthy
      • Get more creative in our charging

        • Burglary
        • Robbery
        • False imprisonment
      • We should not be obsessed with a win-loss record
      • Need to talk to APS
    • Coroner
    • Public Health
    • Seniors
    • Public Guardian / Probate Court
    • Elder Law Attorneys

 

Building the Awareness Level (55:50)

  • Through public speaking (Rotary, Lions, Kiwanis, etc.)
  • Front counter personnel at the police/sheriff’s station
  • 911 dispatcher
  • Banks, Credit Unions, and money-transfer facilities
  • Pharmacies
  • Train the clergy

    • When an elder member is no longer attending their parish, synagogue, mosque, etc.
    • Encourage an overhaul in visitation ministry
  • Watch out for an explosion of elder financial abuse cases
  • Need to be able to argue lack of consent more forcefully

    • Elements of consent

      • Act freely and voluntarily, not under the influence of threat, force or duress.
      • Knowledge of the true nature of the act or transaction involved.
      • Possess the mental capacity to make an intelligent choice whether or not to do something proposed by another person.
      • Consent requires a free will and positive cooperation in act or attitude.

 

Three Prosecutable Scenarios (58:20)

  • Scenario #1: Classic case of theft from a competent victim

    • Victim testifies
    • Did not give permission
    • Did not owe monies to suspect
    • Victim is credible
  • Scenario #2: Theft from an incompetent victim

    • Victim cannot testify
    • Medical testimony that victim suffers from dementia/Alzheimer’s/Parkinson’s or some other illness that deprived victim of necessary understanding
    • Incapacity was present at time of transaction
  • Scenario #3: Theft from a marginally competent victim by undue influence

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

      • Undue influence

        • Victim was pushed in a direction that s/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
      • How to prove undue influence?

        • Length of relationship

          • Shorter, more likely to prove undue influence
        • Place of first meeting
        • Prior spending habits
        • Prior “charitability”
        • What is left?
        • Multiple escalating transactions
      • Evidence Collection

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

 

Challenges for the future (1:00:34)

  • Tackling crimes in long-term care facilities
  • Expanding the list of mandated reporters

    • Financial Institution employees
    • Notary Publics
    • Money Transfer facilities
  • Assess the impact of the crime

    • Financial
    • Emotional
    • Residual

 

Quick poll (1:01:05)

  • In your State, are financial institution (banks, credit union) employees mandated reporters of suspected financial elder abuse?

    • Yes – and I wish they weren’t              1%
    • Yes – and I’m glad they are                42%
    • No – and I’m glad about that                        1%
    • No – and I wish they were                   29%
    • I do not know                                      27%

 

A Message to Seniors (1:03:21)

  • We respect and honor you
  • We commit to seeking justice for you
  • We prosecute with:

    • Passion
    • Purpose
    • Perseverance

 

Q&A

How do you deal with cases where the elderly person is competent and the elderly person allowed victimization, either financially or through poor living conditions? Do you have to wait until the elder person has had enough and comes forward? Or until that person member becomes incapacitated and family members discover the exploitation? (1:04:54)

No, you don’t have to wait. In CA, there are bank teller reporters, they are concerned when lots of money going out of the account to the hands of the son. Even if victims decline to prosecute, it is my duty to prove if that son took that money without the victim’s consent.

 

How do you prove lack of consent when the diagnosis of mental impairment is after the incident has occurred? (1:07:41)

There are experts or physicians who are comfortable with back-dating the level of capacity of incapacity by several months. We may not discover the incapacity until after the transfer of assets. But at that point, if we can then get somebody to evaluate the victim, and be willing to say, well based on the level of impairment at this stage, I can safely say within my degree of medical certainty that 9 months ago when the transfer took place, this patient would not have had the ability to give consent.

 

Can you speak to how to start a death review team? (1:09:13)

Approach the key players who are the Medical Examiner, Coroner, the Chief of Police, the appointed Sheriff, and your local prosecutor. Have a Memorandum of Understanding with those key agencies. If they don't wanna sign on board, you go to your board of supervisors and tell them that your local agencies who are public servants are not willing to participate because you need to find out why.

 

What kind of things have you seen and what kind of things are you concerned with long-care term facilities? (1:10:35)

A case of a former caregiver, a staff member of an assisted living facility who stole from ten different victims. Checkbooks, bank cards, and jewelry were discovered in this staff’s room. Theft is a huge part, unfortunately, sexual abuse also occurs. Facilities make the call not to the cops, but to their in-house attorney and by the time it ever gets to the police, the physical evidence needed to prove a sexual case has long disappeared.

 

In your experience, does the San Diego County District Attorney help elders to connect with resources in the community? (1:11:46)

Yes. Through the victim advocacy program. We have a website and attend senior affairs where we give out brochures and make sure that seniors plug into the resources. Constantly, we are educating ourselves about what resources are out there. Most law enforcement and prosecutors aren't aware of the help available for seniors, if only they know about it. Part of my job is to make sure that my staff and colleagues know who's out there and how to refer potential victims.

 

How do you think civil attorneys can better contribute to ending and reducing elder abuse through lawsuits and collaborating with the criminal justice system? (1:12:57)

One of the ways – when they do sue individuals or corporations, they need to be sharing information about the facts of the case with the local DA’s office. If there is a pattern here that we need to be aware of, if we get a case across our desk, then that is very helpful. There is a role that elder law attorneys and trust and estate planning attorneys should fulfill.

I got a letter about an elderly woman who recently died, changed everything in her trust document, to give it all to one person. They tend to be guarded and suspicious of why I was calling. Wouldn’t it be nice if there was a clause in that trust document as to why you’re suddenly changing from giving it to lots of people to one person? Because otherwise, there are so many red flags and unanswered question. And I was met with a very defensive approach and I just think that it would be good for civil attorneys to understand and anticipate some of the problems that could occur in the future which could be avoided by a clause in a legal document saying that I have thought this through, I've considered this, this is the reason why I'm doing it this way… and it would answer a lot of question

 

For questions and clarifications, contact:

PAUL GREENWOOD

paul.greenwood@sdcda.org

619-531-3464

 

Quotes:

 

“The most common response from law enforcement, and in fact, other prosecutors around the country. A lot of prosecutors says “we don’t do those”, again, because they feel that elderly people make terrible witnesses. My experience with elderly witnesses has been phenomenal, they continue to surprise in the positive sense.” – Paul Greenwood

 

“In every other case, it seems to me, the son is lazy and unemployed, and whenever I talk to his mother, I ask “How come your 46-year-old son isn’t working?”. She says, “He tells me he has a medical condition that prevents him from working”. So let me guess, "He's got a bad back". And she goes, "How did you know?"." – Paul Greenwood

 

“Here’s the problem, police officers are being pressured by their superiors and by other folks, into making these legal opinions every single day throughout this country. We have got to change that. I’m asking police officers in San Diego to take the facts down, and run them by a trained deputy district attorney who knows a crime and knows when it’s not a crime in a sense that can it be proved beyond reasonable doubt.” – Paul Greenwood

 

“Elderly people die from natural cases, yes they do. But unfortunately, I believe that because there is an assumption that if you become 85, 90, that you’re gonna die from natural causes. That is typically the case, but there are also suspicious cases that slip below the radar. That's why I think every major jurisdiction should have an elder death review team." – Paul Greenwood

 

“I am not asking for priority, but I am saying we should give equal opportunity to cases of elder abuse as we do to other types of cases.” – Paul Greenwood

 

 

 

Additional Resources
elderly person
6 months ago
How to Overcome Elder Abuse Barriers in Investigations and Prosecutions: an Interview with Paul Greenwood
We all will grow older. But that doesn't mean that as older people, we should become victims […]
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