There’s something about Mary1 …
Bexar County Criminal District Attorney Susan D. Reed didn’t have to read beyond the front-page article of the San Antonio Express-News in June 2004 to see where her office’s next major investigation was headed. The newspaper article told of Ted and Mary Roberts, married attorneys whose lives included a troubled marriage, Internet affairs, lawsuits between former law partners, and blackmail.2 Little time was wasted before a call was placed to the local company of the Texas Rangers (common practice when our office initiates an investigation) for their help in investigating the Robertses; soon thereafter, Ranger Chance Collins was working with Investigator C.J. Havrda from our office’s White Collar Crime Division to sort out the couple’s criminal activity from mere moral indiscretion. Over the next year, these investigators painstakingly reconstructed the activities of these two attorneys, which read like something out of a made-for-TV movie.
The investigation revealed that Ted and Mary Roberts were not your stereotypical criminals. Ted, licensed in 1991, specialized in medical malpractice cases; Mary, licensed in 1993, did some work in probate and estate planning but spent much of her time as a stay-at-home mom to three children. The Robertses’ marriage was far from perfect. In the summer of 2001, Mary had placed her profile, titled “not nearly enough fun (or sex) in my life,” on an adult Internet dating site. In the profile, she described herself as a “married, professional woman who is full of desire, but not having her needs met.” Over the next several months, she either contacted or was contacted by numerous men with whom she arranged coffee or lunch meetings where she determined whether they met her requirement of being “an extremely discreet man … for an erotic and intellectual relationship.” More than one did. She also made special efforts to get back in touch with men she had known in the past.
From August through October 2001, Mary engaged in sexual relations with five different men, three from the Internet and two from her past, often at hotels but also at her own home and in her vehicle. During these months she communicated with her paramours by cell phone and email. The relationships’ complexity is demonstrated, for example, by a six-day trip Mary took with her husband to California, when she made 11 phone calls and exchanged 16 emails with five men.
Near the end of October, it appeared that Mary’s web of deceit began to unravel. Ted, suspicious about her activities, hired a private investigation firm to forensically analyze Mary’s computer. The private investigators pulled numerous deleted emails from her hard drive. Although it was reported in the news (and there was some speculation within our office) that Ted possessed full knowledge of Mary’s affairs prior to contacting the PI firm, that is unlikely. According to one of the private investigators, when he first provided Ted with the text of Mary’s emails, Ted showed genuine emotion and predicted, “When I confront [those men], they’d better bring their checkbook because they’re going to be writing a check to my favorite charity: me.” Additionally, we subpoenaed the Robertses’ counseling records which chronicled multiple sessions where the topic of Ted’s discovery of the affairs was discussed.
Ted confronted Mary immediately, but any anger was very short-lived. His office staff described him as being upset—for about a day. Ted then began researching the backgrounds of these men, including the names of their wives and information about their businesses. Although only Mary will ever know the criteria she used, she had been very selective in her affairs, choosing only professional, married men, several of whom were corporate executives. Once Ted had this information, he carefully drafted summaries of his wife’s email conversations with these men and the dates of phone calls between Mary and each man, making sure that no man’s summary contained any reference to any other man Mary was involved with.
He then utilized an obscure provision of the Texas Rules of Civil Procedure, Rule 202, which allows a party to seek judicial permission for a deposition to be taken prior to filing a civil suit. Rather than filing the document in court and seeking an order for deposition, Ted filled a draft of the document, entitled “Petition to Investigate Potential Claims,” with prurient allegations of the men’s sexual encounters with Mary. He then noted his “causes of action” were based on various violations of the Texas Penal Code: obscenity, public lewdness, and deviate sexual intercourse. He concluded by noting that he would be “required” to notify company officers and the man’s wife of the deposition because they were “persons with adverse interest entitled to notice.” (Interestingly, in each of the petitions, Mary was also listed as a “person with adverse interest” despite the fact that she actually assisted in typing several of the petitions. At trial, Mary explained she participated out of fear that her family would break up following Ted’s discovery of her affairs.) It is noteworthy that Ted’s secretary left his employment during this time, taking with her copies of several of the petitions because she believed that Ted was engaging in improper conduct. Finally, Ted attached highlighted copies of the Texas Penal Code provisions cited in his petitions and, in one case, actually included smiling family portraits of Ted, Mary, and their children.
Once the petitions were prepared, either Ted or Mary personally delivered them to the men. At no time did the petitions disclose that Mary was involved with other men, nor did the petitions mention that Ted and Mary were in the process of purchasing a new home valued at more than three times the value of their current residence. In fact, the petitions and their attachments led the reader to believe that Ted and Mary were in the process of divorcing based solely on Mary’s infidelity with that petition’s recipient. The allegations and attachments also led the recipient to believe he had committed crimes. Finally, the documents compelled the recipient to conclude that his business and personal reputation would be ruined if the petition were filed and became public record. Some of the men consulted attorneys who characterized the Rule 202 petitions as baseless and considered them a shakedown. Although one attorney recommended his client file a grievance with the State Bar regarding Ted’s actions, the man declined to do so as that action would also bring his extramarital activities to light.
During negotiations, Ted supported his demand for “damages” by showing the bill for the forensic computer work, expenses of his “ruined” California vacation, costs of counseling sessions, and fees of two attorneys whom Ted claimed he needed to take over his legal practice during this time period. Four of the men, unaware others were shown the same damages, agreed to compensate him; a fifth man, who was presented with a petition, did not agree to pay. Ted never filed any of the 202 petitions.
In his discussions with three of the four paramours who paid money to keep the petitions private, Ted also stated that part or all of their money would go to a recently established charity, the “Roberts Foundation for Children.” One man was instructed to make his check out to “Ted H. Roberts, Trustee.” Two others, represented by counsel, insisted on seeing the foundation’s articles of incorporation, bylaws, and IRS exemption requests before they released any funds. These documents were eventually provided to the men’s attorneys, and both men wrote checks to the new foundation. The records showed that the Roberts Foundation for Children was incorporated on December 28, 2001, with Ted and Mary serving as both its officers and directors. It was dissolved on January 22, 2004, after nearly all of its funds had made their way into the Robertses’ business and personal bank accounts.3
The fourth paramour was not told his money would go to charity. His $15,000 payment was made directly to the forensic investigation firm and to the two attorneys whom Ted said were necessary to keep his firm running while he recovered from the trauma surrounding his wife’s infidelity. (Interestingly, several months later these attorneys wrote a check in the identical amount back to Ted; we don’t know what Ted did or said to get this money back.) All four men were told that Ted and Mary would make a sizeable contribution to the Roberts Foundation for Children, but Ted and Mary never contributed a single penny to their own foundation.
In total, Ted and Mary collected $155,000: $30,000 from the paramour instructed to make his check out to Ted as “trustee”; $10,000 from a second paramour who made his payment directly to the Roberts Foundation for Children; $100,000 from a third paramour, of which $70,000 was given directly to the foundation; and the $15,000 payment from the fourth paramour mentioned above. The petitions had been presented to the five men in November 2001, and Ted and Mary received all of the payments, with the exception of the two checks totaling $80,000 to the foundation, by December 19, 2001. It was important for Ted and Mary to obtain these funds by this date because they closed on their new home that very same day.4 With $60,000 from two of her lovers, Ted and Mary could afford the $93,000 down payment they needed at the house closing, and they borrowed the difference from their credit cards. The paramours had bought silence; the Robertses had bought a new house.
Shakedown comes to light
With a new home courtesy of Mary’s former lovers, money in accounts available to them as the “officers” of their own foundation, and the victims of their blackmail unwilling to call attention to their own extramarital affairs, it looked like Ted and Mary would have gotten away with their crimes—except for a fortunate (for us) set of events. At the same time Ted and Mary were closing on their new home, Ted’s law partner, Robert V. West, decided to end their partnership. When he left the office, he too had taken with him copies of the Rule 202 petitions which he found improper. The 202 petitions were introduced during a hearing in a subsequent lawsuit regarding financial dealings between the law partners. The San Antonio Express-News took an interest in the case and published the June story that called our elected criminal DA’s attention to the Robertses and their affairs.
One of the first things Ranger Collins and our office did was to get copies of the 202 petitions introduced in the civil proceeding. This task proved both difficult and time-consuming because the civil court had sealed these records and, despite our request for them as part of a criminal investigation, the ultimate decision to release the records required the involvement of an appellate court.5 Once our office obtained the petitions, the five men were contacted, and we issued subpoenas for any records relating to their payments to the Robertses. Ultimately, the five men who were served with the Rule 202 petitions cooperated with the investigation, although with differing degrees of willingness. All of them believed that this ordeal was behind them to the extent that only one had told his wife about the affair prior to our office contacting them. Ultimately, one man delayed that uncomfortable revelation until the day before Ted’s jury selection began.
Most still had their original 202 petitions, which proved helpful at trial (discussed more in detail later). Those who paid provided information regarding the checks written to the Robertses, revealing to us the numbers of some of the Robertses’ bank accounts, which in turn, led us to their other accounts. Those who had retained attorneys still had some original correspondence with the Robertses relating to the petitions, payments, and foundation. In fact, two of the men had copies of the foundation’s bylaws, and one had a copy of a request for tax exempt status that Ted Roberts claimed to have filed with the IRS. Most of them also had original documents signed by Ted and Mary purporting to be “confidential settlement agreements” where all parties agreed not to disclose anything about the events or otherwise make them public. Finally, all five men were interviewed regarding their contact with Mary and their discussions with the Robertses regarding the payments.
Additionally, with knowledge of the Robertses’ bank accounts, we learned the names of the former employees of the Robertses’ law firm and interviewed them.6 From these interviews we learned Ted’s former secretary had kept copies of the 202 petitions to which she had access. These documents included Ted’s handwritten notes that listed what he intended to ask from each paramour and detailed the amounts that clearly showed he was seeking the recovery for the same “damages” from more than one party.
Finally, we determined the extent of Mary’s involvement in the scheme. Aside from typing some of the petitions and acting as both an officer and director of the Roberts Foundation for Children, Mary actually delivered two of the petitions herself and arranged a meeting where Ted delivered a third petition. In one case, she went so far as to include a note attached to a petition of a paramour whom she knew was represented by counsel suggesting, “I don’t know how much of the material you would want to share with [your attorney] or anyone else.” Additionally, Mary was responsible for the actual movement of most of the funds in the foundation’s accounts to accounts belonging to her and her husband.
Charging the Robertses
After we reviewed the information from the investigation, it became clear that Ted and Mary had engaged in good old-fashioned blackmail and extortion. Texas, however, has done away with both of these crimes, consolidating them within the theft statute.7 We decided to allege the Robertses’ crimes as thefts.8 That is, the money the paramours paid was given without their effective consent because they were induced by the Robertses’ deception and coercion.9 In looking at how the Robertses approached these victims, we believed each victim was led to believe that 1) Ted and Mary’s marriage was ending; 2) each paramour was the sole person responsible for their divorce and the only person with whom Mary had been unfaithful; 3) Ted would file the 202 petition if the victim did not pay; 4) filing the petition would result in notification of the victim’s wife and employer; 5) he had committed crimes that would result in criminal charges with collateral consequences to his personal and professional life; 6) Ted had created a charitable foundation to which he and rich associates would make substantial contributions; and 7) much, if not all, of any payment the victim made would benefit needy children. Based on these notions, we alleged specific parts of the definitions of deception and coercion as negating any effective consent by the victims.10 Each victim was alleged in a separate count for each defendant, and each defendant also had a count where the amounts taken from each paramour were aggregated pursuant to “one scheme or continuing course of conduct.”11 Therefore, each defendant had a five-count indictment consisting of two state jail felonies, one 3rd-degree felony, and two 2nd-degree felonies, including the aggregation count, which was based on the monetary amounts paid by each victim. The result was a three-page, single-spaced indictment for each defendant.
The trials of Ted and Mary were conducted separately. The same attorneys represented both defendants and, after they waived any potential conflict, the judge granted a severance based on their lead counsel’s representation that he would present inconsistent defenses. By agreement, Ted went to trial first.
His defense was simple and unsurprising. He contested few facts of the case, resting entirely upon the belief that what he did was not a crime. Ted had gone to great lengths to make his actions look legitimate. On the surface it might appear, as the defense claimed, that “this is what lawyers do all the time.” But we asked the jury to look deeper.
In this respect, the original highlighted 202 petitions obtained during the investigation were significant. Each had attached copies of Penal Code pages that contained Ted’s yellow marks drawing the reader’s attention to specific provisions. Perhaps demonstrating Ted’s lack of understanding of criminal law, some of these provisions were not even crimes but rather the underlying definitions. Allegations in the petitions claimed that Ted could bring suit for their violation. Clearly, the petitions’ intention was to make the recipient believe—as one paramour stated from the stand—that “I’d committed a crime.” It seemed clear that Ted was attempting to “accuse a person of [an] offense” and create “a false impression of law” such that the paramours would submit to his demands.
The similarities of how each paramour was approached, including references to the creation of the Roberts Foundation for Children and the implicit representations that Ted and Mary were divorcing, were also emphasized during our prosecution. The “false impression of fact” regarding the Robertses’ donation of a substantial amount of money to their foundation was easily refuted by showing that the only funds ever received by the foundation came from the paramours. The “false impression of fact” created regarding Ted and Mary’s relationship was brought out through the earnest money contract for their new home initiated during the time Ted was negotiating with the paramours and the use of part of the proceeds at closing. Testimony from Ted’s former secretary that Ted and Mary had never appeared closer or more loving than while he was working on the 202 petitions also supported it. Also significant to these impressions was our belief that Ted never intended to file any of the petitions because such an action would be even more embarrassing for him and Mary than for the five victims. This belief was supported by the fact that, after their activities were reported in the San Antonio Express-News, the Robertses became involved in a civil suit for damages against the paper for invasion of privacy and intentional infliction of emotional distress.12
The most significant “false impression of fact” related to the representations that the Roberts Foundation for Children would engage in charitable endeavors. Painstaking review of every check written from or deposited into the couple’s primary bank accounts provided some of the best evidence against them. The Roberts Foundation for Children accounts showed that of the $80,000 given to the foundation, over $70,000 went directly to the Robertses and their law firm, while much of the remainder went to an outside law firm that prepared the organizational documents required by the paramours’ attorneys and for a seminar Mary attended in Austin, ironically, to teach attendees how to run a charitable organization. The Robertses had already withdrawn $50,000 from the foundation bank account less than three months after it was opened.
In addition to the foundation accounts, we reviewed virtually all checks written in every bank account the couple maintained from several months before Mary began her affairs until after the foundation was dissolved. While doing so, we also reviewed all deposits into those accounts. While the Roberts Foundation for Children accounts were being pilfered, Mary and Ted did not make a single personal donation to any charitable organization relating to children. It also showed the money siphoned from the foundation was taken during a time when the Robertses, although claiming to be in financial trouble, were spending money on expensive clothes and furniture and at least one more vacation to California. Evidence surrounding the foundation was, undoubtedly, the best part of the case against the Robertses. We filed numerous business records affidavits relating to thousands of pages of bank records, and Ranger Collins testified how the paramours’ deposits arrived at their ultimate destination: the Robertses’ pockets. Over multiple defense objections regarding relevance, the significant withdrawals were displayed to the jury using an imager and a large screen.
Ted’s defense presented evidence that Ted wanted to start a foundation for children prior to Mary’s affairs and “expert” testimony from a former Texas State Bar president who offered his opinion that all of Ted’s activities comported to the highest legal and ethical standards. He failed to mention until confronted during cross-examination that he was the attorney suing the San Antonio Express-News in the pending civil suit and that he was doing so on a 40-percent contingency fee basis.
The State’s closing arguments ended with a PowerPoint slide consisting of an unflattering photo of Ted above the now infamous quote, “When I confront them, they’d better bring their checkbook because they’re going to be writing a check to my favorite charity: me.” As the jury exited the courtroom, the quote remained displayed on the screen near the door.
The jury convicted Ted of three of the five counts of theft—from the paramours who paid Ted based on his promise to fund the foundation. (Though we did not have an opportunity to speak with Ted’s jurors afterwards, the foreman was interviewed by the media and said that the jury focused on those victims who donated directly to the charity.) Ted, who had no criminal record, had elected to be sentenced by the judge and received five years in prison. His case is pending appeal, but his license to practice law has been suspended.
Mary’s trial was a near repeat of Ted’s, including the same defense expert. The major exception was that Mary’s defense claimed that she was not really involved in the thefts, which might be expected because we were trying her as a party. Unlike Ted, Mary testified in her own defense. She claimed to have acted in only a secretarial capacity when typing the Rule 202 petitions. She further claimed that, although she did no research and gave no thought to the legality of Ted’s actions, she relied on Ted’s knowledge of what he was doing. Finally, her withdrawal of funds from the foundation was done solely because Ted instructed her to. She also characterized these withdrawals as “loans,” which is prohibited by Texas law and the foundation’s own articles of incorporation.13
While such a defense may have worked for someone with less education, the jury did not accept that explanation from Mary, a licensed attorney and real estate agent with two master’s degrees. The jury convicted her on all five counts. Like her husband, she elected to go to the court for sentencing and was given 10 years’ probation. Mary’s law license is currently suspended. The Robertses’ marriage, however, remains intact.
Lyrics defining life
One of the more entertaining parts of this prosecution occurred when Mary was on the witness stand. She was trying to explain why she placed her profile on an adult dating site and ended up having sexual relations with multiple men. She testified that Ted had earlier placed his profile on the Internet, and she did the same hoping he would respond to it. She said, “It’s like—what’s that song? ‘If you like piña coladas / And getting caught in the rain.’” She was referring to Rupert Holmes’ song “Escape,” where a man answers a personal ad only to find that his girlfriend had placed it.14 Her hope was that Ted would respond to her ad and that their marriage would be saved. She had no explanation for how her plan went so far off track.
As we sat listening to her testimony, we couldn’t help thinking it sounded more like another song, “Lookin’ for love in all the wrong places / Lookin’ for love in too many faces.”15 D
Endnotes1 There’s Something About Mary (20th Century Fox 1998).
2 Maro Robbins and Joseph S. Stroud, “Sex, lawyers, secrets at heart of sealed legal case,” San Antonio Express-News, June 13, 2004, at 1A, 12A.
3 We considered prosecuting the Robertses under Texas Penal Code §32.45 as a misapplication of fiduciary property, but we decided to proceed with the cases as traditional thefts because we believed the Robertses had created their foundation as a sham from the beginning.
4 The other two checks to the Roberts Foundation for Children were received in February and March of 2002.
5 The legal proceedings to unseal these records would provide sufficient content for a separate article so we won’t go into detail here.
6 Federal authorities also interviewed many of these individuals although no federal charges were filed.
7 Texas Penal Code §31.02.
8 Texas Penal Code §31.03. Consideration was also given to charging the Robertses with Misapplication of Fiduciary Property under §32.45 of the Texas Penal Code, but two problems confronted us. First, it was difficult to identify who would act as the complainant for what was, essentially, a sham charity. Second, we faced the practical (although technically not legal) dilemma of ignoring how the Robertses got contributions to the charity and restricting our prosecution solely to the fact they failed to fulfill the charitable requirements of their articles of incorporation and Texas civil statutes.
9 Texas Penal Code §31.01(3)(A).
10 For deception, we alleged “creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true” from Texas Penal Code §31.01(1)(A), and “failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true” from Texas Penal Code §31.01(1)(B). For coercion, we alleged “a threat, however communicated … to accuse a person of any offense” from Texas Penal Code §1.07(a)(9)(C); “to expose a person to hatred, contempt, or ridicule” from Texas Penal Code §1.07(a)(9)(D); and “to harm the credit or business repute of any person” from Texas Penal Code §1.07(a)(9)(E).
11 Texas Penal Code §31.09.
12 These causes of action were ultimately dismissed by the district court. Lowe v. Hearst Commons., Inc., 487 F.3d 246 (5th Cir. Tex. 2007).
13 Tex. Rev. Civ. Stat. Art. 1396-2.25 (Vernon Supp. 2007).
14 Rupert Holmes, “Escape,” on Partners in Crime (1979).
15 Johnny Lee, “Lookin’ for Love,” on Lookin’ for Love (1980).