Fighting crimes against elders

“Someone broke into my house and turned my oven on.” “There is a man sitting on top of the telephone pole watching me.”
     These were some of the 50-plus complaints that Ruth Barrett made to the Dallas Police Department in 2005 and 2006. These service calls were the start of authorities looking into the lonely life of the elderly Barrett. Their investigation revealed an isolated woman struggling with dementia that led to her victimization by a trusted individual—themes that are all too common when dealing with elder exploitation.

Our background
The Dallas County Criminal District Attorney’s Office has had a designated elder exploitation prosecutor since 2007. This position has given our office the ability to learn how to best investigate and prosecute cases involving the financial exploitation of elderly victims, which are extremely challenging and time-consuming because of complex legal documents and issues. There are also difficulties in dealing with elderly victims in a criminal case: Sometimes a victim is able to testify at trial, and other times he or she cannot. In those cases, all is not always lost. Under the right circumstances, enough evidence may exist to prove the case even when the victim is unable to testify—it is often a matter of knowing where to look for the right evidence.
    We hope this article, which details a particular case of an all-too-common crime, is helpful for other prosecutors investigating offenses against elders.

A criminal tenant
Ruth Barrett was a single 76-year-old living in East Dallas. She had never married, had no children, and was estranged from her family. Her pride and joy were the two side-by-side duplexes that she owned in Dallas. Ruth had worked hard to purchase the properties, and the retired secretary was enjoying the fruits of her labor, hoping to live off the rental income in her golden years. She even had plans for the duplexes after her death; she proudly told everyone she knew that she wanted to leave her duplexes for the benefit of sick children.
    Unfortunately, Norman Lehr entered the picture and soon jeopardized her dreams. In 2001 Lehr became a tenant in one of the three units that Ruth leased out (she lived in one too). Though he did not have a criminal history, Lehr displayed a very controlling nature over time and eventually became her power of attorney, exercising influence over every aspect of Ruth’s life.
    This undue control culminated on June 2, 2006, when Lehr had Ruth deed all of her properties to him at a time when she was suffering from a serious onset of dementia. That transaction resulted in the Dallas County District Attorney’s Office bringing an indictment for theft over $200,000 against Lehr.
    At the jury trial we alleged that Ruth’s consent was ineffective because at the time that she deeded her property to Lehr, Ruth had diminished capacity. The theft statute states that consent is ineffective if it is given by a person who, by reason of advanced age, is known by the actor to have a diminished capacity to make informed and rational decisions about the reasonable disposition of property. The fact that the transaction occurred was not in question in our case, so we knew the main issue at trial would be whether  Ruth had diminished capacity and whether Lehr knew it. Most of our evidence went toward proving that element.

Suffering from dementia
Ruth had chosen to live a quiet and rather isolated life. Unlike many other elderly victims that we had worked with in the past, she didn’t have a network of family or many friends. Because of her diminished capacity, we knew that Ruth would be unable to testify at trial and that the jury would never see or hear from our victim. At first we wondered how we would be able to tell Ruth’s story without her or people close to her to tell it on her behalf. As it turned out, we were able to find plenty of evidence to make our case that Ruth did indeed have diminished capacity and that Norman Lehr knew it.
    The defense wanted to subpoena Ruth as a witness at trial. We believe Lehr felt he could influence what she would say on the stand if he could just be in the same room with her. Prior to the trial, the judge found that she was not competent to testify and instructed both sides not to bring up her absence during the trial. During voir dire, we pointed out crimes where the victim might not be able to testify, such as murder cases. We also discussed the fact that witnesses must be competent to testify. We felt like this prepared the jurors before the testimony ever began that they would not hear from Ruth during the trial.

APS records
One of the first things that we did was subpoena the Adult Protective Services (APS) records involving Ruth. APS requires a subpoena to release records to law enforcement, and very similar to Child Protective Services (CPS) records, they are a wealth of information. Interestingly, APS records can be searched by either the name of the victim, which APS refers to as the “client,” or by the name of the defendant, or in APS lingo, the “alleged perpetrator.” Searching by the perpetrator’s name can be helpful to determine whether he has had any other complaints involving abuse, neglect, or exploitation regarding this victim or any others.
    The APS records led us to information regarding Ruth’s finances. She had banked at a local credit union for years, so we started there. We hoped that someone at the bank would remember something relating to this case. Several of the credit union’s employees did remember the situation and painted a picture of Ruth’s mental decline during the time period in question, as well as the relationship between Ruth and Norman Lehr. Once meticulous about balancing her checkbook and keeping her finances in order, the employees began to notice that sometime in early 2005 Ruth had begun bouncing checks and having trouble filling out her checks. The employees also testified that during that period, Lehr began to regularly accompany Ruth to the bank, that she seemed confused, that Lehr would tell her what to say, and that she was very submissive to him.
    Several of the employees recalled a specific instance sometime before the June 2 theft during which Lehr had gone out of town and Ruth had actually removed him from her account. (We are still unsure why she did so.) When Lehr came back to Dallas and learned from bank personnel that he was no longer on the account, he was furious. He made a call on his cell phone, apparently to Ruth, during which he was yelling, cursing, and slamming things around. He left in his car and returned to the bank 10 minutes later, this time with Ruth. She was very subservient to Lehr and meekly told the bank tellers that removing him from the account had been a mistake. The employees also testified that sometime after that incident, Lehr obtained a power of attorney (POA) from Ruth and from that point forward he relied on the POA to conduct business at the bank without her presence.
    Another source of helpful information in the APS records was the name of the property management company that Ruth had used for years to collect rent, find tenants, and conduct maintenance on her duplexes. This company was run by a married couple who had grown fairly close to Ruth over time and had noticed that she had begun to have problems balancing her checkbook and paying bills. The property managers even ended up taking Ruth to see her doctor about it. In their testimony at trial, they described Ruth as having had a drastic mental decline over a very short time in the spring of 2005. They also expressed their concern about Lehr’s involvement with Ruth when he used the POA she had given him to take over the management of the duplexes.
    Another name listed in the APS records turned out to be extremely relevant to our case. A real estate developer had approached Ruth during the time period in question about buying her property. He reported that within only moments he knew that things weren’t right with Ruth mentally. He chose to forego doing business with her and instead made a report to APS regarding her vulnerability and his concern that she could very easily be taken advantage of by anyone who might come along. We argued that if this stranger to Ruth could see her mental deficits, especially relating to her duplexes, then Lehr certainly would have known of Ruth’s diminished capacity at the time that he stole those very properties from her.

Medical history
Fortunately for our case, Ruth had been seeing a doctor regularly for her dementia for at least a year prior to the theft, probably in part because of her property managers’ urging. The doctor’s medical records and testimony were key in establishing that she did in fact have diminished capacity. She was taking medication for the dementia, which was ultimately diagnosed as Alzheimer’s-type dementia. Starting in June 2005, Ruth’s treating physician noted a steady decline in her cognitive abilities at each and every doctor’s visit.
    The medical records revealed another helpful piece of evidence. They noted that prior to the offense date, Norman Lehr was accompanying Ruth on these visits and that the doctor was sharing his diagnosis with Lehr (due to the power of attorney). Some of the records even contained statements that Lehr made to the doctor regarding his observations of Ruth’s declining mental capabilities. This was great evidence to prove Lehr knew she had diminished capacity.

Police service calls
The form of dementia that Ruth suffered from caused delusions, which were clearly the basis for a number of police service calls she made in 2005 and 2006. As part of our investigation and in preparation for trial, we made a timeline of the 50-plus calls to Ruth’s address and identified a particular officer who had been out to her home on many of those occasions.
    Officer Amie Brewer of the Dallas Police Department was able to provide valuable information that related to Ruth’s mental status and Lehr’s involvement with her. On one of her many visits, Officer Brewer was stopped by the mail carrier who preferred not to get involved but was concerned that Lehr was exploiting Ruth. The mail carrier ended up testifying for the State in the trial about his opinion regarding Ruth’s diminished capacity and the fact that Lehr knew about it. (You would be surprised to learn how much your mailman might know about you!)
    The timeline of service calls also revealed one extremely helpful piece of evidence. On the afternoon of June 2, 2006, the very day that Ruth deeded the properties to Lehr, Dallas police were called out to Ruth’s home where they found her screaming in the alleyway behind her house, completely delusional. One theme that the defense used in its cross-examination of the State’s witnesses was that everyone, even those with Alzheimer’s and dementia, have “good” and “bad” days mentally. We were able to argue that the evidence was clear that on June 2, 2006, Ruth Barrett was not having a “good” day.
    The Dallas police officer also referred her concerns about Ruth to the Dallas Police Department’s Crisis Intervention Division, and a social worker was assigned to her case. The social worker was instrumental in having Ruth’s situation with Lehr brought to light by making a referral that Ruth might need a guardianship to the Dallas County Statutory Probate Court.

The guardianship ­proceedings
A guardianship is a legal process designed to protect incapacitated persons. The Texas Probate Code defines an incapacitated person as one who, because of physical or mental condition, is substantially unable to provide food, clothing, or shelter for herself, to care for her own physical health, or to manage her own financial affairs. A guardian is a person or entity (such as a state agency or nonprofit) appointed by the court to make decisions on behalf of the incapacitated person, or the “ward.” A “guardian of the person” is appointed by the court to take care of the ward’s physical well-being, and a “guardian of the estate” is appointed to manage the ward’s property and finances.
    Because a guardianship removes certain rights and privileges from the ward, it is not a process that the court takes lightly. The court is always inclined to find a less restrictive alternative if possible. Many times, though, a less restrictive alternative does not exist and the court will appoint a guardian of the person, a guardian of the estate, or both.
    In our case, the Dallas PD Crisis Intervention Division made a referral to the Dallas County Probate Court. An investigator was assigned, and she made the recommendation to the probate court that Ruth was in need of a guardianship. In August 2006, only two months after the theft, the probate court granted a guardianship for Ruth. A nonprofit senior advocacy group was appointed as the guardian of Ruth’s person, and an attorney was appointed as the guardian of Ruth’s estate. The guardianship proceeding provided us with a number of credible witnesses, including the probate court investigator, lawyers, and doctors, all of whom had interacted with Ruth in the months after the offense and were able to testify as experts in their fields and give opinions about Ruth’s diminished capacity.
    Once the guardianship process was underway, the probate court required Ruth to undergo a full examination by a geriatric psychologist, as is standard practice in guardianship proceedings. His examination of Ruth occurred two months after the theft and provided further evidence of her mental vulnerabilities. The doctor testified how Ruth’s dementia negatively affected her ability to process information, make decisions, and have insight. He also explained how the cognitive deficits that Ruth had were a “slow-moving train” going in one direction: toward a worsening mental state. He extrapolated that the symptoms that Ruth exhibited during his August 2006 evaluation would most certainly have been present on June 2, 2006.
    The probate court investigator and the attorney acting as guardian of Ruth’s estate also testified that guardianship proceedings can be contested by any concerned citizen who is able to provide evidence that the guardianship is not necessary and that guardianships are very often contested. However, Lehr had not contested the necessity of the guardianship in Ruth’s case, which we argued was proof that he knew of Ruth’s diminished capacity. We also argued that Lehr wasn’t as close of a friend to Ruth as he might like others to think, because after the court found her to be incapacitated, he did not volunteer to become the guardian of her person or her estate. Instead he left her to become a ward of the state, with the court having to appoint a guardian of her person because she had no one to do it for her.

Defense strategy
The defense strategy at trial was two-fold. One was to illustrate Lehr as the only person in the world who was helping poor Ruth and that Lehr had her deed the property to him to “protect” it for her. With that defense, the defense was conceding that Ruth had some deficits—but on the other hand, they also argued that Ruth knew what she was doing and wanted Lehr to have the property. One of their witnesses to this fact was the notary who notarized the deed. She turned out to be a friend of the defendant.
    We rebutted the “protection” defense by arguing that the defendant kept all the rental income that he had received once the property was in his name and that he could have easily deeded the property back into safe hands once Ruth had a court-appointed guardian, but Lehr had chosen not to. Some protector! In fact, during trial is when Lehr thought it would be a good time to deed the property back to Ruth. The defense attorney tendered a deed to Ruth’s guardian while he was on the witness stand. Thankfully, the jury did not fall for this ploy. The guardian took the deed, filed it, and we had Ruth’s property returned to her before we even rested. Not a result that we can guarantee to ever happen again!

Verdict
The jury returned a guilty verdict and sentenced the defendant to five years in prison. We were very pleased with this outcome. Prior to the existence of an elder exploitation prosecutor in our office, this case would probably not have been prosecuted at all. It has been our experience that police departments do not have the time and expertise to investigate these types of cases; in fact, our office was the sole law enforcement entity that handled Ruth’s case, which was made possible because of the elder exploitation prosecutor position and the relationships that our office has built with the elder abuse professionals in our community, such as APS and the investigators and staff at the probate courts, who have helped train us on elder issues. As you can see, many entities may become involved when handling an elder victim in need, so collaboration is key.
    Ruth now lives in assisted living and her guardian is able to use her rental income to assure a comfortable lifestyle for her. The one time we met Ruth, we saw that she had severe mental deficits, but with tears in her eyes she told us of her desire to leave her property to sick children. Sometimes the best thank-yous come from victims who have no idea that you had the privilege of seeking justice on their behalf.