Prosecuting Exploitation of Elders in Georgia (Part 1)

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This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Schenk Firm of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.

Schenk: Hello out there and welcome to episode 50.

Smith: The big 5-0.

Schenk: The big 5-0. And welcome to 2018.

Smith: 2018 – also the year that we turn the big 4-0.

Schenk: The big 4-0. It’s good to be back. We were on hiatus for the holidays and New Year, so it’s good to be back in the driver’s seat, in the catbird seat, in 2018. A lot of good things – I had a good time in Brazil, theoretically. I had a great time in Brazil with Daniela’s family. We went to Curitiba, went to Indaial, had some acai bowls, drank…

Smith: So that’s how you pronounce it – ah-sigh-ee?

Schenk: Yeah, the C with the little ding-dong is like an S sound.

Smith: Yeah, this is Portuguese.

Schenk: Yeah.

Smith: His girlfriend is Brazilian. They speak Portuguese.

Schenk: And they have this thing, it’s delicious. We don’t have it here very much, but they take literally sugar cane and they put it into a juicer and you drink sugar cane juice.

Smith: Oh good Lord.

Schenk: And this is one of those things you learn when you go somewhere that you wouldn’t know this if you weren’t there is when you go to the street vendor for it and they pour you the cup of sugar cane, because remember it’s summertime there, and they give you the sugarcane juice, when they pour it out and you give them the two reais, Brazilian dollars, and you drink it, you can go, “Hey, may I have some more,” and they have to pour you some more.

Smith: For free?

Schenk: Yeah, it’s customary. And I felt bad, like, “No, don’t give him anymore money because they’re supposed to. It’s included.”

Smith: So you can just stand there, hypothetically…

Schenk: Well one time. It’s good one time. So that was my holiday. How were your holidays, Will?

Smith: I mean they were great. I mean we’ve already discussed this.

Schenk: You think after 50 episodes, I would learn to not ask Will anything, but anyways, so what do we have on the horizon for this episode, Will?

Smith: So we have a very good friend of mine, attorney Richard Armond, and I think I mentioned this last time. Richard’s wife, Kylene Armond, was Kylene Farmer in law school, and she and I were best friends, still are best friends, so I’ve known Richard now a long time, like almost seven years, because they started dating right at the end of law school and then got married soon after that.

Schenk: This is like the Us Weekly version of who our guest is.

Smith: Well they’re very close to me. These are two of my best friends. Anyways, but Richard started off as a prosecutor in the solicitor’s office of Gwinnett County. It’s the office that handles Gwinnett State Court, Gwinnett Recorder’s Court, misdemeanors and traffic violation cases, including cases that are bound over from municipal court. From November 2007, which is when I started law school, through January of 2011, just a year after me and Kylene graduated, then he became the supervisor, the lead assistant solicitor general of trial division, and from that, he was hired in January of 2011 in the district attorney’s office, which handles felonies, so the more severe criminal cases. He worked there for over six years as a felony prosecutor, first as an assistant district attorney from 2011 through 2014, and he quickly rose to the position of supervisor in a felony trial courtroom as a senior managing assistant district attorney from January 2014 until he left in May of 2017.

Now he was the lead attorney in cases involving murder, rape, armed robbery, aggravated assault, drugs, theft and all other levels of felony cases. And he had the nickname of “Trial Dog” in the district attorney’s office for taking cases to trial the most in one calendar year. So this guy is a trial attorney.

He now practices in the areas of personal injury and wrongful death cases. His office, the Armond Firm LLC is located at 260 Constitution Boulevard, Lawrenceville, Georgia, one mile from the Gwinnett Justice and Administration Center, which is the Gwinnett County courthouse. And we’re going to put his contact information up on the screen.

Schenk: Jean, can we get Richard’s contact information on the screen? And go.

Smith: Yeah, Jean is our producer. Anyways, Richard, we are so happy to have you on the show. Welcome.

Richard: Great to be here.

Schenk: Awesome, Richard. Thank you, Will. So Richard, it’s my understanding that you prosecuted an individual for elderly abuse under a particular statute in Georgia that it’s not necessarily geared towards facilities and nursing homes, but it’s geared towards those caretakers, like family members or maybe homecare individuals that oversee those with special needs that prevent exploitation, financial exploitation, abuse, negligence, that kind of thing. Can you from – because we always talk about the civil component of these cases…

Smith: Right, suing people in civil court.

Schenk: Exactly – in civil court. We don’t go through the actual trial process from a criminal statute angle. So that’s what we wanted to kind of have you on and talk about – what’s your experience? I know you’ve done at least one of these cases under the exploitation statute. Can you walk us through the facts of that case and kind of how it shook down?

Richard: Absolutely. I’d be glad to. Well first of all, the official code of Georgia has specific provisions in it that protect elder persons as well as disabled adults from abuse, from exploitation. Those are found in Title 16, which is the title under the Georgia code that applies to crimes and offenses, so totally separate area than the civil arena that you all practice in and have done such a good job for, but it’s Title 16, Chapter 5, Article 8 is where these statutes that protect elder persons are found.

And the two main statutes that apply are 16-5-101, which applies to neglect to a disabled adult, elder person or resident, and the second one is 16-5-102, which is for exploitation and intimidation of disabled adults, elder persons and residents or obstruction of an investigation.

And I’ve handled several cases specifically in this area in my time as a prosecutor, and one of them actually went to trial with kind of a strange ending, and it’s kind of a long story, but it’s actually kind of an interesting case. It was one that had some media attention and I’ll keep names out of it, but it was an individual that was charged with a crime for going on an elder man’s property who lived by himself at a home in Lilburn, Georgia, in Gwinnett County.

Smith: Ah yes, I remember this. All right, go ahead. Yeah, yeah. Sorry. Sorry to interrupt. I just now realize that I remember this case and I remember talking with you about it. Go ahead.

Schenk: Sorry, Richard.

Richard: The particular defendant ran a tree service company going to people’s houses cutting down trees. So he and his crew of two other people working with him show up at this man’s house unannounced and knock on his door and tell him, “Hey, you’ve got old trees on your property and they need to be cut down.” There’s no evidence whatsoever that there was anything wrong with his trees. He had a nice wooded lot on his property. He lived by himself. His spouse was deceased, was trying to make it on his own, and he was not in a facility of any type. This wasn’t a facility or nursing home. But the individuals showed up at his residence unannounced and told him, “You’ve got trees that need to be cut down.”

They proceed without obtaining permission from him to go on his property, and they cut down about seven or eight different trees on his property. And as far as the professional level of services that they provided, it was just not what you would expect from a tree service. You’re talking stumps five or six feet off the ground not even cut down to an actual stump. Trees were left there on the property not cut up, not brought to the roadside. And then they go inside his house after cutting down seven or eight trees on his property and demand payment of several thousand dollars from this man. And he told the police that he was scared. These people were in his home. He was afraid of what was going on. He wrote the check to them for tree cutting services. Yes, they were cut down, but it was not anything anyone paying for tree services would expect, and none of these trees even needed to be cut down.

Essentially this was when I was relatively new to the district attorney’s office where I spent several years handling misdemeanor cases. It was one of my earlier settlement trials. It was within the first year I was in the district attorney’s office. It was probably my third or fourth trial at that point. The previous prosecutor in the case had actually charged the case even though there was a specific statute that was found in a different statute in Georgia law at that time. The statute has since been amended to provide greater protection to elder persons under Georgia law, even though there was an exploitation statute in place at that time. The previous prosecutor had presented an indictment to the grand jury and charged this individual with robbery, or essentially taking money from the presence of this elder person by intimidation.

And this case was several years old when I inherited it. And over the course of the several years, and as you all know in some of these cases, they are very difficult to prosecute whether criminally or prosecute a civil claim when you have an elder person in their later stages in their life. And this man was undergoing the beginning signs of dementia and he would have good days where he could recall things that happened and he would have bad days where he couldn’t testify as to much of what happened. And frankly, he had forgotten a decent amount of what it happened by the time it got to trial.

Smith: Yeah.

Richard: But I inherited as a robbery case and we tried it as a robbery case. And he was brought into court in a wheelchair. He couldn’t take the witness stand. He had to be wheeled into the well of the courtroom and sat in front of the jury for direct and cross-examination. And he was able to recollect a few of the details as to what had happened to him. And then in the prosecution of the case, I was able to through the police officer who had interviewed him, essentially get in his prior inconsistent statement, basically to impeach my own witness with the extra detail that he was no longer able to testify to in these later stages two to three years after it had actually happened to him.

Smith: That’s clever, dude. That’s awesome.

Schenk: Yeah.

Richard: It was actually an interesting case, but the difficult part was it was a case that really should have been charged initially as exploitation of an elder person and not as robbery because the statute is much more favorable. It uses terms in the exploitation statute that you hear a lot of times in civil law, because this was a financial exploitation case and the definition under Georgia law, the definition is actually 16-5-100 – exploitation means illegally or improperly using a disabled adult or elder person or that person’s resources through undue influence, coercion, harassment, duress, deception, false representation, false pretense or other similar means.

Schenk: So I was going to say, it just so happened that – I mean did the facts – I guess my question would be this: so they’re driving down the neighborhood looking to see who they can basically misrepresent what they do to. And they come to this guy’s house who has trees in his yard. So does the law say they have to know the person is elderly when they come in with the idea of bilking somebody for yard or lawn services? How does that work in terms of intent?

Richard: As for intent, if a person is 65 years or older, they qualify under Georgia law as an elder person. If the person committing the crime against them in good faith believes the person, let’s say for example, is 58 years of age, it would be irrelevant to the crime. As long as the person on the date of the crime is 65 years of age or older, the crime applies to them, the jury would be charged on that the knowledge of age is not an essential element of the crime. The state has no burden of proving that the defendant knew that the person was 65 years of age or older. That would be the same as when you deal with crimes against children, for example, sexual crimes where the age of consent in Georgia is 16. If someone is 15 years of age on the date of the crime committed against them and it was a voluntary act but they cannot legally consent, it would be the same thing. If the person engaging in the act believed the person was 18 years of age and not 15, it’s irrelevant. The law still applies. So all we had to do on that front, if he had been charged properly, was show that this individual is 65 years of age or older. He was well into his 70s the date of the offense.

Smith: So if there’s a Benjamin Button issue where you’ve got somebody who’s aging backwards and they look like they’re 17 but they end up being 65, it doesn’t matter.

Schenk: Yeah, there’s no Benjamin Button defense is what you’re saying.

Smith: No Benjamin Button defense.

Richard: Exactly.

Schenk: And Richard, so the statute that you mentioned, the exploitation statute, this is just dealing with financial exploitation, misrepresentation or some type of subterfuge in order to bilk the money from an elderly person.

Richard: Well the particular statute, that’s the definition of exploit, but this particular statute, 16-5-102, it criminalizes any person who knowingly and willfully exploits a disabled adult, elderly person or resident, and it also criminalizes any person who willfully inflicts physical pain, physical injury, sexual abuse, mental anguish or unreasonable confinement on such persons. And it also applies to willfully depriving those persons of essential services. So it’s kind of a broad statute that it goes towards financial exploitation. It goes towards affliction of physical pain. It also goes towards depriving essential services to those people. So it gives a great deal of protection under criminal law to elder persons, disabled adults and persons that fall in those categories under Georgia law. And there’s also a separate 16-5-101 for more negligent types of offenses, neglect to a disabled adult, elder person or resident. Does that sort of make sense as far as the criminal statutes?

Smith: Yeah.

Schenk: Absolutely.

Smith: Just so our listeners are clear on this, so this guy was indicted on robbery. How do you define robbery? What are the elements?

Richard: Well the particular type of robbery we were dealing with was taking property, which would be the check for United States currency from the immediate presence of the victim by intimidation. There are multiple ways. There’s armed robbery. There’s regular robbery. Robbery can take place by intimidation. It can take place by force. It can take place by sudden snatching. This particular robbery was charged as a robbery by intimidation, but they were there, they performed these services the guy did not want and intimidated him into writing that check for them. Robbery carries a penalty under Georgia law up to 20 years in prison. It’s a one up to 20 years offense.

However, the exploitation statute, which would have been a better way for it to have initially been charged also carries the exact same punishment range of one up to 20 years, however instead of having to prove committing an act of intimidation, it was a much easier case to be able to prove if it was charged under the elder person exploitation statute because you can show with the work that was done, you don’t have to show that that intimidation occurred. You can show this was undue influence. This was deception for things we did that we didn’t really do because we didn’t do tree cutting services as anyone would expect to be paying for such services. Harassment, coercion, any of those would have applied if it had been charged properly at the beginning. And it was sort of a case I had inherited and it was old as dirt and to go in there and try his case.

Schenk: And you made lemonade.

Richard: You go in there, you got to get in there, get your case and move and then you got to get him tried. People need justice and we couldn’t sit on this case because the older it got, the weaker it was getting because of the ability to testify from the victim of the case.

Schenk: So Richard, with regard to that in terms of how it was indicted and such, can you – most of our listeners are individuals who have loved ones in nursing homes or have loved ones that are possibly on their way to the nursing home, and maybe they suspect that somebody who was their caretaker, maybe somebody who is their cousin or their brother is either financially exploiting them or abusing them and it would be applicable under this criminal statute. Do you have an understanding as to what their steps should be? Should they call 9-1-1? Should they call the sheriff’s office? And if they do, is the sheriff’s office going to say, “This is more of a civil matter if somebody is taking somebody’s money?” Can you kind of walk us through that and give us your perspective on that?

Richard: Absolutely. If they believe that one of their loved ones in an assisted living facility or a nursing home, any situation such as that, is being either financially exploited in any way or physically abused in any way or being neglected to the point where it’s affecting the health and well-being of that person, it is potentially a crime under the two statutes applicable – 16-5-101 or 16-5-102. They should contact the local law enforcement authorities in the area where their loved one is residing in the facility. If this were somewhere where, for example, where I practiced most of my career, unincorporated Gwinnett County, you would contact the Gwinnett County Police Department. If it was, for example, in the city limits of Suwannee in Gwinnett County, Georgia, you would contact the Suwannee Police Department. Essentially if you were to call 9-1-1 from that facility, what department would respond to it? In more rural counties of Georgia, you’re going to be dealing with a lot of times a sheriff’s department. And Gwinnett obviously does have a sheriff’s department, but police handle more of the criminal investigations. The sheriff’s department in Gwinnett handles security at the jail, running the jail, courtroom security. From law enforcement aspects, they do have a drug task force, but you would contact the local law enforcement office where the facility is located to make the report. And it would be taken seriously. Most departments have people assigned to handle these cases, special victims unit detectives or sometimes if it’s a financial ward, it’ll be assigned to financial crimes detectives. But these cases are typically taken very seriously by law enforcement when there is this type of evidence that someone is being financially exploited or abused, neglected, those types of things.

Schenk: Okay, so let’s step into the shoes of that individual. She’s contacted the sheriff’s department and she has told the investigator this happened to my loved one. In terms of moving that case forward, is that when it gets, well theoretically, when you were doing this, it got to your desk? What’s the next step? Do you interview them? How does that work?

Richard: The typical way, and in the district attorney’s office, we would get a lot of calls from people sort of making reports. And the way it happens is they get referred back to where the investigation commences, which is the local police department. The local police department will investigate a crime and forward the results of their investigation when they find probable cause to charge a person or sometimes when they’re not sure if there’s probable cause to charge a person with a crime, they will then forward it onto the district attorney’s office for further review.

But essentially, it’s a local law enforcement agency that does the investigation. When they complete the investigation, they would get it forwarded onto the district attorney’s office for review. It gets assigned to an individual prosecutor on the case who then makes the decision whether to file charges by way of an indictment, which is a presentation. And I know a lot of this stuff is kind of foreign to the listeners, but I’ll try to explain it the best as I can. You file an indictment, which is basically a piece of paper that charges a person with a crime. And it gets presented to what’s called a grand jury, which is a group of citizens that hear all the serious cases and vote what’s called returning a true bill of indictment, which formally charges that person in superior court with a crime, or a no bill, which means they decline to give authorization to prosecute a case in superior court, and the case is sort of done at that point unless there’s a separate presentation made to a separate grand jury at a later date.

But the individual prosecutor has great discretion. And in most offices and the way Gwinnett County works is when one prosecutor makes a decision, they have a supervisor who then reviews that decision so there’s a second level of checks to make sure that decision is the correct decision that has been made, whether to prosecute the person or whether to decline a prosecution. But most of the time, I would say over 90 percent of the time, when the police have taken a warrant and have charged the person or arrested the person for a crime, I would say over 90 percent of the time, that case is going to end up getting prosecuted in superior court, if that makes any sense at all.

Smith: Yeah. Absolutely.

Schenk: Thank you very much for that, Richard. That was great. So let’s take it from where it hits your desk. How is the family member of the loved one who has been exploited, how are they involved in the process? In my hypothetical to you, the individual that has been exploited might have cognizant impairments and they might not be able to be a witness, so it’s the loved one that’s doing this. How are they involved in the investigation? Do you meet with them? Do you get documents? That kind of thing – how do you build your case?

Richard: Absolutely. Well typically the police officer or the police detective is going to have met with them already and obtained a statement and obtained all the documentation that they felt was necessary to take action, to take a warrant and charge a person by warrant and arrest the person. And they will also attempt to interview the loved one if that’s possible also to build their case. Then when the prosecutor gets it and makes the decision to charge the crime by indictment, and it makes its way to a trial calendar.

When you prepare for trial, you never take a case into court without preparing for trial by interviewing all of your witnesses. So the loved one that makes the report to prosecutor, you interview them in the prosecutor’s office, or it’s not uncommon to go out in the field and meet with the person at their place of work if they choose to, their home, try to be convenient for the witnesses on the state side. You meet with them and go over all of the facts of the case, all of the documents, see if there’s anything that needs to be added to the case, to be served in discovery to the other side. And you prepare your case by interviewing the loved one and then interviewing the victim as well.

An example in the tree cutting case, the prior prosecutor had been out to the victim’s house and interviewed him. He really didn’t have any family in the area. There was an individual who assisted him, a friend of his. He was interviewed as well and he was a potential witness in the case as well. That individual was interviewed, the caretaker as well as the victim in preparation of trial. The police officer that interviewed the victim was interviewed in preparation for trial.

Smith: And something we didn’t cover – what happened with the case?

Richard: It was a very strange outcome, something I’ve never seen before. Have either of you ever heard of a crime of embracery under Georgia law?

Smith: Of what?

Richard: Embracery.

Smith: No.

Richard: That is what happens when someone tries to influence a juror in their decision on the case. And essentially what happened with the case is after probably about the second day of trial – the first day was mainly jury selection, the second day was putting up evidence – the jury got sent home for the evening. And when they were walking to their vehicles in the parking lot, this particular defendant was on bond and went up to some of the jurors and said, “Do the right thing. Do the right thing, by God.” And it’s a crime of embracery with the intent to influence a person serving as a juror, communicating with them in an attempt to influence their action as a juror.

So the next morning, we’re sitting there ready for court to resume and bailiff comes in with a note that a juror wants the judge to know what happened in the parking lot, and then all the jurors had to be brought back in, questioned, and essentially a mistrial was declared in the case on the robbery charge. And I sort of saw how the evidence came forward and I was thinking from before that trial that this really should be an exploitation case, not a robbery, and I was able to get the benefit of then talking to these jurors that this defendant had committed a crime again, which is a felony crime also, that if it was exploitation that their decision would have been easier because basically they were in a split where they couldn’t decide. Some were saying not guilty, some were saying guilty.

And essentially what happened with the case then was it was represented to the grand jury charging exploitation. Another indictment was returned, charging him with embracery and it resulted in where he no longer wanted to go to trial and he did a guilty plea in the case when the charges were done properly.

And for the listeners out there, it illustrates the importance of having people who are experienced reviewing the case, as I know the lawyers at Schenk & Smith do in these cases. That’s why it’s so important to have attorneys like you guys that practice in a specific area like nursing home abuse, because with just that experience I gained in that one trial, it’s so important to start a case off right from the beginning. Any cases I ever got, whether there were charges against an elder person and that statute fit, it’s such a useful tool for a prosecutor. I would always consider that statute, and that’s the importance of experience in areas dealing with elder persons. There are unique laws that protect elder persons under Georgia law, and that was a good example of it.

Smith: Awesome, man. So where are we at, Rob?

Schenk: I think we’ve kind of covered a lot of the exploitation statute, and we’ve actually run out of time for this particular episode. Maybe Richard will come next week and we can maybe squeeze a little bit more out of that exploitation statute? I’ve got a few more questions for him that we’re not going to get to this episode. But thank you very much, Richard, for coming on the show. Trial Dog of Gwinnett County – how do people get in touch with Richard, Will?

Smith: Well they can call his office at 678-661-9585 or you can go to his website, which is www.armondlaw.com, and Armond is A-R-M-O-N-D-law.com.

Schenk: And we’ll get Jean to put that up.

Smith: We’ll get Jean to put that up. Jean is the producer.

Schenk: But again, Richard, thank you so much for being on the show. And I guess with that… Actually, sometimes I forget this, but this is an audio and video podcast. If you want to listen to the audio, you can go to Stitcher or iTunes or possibly Spotify now that it’s 2018. Who knows what happens? Always in motion is the future. Or you can watch us. We obviously prefer that you watch us. Will’s always talking about he got a new suit; he’s going to wear it to the next taping of the podcast. He’s very materialistic and into his appearance. So he would really love it if you watched the podcast.

Smith: Right.

Schenk: You can do that on our YouTube channel or on our website, which is NursingHomeAbusePodcast.com. And with that, we will see you next time.

Smith: See you next time.

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