Will Tom Girardi ever face a sentencing judge?

The multi-jurisdictional federal indictments against Tom Girardi, the disbarred personal injury attorney, make powerful accusations of theft from clients' trust funds. The charges carry long potential terms of imprisonment. If, however, Defendant Girardi is found not competent to stand trial, then will he ever face a jury and the risk of a long-term imprisonment from a sentencing judge?

The media has reported that Mr. Girardi suffers from dementia and has been living in an assisted care facility for several years. And that he is under a conservatorship, that was granted after a judge reviewed evidence as to his mental health. On the other hand, there are also reports that Mr. Girardi participated in an online video presentation for lawyers a month before the cognitive problems were alleged, and that he engaged in possible settlement negotiations with the Chicago law firm before that firm notified the court of the suspected client trust funds thefts.

While our law firm regularly handles cases with clients that have significant mental health issues, in state and federal courts, it is very rare to have someone facing criminal charges to have such a severe issue, as to be found not competent to assist his counsel and face trial on the charges. Currently we have one case, in state court, with an incompetent client. It is unclear whether she will ever be restored. Fortunately, she has remained out of custody, and is receiving treatment from numerous mental health professionals while being cared for at home by her family.

So, will the Girardi case be that rare situation with an incompetent defendant? The mental competence dispute will ultimately have to be resolved in federal court before the criminal case is adjudicated. In federal criminal procedure, mental competency to stand trial is governed by 18 U.S.C. § 4241, et seq. At any time after the commencement of the case, either the defendant, the prosecutor, or the court on its own motion may move for a hearing if there is reasonable cause to believe that the defendant is suffering from mental disease or defect which renders him or her unable to understand the nature and consequences of the proceedings or to properly assist in his or her defense. Once the motion is made, it triggers a sequence of additional procedures.

First, under Section 4241(b), the court may order a psychological examination and report. Section 4247(b) requires that the examination be conducted by a licensed or certified psychiatrist or psychologist or, if the court deems it appropriate, by more than one examiner. The court may remand the defendant to custody for a period not exceeding 30 days to a suitable facility where the examination is to be conducted. The director of such a facility can apply for an additional 15-day extension if necessary.

Under Section 4247(c), the evaluation report filed with the court must address the defendant's psychological history, present symptoms, a description of the testing conducted, the examiner's findings, and the examiner's opinions on diagnosis and prognosis. This last factor must include an opinion as to whether the defendant understands the proceedings and can assist in his or her defense, which is the key standard for competency.

At the eventual competency hearing, the defendant has a right to counsel which includes a right to appointed counsel if he or she is indigent. 18 U.S.C. § 4247(d). The defendant has a right to testify, to call witnesses, and to cross-examine witnesses. In these respects, the competency hearing is like an evidentiary hearing or bench trial. If after the hearing the court finds by a preponderance that the defendant is incompetent, it must order him or her into the custody of the Attorney General, who must hospitalize the defendant in an appropriate facility. 18 U.S.C. § 4241(d).

The period of hospitalization is to be for a reasonable time, but no longer than four months, necessary to determine whether there is a substantial probability that in the foreseeable future the defendant will be restored to competency. The court can also order the defendant hospitalized for an additional reasonable period if it finds that the defendant will regain competency within that additional period.

When the defendant cannot be restored to competency within any reasonably foreseeable period, the defendant will continue to be hospitalized pursuant to the provisions of 18 U.S.C. § 4246, including potential conditional release to community supervision. The defendant can potentially be hospitalized for determination of competency up to the statutory maximum period of incarceration for the underlying charge, but longer than that only upon a finding that his release would pose an imminent danger to himself or others, i.e., through an involuntary civil commitment. Once a defendant is restored to competency, a new trial date is set, and the fact of the prior competency determination is inadmissible as evidence. 18 U.S.C. § 4241(e),(f).

In sum, before a criminal jury trial for Mr. Girardi begins, his defense team will likely raise the issue of mental competence. Evidence of his psychological status will be presented by both the prosecution and defense. Importantly, throughout the lengthy court proceedings, his defense team will advocate for his release and continued treatment at his current assisted care facility, rather than receiving it from a federal detention center. It is unclear if Mr. Girardi will ever face a sentencing judge for his alleged criminal misconduct.