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May, 2004

County Gives "Green-Light" To Elder Swindles
Judge Admits Errors-Orders New Trial
By Jim Scanlon

Over the past two years, Marin County officials have spent thousands, if not hundreds of thousands, of dollars in legal fees and court costs defending and protecting a county employee, a social worker, who befriended one of her clients, an elderly widow suffering from memory loss, and seemingly persuaded the widow to change her will so as to leave her Kentfield home to her, the Social Worker.

This in stark contrast to the dismissal on five minutes notice, a few years ago, of a county employee with 28 years of exemplary service, whose only mistake was to complain publicly about political pressure exerted on his department. The county spent the better part of a year and hundreds of thousands of dollars in attorney's fees attacking the man's character in endless personnel hearings before abruptly settling the case.

An elderly widow, Lillian Abernathy, came to the attention of Marin County's Adult Protective Services (APS) in 1993 when her step son, Thomas Abernathy, and his wife called from Minnesota asking the police to check on the old woman as she was not answering telephone calls. A Deputy Sheriff found her, and her Kentfield home, in serious disorder. Thomas' wife and daughter traveled to Marin, cleaned up the home, made purchases of needed items and returned to the midwest leaving the widow in the care of Adult Protective Services Social Worker Winifred Lau Casino who kept the case open until July 1996 when it was closed. (The reader is referred to Terri Alvillar's article, "County Fails to Protect Frail Elderly", Coastal Post March 2002)

Although the widow's case was closed with APS, Casino maintained unofficial contact, so much so, that social workers with Marin Support Services for the Elderly (MSSE), also involved in helping the widow, were not aware that the APS case was officially closed. Over the years, the widow's family in the Midwest was not made aware that APS had referred their relative to MSSE, that there were health problems that had required surgery, and that a series of new wills were made changing their beneficiary status.

The original will dating to 1976 left everything to Thomas' children, that is her deceased husband's grandchildren. This will was superseded by a new one dated December 6, 1997, executed by an MSSE's attorney leaving fractions of the estate to Thomas, other relatives, friends, religious and nonprofit organizations, with the largest share, 20% going to MSSE. MSSE also negotiated the sale of a portion of the widow's property which had apparently been in dispute because of encroachment by a neighbor to that neighbor for $5,000.

The third will dated July 14, 1999, executed by a different attorney divides the proceeds from the estate into one-seventh shares, to essentially the same people, with Winnie Lau Casino now included with an equal share.

In making the forth will, dated April 3, 2001, the widow was assisted by a friend of Casino, James Stewart (Casino later married Stewart) who transported her to a lawyer's office on two occasions. This will left $30,600.00 to friends, relatives (including Thomas) and MSSE, with the rest, the widow's home, going to Winifred Lau.

When questioned by various interested, involved persons, at different times, the widow could not accurately recollect the nature of the transactions with the three different Marin county lawyers, but did mention to different people, "Winnie wants my whole house," "Winnie wants my house," "Winnie really likes my house," and "Winnie wanted my house for free."

Guardianship

Although MS Casino had no official status with regard to the widow, she reportedly resisted suggestions from MSSE staff that guardianship proceedings be initiated, nevertheless because of the widow's deteriorating memory, MSSE finally did file and shortly thereafter Thomas Abernathy also filed for guardianship.

The guardianship case was heard by Probate Court Commissioner Mary Grove who appointed an attorney to represent and look after the widow's welfare --- and to investigate and produce a report. Commissioner Grove agreed with the recommendations of the investigating attorney and appointed Thomas Abernathy as his step mother's guardian under conditions which allowed him to take her to his family home in Minnesota.

Abernathy told the Coastal Post that he and his wife were apprehensive about the Guardianship hearings and that he was, at first, frightened by the solemnity of the Commissioner. He was also concerned that MSSE and Adult Protective Services "were against us." "However", he said, "After judge Grove found out about the new wills, everything changed, and we got to take Lillian home"

But there was more to come. Abernathy said he filed a lawsuit against the County and Winnie Casino because " We didn't want this to happen to others."

The Trial

Abernathy obtained the services of Barbara Jagiello, an attorney who played an important part in exposing a criminal conspiracy in Riverside County by a court appointed professional conservator (guardian), who exploited and defrauded sick and elderly Wards of the Court of millions of dollars in assets, not to mention diminishing the quality of their lives. The professional guardian and her attorney both received long prison sentences.

Jagiello was also instrumental in exposing a Superior Court Judge who had systematically looted the estates of elderly and infirm people under his supervision. (See Coastal Post, "Prison Sentences in Elder Swindles"). John Mounier Jr. an attorney for "The Elder Rights Law Group" also assisted.

The civil trial before judge Lynn O'Malley Taylor, lasted from early December 2003 until mid February 2004, 19 court days for 12 jurors and 2 alternates, taking two months out of their lives. One juror said he felt it was an important case and that all the attorneys were highly competent but he was disappointed and discouraged that there was no notice of the case in the press and that the spectators section was mostly empty.

As the trial ended, the judges instructions to the jury, according to one juror, were that they should ONLY consider the intentional infliction of emotional distress! Not theft. That was all. The juror said there was much discussion of intent, by a highly intelligent group of people. There was also some discussion as to why no criminal charges were considered, but since that issue had never been mentioned in the courtroom, it was assumed that there could not have been enough evidence for a criminal charge.

The jury's verdict was 10 jurors voted "yes" that Winifred Lau Casino's behavior was "outrageous" and 2 voted "no." On the question as to whether her behavior showed a reckless disregard for the widow, 3 voted "yes" and 9 voted "no." In other word in "Abernathy vs. County of Marin & Winnie Lau Casino," the county and MS Casino prevailed. Abernathy would have to pay court costs.

But -- the jury, through its foreman, asked to make a special statement and permission was granted. The jury's statement was that it had found Casino's behavior "outrageous and unethical and there should be consequences." "Consequences" is a word that when uttered by adults usually means "unpleasant consequences" or more plainly "punishment." Since "punishment" was definitely not something available in a situation where the person presumed to be punished had just been exonerated, there was no "closure" at least from the jury's point of view.

After a long an exhausting trial, the narrow scope which the jury was instructed to consider seems absurd thus making the verdict absurd.

The Reversal

The jury went home obviously frustrated. But its final statement seems to have had a powerful effect. As a matter of routine the losing side can petition the trial court for a new trial before appealing to a higher court --- which Abernathy's attorneys did --- and to their surprise, they got it!

In a justice system in which addressing judicial error is impossible, or takes years, if not decades of toil and effort, it is highly unusual to come across an instance where a judge, not only admits to making several substantial errors in the trial, but also, in effect, reverses the judgment and grants a new trial. Declaring her own trial a mistrial has to be the judicial equivalent of the crash of a jumbo jet, so the judge's decision had to have been very difficult and painful for her ---- but necessary!

But unusual as that might be, it was even more unusual to hear on April 1, the emotional presentation of the Assistant Marin County Council Dorothy Jones, who tried the case. Jones spoke, in a quavering voice, against every point where the judge said she (the judge) erred, saying,. "How can you say you 'erred' when you didn't? You were right"!

Jones said she was greatly distressed by the judge's criticism of her for blatantly mischaracterizing cases. She said that in 30 years of practice she had never been so astonished and so greatly disappointed. She called the tentative ruling (the ruling granting a new trial) "grievously flawed and "riddled with errors" (that is the "errors" were the admissions of having made "errors") Jagiello and J. Mounier said very little, evidently satisfied with the strange reversal.

The County and MS Casino have sixty days to appeal the decision to grant a new trial, the time period expiring July 1, 2004. Baring an appeal, the new trial will start in August or September. Lillian is reportedly getting along well in the Abernathy home on a large lake in Minnesota. She seems to be getting use to the long drives to and from Marin. She couldn't fly because the airlines demanded a picture ID and the family was unable to obtain one from their local police. (Another family affected in a significant, but relatively small way by 9/11/01)

Red Light, Green Light.

It is hard to understand why Marin County officials did not report Casino's inappropriate close friendship with a mentally incapacitated person, her client, to the District Attorney's Office, or the Sheriff's Office. It is also hard to understand the County's not settling the case, taking it to trial, defending Casino and paying her legal expenses. Obviously the county needs to defend itself from costly law suits, but it is also important that policies be adopted that PREVENT situations that result in costly law suits.

The county seems to have sent a dangerous message to county employees who might otherwise not become enmeshed, in one way or another, in the personal lives of their clients. Anyone who has had the slightest contact with county Social Workers knows they are hard working, caring, sensitive people. Their morale has to have been affected by this trial and the prospects of a new trial.

Other Conflicts

This past February it was announced by the District Attorney's Office that it had formed, " a special team to combat physical abuse and financial fraud against the elderly". The District Attorney is quoted: "Seniors are targets for scams, fraud and abuse because they are often isolated and vulnerable."

The Rapid Response Team will include members of the District Attorney's Office, Adult Protective Service (APS) and law enforcement. Looking at the Abernathy case, can one reasonably trust that Adult Protective Service staff will not use the trust that abused and frail elderly people place in them to become beneficiaries in new wills? Marin's County Council's Office obviously thinks this is acceptable. Should the District Attorney's Office and local law enforcement organizations take a close look at what kind of county policies and personnel they will be working with?

It was sad and disturbing, in reviewing the Abernathy court file at Civic Center to learn that Dr. Mark Kamena, a psychologist, the District Attorney's husband testified as a paid, expert witness supporting the county's position in the Abernathy case (cost $4,750). This may be perfectly legal, but it does not look good and is another indication that county officials up to and including the Supervisors do not think enough about what it is they are doing.

 

 

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