In DeKalb County, Georgia, the Atlanta Journal Constitution
reports on how the county district attorney's white collar crime unit head Jeanne Canavan
deals with the problem of the inability of elder exploitation victims(1)
to testify (ie. due to death or infirmity) at the criminal trial of the alleged perpetrator:
- Once a defendant is indicted, Canavan moves quickly to secure the elderly victims’ testimony out of concern they may be unable to testify by the time the case goes to trial. She takes a novel approach, filing court motions that cite a 2004 U.S. Supreme Court precedent(2) that requires pre-trial testimony to be admitted only if the witness had previously been subject to cross-examination.
- Canavan obtains a judge’s approval for a hastily called hearing, where the victim testifies before a prosecutor, the defendant and the defense attorney, who is allowed to cross examine the witness. The testimony, if needed, can be used later at trial.
- Canavan said she will not forget her first elderly exploitation case in 2004 involving 89-year-old widower Leonard Stewart. Stewart was dining alone at a DeKalb restaurant when he was approached by Nicholas Marks. Marks befriended the elderly man, falsely identifying himself as a lawyer. Over time, Marks got Stewart to sign over possession of his car and his home. He also charged more than $22,000 on Stewart’s credit cards.
- By the time of trial, Leonard was dead. But because he testified at a pre-trial bond hearing —- during which he was subject to cross-examination — Leonard’s testimony was admitted into evidence. Marks was convicted and sentenced to five years in prison.
For the story, see Elderly victims find help to fight fraud (Many targeted by very people claiming to care. DeKalb creates task force to combat rise in crime against seniors).
Go here, here, here, here, here, and here for other posts on elder financial abuse.
(1) Canavan commented: “We are seeing elderly victims with their life savings wiped out, their homes taken away. They take everything they have. We’ve seen this happen over and over and over.”
(2) See Crawford v. Washington, 541 U.S. 36; 124 S. Ct. 1354; 158 L. Ed. 2d 177 (2004). In addressing a criminal defendant's federal constitutional right to be confronted with the witnesses against him, the court stated:
- According to our description of that right in Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), it does not bar admission of an unavailable witness's statement against a criminal defendant if the statement bears "adequate 'indicia of reliability.'" Id., at 66, 65 L. Ed. 2d 597, 100 S. Ct. 2531. To meet that test, evidence must either fall within a "firmly rooted hearsay exception" or bear "particularized guarantees of trustworthiness." Ibid. FinancialAbuseOfElderlyAlpha