In San Mateo, California, The Daily Journal
- County prosecutors issued an arrest warrant last week for a man accused of bilking an 89-year-old Pacifica woman out of nearly $600,000. Fetuu Tupoufutuna faces up to nine charges in the elder abuse case including elder fraud by a caretaker, forgery and a great taking allegation among others, San Mateo County Deputy District Attorney Melissa McKowan said yesterday. The victim, Pauline Reade, faced foreclosure on the Pacifica home she has lived in since 1951 after Tupoufutuna allegedly tricked the woman into signing loan documents to the tune of $312,000.
- With Reade’s advanced age, Tupoufutuna must avoid arrest or a trial before the woman dies.(1) If Reade were to die before the suspect is brought to court, charges would have to be dropped. “The defendant has a right to cross-examine his accuser,” McKowan said.(2) McKowan deals with elder fraud cases regularly with entire nest eggs or home equity being devastated in many instances.(3)
For the story, see Charges filed in elder abuse case.
(1) Reportedly, Tupoufutuna has allegedly fled the country, thought to be in either New Zealand or Australia, according to Deputy District Attorney McKowan.
(2) A June 14, 2009 story in the Atlanta Journal Constitution (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)) reports on how one DeKalb County, Georgia prosecutor deals with the problem of the inability of elder exploitation victims to testify (ie. due to death, mental incapacity, infirmity, etc.) at the criminal trial of the alleged perpetrator:
- Once a defendant is indicted, [prosecutor Jeanne] 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 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 2004 Supreme Court precedent referred to above, 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 confront 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.
(3) Reportedly, Reade hired Tupoufutuna in 2006 to do some repair work to her home. Work on the home extended for months in which time the victim and suspect developed a close fiduciary relationship, according to court documents filed with San Mateo County Superior Court. Reade eventually named Tupoufutuna her executor and sole beneficiary in her will, the story states. “Tupoufutuna was aware of Pauline Reade’s significant health problems, lack of sophistication regarding real estate matters and her vulnerability given her advanced age, and given that she had no close relatives or contacts who would look after her. Defendant Tupoufutuna abused the trust Reade placed in him, and by fraud, undue influence and forgery gained control of Pauline Reade’s financial affairs,” according to court documents.