Wednesday, December 26, 2007

Close Legal Loopholes on Persuasion

THEFT OF ELDER NATION Elder financial abuse has become a hidden national epidemic

THE JURY DIDN'T BUY Ronald Brock's defense: That a 76-year-old-San Mateo man who had mental problems all of his life had voluntarily given his former legal adviser $661,000. We don't buy it either.

Brock flew Norman Roussey to New York to be evaluated by a psychiatrist - who happened to be his sister. She wrote a letter stating that Roussey had the mental capacity to change his will and leave everything to her brother.

He took a hypnotist to Roussey's house to perform "relaxation techniques" on the senior - prior to having him sign the new will, a will that Roussey later didn't even remember signing.

Roussey's self-professed close friend also convinced him to take out a mortgage on his late mother's house and give him $175,000 of the money. When Brock failed to make the mortgage payments like he'd promised, the bank foreclosed. Roussey lost his mother's house and wound up living in an apartment.

The jury looked at all that damning evidence and convicted Brock of elder abuse. A judge sentenced him to five years in prison. He also was ordered to repay the money.

But then, last October, the First District Court of Appeal in San Francisco threw out the conviction. Why? Because Superior Court Judge Joseph Bergeron had instructed the jurors that they could convict Brock if they believed he had taken advantage of Roussey's weakness of mind.

Under California law, intentionally exploiting the mental vulnerabilities of someone to steal their money or property - the legal term is using "undue influence-" isn't against the law.
That's right. So, the appellate court tossed out Brock's conviction. It ruled that Bergeron's instructions allowed a conviction for conduct that was "little more than overpersuasion."

The justices in effect followed the letter of the law. Undue influence is not listed as a crime under California's penal code.

Yet how can an elder consent to a financial transaction if he doesn't have the mental capacity to understand the implications? Most reasonable people - like those on the Brock jury - would say that he can't.

Consider this: Brock had met Roussey in the early '90s. At the time, he was a paralegal for attorney Hubert Forsyth whose firm was representing Roussey in a nasty fight with his brother over his mother's estate.

Roussey's mother died in 1991. He had lived with her his whole life because of mental problems. Roussey had never been able to hold down a job.

After his mother's death, he was worth $1 million and all alone for the first time in his life. Brock befriended him. The two men took trips to Hawaii. Then, once Roussey became dependent on him, Brock began asking for money.

"Asking" is a nice way of putting it.

When Roussey refused to sign checks over to Brock, Brock pursued him throughout the house until he relented. Brock told the senior that if he didn't give him the money, he would have to get a job and wouldn't be able to be his friend anymore.

Brock continued to pressure Roussey for money. He knew Roussey could not resist because of his dependency on Brock and his mental impairments.

Roussey's money bought Brock a Jeep and a Cadillac. That apparently wasn't enough. He successfully pressured Roussey to cancel an annuity that he had bought for his niece.

Many defense lawyers - and even some prosecutors - will argue that undue influence is a vague concept.

We strongly disagree.

It is a deliberate set of manipulative behaviors over a period of time that essentially brainwashes a weaker-willed person into doing things that are not in his or her best interest. Not unlike what happens in a cult.

Elder abusers seek out and "groom" vulnerable seniors. They target the lonely, the grief-stricken, the physically or mentally ill. They use deceitful tactics to loot their assets - all the while keeping victims in the dark about what is really going on.

The appellate court ruled that Brock's conduct was nothing more than "overpersuasion." However, we believe Brock crossed a line that went far, far beyond aggressive salesmanship.

San Mateo Deputy District Attorney Melissa McKowan who prosecuted Brock believes it's time that the Legislature changed the theft laws to help protect elderly victims of financial abuse. She is lobbying for a bill that would make undue influence a crime.

McKowan had convinced the jury to convict Brock on the grounds that he had knowingly taken advantage of Brock's mental impairments.

Many had hoped that McKowan's novel use of "undue influence" in a criminal case (it is already part of civil statute) would break ground for prosecutions of elder abusers across the state.

The victory was short-lived, though Brock did serve his full prison sentence before the appellate court reversal.

His attorney said Brock was guilty of nothing more than "aggressive panhandling," and that we can't create a crime to fit every behavior that we don't like.

Even some prosecutors are reluctant to tinker with the current theft laws. Yet we believe that using undue influence to commit a crime should itself be a crime.

It's time that the Legislature amended the penal code to make undue influence as prosecutable kind of theft.

The California District Attorneys Association is working on plans to introduce such a law.

Any law would first have to establish a clear definition for undue influence. It would also have to determine what kind of medical evidence would be required to establish that an alleged victim was susceptible to it, and establish what other conditions must be met.

We use such a process to determine if an accused defendant is mentally incompetent to stand trial. So why can't we do it to determine if an elder was incompetent when he gave consent?

If what Brock did to Roussey wasn't against the law, it certainly should be. There are far too many elderly Californians like Roussey who are being "overpersuaded" out of their life savings.

It's time to close the legal loophole that makes it so easy for elder predators to go scot free.

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