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  • ELDER ABUSE - A PROSECUTOR’S PERSPECTIVE A training for professionals In Phoenix, Arizona March 15, 2002
  • Presented by Paul Greenwood, Deputy District Attorney, San Diego County, California
  •  
  • WARNING!
    • The views expressed by the presenter are not necessarily those of the San Diego District Attorney’s Office
  • ELDER ABUSE IS……...
    • A Crime
    • Affecting both provincial & rural areas
    • Going unpunished
    • Predictable
    • Being committed in homes where there are also other forms of abuse
  • ELDER ABUSE IS EXPLODING
    • Fastest growing age group
    • No known cure for dementia etc.
    • Victims often do not report
    • Third fastest growth job is home care
    • Minimal background checks
    • High temptation, low risk factors
  • UNDERSTANDING THE DYNAMICS
    • Fears of many seniors
    • Leads to underreporting
    • Feelings of shame
    • Concern that exposure will lead to loss of independence
    • Sometimes accompanied by threats from perpetrator
  • WHO ARE OUR VICTIMS?
    • Over age of 65
    • Born before 1936
    • Important to understand the events of their lifetime
    • Do we know their history?
    • How about a refresher?
  • LESSONS LEARNED FROM DOMESTIC VIOLENCE
    • Self -determination is not the answer
    • If not punished, the perp WILL abuse again
    • We CAN convict even without the assistance of the victim
    • Abuse is a crime against NOT JUST the abused
  • AVOID STEREOTYPING OF SENIORS
    • Forgetful
    • Senile
    • Longwinded
    • Fragile
    • Grumpy
    • Disabled
  • As a result :
    • Lack of investigation by police
    • Lack of prosecution by DA’s
    • Lack of awareness by public
  • Prior to our Elder Abuse Unit:
    • Elder Abuse statute existing for 10 years
    • Average of 2 or 3 cases a year
    • Police received no special training
    • Public unaware of reporting procedure
    • Prosecutors rejected most financial cases
  • Since our unit began in 1/96:
    • Increased awareness of public
    • Increase in referral calls to APS
    • Mandatory training for police
    • Vertical prosecutions of all Elder Abuse
    • Prosecution of over 300 felony cases
    • Increase from 1 to 5 prosecutors
  • Building awareness level [1]
    • Speaking to community groups
      • Kiwanis, Lions & Rotary
    • Arranging senior forums
      • Day time, door prizes
    • Training the police
      • Include counter & telephone staff
  • Awareness level cont’d [2]
    • Reaching first responders
      • Paramedics & Fire personnel
    • Educating the E.R. nurses & doctors
      • Reminder of mandatory reporting
    • Encourage banks to train their staff
      • Adopt Oregon method
  • Awareness level cont’d [3]
    • Use the media to communicate
      • TV, Radio talk show, newspaper articles
    • Form a multi-disciplinary team
      • F.A.S.T
  • Creating/promoting referral line:
    • Every County must have a reporting line
    • Billboards
    • Posters
    • Radio and TV PSA’s
    • # of calls WILL increase
  • Elder Abuse Prosecutions:
    • California Penal Code section 368
    • Divided between :
    • Physical / Mental abuse
      • 368[b], a felony
      • 368[c], a misdemeanor
    • Financial Abuse
      • 368[d]& [e], a felony if over $400
      • 368[d]&[e], a misd. if $400 or under
  • Physical and Mental Abuse:
    • Assaults and batteries
    • Aggravated Assaults/Attempted murder
    • Sexual assault
    • Neglect
  • Physical and mental abuse cont’d
    • Manslaughter - neglect causes death
    • Murder
    • Intimidation/Mental & Psychological Abuse
    • False Imprisonment
    • Torture
    • Robbery and extortion
  • Profile of the physical abuser:
    • Son in his late 30’s or early 40’s
    • Living at home with Mom
    • Divorced/ returns or single and unmotivated
    • Lazy and unemployed
    • Drugs, alcohol or gambling
    • Feeds habit off Mom
  • Classic neglect cases
    • Deprivation of medical attention
    • Deprivation of food
    • Lack of hygiene
    • Lack of ventilation, heat or light
    • Over-medicated
    • Under-medicated
  • The classic neglected victim
    • Malnourished
    • Semi-comatose
    • Dehydrated
    • Bed sores, rashes, lice
    • Coated with fecal matter/ urine stained
    • Inadequately clothed
    • Untrimmed toenails, matted hair
  • Signs of neglect
    • Dry lips, pallor or excessive weight loss
    • Dirty or inappropriate clothing for weather
    • Shivering or low body temperature which might indicate hypothermia
    • Lack of dentures, glasses or hearing aid
    • Signs of infrequent bathing
  • Signs of neglect cont’d
    • Physical or mental deterioration with no medical reason
    • Confinement
    • Elderly person is seen wandering dangerously
    • Lack of groceries
    • Inadequate or over medication
    • Cooking and housekeeping standards that could lead to illness or accidents
  • Decubitus ulcers
    • Pressure or bed sores
    • Break in skin and underlying tissues due to pressure or friction
    • Classified Stages 1 - 4
    • Common areas are shoulder blade, elbow, sacrum, hip, inner knee, outer ankle, heel
  • Reasons for overmedication
    • Lack of understanding - giving medication round the clock instead of as needed
    • For convenience, giving all medications at same time
    • Giving medication with alcohol or over the counter meds to increase sedative effects
  • Overmedication cont’d
    • To keep patient docile and compliant
    • To control behavior
    • To keep from wandering away
    • As an alternative to physical restraint
  • Signs of over-medication
    • Disoriented
    • Falls asleep when talking
    • Sleeps all day and up all night
    • Similar to being intoxicated
    • Slurred speech, shaky hands, trambling voice
    • Passive behavior
  • Reasons for undermedicating
    • Thinks that person should not need medication
    • Thinks that patient’s mental state is deteriorating because of medication
    • Thinks that withholding of meds might hasten patient’s death
    • Wants patient to suffer
    • Is using meds for own use
  • Common medications
    • Tranquilizers/Anti-anxiety: Valium Librium Donatal Phenobarbital Ativan Restoril Triazolzam Xanax & Lorazepam
  • Common medications
    • Pain: Vicodin Tylenol & Codeine Percocet Talwin Oxycondone Dilaudid Morphine Demoral
  • Common medications
    • Anti-depressants: Paxil Zoloft
    • Sleep medications: Halcion Luminal Nembutal Seconal & Dalmane
  • Evidence Collection
    • Photos / video of living conditions
    • Include photos of kitchen, fridge etc
    • Bed sheets and mattress
    • Diapers
    • Clothing
    • Prescription meds
  • Evidence Collection
    • Dangerous/ exposed items putting V at risk
    • Non-working call button
    • Proof of V’s disorientation - unopened mail, bills unpaid
    • Signs of alcohol/drug/gambling abuse by D
    • Any living will?
  • Key persons to contact
    • V’s family members
    • Neighbors
    • V’s doctor / dentist
    • V’s pharmacist
    • V’s pastor
    • V’s attorney
    • V’s bank / financial adviser
  • Key persons to contact cont’d
    • APS to check on prior history
    • Paramedic who first arrived on scene
    • E.R. nurse/ physician who first triages and treats victim
    • 911 dispatcher
  • Interviewing suspect
    • Length of relationship
    • Type of relationship
    • Description of duties
    • For pay or love?
    • Knowledge of V’s age & medical condition
    • Reasons for non-action
  • Interviewing victim
    • Questions to determine orientation
    • Mini-mental assessment
    • Last time you ate, bathed, visited doctor or dentist
    • What meds are you taking
    • Your relationship with suspect careprovider
  • Cross reference with financial abuse
    • Look for signs of financial exploitation
    • Documents giving control to suspect - POA - Quitclaim deed - New will - Correspondence, bank statements
    • Check book, ATM, pawn slips
  • Resources
    • Poison Center: 1-800-876-4766
    • Internet - www.safemedication.com
  • Classic elder abuse murder case
  • Financial Abuse:
    • Theft
    • Credit card fraud
    • Real Property transfers
    • Home Improvement scams
    • Telemarketing & sweepstakes scams
    • Investment fraud
  • Forms of theft
    • By larceny - a taking of property
    • By trick - consent is based on deceit or fraud
    • By embezzlement - property is entrusted to thief
    • By undue influence
  • Typical theft scenarios
    • Jewelry
    • Checks
    • ATM card
    • Credit card & identity theft
    • Transfer of title - POA & quitclaim deed
    • Bogus investment scams
    • Sweepstakes/telemarketing frauds
  • Typical theft scenarios cont’d
    • Home improvement scams
    • Excessive charging by unlicensed contractors & other merchants
    • Theft by undue influence
  • HOW TO PROVE STEALING?
    • Taking property
    • belonging to another
    • without consent &
    • with intent to permanently deprive
  • Three prosecutable scenarios
    • Classic case of theft from a competent victim
    • Theft from an incompetent victim
    • Theft from a marginally competent victim [by undue influence]
  • SCENARIO # 1
    • Victim testifies
    • Did not give permission
    • Did not owe monies to suspect
    • Victim is credible
  • SCENARIO # 2
    • Victim cannot testify
    • Medical testimony that victim suffers from dementia/ Alzheimer’s/ Parkinson's or some other illness that deprives victim of necessary understanding
    • Incapacity was present at time of transaction
  • SCENARIO # 3
    • Is it theft, a loan, or a gift?
    • Victim is marginally competent
    • Suspect exploited victim’s vulnerability
    • Victim was unduly influenced or was defrauded
  • Undue Influence
    • Victim ‘was pushed in a direction that he did not want to go.’
    • The influence by suspect was sufficient to remove the voluntariness of the transaction
    • No longer free will
    • Victim has been evaluated by a geriatric psychiatrist/psychologist
  • Significance of evaluation
    • Need to assess status of mental capacity
    • But distinguish from scenario #2
    • Opportunity for evaluator to render opinion of “susceptibility”
    • Looking for vulnerabilty factors
    • Opinion is not whether victim WAS unduly influenced - that is for jury
  • How to prove undue influence?
    • Length of relationship
    • Place of first meeting
    • Prior spending habits
    • Prior “charitability”
    • What is left?
    • Multiple escalating transactions
    • Statements by suspect
  • Statements of suspect
    • How did they affect & influence victim?
    • Can we prove that the statements were false?
    • Look for reasons why suspect chose those particular statements
    • Examples - need, emergency, opportunity, hint of a threat…...
  • Look at conduct of suspect
    • The “meeting”
    • The cultivating of a friendship
    • The outward gestures of affection
    • The “other” side - the dark character traits of greed, manipulation, control
    • Who can testify to such traits?
  • Witnesses
    • Bank teller
    • Pastor
    • Neighbor
    • Doctor, pharmacist, optometrist of V
    • Family
    • Ex- spouse of suspect
    • Business contacts of suspect
  • Evidence collection
    • Best evidence is the video interview
    • Bank, credit card statements
    • Bank surveillance tapes
    • Prior medical records
    • Look for the inappropriate purchases
    • Ask questions, questions, questions!!!
  • Be careful about …...
    • Obtaining a consent release form
    • If V has mental capacity problems, then do NOT get a release
    • Obtain through search warrant or if after case has been issued, through subpoena
  • How banks can help in the fight against financial elder abuse
    • Adopt the Oregon model [Senior & Disabled Services Division: Aileen Kaye 503-945-6399]
    • Offer to conduct the training
    • Highlight the bad examples and praise the courageous
  • How to get the most out of the bank
    • Contact the chief fraud investigator for the bank before serving the search warrant
    • Remind them that time is critical - put them on written notice
    • Where appropriate, also remind them that this crime could have been avoided
  • What happens if you discover theft after victim dies?
    • This may still be prosecutable if the case falls within scenario # 2.
    • Is there a documented medical history of V’s lack of capacity prior to death and before date of transaction?
  • What happens if victim dies after investigation begins and before prosecution finishes?
    • Do you have victim on video?
    • If scenario #2, the death should not affect the proceedings
    • Did the victim testify at a preliminary hearing?
  • Credit Card fraud:
    • Filling out unsolicited application
    • Adding perp’s name as authorized user
    • Controlling the mail
    • Paying monthly payment by telephone banking
  • Real Estate scams:
    • Deadly weapon - the POA
    • Quitclaim Deed
    • Mortgage rip offs
    • Living trust sucker - getting to the portfolio
  • Telemarketing scams:
    • Paul Bell
    • Just say No
    • Sucker lists
    • Use AARP
  • Home Improvement scams
    • Roofs, driveways, painting
    • “Just in the area”
    • Work in pairs
    • Pick-up truck
    • Want cash
    • Use inferior materials
    • Leave without trace
  • Remember that ...
    • Some cases are simply not prosecutable
    • But you will never know until you try
  • Seniors and the court process:
    • Getting them to court
    • Bringing the court to them
    • Waiting at court
    • Testifying in court
    • After court - to prevent further victimization
  • Interviewing an elderly victim
    • Venue is important
    • Build a rapport
    • Look for achievements
    • Try to identify areas of vulnerability
    • Preserve the interview on video
  • Elder Abuse case hurdles:
    • The recanting victim
    • The “consent” defense
    • The “incompetent” victim
    • The deceased victim
    • Old people die
  • Red Flags To Keep in Mind
    • Implausible/vague explanations
    • Delay in seeking care
    • Unexplained injuries - past or present
    • Inconsistent stories
    • Change in behavior
  • Clues On Physical Exam
    • Sores
    • Unkempt appearance
    • Poor hygiene
    • Malnutrition
    • Dehydration
  • Patterned Injuries
    • May help to identify object used by the perp
    • May be represented as a series of marks that all look the same
  • Categories of Documentation
    • Written history
    • Body diagram
    • Photodocumentation
    • Conclusion
  • Written History
    • Legible handwriting
    • Patient identification
    • Date and time
    • Direct quotes
    • Record interactions between patient and caregiver
    • Specifics regarding timing and mechanism, alleged perpetrator, how it happened
    • Avoid perjorative comments
  • Body Diagram
    • Characteristics of injuries
    • Specific locations
    • Size and shape
    • Color changes
    • Swelling
    • Tenderness
  • Photodocumentation
    • Use a good camera
    • Identifier (name plate)
    • Ring flash
    • Serial images
    • Images should include those from a distance, close-up and different angles
  • What Happens If You Don’t Report?
    • Most cases
      • Up to 6 months in jail
      • Fine up to $1000
      • Both jail and fine
    • Great bodily injury or death up to 1 year in jail
      • Up to $5000
      • Both jail and fine
  • Barriers To Reporting
    • Health Care Provider
      • Concerns regarding alienating family
      • Concerns regarding alienating facility personnel
      • Easy to ignore/dismiss
      • Lack of knowledge regarding how to report
      • Difficult to identify abuse
  • Seniors and the Court Process
    • Getting them to court
    • Bringing court to them
    • Waiting at court
    • Testifying in court
    • After court - to prevent further victimization
  • Assess the impact of the crime
    • Financial
    • Emotional
    • Residual
  • RESOURCES AVAILABLE
    • Internet
    • Elder Abuse Listserve run by ABA [contact is : lstiegel@staff.abanet.org]
    • AARP
    • Oregon Bank project [Dept. of Human Resources : Aileen Kaye 503-945-6399]
    • Evidence Code section 1380
  • EVIDENCE CODE S. 1380
    • Video tape ALL elder abuse victim interviews by law enforcement
    • Judge has discretion to allow if victim dies or becomes incapacitated
    • Interview has indicia of reliability
    • Other corroborative evidence
  • THE GOLDEN YEARS
  • A Message to Seniors:
    • We respect and honor you!
    • We commit to seeking justice for you
    • We prosecute with:
    • Passion
    • Purpose
    • Perseverance
  • Please feel free to contact me:
    • Paul Greenwood
    • 619-531-3464
    • [email_address]