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 Prosecuting Cases of Elder Abuse
        

                          Panel from the 2010 NIJ Conference Archival Notice
              This is an archive page that is no longer being updated. It may contain outdated information and links may no longer function as originally intended.
June 1, 2010
Your browser does not support the audio element.1 of 4: Prosecuting Cases of Elder Abuse, Andy Mao, Senior Counsel for Health Care Fraud and Elder Justice, Civil Division, U.S. Department of Justice
      Your browser does not support the audio element.2 of 4: Prosecuting Cases of Elder Abuse, Shelly Jackson, Assistant Professor, Department of Psychiatry and Neurobehavioral Sciences, University of Virginia, Charlottesville
      Your browser does not support the audio element.3 of 4: Prosecuting Cases of Elder Abuse, Lori Stiegel, Senior Attorney, Commission on Law and Aging, American Bar Association
      Your browser does not support the audio element.4 of 4: Prosecuting Cases of Elder Abuse, Page Ulrey, Senior Deputy Prosecuting Attorney, King County Prosecutor's Office, Seattle, Wash.
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Speakers
        Andy Mao, Senior Counsel for Health Care Fraud and Elder Justice, Civil Fraud Section, Civil Division, U.S. Department of Justice, Washington, D.C.;               Shelly Jackson, Assistant Professor, Department of Psychiatry and Neurobehavioral Sciences, University of Virginia, Charlottesville;               Lori Stiegel, Senior Attorney, Commission on Law and Aging, American Bar Association, Washington, D.C.;               Page Ulrey, Senior Deputy Prosecuting Attorney, King County Prosecutor's Office, Seattle
This panel will feature NIJ-funded research that has direct, practical implications for the prosecution of elder abuse cases. Panelists will present findings from a study of prosecutors in three states that examined the factors that influenced their decisions to prosecute elder financial abuse cases. The panel will also provide the results from an evaluation of five innovative court-based models that target perpetrators of elder abuse. A prosecutor from King County (located in Seattle) will discuss how these studies can assist criminal justice system professionals in pursuing cases of elder abuse.
  
  
          Transcript
**Andy Mao:** [In progress] — notwithstanding the number of elder abuse, neglect and exploitation cases around the country that occur each year, the number of elder abuse prosecutions varied widely around the country.

This esteemed panel today will be focusing on perhaps some of the reasons for that variation and some of the factors that go into elder abuse prosecutions.

To my immediate right is Dr. Shelly Jackson. Dr. Shelly Jackson is an assistant professor at the University of Virginia in the Department of Psychiatry and Neurobehavioral Sciences. She has written and authored extensively on a wide array of issues involving child abuse, domestic violence. Recently, she has focused a lot of her attention on — focused and presented on issues involving elder abuse and mistreatment as well as financial exploitation. Dr. Jackson will be focusing today on a study, an NIJ-funded study, on some of the factors that go into a prosecutor's decision on whether to prosecute an elder abuse case.

To Dr. Jackson's right is Lori Stiegel. She is the senior attorney of the American Bar Association's Commission on Law and Aging and has specialized in elder abuse since 1995. Lori was a member of the National Research Council's study panel on Risk and Prevalence of Elder Abuse and has authored and co-authored extensively on elder abuse, a number of articles including *Elder Abuse Detection and Intervention: A Collaborative Approach, Elder Abuse in the State Courts: Three Curricula for Judges and Court Staff,* as well as *The Power of Attorney Abuse: What States Can Do About It.* Lori will be focusing on some innovative court models that have tailored themselves to deal with elder abuse cases and will be focusing on that link in the elder justice chain.

Last but not least, to my far right is Page Ulrey. Page is a senior prosecuting attorney with the King County Prosecutor's Office in Seattle, Washington. She started there in 1998 and in 2001 was appointed to the newly-created position of elder abuse prosecutor in the criminal division. During her time there, she founded and chaired the King County Elder Abuse Council and the Criminal Mistreatment Review Panel. Since 2007, Page has worked as the elder abuse prosecutor in the Economic Crimes Unit and has focused on cases involving vulnerable adult financial abuse, neglect and sexual assault.

With that, I am going to turn it over to Dr. Jackson, who will start us off on her presentation.

**Shelly Jackson:** OK. Good morning. I am going to be talking about some barriers and facilitators in prosecuting elder abuse in a pilot study that we've done. I want to acknowledge my colleague, Tom Hafemeister, who's the co PI on this project. He's also my husband, and he and my kids were upstairs still sleeping when I left.

[Laughter.]

**Jackson:** And then, of course, we'd like to thank NIJ for funding the project.

Now, before I get into the prosecution part of this, I wanted to tell you about how we became interested in prosecution. We were funded a few years ago to study financial exploitation of the elderly, and what we did was we looked at financial exploitation by comparing it to other types of abuse, like physical abuse, neglect and what we call “hybrid” cases. And that's where there's financial exploitation and something else going on. And you can see by the title here that we were interested in the dynamics, the risk factors, and when we conceptualized this study, we were thinking about Adult Protective Services as society's response. Well, we were gathering our data, we were running our analyses, and we found out that 18 percent of the cases in our study were prosecuted and received a conviction for elder abuse. They might have been prosecuted on something else, but for elder abuse, it was 18 percent of the cases. But the physical abuse cases were more likely than expected to be prosecuted compared to those other four types of abuse that was going on.

We also learned at that time that our caseworkers were finding it very difficult to get prosecutors to help them out in those cases. So almost three-fourths of our caseworkers said, “You know, if I go to law enforcement, they're less likely to help me in a financial exploitation case than a physical abuse or a neglect kind of case.” But then just in general, they were extremely frustrated with how prosecutors were responding to their cases. And so we engaged them in a conversation about why that might be, and you would hear things like, “Well, the elder actually told her son that she could — her son that he could write checks out of her checkbook,” or you've got power of attorney issues.

Elders make poor witnesses. If it is not $100,000 or more, prosecutors aren't going to take the case. And these are things that you would hear in the literature as well when you do a review of the literature; they're really reflected there as well. And that got us to thinking about what's going on here, and it seemed to us that the caseworkers have this perception and belief; they really believe that prosecutors aren't going to take their cases. So that leads them to think, “Well, why bother? I'm not going to send it over to the prosecutor anyway,” and this was particularly true in financial exploitation because what was happening with those kinds of cases is if there's physical abuse and financial exploitation, they might pursue physical abuse thinking, “Oh, prosecutors might take that, but I'm going to drop the financial part because nobody's going to do anything about that anyway.”

And then this is really anecdotal, but then we would go to conferences, and I would hear prosecutors say, “You know, elder abuse isn't a problem in my jurisdiction. Nobody ever sends me those kinds of cases,” and then we're thinking wait a minute, what's going on here, there is some kind of miscommunication between these players. And that led us to go back and think we were initially thinking about society's response in terms of Adult Protective Services, but we said, “Wow! What prosecutors are doing is directly influencing what our caseworkers are doing, what they're willing to pursue,” and so we went back to NIJ and asked whether we could expand our study a little bit to try and start figuring out what prosecutors are thinking when elder abuse cases come their way.

And so we've done a pilot study looking at some barriers and facilitators, and that's what I'll present the rest of the presentation on.

OK. So this is a pilot study, and we had interviews with prosecutors in four states, Virginia, California, Illinois and Pennsylvania, and I'll tell you why those states were chosen. But we had 17 prosecutors, and as I said, this is a pilot study. They had 13 years of experience on average, so, in general, they had some experience in prosecuting. Almost half of them had a hundred or more cases, which I can't even imagine what that's like, but maybe you can speak to that.

And almost three-fourths of them were not what you call a dedicated — I'm not sure exactly what the term is, but elder abuse is not the only thing they do. So, in almost three-fourths of the cases, they had 25 percent or less of their caseload was elder abuse.

OK. And then we created an interview instrument based on a review of the literature, some of the things we talked about before, but many, many other things, demographics and experience and then these facilitators and barriers to prosecution.

Now, we had five UVA law graduates. These were, I will confess, students of my husband's whose jobs were either deferred — this was during the economic downturn. People weren't walking out into great jobs. Their jobs were either deferred or they didn't have job, but they were going back to their states, to California, Illinois, Pennsylvania, and that's why we had those states. I mean, it was a convenient sample for sure.

So, once they would initially get the prosecutor in the office to agree to an interview, then we just used a snowball technique, “Is there somebody else that you know that we can interview about this?” And, on average, the interviews were 40 minutes. We tried to get them shorter, but we couldn't. There was a lot to talk about.

OK. So these are some of our results, and the first thing we wanted to know is whether it mattered to prosecutors if the case came from Adult Protective Services, whether the referral came from law enforcement or didn't matter, and in two-thirds of the cases, it didn't matter, but where there was a preference, it was for law enforcement, and that, of course has to do with evidence. They're generally seen as better at collecting evidence, and this is kind of the theme that we're going to hear throughout this, it depends on the evidence, and I think Page is going to speak to that as well.

OK. And then we asked them is elder abuse more difficult, the same, or easier to prosecute than other kinds of crimes? And I think it's 56 percent said that it is more difficult. And when we were talking to our caseworkers, over half of them thought that these were difficult cases to prosecute.

And then we got into why that might be. So we're going to look at a number of factors that might influence why these are harder, and one of the things we were interested in is whether the organizational climate of the office, the agency that the prosecutor worked in, whether they take these cases seriously, and 94 percent of them do take them seriously. A third, a quarter of them thought that the prosecutors in their office were even more willing to take an elder abuse case than other kinds of crime, and that they were more likely to receive a conviction in about a third of those cases. And that had to do with things like sympathy for the elder.

And then almost half of them perceived, anyway, that they were rewarded for taking elder abuse cases. And Pennsylvania was significantly more likely to feel that way, and Virginia was significantly less likely to feel rewarded for taking elder abuse cases.

OK. And then we were interested in prosecutor training, and 41 percent of our prosecutors received less training in elder abuse compared to other kinds of trainings that they might receive, so training might be an issue.

And then we have another, a range of issues that we asked them about, and we just put them all on one slide here. So you often hear elders make bad witnesses, and you can see 93 percent of our prosecutors felt like elders make poor witnesses; the elder is unavailable to be a witness. There is weak evidence in these cases. Perpetrators acted within their rights, and that is often what you'll hear with power of attorney, right? There's nothing. She signed it. He can do what he wants to with it, “he said/she said” kinds of cases.

So, over half of the prosecutors thought that these were real issues that they have to deal with. Less so, though, were uncooperative third parties, it's not perceived as a crime, the prosecutor is unqualified, or there's insufficient resources in the office. And we saw before that the offices that we talked to, anyway, generally take these cases seriously.

And then we asked about a range of victim characteristics as well, whether these would increase the willingness to prosecute a case. So, willing to testify, significant harm was done to the elder. The elder has the ability to testify. They press charges or the elder made the complaint or the elder is not deceased, and what do most of those have to do with, except for the harm, they really have to do with victim cooperation. And I think that's what prosecutors are seeing when they think about are they willing to press charges, are they willing to testify, that that signals to prosecutors whether the elder is going to be a cooperative witness. Now, less influential is whether the perpetrator is a stranger or a close relative.

And then some personal characteristics of the victim had to do with things like mental health, whether the victim is living — we just saw that — whether they're articulate, good cognitive status, their physical health. These were a little less endorsed than the previous group of characteristics, but still there is a third to a half that consider these important factors as well.

What we did find, though, is social network, education, age and gender were not endorsed by prosecutors, but you can kind of see that those would be things like sexism, ageism, classism, and so you would probably not expect those to be endorsed, I think, but probably related to some of those other characteristics, I would guess.

OK. We also asked them an open-ended question, whether there were any perpetrator characteristics that might be influential in deciding whether to take these cases, and generally, they said no. And here, again, it depends on the evidence.

One person said family members are less likely to be prosecuted, and another said nonfamily members are more likely to be prosecuted. And, in our study, we definitely found that relatives were less likely to be prosecuted, which is not surprising.

OK. We were also interested in law enforcement because very often the case comes to prosecutors through law enforcement, and all of our prosecutors thought that law enforcement take elder abuse cases seriously.

And, in Virginia, we heard some variations on that, and so that's why we decided to ask that question. But the prosecutors in our study thought they take elder abuse cases seriously and that they receive good evidence from prosecutors. And almost three-fourths of them, of the prosecutors, said that APS is involved in their cases, and when they are involved, 85 percent said that they receive really helpful assistance from Adult Protective Services, that they like Adult Protective Services being involved in their cases. And part of that has to do with kind of, you know, figuratively speaking, but holding the elder's hand through the criminal justice process, that they have much greater skill in doing that than some others.

OK. So we also asked them, though, are there any ways that law enforcement and APS might improve what they're doing, and, of course, they had some suggestions, such as collaboration, and this is one of my big themes. I've been in the world of child advocacy centers for over a decade, and I'm very fond of the multidisciplinary approach. And I'm going to come back to that at the end. I think it's one of the keys.

I thought it was really interesting, though, that they thought that law enforcement and APS should be more proactive, given that because the APS at least perceives they don't take those cases, they don't bring them to the prosecutors, document everything. And then also they thought law enforcement needed some training in interviewing individuals with cognitive deficits, and we heard from our caseworkers that law enforcement is very impatient when they interview elders. They like everything in a nice, neat package, and it takes elders a little longer to kind of get the story out, and they get frustrated and leave.

And then the limits of power of attorney authority, and I think this really has to do with Virginia. Virginia just passed a uniform power of attorney. Lori wrote that great, great, great article — or monograph? Anyway, on power of attorney, and so Virginia just passed that. It goes into effect July 1. So that will be less of an issue for us, but it's going to take a lot of training because we heard from our caseworkers that power of attorney cases, law enforcement doesn't do anything with those. So it's going to take some education to get them thinking in that direction.

We were also interested in whether we needed statutory reform or whether those statutes were working fine, and 81 percent thought that their statutes were helpful to them. Virginia, however, was significantly less likely to find their statutes helpful, and I think that has to do with their financial exploitation, lack of statute.

OK. We also wondered if there were some legal constraints that prosecutors were working within, and, of course, there are. There's the confrontation clause, and with our elders who become incapacitated for various reasons from cognitive deficits to death, confrontation clause becomes a big issue and also a lack of hearsay exception, so if we can't get the elder up on the stand, are there any ways that we can get information from other people into the courtroom. So those are two pretty huge barriers.

Power of attorney laws, I just mentioned, and narrow neglect statutes, and we're going to look at neglect in a minute specifically, and those seem to be really tough cases.

OK. And we have identified a few court reforms, and we were interested in whether prosecutors thought these were helpful, expedited trials, enhanced penalties for the perpetrators, of course, priority on the docket and accommodation for elders. And those were generally, over 60 percent, over two-thirds thought that those were really useful reforms. But you can see the expedited trials, priority on the docket, that's getting the elder in there as fast as we can, so that we can make sure we get them up, get the case in the courtroom.

And then, in terms of investigation and prosecution reforms, we've got some things going on there. Multidisciplinary teams were endorsed by, I think it was, 88 percent of the prosecutors. As I said, I'm a big fan of the specially trained prosecutors, equally powerful, specialists in the office, in the prosecutor's office, to aid investigation, the availability of social service agencies, these forensic centers — have you all heard of elder forensic centers? — which is another kind of multidisciplinary approach, and vertical prosecution.

But what you can see, I think what a lot of those reforms have to do with, is getting elder cooperation, victim cooperation, right? If you've got vertical prosecution, you've got the same person kind of bonding with the elder and helping them through the system. So I think that's what is at the base of a lot of these reforms, is trying to get our elders.

What I thought was interesting is no-drop policies and mandatory arrests were not nearly as endorsed, but I will tell you, in our study, with the physical abuse cases that were prosecuted, it's not that our elders wanted those cases prosecuted. They didn't, none of them — seventy-five percent of our elders didn't want prosecutors involved at all — and particularly the physical abuse, but what happened is they're in this brawl with their perpetrator, and they call law enforcement and they come out, and the elder says, “No, I'm sorry. I don't really want to do this,” but law enforcement says, “You either press charges or we will, but we're not dropping it.” And those are the cases that ended up the most likely to be prosecuted. It's because there was law enforcement involvement. I know we can argue the merits of whether that's a good thing or bad thing, but that's the explanation for why these cases were prosecuted.

OK. And then we asked them open-ended questions about prosecutor — about other kinds of reforms, and I think this is reflective of what we've just been talking about, that we need some hearsay exceptions in those cases where elders become incapacitated or die. And this one, I'm hoping Page or Lori can speak to a little bit more, but the appointment of a defense attorney and then cross-examine the elder before the defendant's been identified and before the elder dies, but you still can't cross-examine that.

**Page Ulrey:** Well, individual defendant is entitled to a right to confront the witnesses against him. It's not just a generic right.

**Jackson:** Yeah. Yeah. So it didn't seem like that would work, but, OK, good.

And then several people identified public education — that we need to get our elders educated about elder abuse and make them proactive in their own safety.

And then some statutory reforms, power of attorney laws, that was probably Virginia attorneys or prosecutors; widen the category of neglect and financial exploitation and harsher penalties.

OK. Now, if we do look at whether prosecutors think these types of elder abuse are harder or easier or the same to prosecute, 73 percent said neglect are harder to prosecute than other kinds of crimes, 56 percent thought financial exploitation were harder to prosecute than other kinds of crimes, and 43 percent thought physical abuse were harder, but you can see for physical abuse, actually, about half of them also thought that they were easier to prosecute.

So the neglect which we just heard somebody saying that those are really difficult cases to prosecute is reflected here as well. But, as I mentioned in the beginning, we were very interested in financial exploitation, and so what we did is we tried to dig a little deeper into financial exploitation.

Oh, I forgot. This slide just shows that Virginia was more likely than the other states to find financial exploitation very difficult to prosecute, and, again, that's because they don't have any kind of statute that allows them to pursue those kinds of cases.

OK. Now, we also heard from our caseworkers that prosecutors are unlikely to take their cases unless it involves a lot of money, but the prosecutors in our study said there's really no minimum amount required. It depends on the evidence, of course. But 20 percent of the prosecutors felt weaker to pursue a financial exploitation case, and this is what I was thinking earlier. Our caseworkers also thought that financial exploitation cases were harder for them to investigate as well. There's some different kinds of issues involved with financial exploitation.

And I also mentioned what we call “hybrid cases” or co-occurring financial exploitation and something else. Our caseworkers thought that about 50 percent of the cases that they get involved co-occurring financial exploitation and some other kind of abuse, but it looks like for the prosecutors that happens in less than 25 percent of the cases that at least make it to their office.

Half of them said that really doesn't matter if there's more than one thing going on, but there were a third of them who thought that it was more willing, and I think that that suggests that they were more willing to take those kinds of cases because there's a lot going on in those kinds of families, and we found with our hybrid cases that they were the most intractable cases. They involved family members. The abuse has gone on for decades, and it's really hard to get out of those kinds of cases, get out of that situation.

OK. And then some factors in deciding whether to pursue financial exploitation. Some of that had to do with the amount of evidence, but, generally, we heard that there's a lack of documentation, a lack of corroboration, and a lack of victim participation, that they're less likely to get involved in these kinds of cases. But one prosecutor kind of summed up what everybody else was saying, which is, “I have to prove the elements of the crime to the degree required by law,” and that's what it comes down to, and that the evidence in financial exploitation cases tends to be weaker.

OK. What are the goals in pursuing financial exploitation? We want to hold perpetrators accountable. We want to make sure that they don't harm others. We want to restore the victim's loss, and we want to make sure — we want to send a message to society that this is not OK to do, so deter other people from committing these kinds of crimes and then provide a sense of justice. So you can see that over two-thirds of the — I think if we did this again, we'd kind of try to rank-order this a little bit because, obviously, these are good goals.

Now, back to restoring the elder's loss, though, we heard from our prosecutors that they always ask for restitution, and in 75 percent of those cases, the elder is awarded some restitution, but, indeed, less than 25 percent — I mean, the elders received less than 25 percent of what they'd been awarded, suggesting that if you were going to be financially exploited, it is very unlikely that you are going to get anything back. And that was true in our study as well. Eighty-four percent of the elders in our study got nothing, and that's not restitution. That is just of the money they lost; 84 percent received nothing back.

OK. So, my conclusions, I have five minutes, and I'm good.

So over half of our prosecutors thought that elder abuse is harder to prosecute, that it comes down to evidence. And one of the things that we're really interested in is victim cooperation and how to get victims to cooperate, and I know there's a number of pieces of evidence that you can use, but victim cooperation seems to be a stumbling block in a lot of cases.

So some of the barriers have to do with elder characteristics, prosecutor training, the legal constraints that we mentioned, and that neglect and financial exploitation seem to be particularly difficult to prosecute, but there were facilitators, elder characteristics again. They can either be a barrier or a facilitator, depending on how they come out, but APS and law enforcement involvement seems to be helpful and useful. Most state statutes are working well, and that the reforms that have been instituted — and I know Lori has written a number of articles on reforms, and that's certainly where we got a lot of these, but that they've been helpful. They are perceived by prosecutors as being useful.

OK. So, I end with this idea about a multidisciplinary response, because what we are interested in is trying to figure out how we can increase victim cooperation. And we certainly saw, as I mentioned, our elders, 75 percent of them didn't want prosecutors involved in their case at all, and one of the things that a multidisciplinary response can do is kind of help that process along, I think help the elder along. So you've got Adult Protective Services who knows how to talk to elders. They come in with a social service kind of agenda, “I'm here to help you.” Law enforcement goes in and they get the evidence that they need, and the prosecutor says, “I need this from you. I need this from you,” and I've seen this work in child advocacy centers, and I just really love the idea of using this model with elders. And I know I've been out to California to their elder forensic centers, and I've watched how the multidisciplinary approach works in those cases. It's phenomenal, and we would love to do some more research on multidisciplinary response to elder abuse.

OK. I think that's it.

**Lori Stiegel:** Good morning. I want to thank NIJ for funding our project and for asking me to be here today to talk about it, and thank all of you for coming and expressing your interest in this subject.

Our project entails an assessment of five court-focused elder abuse initiatives. We called them that because they're all a little bit different. One is actually a court. The other four are connected to in or just very closely connected to and involved with courts. So we just had to make up our own term to describe them, and I will tell you more about them in a while.

So, first, just to give you an overview of what I'll do in my time today is talk about our goal, how we did our project, and then for some context as well as to give you the measures that we used to assess the five projects, I'll talk about barriers to pursuit of legal remedies and guidelines for the state courts, and some of it will be what we just heard Shelly talking about, too. I'll describe the five court-focused initiatives and our findings from them and then just talk real quickly about next steps.

So, our goal, this is the long statement of the goal. Our goal was really to look at what these five projects are doing. Because there is no baseline data about any of them, and we're not doing an evaluation, but we're really looking at their processes, their structure, to some extent their outcomes, and really trying to make some assessment of whether these are good projects that should be replicated in other communities and other states.

Those of you who've been involved in the elder abuse field a lot know that because of the lack of research in the field, people come up with what they think are good ideas and often are good ideas, but then everybody is like, “Oh, we have to go do this,” and there is never any research to determine whether that's really a good idea and whether they are making a difference. So we were, to the extent that we were able to, trying to do that.

My colleague, Pam Teaster, from the University of Kentucky, was our subcontractor and co-PI on this project. She's the researcher; I'm the lawyer, so we made a good team. We had a great multidisciplinary advisory committee, and Page is actually one of the members of that advisory committee.

We used the court-recommended guidelines that Shelly talked about and that I'll talk more about a bit and some other guidelines that were created after our early project as the standards for assessing the five projects, and we've looked at an enormous amount of qualitative and less enormous amount of quantitative data for this project.

For each of the five initiatives, we identified a key informant that was usually the founder or the manager of the program. We then did a very in-depth survey with those people to get background and a lot more information than we had when we wrote the proposal about the project, how it was working, who was involved with it, and then used them to snowball and identify stakeholders in the five communities, so that we would know who to interview when we went and made our five site visits.

So we interviewed 92 stakeholders across those five sites visits. We talked to the chief judge in each community. We talked to other judges who were involved with the project. We talked to court managers, court staff, court clerks, all kinds of court people. We talked to Adult Protective Services. We talked to law enforcement if they were involved with the project. We talked to the prosecutors. We talked to public defenders. We talked to lawyers in private practice. We talked to all kinds of folks at all of those sites.

We talked to three victims as well. We certainly had hoped to talk to more, but even managing to talk to those three was quite a challenge, unfortunately.

We also reviewed court case files, and we reviewed 73 files across the five projects. And we were looking for a variety of things in doing that, and I'll talk more about that later.

I can't tell jokes, but I like cartoons. So, in starting to talk about barriers to going to court, I thought this one nicely illustrates. If you can't read it, it says, “It's bad enough being cheated out of my life savings, but what I really hate is having to get it back in small claims court.”

Older people don't like to go to court. They're very afraid of it, and younger people are, too, but I think older people are more so. Back in the mid '90s, when we did the project that developed the recommendations for state courts handling elder abuse cases, we did a research project. This was funded by the State Justice Institute, which is a quasi governmental agency that provides research and technical assistance to the state courts. And we looked at experts all across the country, including prosecutors, to the extent that there were elder abuse prosecutors in the early '90s, civil lawyers, APS, and all kinds of other folks, judges and other folks, and asked them, “Are elder abuse cases going into court? If not, why not, and what can we do to help get those cases that should be in court into court?”

So lots of barriers to the pursuit of legal remedies were identified. Now, these are the system ones. I think we often talk about the more personal ones, and Shelly talked somewhat about the more personal ones of just that fear of going to court, the embarrassment that, you know, your life savings were so small that you have to go to small claims court to get it back, but that's all the money that person had. The reluctance to get your abusers in trouble, particularly when they are your family members, the fear that intervention will result in you having a guardian appointed or ending up in a nursing home, all those are the personal barriers about going to court or reporting to APS or some other authority. These, again, are the more systemic barriers about the pursuit of legal remedies.

First, victims often just don't know what's available out there, and they don't understand what's available. So we often hear about victims who don't want their abuser prosecuted because they don't want him to go to jail, and they don't understand that judges have many other remedies besides jail that they might want, such as substance abuse or mental health treatment.

The lack of legal services — and this particularly related to civil legal services, but the lack of a lawyer to help you try to get your money back, if it's your money that has been taken, or to get a protection order to keep physical abuse from happening.

Victim difficulty just getting to court, victim difficulty sitting in court.

How many of you have ever been to court? So you know it's a zoo, right? A circus is often an apt description for it, and they have a cattle call, and, you know, lots and lots of people show up for hearings. And you have to get there at 8 or 8:30 in the morning, sort of like today, and then you can sit there for hours before your case is called. And if you are an old person who is frail or you have a medication schedule that you have to keep on or you have to eat at certain times in the day, that sort of environment can be extraordinarily difficult, if not impossible, for you to do.

I remember a case that I handled as a legal services lawyer at the beginning of my career where our client bailed, basically. We went to court, we sat there for a while, and he couldn't take it anymore and he left. And he just didn't pursue his rights because of that.

Victim fear of, ignorance of court proceedings, like I said, older people just tend to really be terrified by this process. And I think particularly when we have people in minority cultures who, whether here in the United States or in countries if they came here from other countries, had very different experiences with the court system and with legal authority maybe than white people have had here, there may be enhanced reluctance and fear of the court system.

Professionals' lack of knowledge — and that's what we heard Shelly talk about and what Page is going to focus on, I think in her comments, but certainly early in the '90s, I think this was a bigger problem than it is even now of prosecutors not have training on elder abuse. Judges didn't have training. Lawyers certainly didn't have training. This isn't stuff you learned in law school back then. You don't learn it very much in law school now, 15, 18 years later.

Where I'll probably focus my comments here is on the disparate impact of court practices. Courts like to think, and they say all the time — and we heard it during our experiences — that they treat everybody the same, and I think they really believe that they do, but the reality whether they really do or not, the reality is that treating older people the same has a disparate, more onerous impact on them than on younger people for the reasons that I just talked about. If you are reliant on public transportation and particularly on transportation for disabled people to get to court, it may literally be impossible for you to get there at 8 or 8:30 for the cattle call. I talked about the difficulty of sitting there for hours. All those things then mean that court just doesn't work for you the same way it does for a person who has a car and the ability to sit on the hard benches in the courtroom for hours at a time.

As a result of finding those things during our study in the early '90s, we developed a set of 29 recommendations for state courts handling cases involving elder abuse. These that are up here represent about half of those. I focused on pulling out the ones that were most relevant to what I was going to talk about today, and these sort of consolidate the 15.

Clearly, in our first recommendations back then were that judges, court staff, and other professionals, including prosecutors, law enforcement, lawyers, and even APS needed to have more training about elder abuse and how the court system, the judicial system needed to respond to it.

Expediting cases. So, here in 2010, Shelly is coming up with some of the same recommendations that we came up with in the early to mid '90s, but, of course, with older people who are more likely to die in the first place and maybe as a result of their abuse or exploitation or neglect, even more likely to die, expediting cases is an important issue for them.

Accommodating persons with disabilities. Some of the ways I have talked about already represented several of the recommendations. Providing emotional support and assistance, helping people get to court, explaining how it works, trying to make them less fearful to overcome that reluctance to pursue their legal remedies, to cooperate with law enforcement or prosecutors, those were several of our recommendations.

Referrals to community services. Very often, older people who have long-standing abuse problems or other problems, too, going on end up in court and have never gone to any other social services program or anything else in the community for help, and it's the court that then ends up trying to refer them to appropriate helping agencies. Well, the courts need to know more about those agencies, then, in order to do that, and that was that recommendation.

Enhancing intra-court communication and coordination. I remember very distinctly Judge Kirkendall, who was then a probate judge in Ann Arbor, Michigan, said — and probate judges, he handled guardianship cases. Most probate judges do but not all. He said, “I can be in probate court deciding whether to appoint son as guardian for mom, and I have no idea that down the hall in the criminal courtroom, son is being prosecuted for having abused, neglected or exploited mom.” And I am going to talk about why that's still a problem 17 years later.

We also recommended that the courts could provide leadership in the community about elder abuse. Much was being done and is still being done with domestic violence and with child abuse. We thought they could and should do the same thing with elder abuse. So that again gives you the context of what the problems are, what recommendations we suggested to help solve those problems, and those were the standards that we then used, as I said, to assess the five projects.

So let me tell you quickly about the five projects. One is an actual court. It's the Elder Protection Court in Alameda County, California, which is Oakland, right across from San Francisco. And it was started by a Judge Julie Conger, who was a criminal trial judge at the time, had been for a long time and had been handling their domestic violence protection order docket as part of her role. And at about the same time that this got started, California expanded its protection order law, so that it became easier for older people to get protection orders against their abusers. Sometimes protection order laws don't really include elder abuse situations very well. They may cover partner or spouse but not cover if it's your kid and your grandkid who's beating you. So California broadened its law, which meant the court was starting to see more of these cases.

So she, out of concern that they were seeing more of these cases and because of the problems that I talked about earlier, decided to work with the court to create a special docket for elder abuse cases. And the way this works is that on Friday mornings, the Elder Protection Court is held. Friday is normally not a trial day in Alameda County, and court starts later than usual, so that deals with the problem there that I talked about. Many fewer people, it's much less of a cattle call than typical court, and it's a much calmer, quieter, softer, gentler process. We sat there, and it was really very interesting how it worked and how respectful it was of older people in that they were a little slow.

The Prosecutor's Office in Alameda County is very, very strong on elder abuse — had a dedicated elder abuse unit before the court was started with several prosecutors — and, interestingly, the Public Defender's Office ended up playing a key role, which we did not expect to find in this situation, and I'll talk a little bit more about it later.

The Elder Justice Centers are both in Florida, and that's about their only similarity there is their name and that they're both in Florida. One is in Hillsborough County, which is Tampa, actually where I used to practice; the other is in Palm Beach County, West Palm Beach.

The Hillsborough County project wanted to become an elder abuse court, and the Florida Supreme Court said no when that idea was developed. And that was sort of early on in the development of specialty courts, and they just didn't want to do that. So, instead, the Elder Justice Center there became a resource center as well as provided victim advocacy services and now is doing much more on guardianship monitoring as well, and I'll talk a little more about findings after I give the description of all of them.

Palm Beach County sort of misled us about what they do, I think. It turns out that they are — they help criminal defendants, and they help them by actually — they help the court in recognizing whether older criminal defendants may have Alzheimer's or some other dementia or some other problem that really means that they are best suited to be dealt with outside of the criminal justice process.

They had told us that some of those criminal defendants were elder abuse victims who maybe were now shoplifting because they had been exploited and needed to steal, for example, in order to live. You know, I think in reality, it turned out that they weren't helping elder abuse victims very much, and I'll talk again more about why not, where they're going, maybe how they are hoping to change that in the future.

The Elder Protection Order Projects are more similar than the Elder Justice Centers are to each other. One is in Jefferson County, Kentucky, which is Louisville. The other's in Kings County, New York, which is Brooklyn. Interestingly, they both started at about the same time. Neither one of them knew about each other until we found out and started — about them and started our project.

What they do is help homebound older people who need a protection order apply for and obtain their protection order from the court without going to court. So they do it telephonically, and both of them have a process whereby law enforcement and a service provider — it might be Adult Protective Services or somebody else — go out to the person's house and do the paperwork and then hook up with the court by telephone and the judge hears the application, the petition for the protection order, makes a decision whether to grant it or not, and then if it is granted, the service providers and law enforcement help serve the defendant, the respondent, the person who now needs to stay away from the older person, and then helps protect them in that way.

OK. Let me give you a sense of findings. I'm going to, for the most part, glom all of them together in this part, and then I'll go a little more specific about each of them and focus on how they relate to prosecution.

So what we sort of need to do here, though, is take out the West Palm, the Palm Beach Elder Justice Center, out of the picture because, as I said, it's really not helping victims very much. OK?

But, for the most part, the other four projects did help enhance access to justice for elder abuse victims. The victims received emotional support. They received help in getting to court. They received accompaniment in court. They received referrals to other services as needed. They received, often, protection from law enforcement. They helped them get accommodations in court. So, if it was necessary to have an interpreter or to try and schedule the hearing at a certain time because of a medication schedule or something, they helped in doing that. I told you they helped them get to court by arranging transportation, sometimes driving them themselves, I think, even though they probably shouldn't be doing that.

In general, the four projects felt that more elder abuse cases were heard as a result of the project. Certainly, with the Protection Order Projects, those cases would never have gone to court in the first place because the victims simply could not get to court to obtain the paperwork to do the protection order and then to present their case to the judge. In the other cases in the Elder Protection Court, it's just an environment that's more conducive to older people getting to court, to feeling comfortable being there, and to the prosecution and the public defenders being involved with these cases. Everybody felt, even if more cases weren't coming to their specific project, that cases were heard more quickly, more efficiently. They were expedited on the calendar and just handled much more effectively as a result of the project.

They also felt that, a sort of ripple effect — and there were many ripple effects of the projects — that the judges and not just the judge who might be handling the specific cases but the other judges in the courthouse, too, were made more knowledgeable about and more sensitive to elder abuse as a result of the project being there. They felt that service providers learned more about elder abuse and about the court and about the court's role, and because of these projects, that politicians were made more sensitive; the media was made more sensitive as a result, too.

All of the projects helped link older victims to other services in the community, which was very important, as I talked about before, and, again, enhanced public and professional awareness, far beyond the immediate players in the court projects and initiatives but beyond that as well.

So let me focus a little bit — how am I on time? — on prosecution a little more closely. The Elder Protection Court, as I said, in general, enhanced knowledge and sensitivity. Everybody felt — and again, it was the Prosecutor's Office, it was the Public Defender's Office, it was the investigators who worked with the Prosecutor's Office and others — that having that sort of central focus for elder abuse in the court really enhanced everybody's gain. It made them understand each other's roles better. It made them understand the approach and had a consistent approach because they were dealing with one judge rather than with multiple judges, and the judges had — even the prosecution and the public defender both had some concerns about the judge and about being before one judge.

And interestingly, Judge Conger had formerly been a public defender. So the Prosecutor's Office was a little worried that maybe she would be too lenient on abusers, and the Public Defender's Office was a little concerned that maybe, again, just having one judge and having — you know, the Prosecutor's Office is usually always stronger. It's better funded than the Public Defender's Office. So they had that concern as well, but I think they all felt fairly comfortable with it.

They all, by working together so closely, consistently and often, developed trust in each other. They realized that they all had a shared goal of pursuing justice, and that was really important because it enabled everybody, as they put it, to sort of look outside the box and trying to come up with remedies that best helped the older person, not just the system.

The environment was conducive to elder abuse prosecution there. As I told you, the Prosecutor's Office had a long standing, multi-person unit on elder abuse prosecution.

The Public Defender's Office role was critical because they had to basically consolidate — Alameda is a big county with multiple courthouses — they had to consolidate all the elder abuse cases into the main Prosecutor's Office in Oakland, which basically put all the workload on one person, who was already overextended, and so, if the Public Defender's Office had not been willing to play, this whole system never would have worked. The court would never have been able to take off, which was quite interesting. We did not expect that finding.

In terms of the Elder Justice Center in Hillsborough County, where it relates to prosecution is by helping to prevent guardianship abuse. Their main focus now is on guardianship monitoring. That has come about due to budget cuts and because they think that that is what will make the program indispensable to the court and will keep it from being destroyed as a result of the current fiscal situation. So, by doing that monitoring, they are preventing abuse and they are detecting abuse that's going on. Interestingly, law enforcement was not really involved in that project, and we did not interview anybody in law enforcement or the Prosecutor's Office there, but there's the tangential key from that project.

I told you about the Elder Justice Center in Palm Beach, which is really much more focused on diverting older criminal defendants with dementia or other problems out of the justice system. So they're not helping victims directly, but maybe because they're doing that, they're making it easier for victims to report, to go to law enforcement. Back to what I said earlier about you don't want your abuser to go to jail, you want your abuser to get the treatment that he or she may need, that helps there. And the prosecutor felt more comfortable about these cases and the outcome of these cases because he knew that the Elder Justice Center folks would do some follow-up and some monitoring, and so they felt like this was the right system.

The Elder Protection Projects, of course, helped prevent further crimes by the abuser in this case, and because the violations of the protection orders are crimes, there may be more prosecutions of those cases as a result. And it also helps to develop evidence that can be used by the prosecutor in these cases.

Intra-court coordination, I mentioned was still a problem, 17 years after Judge Kirkendall in Ann Arbor mentioned it. I had sort of hoped that with the advent of computers that these things would be less of a problem, but, apparently, they're not. It still is a problem. The courts still aren't communicating with each other.

Now, a lot of judges will say, “Well, that's because we're not supposed to know what happens in other cases. We can't consider that in making our decisions,” and that's valid to some extent, but I think to some extent, it may also be an excuse. Judges were telling us that unified courts do help with that problem, but just having a court-focused initiative or having computers isn't helping with that problem.

Providing leadership in the community is still an issue. In Alameda County, Judge Conger started, and the judge who has replaced her now that she has retired, was continuing the Elder Access Committee, which the court sponsored quarterly, held at the court, brought everybody together to come to talk with each other, to share, to talk about issues, problems with the court, as well as problems systemically in the community related to elder abuse.

I think we still see judges very reluctant to take a leadership role on these issues. Some of that is for ethical reasons. Judges, of course, have to be careful about not taking sides, but I think also there, too, that can often be an excuse, that they just don't know about this issue still, they don't care about this issue still, and aren't willing to forge ahead in a leadership role, as has been done with domestic violence and child abuse. So those are things that hopefully will change.

In terms of the court-filed data, I will just say that we found very little. What was in the court files was about as basic as it gets in terms of demographic information about the victim, maybe about the perpetrator. Often information about the perpetrator was in a probation record or in a sealed court file, a health or mental health file that the judges gave us authority to look at, but, of course, what that means is that it's very difficult to do research and evaluation on these issues and that has policy and funding implications, of course.

I'll wrap up just telling you we are in the process of wrapping up and writing our report. We'll do some articles as well. The project ends on December 31, and we have — information will be on our website once we can put stuff up on this project, and there's lots of other elder abuse information up on our Web page, too.

Thank you.

**Page Ulrey:** Good morning. I'm Page Ulrey from the King County Prosecutor's Office, and I'm going to just talk a little bit about how these studies relate to my experience as an elder abuse prosecutor.

I work for a prosecuting unit that is now comprised of two people and a half time paralegal. We prosecute cases of adult neglect, sexual assault, financial exploitation and homicide. We also are mandated by our elected to do trainings of first responders, the theory being that if we don't train people about how to respond to these cases, they're not going to come into our office.

And we also work on the coordinating community response to elder abuse, that theory being that if we don't work on working with APS and working with geriatricians and others in the field who are dealing directly with elders, we're not going to be handling these cases properly.

So that's just a little bit of background, and I want to spend a few minutes taking you inside the Prosecutor's Office, because that will give some context to some of the things that Shelly was told by the prosecutors she interviewed. And I think before I do that, it's important to remember that very few of the people she talked to were specialized elder abuse prosecutors, and even of the ones that were, I can bet you that they had very little training on elder abuse prosecution since there hardly is any.

So, usually, in most prosecutors' offices, there are no specialized elder abuse prosecutors, and a prosecutor who's handling one or two elder abuse cases on top of their other 98 cases is not going to be having an easy time of it. They're not likely to even know what a multidisciplinary team is. They're not likely to have ever heard of Adult Protective Services. They're not likely to have connections with the elder abuse detectives in their jurisdictions, if there are any.

And other cases that are murder cases or bank robberies or kidnappings that are kind of higher visibility in the office are inevitably going to take precedence, and they're also not going to have the knowledge to handle those cases effectively.

Elder abuse is not sexy in the prosecutor's world. The cases are considered to be onerous. The victims, as Shelly articulated, are considered to be difficult and high maintenance, and the cases do not have cachet in a typical prosecutor's office, and that affects how they get handled.

And it's true that they're difficult. These are big cases. The trials take longer. They're more complicated. They involve issues like capacity and dementia and powers of attorney and guardianships and things that, as Lori said, none of us get taught in law school.

And, also, elder abuse prosecution is more expensive. In almost every case I've tried, we've needed an expert witness, and that can be thousands and thousands of dollars, which is tough on a budget that is limited.

Also, a lot of prosecutors' offices really emphasize convictions over justice, and convictions aren't always the best thing for our victims. So, if we handle a case and it turns out that if we dismiss the case and arrange for different care for our victim, and treatment and offenders in treatment, that could actually be a better outcome for our victim than sending the defendant off to prison for the rest of his life.

But the way we tend to operate as prosecutors is going to trial is valued, getting a conviction is valued, and the longer the prison term, the better, with very little regard for what's best for our victims. So that is also a thing that I think complicates how we're handling these cases, especially when we're not specialized.

We also are not really trained to be empathetic with elders and elder victims in particular. A lot of prosecutors will insist on their coming in to testify, even if it means damaging their relationship with the offender who may be the last person they have left in their lives.

Again, failing to consider the needs of the victim in negotiating a case, so as Lori was talking about, what the victim wants more than anything is for her son, the abuser, to get alcohol treatment. That is not consistent typically with how a prosecutor is going to handle a case. That's not going to trump the esteem they get from their colleagues for sending that defendant off to prison.

We also just automatically request no-contact orders in our cases. There's no services or resources for supervised visitation, so she can see her son. There's no thought, even, that maybe a blanket no-contact order is actually going to do more harm to her than good. And, again — and I think this is also consistent with what people told Shelly — there is a perception of elder abuse as a family matter, as not being criminal, the same way we used to think of domestic violence decades ago.

We have little or no training on abuse of power of attorney cases. We don't know what undue influence is. We have no idea how to handle an adult neglect case. When we get one of those cases, we get a stack of medical records and maybe a description of a crime scene, and for most prosecutors handling that, they have absolutely no idea how to proceed and they assume they can't. So the statute's too narrow or they don't have enough evidence or there's some other explanation that they come up with, but it may actually be a lack of training.

We aren't taught about competency and capacity, especially with regard to elders. We don't know how to present massive bank records, which we have to do in almost every financial exploitation case we handle. We don't know how to present medical records to a jury. What do you do with that stack of records when you're trying to convey the symptoms and signs of neglect someone had, how do you present that evidence, it's just not something any of us are taught in law school or in any subsequent training that we get. We're not taught about the need to make accommodations for victims with physical disabilities or victims with dementia.

And *Crawford,* which also came up in Shelly's talk, is a case that basically says that elder hearsay, in other words statements that elders make to law enforcement in an interview context, are not admissible at trial unless that elder is available to testify at trial. This is a case that came out of my lovely state, and that pretty much eradicated all of the state's elder hearsay statutes that existed. So where beforehand, officers could interview victims and do videotapes and those videotapes could be offered against the defendant at trial, even if the victim had died or was no longer able to remember what had happened, after *Crawford v. Washington,* all of those hearsay statutes became unconstitutional. So those videotapes no longer are admissible, but there are ways around that. There are other hearsay exceptions that many victim statements still apply to, but a lot of prosecutors think about *Crawford* and they say, “Oh, we can't get in any victim statements. We can't even try if we don't have a victim. No victim, no case,” and that really is, again, a training issue.

We're also used to working in a silo, we as non-elder abuse prosecutors. Again, I'm familiar with APS. We're not used to staffing cases with a multidisciplinary team, if we even know what that is. We're not used to working on the coordinated community response to a problem. All of those things are foreign to how we're raised in a prosecutor's office.

So these are the different explanations that Shelly was given about why elder abuse is harder to prosecute, and I just want to break down each one of those and talk about it briefly.

Elders don't make good witnesses. Prosecutors, like other people, often assume that if you're older, you lack credibility; that if you're older or you suffer from dementia and that even if you have dementia, that means automatically that you can't testify at trial.

We typically lack training as to what dementia is, as to the fact that a victim actually, even with dementia, may still be able to testify, depending on what time of day it is, what kind of medications they're on, how their other underlying health conditions are doing.

They are unfamiliar with the UCI study that came out recently — and Aileen Wiglesworth is here with us, who worked on that study — regarding the impact of dementia on the ability to remember traumatic events, and Aileen's study actually says that even with dementia, there is evidence that you have a better recall of traumatic events than non-traumatic events. So, with studies like that, we may actually be able to put on testimony of a victim who has dementia, even if they're unable to recall other parts of their history or their lives.

We also lack training and knowledge of the fact that if consent is the defense and there's a dementia issue, we need to get a psychological or psychiatric evaluation of the victim. We don't just write off the case.

The statement that the prosecutors made to Shelly that victims are unavailable, therefore elder abuse is harder, and certainly that's true, but I also want to give some background as to why that's true. Elder abuse, as you all probably know well, is lethal to many of our victims. Mark Lachs found that elders are 300 percent more likely to die a premature death, no matter what kind of abuse they've suffered.

Still, we can prosecute cases without victims. In most of the trials that I have, we don't have a victim. The victim has either died or has lost their memory of what happened, but you have medical records and you have financial records. We have evaluations that should be conducted immediately in an investigation by a geriatric psychologist or psychiatrist where dementia is an issue with your victim.

We have hearsay statements that the victim made to other people. If a victim makes any statements to medical personnel about what happened to them, that's admissible in court. If the victim made excited statements to law enforcement or to a 911 operator, that's still admissible in court, even with *Crawford.* So a lot of the way we look at cases now is we go through all the different victim statements and we say which ones of these still fall within hearsay exceptions and can be admitted, despite the fact that *Crawford*exists.

And on the financial records point, I think people also told Shelly that financial cases are very difficult to prosecute, and I actually think they're the easiest type of elder abuse to prosecute because we have bank records, and the bank records tell a beautiful story of what happened to that victim's assets before and after the perpetrator got into their life. They also show what happened to the perpetrator's assets. So, typically, we will put on evidence of the perpetrator having nothing and then moving into the victim's life and suddenly buy new cars and new houses and spending money like crazy. Meanwhile, at the same time, the victim, who had a lot of money, their assets very quickly go down to nothing, and at the point when they hit nothing, the perpetrator leaves their life, typically. So that kind of evidence, even without a victim, can be very compelling for a jury.

Obviously, you have issues if the victim consented to that transaction, but if you have evidence — or to those transactions, but if you have evidence from family members saying that the victim isolated them from — or the perpetrator isolated them from the victim, that the perpetrator was emotionally abusive to the victim, that the victim never spent their money the way they're spending the money once the perpetrator is in their life, all of those things can come in as evidence in trial and can be used successfully, but, again, it's a training issue.

The next statement, weak or lack of evidence, this is purely subjective. It's claimed. Sometimes it's true, but it's also claimed when a case is difficult, particularly when you have a caseload where you have one or two elder abuse cases and a bunch of other, much easier, much more compelling cases.

It's also claimed when you don't have the training to really understand how to prosecute a case, like the one on your desk, and it's also claimed when you don't have the resources to properly try a case, when you don't have funds for expert witnesses to help prove your case, when you don't have funds for an expert to help you look at your medical evidence or your financial evidence and explain how a case like that can be proved.

The statement by the prosecutors that the perpetrator acted within their rights, that scares me. I think it rings of, well, abuse, in some way, frankly. Consent is the most common defense that we see in elder abuse cases. We see it in sexual assault cases and neglect and financial exploitation cases, and, typically, our perpetrators claim that what they did was within their right, that the victim consented, that this was what they were entitled to do.

But we have to look beyond that simple consent that's alleged. We have to look at whether or not a new influence was used to obtain that consent; in other words, whether the perpetrator took over the victim's free will and forced that consent. We have to look at whether the victim had capacity to consent, was their dementia so severe that they really couldn't adequately know what it was they were consenting to and give permission to it.

Abuse of power of attorney. Again, perpetrators who steal money under a power of attorney document typically claim it was within their right, but the reality is that a power of attorney creates a fiduciary duty to the elder. When you have a power of attorney, you are not allowed under the law of — I'm guessing all states, Lori. Is that true? — to spend that money for your own benefit. It must be spent for the benefit of the elder.

There usually is some kind of gifting provision in the power of attorney document, but it typically creates a very clear limitation on what you can give to yourself. So we can prosecute these cases. We prosecute them as thefts, theft by embezzlement, the same way we prosecute accounting abuse cases or bookkeeper financial abuse cases. We don't need a special power of attorney statute, even though they're wonderful. So this is, again, a common misconception amongst law enforcement and amongst prosecutors and one that has explained tremendously why we aren't handling these power of attorney abuse cases properly. Again, it's a training issue.

“He said/she said,” that was, I think, the last explanation that they gave Shelly about why these cases are so hard. Inherent in most elder abuse cases is a lack of witnesses. These are almost always “he said/she said,” if the “she” is still alive. But the reality is that a key indicator of elder abuse is the loneliness or isolation of the victim. So, almost always, we only have one witness to our crimes, and that is the victim, again, if she is still alive. So these are always “he said/she said” cases. The way we have to prove these cases is circumstantially. We need to look at the records that we have. Like I said before, we need to look at what the family members say, the friends who had a relationship with the victim before the incident occurred; the medical records, the geriatric psychiatrist or psychological evaluation of the victim. All of those things are how we build our cases, even if we don't have any witnesses to the crime.

We don't look at child abuse and write it off saying it's a “he said/she said” case and we can't prosecute. We don't look at domestic violence anymore and say that.

So the question for us is not whether there are witnesses, but is there sufficient corroborating evidence to prove the case beyond a reasonable doubt, and if there isn't, we should be able to articulate why, what evidence on what element is not sufficient, and why is it we can't prove that evidence through the surrounding circumstances and the corroboration that we have.

I'm not saying these aren't hard cases and we don't decline a lot of these cases. We do, but they're not impossible simply because we don't have any witnesses.

I want to move a little bit more to Lori's topic about the specialized courts, and I think it just ties in beautifully to the need for specialized prosecutors. What a typical elder abuse victim has to go through if their case is ever prosecuted is, first, they have to give a statement to law enforcement about whatever horrible thing happened to them.

If it's a sexual assault case, they have to undergo a rape exam. Then they usually have to meet with a prosecutor and give a statement. Then they have to submit to a typically ugly interview with the defense attorney. Then they get to wait for months or years for their case to go to trial, if it doesn't plead guilty, and then at trial, they get to tell their story of having been exploited by the person they love to 12 plus strangers. Then they get to be cross-examined again by the defense attorney. Then they get to wait for sentencing, which usually takes weeks or months after the trial if there's a conviction. Then they get to wait for the appeal, which usually takes another several years before it's done, and if that is successful for the defendant, they could have to go through a retrial, all of this when they're probably in their 70s, 80s, 90s, and are having to deal with having been abused by someone they loved.

The non-specialized courts that are typical in our jurisdictions, as with non-specialized prosecutors, end up losing the value of these elder abuse cases in the crush of the rest of the calendar. We end up being frustrated by the delays that are caused by the special needs of elder victims. We don't have understanding of dementia and how to accommodate victims with dementia. We typically don't have victim advocates who have specialized knowledge about how to handle disabilities and dementia and what services are available to elder victims.

The prosecutors that Shelly talked to had really great things to say about what needs to happen to reform courts, and I just wanted to put them up here again because I think they fit in beautifully with what Lori talked about as far as what the courts around the country are beginning to do.

Expedited trials, enhanced penalties, priority on dockets and courtroom accommodations for elders.
    
  
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              Opinions or points of view expressed in these recordings represent those of the speakers and do not necessarily represent the official position or policies of the U.S. Department of Justice. Any commercial products and manufacturers discussed in these recordings are presented for informational purposes only and do not constitute product approval or endorsement by the U.S. Department of Justice.
  
Date Published: June 1, 2010
    
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