Law Offices of M. Gabriela Guraiib

Tom Girardi to Stand Trial for Embezzlement


After being evaluated by an expert government psychologist, ex-attorney Tom Girardi has been found competent to stand trial for embezzling millions from clients. Girardi is known for owning the Los Angeles law firm Girardi Keese and marrying his now-estranged wife Erika Jayne, star of “Real Housewives of Beverly Hills.”

The former Los Angeles lawyer was disbarred in 2022 after being diagnosed with Alzheimer’s. However, he was indicted in February of 2023 for five counts of embezzlement by wire fraud in California. He also faces eight additional embezzlement charges in Chicago. The indictment alleges that Girardi worked with his firm’s chief financial officer to fraudulently acquire more than $15 million of clients’ funds. 

Normally, a trial may begin once someone has been indicted and charged with a crime. However, the criminal court system assumes that the accused are “competent to stand trial.” In other words, the defendant must understand what is going on, why they have been charged, and their potential penalties. 

Girardi’s Alzheimer’s diagnosis put his competency in question. However, having mental health or memory problems is not enough for someone to be deemed incompetent. If there is any doubt about whether someone is competent, the judge may call for a competency hearing. 

That is what occurred in Girardi’s case. The court brought in Dr. Diana Goldstein, an expert neuropsychologist with years of experience evaluating accused parties for competency. According to court records, Dr. Goldstein “has concluded her examination and opined, among other things, that defendant is competent to stand trial.” As a result, Girardi must go to court for 13 total counts of wire fraud, each carrying up to 20 years in federal prison. 

While Girardi’s case is particularly high-profile, it is not unusual. According to a study published in Behavioral Sciences & the Law, 10-15% of cases involve an accused whose competency is in doubt. But how does that affect a criminal case?

Who Is Competent to Stand Trial?

In California, competency for criminal trials is defined by Penal Code 1369 PC. According to this law, a person must be able to “understand the nature of the criminal proceedings or […] assist counsel in the conduct of a defense in a rational manner” to be tried. 

This is intended to protect people who cannot participate from punishment for things they don’t understand. For example, someone with severe memory loss may be unable to remember that they are on trial. As a result, they can’t reasonably speak in their defense or provide their attorney with assistance. If they were tried and found guilty, they could be imprisoned without knowing they were convicted. This would violate their rights to a fair trial, to present evidence and witness testimony in their defense, and to confront their accuser. 

As such, only people who are judged competent can be tried. This protects the rights of the accused and ensures people with significant mental disabilities are not unfairly targeted by the legal system. 

How Is Competency Determined?

In California, competency is determined according to a strict process. If the judge doubts a defendant’s competence, they may consult their attorney about whether a competency hearing should be ordered. If the attorney concurs, the court will appoint a licensed psychologist or psychiatrist to examine the defendant. 

The appointed party will investigate the defendant’s mental state and produce a report detailing the following:

  • History of mental disorders: The accused’s mental health plays a significant role in whether they can stand trial. The appointed professional will determine if they have a developmental disorder, memory problem, or other condition that prevents them from understanding and rationally engaging with the process. These include severe memory loss, ongoing psychosis, or Down Syndrome.
  • Ability to understand and participate rationally in the proceedings: Based on interviews and observation, the psychologist will judge whether the accused could realistically understand the trial process and the potential consequences or respond rationally. 
  • Whether treatment with antipsychotic medications is appropriate: If the defendant experiences hallucinations or other symptoms of psychosis, the psychologist will explain whether antipsychotic medications may be beneficial, the potential risks and side effects, and how this could affect their competence. 

Based on this report, the judge will decide whether the defendant should stand trial.

What Happens When Someone Is Found Incompetent?

While being found incompetent can delay prosecution, it may not be the preferred outcome. Those deemed incompetent to stand trial (IST) must undergo competency restoration to regain their adjudicative competency. In California, people who are IST are referred to county-based mental health diversion programs. 

If someone regains competency, then they will go on trial. If they do not, they will remain within the treatment program. While these programs can be invaluable resources for genuinely incompetent people, it only delays the eventual trial. Additionally, people with degenerative disorders may spend the rest of their lives in these programs, unable to regain competency. 

Additionally, it is important to note that competency differs from the so-called “insanity” defense. Someone who is found incompetent cannot go on trial to defend themselves. In contrast, the “insanity” defense can only occur after the defendant’s trial begins. While someone may be cleared of charges if they could not understand they were breaking the law, they may be committed to a mental hospital to treat their condition. 

Is a Competency Hearing Right for Your Loved One?

If your loved one is charged with a crime but doesn’t have the capacity to understand what they did wrong, they may not be competent to stand trial. A competency hearing may help them receive the help they need. To discuss whether your loved one may be incompetent to stand trial, speak to the experts at the Law Offices of M. Gabriela Guraiib. We can answer your questions and help you find the best way to defend your loved one before or during their trial.