I. My Neighbors, the Nuttings (1998 – 2000)
One evening in 1998 I arrived home from work to see a fire truck in front of the house across the street, red lights flashing. The house belonged to Lee and Anne Nutting, an elderly couple who had lived in that particular house for more than 40 years, and in the neighborhood for more than 60. They were reclusive for the most part, and in the nearly 15 years I had lived there we had only occasionally exchanged pleasantries while they were gardening in their front yard; in fact, they generally seemed to avoid contact with all the neighbors. On this particular evening, I decided to go over and see what was happening. At the front door, I found not only firemen but also a social worker from the city of Berkeley. The firemen told me that this was not the first time they had been called to the home, that Mr. Nutting, then in his 90’s, had fallen on several occasions and had been was unable to get up, Mrs. Nutting had called the fire department for assistance, and now, after several such calls, they had decided to call in the social worker. The social worker told me that the house was “uninhabitable,” and the Nuttings were going to have to leave.
I asked if I could talk to Lee and Anne, and found them seated on the stairs in their entryway, confused and upset. I asked if I could help, and at their invitation I went inside the home to see for myself what was going on. It was, in fact, uninhabitable – full almost to the ceiling with stacks of furniture, books, mail, clothes, boxes, and other debris, all covered with a thick layer of dust. There were narrow passageways between the stacks of clutter that allowed for access to the different rooms, but it was unclear where they ate or slept. It was evident that no one but them had been inside the house for many years, and that at some point they had lost the capacity to manage their own home.
Clearly the social worker was right, the Nuttings could not safely stay in their home, but they were unsure of where to go or what to do – they said they had no relatives or friends to contact. I offered to let them stay with us, but eventually they decided to get a room in a hotel nearby. Their plan, as they described it to me, was that someone could be hired to clean up the house, and then they would return home. I agreed to help them negotiate any necessary permissions from the city of Berkeley, and took the card of the social worker.
The next day, I went to the hotel to follow up on our agreement, but in my first in-depth discussion with them it was quickly evident they needed help with more than simply cleaning up the house. Anne explained that Lee, who had always been solely responsible for managing their financial affairs, had not actually been doing so for some time. She suspected he had suffered a stroke a few years earlier, when he had fallen and gone for emergency treatment, but the stroke was not diagnosed at the time and he had otherwise continued to appear relatively normal. Anne had been unaware until very recently of the extent to which he was disabled, and it now appeared to her that their financial affairs were in chaos. When we got to the house, a quick inventory of what I could find in the various piles identified by Lee as “financial” showed that they were behind on their taxes, their home and car insurance had lapsed, and hundreds of financial documents, including un-cashed dividend checks, stock certificates, and bills were scattered in piles throughout the house. The Nuttings conceded to me, reluctantly, that they were not capable of cleaning up the house on their own, and that they had no close friends or family to help them. They asked for my help, and I agreed.
Initially, I focused on identifying the urgent personal and financial issues. I reinstated their insurance, arranged for their taxes to be prepared by an accountant, paid bills, and collected the stock certificates, which I took in two brown grocery bags to a broker at Merrill Lynch, who set up an account for them. I arranged for a pest control service to secure the house. At the Nuttings’ request, I helped them enroll in the Neptune Society. I drove them to medical appointments. I had them sign a retainer giving me authority to negotiate with the city on their behalf and help manage their financial affairs. I wasn’t thinking of this as legal work, and I wasn’t initially planning to charge them, but Lee and Anne did not want to be treated as a charity and at their request I billed them at a minimal rate for my time. As the extent of Lee’s disability and Anne’s physical frailty became clear, I also arranged for them to sign health care POA’s for each other and financial powers of attorney to me so that I could make sure they were taken care of.
Initially the Nuttings themselves tried hiring a cleaning company to start the cleanup process, and a crew showed up at the house with a debris bin and started tossing out what they thought was debris. Anne, in her late 80’s and still able to drive, came up to supervise and was so shocked by this casual invasion of their private space – strangers going through her home and possessions – that she sent them away on the spot. After that, she would drive up to the house from the hotel where they were staying and try to do the work herself. I would join her and help when I could, but it was an enormous task and the project languished. Both Lee and Anne seemed increasingly resigned to living at the hotel for a long time.
Then, late one night in 1999, Anne called me from the hotel and asked for help – Lee was very sick. I drove them both to the emergency room, and stayed until morning. It turned out to be pneumonia, and when the hospital released Lee, he needed round the clock nursing care. I took him to a series of nursing homes in the following months, all of which both Lee and Anne disliked, especially for the lack of privacy and control. Eventually he settled on one, I visited him regularly, and went to some trouble to try and keep him happy. Anne continued to live alone at the hotel, and make occasional trips to the house for mail and to work on cleaning up. Other than a few acquaintances who she saw very rarely, it appeared that she was relying almost entirely on me for support.
After a few months, Lee lapsed into a coma and was taken back to the hospital, placed on life support, and finally on a feeding tube. He was there for weeks. Anne, without other friends or family for assistance, relied entirely on me for practical and emotional assistance. Eventually, after many agonizing hours of discussion of end-of-life issues with Lee’s doctors, and with me, Anne decided to discontinue the feeding tube. Lee Nutting passed away in December, 1999, just a few days before the millennium; Anne commented that he apparently did not want to deal with a new century
II. Anne On Her Own, 2000 – 2004
After Lee’s death, Anne remained living alone at the hotel, while making a renewed effort to clean up the house with the goal of returning to live there. I made more time in my schedule and worked with her several times a week, but I still could not get her to accept any outside help for the cleanup project. She was unwilling to let anyone besides me inside, saying that she was ashamed of the condition it had fallen into. She said that she had always been a good housekeeper, and was not a “hoarder”, but that the physical demands of cleaning and organizing had just at some point become too much, and that the problem of clutter had then snowballed over the years. I spent countless hours and days with Anne, going through boxes and working to clear out rooms. It was difficult and stressful, in large part because Anne would not willingly agree to actually get rid of anything, so the project felt hopeless. I was spending far too much time with Anne to actually bill for my time – I gave up on the professional time and billing system I used for my other clients, and just continued to send her nominal monthly bills solely to maintain a professional relationship. It was not really a professional lawyer/client relationship though, at this point Anne felt more like a family member and the time I spent with her was about friendship, neighborliness, and doing the right thing – not money.
The one exception to Anne’s insistence on supervising every bit of the house project was Lee Nutting’s personal bedroom, which Anne did not want to deal with, and asked me to clear out, and dispose of its contents, without her participation. This turned out to be a very emotionally challenging project, as there were many intensely personal items involved, and the room and its contents had not been cleaned in many years.
I also arranged for the probate of Lee’s estate. Lee and Anne Nutting had matching wills, which left everything to the surviving spouse and then to a number of charities. They had no children, and said that they had no other relatives other than an elderly cousin, for whom Anne did not share any contact information. At this time Anne asked me to help her sell a number of Lee’s collections, including coins, stamps, and toy trains. With Lee gone, she did not want them around anymore. In particular, in arranging for the sale of the Lionel train collection, I arranged for the train dealer to donate a model train layout to the George Mark Children’s Hospice in Oakland, which pleased Anne very much. The proceeds of these sales went entirely to Anne.
With Lee gone, Anne also became very concerned with her own estate plan. She was frightened by the possibility that an accident or medical issue would disable her, as it had with Lee, and that she would be put in a nursing home, unable to function, as he had. An intensely private and independent person, Anne was especially worried that if something happened to her, with Lee gone, someone from the county or state would step in and control decisions about her care. She was also terrified of anyone else entering her house and going through her possessions. She asked me to make sure those things never occurred. These conversations about her wishes if she became incapacitated or passed on became a constant part of our interaction, and her concerns seemed quite legitimate given that she was by then in her nineties and appeared quite frail. She expressed a very strong desire that no one else, no strangers, be involved with her property or legacy, and wished to place her trust entirely in me. I did not feel entirely comfortable with that idea, but Anne was insistent, and with no other relatives or friends around in the end it seemed unavoidable. I gave her a Nolo Press book on estate planning to read, and at her direction then drafted a will that gave virtually all her property to a number of charitable organizations with me identified as the executor. These were essentially the same charitable organizations identified in Mr. and Mrs. Nutting’s previous wills. Because Mrs. Nutting was concerned that no one else ever see the inside of the house, she asked me if she could put the house and its contents in a living trust with me as the beneficiary, to insure that would be the case. The plan discussed was that when she passed, I would clear out the house before anyone else saw it, prepare the house for sale, and distribute the proceeds to the charities she had identified. I reluctantly agreed to this plan. It turned out I needn’t have worried, Anne finally decided that she did not want to change the deed to her house because she said she wanted Lee Nutting’s name to remain on it. The decision was a relief to me – I did not personally share Mrs. Nutting’s concerns about who would see the house, or what would happen in the probate process, and I did not look forward to the prospect of clearing out the house myself.
In this, as in many other situations with Mrs. Nutting through the years, I felt that I was negotiating a delicate balance between honoring her personal wishes, based on her strongly held beliefs about privacy and personal dignity, and protecting my own time, energy, and interests, on which Mrs. Nutting had come to rely. Later, the documents prepared for the proposed trust, which I had drafted even though they were never implemented, were used to suggest that I had tried to get Anne to give me her home – and with no documentation of our private conversations, there was little I could do to fight this erroneous assumption. In fact, I had agreed to the plan out of respect for Anne’s wishes, and her fiercely independent personality that I had come to admire, not because I expected or wanted any financial or other benefit. It did not occur to me until much later, faced with the hostile assumptions of others, how these arrangements could be perceived as motivated by anything other than concern for Anne.
Around this time, and for the same articulated reasons that she did not want anyone else involved, Anne Nutting designated her brokerage account as “transfer on death” to me. I did not request this change. Anne managed the arrangements directly with her broker. She admonished me that on her death the stocks were to be sold and the proceeds divided to a set of charities. The fact that her list of charities was always changing was a significant part of her decision to make me the intermediary – she did not want to draft a new trust or will document each time she changed her mind (which she did often). One day, she would express that her estate should go in its entirety to her alma mater; another day, she would be back to her original list of thirteen charities; another day, the list would be minus one group that had offended her by asking for too many donations. Each time I would tell her she would have to change her will, and she resisted that idea strongly. There was never any discussion, or intention, on my part or Anne’s, that I personally would inherit anything from the Nutting’s estate. I explained to Anne that this way of handling her testamentary wishes might have significant tax consequences, but she expressed that the sense of control that she had through me was more important to her than the tax issue. Later, as with the trust for the house, this form of ownership was used to suggest that I had intentions on the Nutting estate, and again without documentation of our conversations, it was difficult to counter.
At some point after Lee Nutting passed away, I had also opened a “trust” account for Mrs. Nutting for the purpose of setting up automatic payment of her utility bills and taxes. Although Anne was still at this point quite sharp mentally, she did have trouble keeping track of her financial obligations. She had always relied on Lee to take care of these things, and now she wanted me to fill the same role. Anne Nutting made periodic lump sum payments into the account or issued checks to me to deposit for her. I used this account to pay important bills and taxes. I documented the account as thoroughly as I could, but over time I became far less rigorous than prudence would dictate. As with so many other things in my relationship with the Nuttings, this lack of documentation later opened the door to suspicion.
Periodically, and though she was adamantly against it, I still tried to convince Anne to move to a senior home and get more assistance with her living arrangements. I retained an advisor on senior care, who suggested various facilities and home care assistance options. I took Anne to visit the facilities, as well as visiting others on my own to preview them for her, but she adamantly refused to consider moving from her hotel to a “place like that.” She wanted to return to her own home, and seemed oblivious to the reality that years were passing and little actual progress had been made on the cleanup, since she would not allow anyone else to be hired to do the work, and I did not have the time to do it alone.
As the years passed, Anne’s situation seemed to become more and more precarious. After a minor surgical procedure (for which I had found the doctor and stayed with Mrs. Nutting at the hospital), she was released to a skilled nursing facility. After one night, she was so appalled by the lack of privacy at this facility that she extracted a promise that she never be left at any senior residence or nursing home ever again.
On another later occasion, Anne fell and cut herself in the bathroom at the hotel. Using the cell phone that I had arranged for·her to carry, she called me and had me drive her to the hospital. Anne Nutting was very worried that if the hotel staff found out she had fallen, they would ask her to leave. In fact, the increasing clutter in her hotel room, mirroring what had already happened at the house, was already an issue of concern. Eventually the hotel provided Anne with a second room for the overflow.
Most concerning of all, when Anne could still drive herself, I came home one night from Christmas shopping at about 5:00pm, and saw her car parked in front of her house. It was unusual that Anne would be at the house that late, and it was dark and raining, so I went to check on her. She had slipped and fallen on the kitchen floor, could not get up, and could not reach a phone. I helped her back to the hotel, but it seemed like it was now unsafe for her to be alone at the house. Progressively it also became clear that Anne was no longer fit to drive. She hired a driver to take her from the hotel to the house, to her doctors’ appointments, shopping, and on other errands.
In early 2004, Anne Nutting decided she wanted to sell approximately 200 Japanese wood block prints that she and Lee Nutting had collected as a hobby. The prints were spread throughout the house, some framed, some in piles, and Anne had long lists of the various times and costs of their acquisition. I conducted extensive research for her on her options for sale: dealers, private sales, or auctions. Anne decided to auction the prints through Bonhams & Butterfields, in part because that way there would be a printed catalog, a souvenir for her after the prints themselves were gone. I helped Anne catalog, restore, and un-frame the prints in preparation for the auction. They had been a good investment: the sale brought in nearly $250,000.00, which Anneput in a savings account with me as joint accountholder. The account would earn approximately 2% interest.
III. Becoming a Commissioner (2004 – 2009)
In August 2004, the Alameda County Superior Court hired me as a Commissioner. The “Canons of Judicial Ethics” would prohibit me, in this new job, from continuing to act as Anne’s attorney or fiduciary. When I told Anne that I could no longer do any legal work for her, have her power of attorney, be her executor, or distribute her property as she wished, she was very upset and said that she felt betrayed by me “taking another job.” I tried to get her to see another attorney friend of mine who specialized in estates and trusts, but true to the determined independence and single-mindedness she had always displayed, she refused to consult anyone else or hire another assistant. She said she would just take care of everything herself.
After a number of these discussions, I could see disaster looming with Anne alone in charge. I decided to continue the joint bill-paying account (though not as a “trust” account, to deal with the ethical issues) in order to make sure her bills were paid. I deleted the word “trust” from the account title, and told her I could not remain on any of her other accounts. I prepared a new will in which I was not the executor, and returned to Anne virtually all documents, financial and otherwise, that I had kept for her. I also told her she had to take my name off of her bank and stock accounts. As far as I was concerned, at this point everything in the estate would now pass through the will to the named charities in that document. As I found out much later, Anne did not actually take my name off the stock account, or some of the other bank accounts, but since the statements went to her, and I no longer had any role in those financial affairs other than to pay the taxes, I was unaware of the omission. Again, later, this fact was used to imply that I had secretly attempted to retain some sort of interest in control over Anne’s finances.
A few months after I became a commissioner, Anne decided to close the bank account with the proceeds from the print sale. She did not like the bank and felt the 2% interest rate was too low. I couldn’t find a rate that made her happy, and after some discussion of the investment options other than the savings account, in what at the time I thought was a creative solution for the problem of needing to protect Anne’s interests without violating the Canons of Judicial Ethics, I borrowed the money from Anne, with a written loan agreement; I was to pay 3% interest, higher than the 2% that Anne was currently getting, and higher than was available at the time in any commercial account. Both Anne and I thought of this loan as a solution to the problem of allowing me access to enough of her assets – unlike powers of attorney, personal loans were not barred by the Canons of Ethics — to make sure she could be cared for in the event of a catastrophic event such as a stroke or coma. In such a case, even though I no longer had access to her accounts, I could pay for caregivers or other necessary resources without going to court for a conservatorship or otherwise involving anyone official. We both assumed that if the money were never needed for Anne, that the loan repayment would be made to her estate, and pass to her designated charities. Later, much was made of the fact that the 3% interest was less than the 5% or more I would have had to pay for a commercial loan, implying that I had somehow take advantage of her trust – but that had never occurred to me. I did not borrow the money because I needed it, as a loan it was not “mine,” and the interest payments (which would really only be 1% to me, since I could still get the 2% from the bank) seemed to me like a fair quid pro quo for the “fees” I had reluctantly charged her for years. Best of all the arrangement gave us both peace of mind about my ability to protect Anne’s privacy and security, even though I could no longer be her fiduciary.
I continued to feel deeply conflicted at this time. Though it could be difficult to deal with at times, I deeply admired her spirit of independence and desire for privacy, and I felt a strong obligation to protect her. That meant somehow honoring her wish that there be no “strangers” responsible for her care. I felt a similar obligation to honor Lee Nutting’s own charitable intentions for his share of the estate. I imagined my own parents or myself alone in the world as Anne was, and wanted to treat her as I would wish to be treated myself – by the standard of what was right for her. At the same time, I knew that the canons that governed my actions as a judicial officer prevented me from acting directly for her as I had for many years. I tried to find a middle ground – as with the loan, which was not prohibited by the canons, unlike a joint account. As an honorable person with honorable intentions, it did not occur to me at the time that anyone would look askance at the loan, or see it as anything other than the estate planning tool that it was.
IV. Ali Mehrizi (2006 – 2010)
With a full-time job I had much less flexibility in my schedule and was no longer able to spend as much time with Anne. In my absence, she hired a waiter at the hotel where she was staying, Ali Mehrizi, as a handyman to do some driving and other odd jobs. He eventually gained her trust to a degree that she let him work on clearing out the house, and for whatever reason – Anne’s advancing age, or Ali’s persuasiveness – she allowed him to work on the home with more independence than she had allowed with me. Working without Anne’s supervision he was able to remove enough of the clutter to make it habitable, and one day in early 2007 I was surprised to discover that Mrs. Nutting had left the hotel and moved back to her house.
I was extremely concerned at the idea that the then-94 year old Anne planned to live alone in the house, given her history of falls and inability to drive, or, at that point, even go downstairs on her own. She told me not to worry, because Ali was staying with her “a few nights a week.” This made me even more concerned. It appeared that Ali, in his fifties, had a home and family of his own, and it did not make much sense that he would now be living part-time with Mrs. Nutting. More, he had made no effort at all to connect with me, Anne’s only other significant support. Primarily out of concern for the majority of the time that Anne would now be alone in the house, and given her history of falls and medical issues, I suggested that she sign up for a caregiver service – at least for the days and nights Ali was not there. This was a big mistake on my part, the idea was contrary to Anne’s fundamental desires for privacy and independence, and she was upset, telling me she felt I was “pushing her around.” A few weeks later, I received a letter from an attorney, Howard Abelson, telling me to cancel all powers of attorney and cease any involvement in Anne Nutting’s affairs.
I was surprised by the content and tone of the letter and went over to talk to Anne about it. I reminded her that I had not actually had her power of attorney, other than a power of attorney for health care, since 2004. She reiterated that her only real concern was that I might somehow hire caregivers against her will. She disclaimed the part of Mr. Abelson’s letter that stated she wished “no further involvement” by me. In fact, she said, she still considered me to be like a family member, wanted me to continue paying her bills, continue to hold the loan as an emergency contingency plan, and help execute her will. She simply wanted me to, as she put it, “stop insisting on having strangers in the house.” I asked how the letter from Mr. Abelson had come about, why she had not simply talked to me, and Anne described that it was Ali who had taken her to what she described as “his” attorney. She also said that he had asked the attorney to draft powers of attorney for Ali to replace the powers that he thought were being withdrawn from me, but that Mr. Abelson had declined to do so.
As a result of this conversation, I did comply with the attorney’s request by revoking the one remaining formal power I had, the power of attorney for health care, but at her request I continued to pay her bills and taxes as in the past. I was even more concerned than ever about Ali’s intentions, but felt that my continued involvement with Anne would effectively deter anyone from taking advantage of her financially. Once I had assured her that I had no intention of getting her caregivers against her will, our relationship continued to be excellent, and she continued to ask me for assistance and advice, as I continued to visit her at her home across the street. I continued to help pay her bills and sent her taxes to an accountant every year to be prepared independently. I did not contact the attorney, Mr. Abelson – it did not seem necessary to do so, since the problem he had been brought in to address had been resolved.
Over the next few years, it seemed that Ali was spending more and more time at Anne’s home, and he continued to make repairs and improvements. With Ali as her live-in caregiver, it also became progressively more difficult for me to reach Anne. Sometimes she would not return my calls for days, and it was not always clear whether she received phone messages. When I did visit with her, she seemed increasingly distant. On the last occasion that I saw and spoke with her, in late 2009 or early 2010, she seemed unusually vague, and repeated herself in conversation in a way that I had not seen before. I was unaware at that time, but later learned, that at the time of that final conversation, close to her 97th birthday, Ali had just married Anne.
Shortly after this, in January 2010, Anne entirely stopped responding to my messages, even when they concerned information I now needed to send to the tax preparer. Ali eventually returned my calls and told me that Anne now wanted him, Ali, to take care of all Mrs. Nutting’s financial affairs, including her taxes. He stated that Mrs. Nutting was “unhappy” with me because of the loan, which he said Mrs. Nutting had expected would be repaid in 2007. These statements immediately raised tremendous concerns for me. There had never been any discussion of repayment of the loan in 2007, Anne Nutting had never requested repayment (in fact, I later learned, she had listed the loan as an asset of her estate, just as we had intended, in plans she made in March 2009, less than a year before this conversation with Ali), and Anne herself had made no mention of any concerns or any plan like this –she had been very friendly, albeit a bit vague – in our last face-to-face meeting.
It seemed to me that Ali was trying to keep me from speaking to Anne, and it also seemed to me that perhaps Ali was trying to consolidate his control over Anne’s finances, or that Anne had become confused and begun to confabulate, or both. At this point in time I was unaware that Ali had married Mrs. Nutting, and I was unaware that she had gone to see the attorney Mr. Abelson in March 2009 and drawn up a new estate plan that gave her entire estate to Ali, not to the charities that she and Lee Nutting had previously arranged.
So, in response to Ali’s statement, I told him that I would not discuss Mrs. Nutting’s financial matters with him, that if there was going to be a change in her arrangements with me I would have to hear it from her personally. I tried unsuccessfully to reach Mrs. Nutting on her phone and by knocking on her door. I left numerous messages on her answering machine, including some that contained purposely inaccurate information about the loan, thinking that if I heard back from Ali accepting the false information I would know Anne Nutting was no longer compus mentus. Despite my concerns I was reluctant to involve any authorities, at least not yet, because I was profoundly aware from her reaction to my caregiver request of of how destructive that would be to our relationship – not to mention her privacy and dignity. Eventually Ali agreed to meet with me himself. I expressed my concerns, and told Ali that if I could not see Anne Nutting in person, I would have to contact Adult Protective Services to make sure that she was okay. Ali agreed to arrange a meeting with Anne, but instead, shortly thereafter, Ali informed me by telephone that he had consulted with Mr. Abelson, and that Mr. Abelson had contacted APS and/or the Berkeley police to investigate me and my relationship with Mrs. Nutting.
As with almost every aspect of the relationship I had with Anne, it never occurred to me that not contacting the authorities myself, not documenting my agreements with Anne, not contacting Mr. Abelson, the messages on the answering machine, would all be used later to suggest that my intentions were larcenous or dishonorable. At the time, they all seemed like logical and appropriate ways to safeguard Anne and Lee’s privacy and dignity while protecting their interests.
V. After Anne Nutting’s Death (2010)
I was soon contacted by the Berkeley Police, and from them I learned of Anne’s marriage to Ali. It was immediately clear to me that Anne could not be acting rationally – the Anne I knew and cared about would never have done such a thing. In fact, the medical evaluation done by Adult Protective Services at this time found her significantly demented – something that had not been apparent to me from my limited contact with her in her last year. It was a very short and painful leap to the realization that, by not carefully and formally documenting all aspects of my relationship with Anne Nutting, and relying on our informal understandings, I had left myself open to the very same suspicions that I now had about Ali. Without Anne to verify our agreements, the loan, the trust, all could be used to suggest I had tried to take advantage of her. Worse, the APS investigation, which involved profound indignities for Anne Nutting – police interviews, medical examinations, and the like – would have seemed to Anne like the ultimate betrayal of trust, and would have been seen by her as my fault. I did my best to cooperate fully in the investigation, turned over all relevant financial documents in my possession to the police, placed the full amount of the loan, plus interest, and the remainder of the joint bank account in an escrow account for the benefit of Anne Nutting, and put my faith in the legal process, knowing that I could do nothing more to protect her. I heard nothing more from Anne Nutting, or the police, for months.
Eventually, three months later, in June 2010, when I contacted the police to find out the progress of the investigation, the detective in charge invited me to an interview. There, he told me that Anne Nutting had died two months earlier, in April 2010. I was shocked, not just by the news itself, but by the way in which I had been informed. But I pressed on with the interview. The detective asked me a few clarifying questions about the bill payment account, and indicated that Anne’s estate was being handled by Mr. Abelson. The detective also stated that Ali was in possession of the Nutting home “because of the marriage.” As for the investigation, the detective said that he was turning all the information he had over to the District Attorney, but that his own conclusion was that my actions had just been “doing a solid” for a friend. It is possible that this was an effort to keep me off guard, but I believe it was what it appeared to me to be: an accurate assessment of a complicated and difficult situation.
Based on the information about Anne’s passing, I had my attorney contact Mr. Abelson to arrange for transfer of the loan, still in escrow, to Anne’s estate. In response, Mr. Abelson provided a copy of the trust he had drafted for Mrs. Nutting in March 2009, which transferred the Nutting’s home and assets to Ali, and made no provision for any of the charities previously the intended beneficiaries under all the Nutting’s previous estate plans. Generally California law disfavors testamentary gifts to caregivers, and I had hoped that the police would pursue this issue, but the detective’s comments about the Ali keeping the house “because of the marriage” suggested that they were going to view him as a spouse instead of a caregiver and were therefore not interested in doing so. With no other relatives or potential heirs to make a probate challenge, it appeared that Ali had successfully taken over the entire Nutting estate.
VI. The Commission on Judicial Performance & the District Attorney (2011 – 2013)
A year passed, and I heard nothing further about the Nutting case. Then, in September 2011, I received a letter from the California Commission on Judicial Performance (“CJP”), requesting an enormous quantity of information, everything related to my own finances, the Nuttings, and other transactions not apparently related to my dealings with the Nuttings. Although the request did not specify what I was accused of, it was clear that Mr. Abelson and Mr. Mehrizi had followed up their police report with a complaint to the organization responsible for compliance with the Canons of Ethics.
The request for information from the CJP included a request for information on an investment in a real estate company that was not related to my relationship with the Nuttings. I wasn’t sure why, but I did quickly come to the unhappy realization that it involved the annual “Form 700” that requires judges as elected officials to declare all their financial interests to the Fair Political Practices Commission. The stated purpose of the disclosure requirements is to avoid conflicts of interest, and the rules around what needs to be declared, or not, are complex and sometimes opaque. For example, individual stock holdings need to be declared, but mutual funds do not. I had filed an initial Form 700 on taking office in August 2004, before the loan, and on subsequent annual forms I had carried over the information from previous forms, without remembering that the loan needed to be declared. It was an inadvertent, but now costly, omission. I immediately filed an amended Form 700 for 2004 declaring the loan. Generally, the penalty for such an omission would be a small fine.
Before providing the documents to the CJP, my attorney wanted to contact the Alameda County District Attorney to find out if there was still any pending criminal action, against either me or Ali. Although my attorney felt that the request for document production, because it did not specify what allegations were being made against me, did not comply with the Commission’s own rules, much less basic due process, I wanted to proceed with the document production without the inquiry, and without objection to the process. I felt that the documents showed that I had done nothing wrong, that I had never done anything except try to help the Nuttings, and that complete cooperation was therefore the appropriate way to proceed. I included with the documents, unasked, a 12 page statement of facts similar to this statement you are reading.
Nine months later, in June 2012, on an ordinary work day, I returned from lunch to see several people I did not know waiting in my parking spot. When I stepped out of the car, one of them approached me and said “I have some bad news for you – you are under arrest.” They handcuffed me and walked me through the courthouse, through the District Attorney’s Office, and into a small office, where I learned I was being charged with one count of “Elder Abuse” and 11 counts of “Perjury.” I knew the “abuse” must refer to the Nuttings, but I had no clue what the perjury referred to. Twelve felony charges added up to a half-million dollars in bail – unable to post that amount in the few hours left in the day, I spent the night in prison stripes in the North County Jail, next door to the courthouse where I had presided the day before.
Eventually I was to learn what had happened in the intervening months since the original police investigation had ended inconclusively in 2010. As a result of inquiries related to the CJP investigation, the case had been assigned in 2012 to a new investigator in the DA’s office. That investigator had discovered, amongst other things, that there were some other errors besides the loan on my Form 700 declarations. I had forgotten to include some investments in a real estate company over a period of years coinciding, entirely coincidentally, with my relationship with the Nuttings. Although this was nothing but a careless oversight on my part, the DA investigator had constructed an elaborate theory in which I had embezzled millions of dollars from the Nuttings and invested those millions in real estate which I had “hidden” by lying on my disclosure forms. It didn’t seem to matter for this bizarre theory that the real estate records were public, not hidden – the investigator had discovered the investments because they were in fact public records. Nor did it seem to matter that there was an absolutely clear paper trail showing the investment in that company had no connection whatsoever to anything from the Nuttings.
The investigator had also found, in the Nutting’s home, long lists of jewelry, art, and other things that neither Ali nor the investigator could locate. Although these things were completely unconnected to me – the lists were in the Nutting’s handwriting, and found in their home – the investigator imagined that I had taken them during the years I had tried to help clean out the house. She produced a hundred-page arrest/search warrant that alleged theft on a grand scale. Millions of dollars, jewelry, art – all the collections I had sold for Anne were there – and of course, “perjury” for allegedly hiding all these ill-gotten gains by not declaring them, along with the loan, on the Form 700. It was a dramatic over-reach, and in my opinion could have been easily investigated and resolved without the very public humiliation of the arrest, but no attempt was made to resolve any questions with me directly. Worse, although as an elder abuse case the investigator’s affidavit should have been sealed – so as to protect the privacy and dignity of the alleged victim – it was not. As a result, the news of the day became the suspicions of the investigator’s overactive imagination – “Judge Embezzles Millions From Elderly Neighbor” – along with the intimate details of the Nutting’s private lives.
Some of my neighbors and friends, aware of Ali and his relationship to Anne, and confident as I was that the truth would set me free, contacted the press and asked them to investigate Ali. Apparently, in the age of digital reporting and instant deadlines, there was no time for that sort of investigative journalism. One reporter did try to follow up and inquired with the Berkeley police about Ali, but the police told the reporter that Ali was not a suspect, and that appears to have been the end of the inquiry. For my part, I was quickly told by my own attorneys, in no uncertain terms, to say nothing to anyone.
The search warrant was executed at my home and in my chambers while I was held in jail. The scope of the suspicions articulated in the warrant produced a remarkably intrusive seizure. The police took not only financial materials related to the Nuttings – all of the relevant ones had already been turned over by me to the police in 2010 and the CJP in 2011 – but vast quantities of personal materials, including my own private diaries. The search lasted into the night, news helicopters circling overhead and reporters banging on the front door. In the end, there was nothing found that was hidden, or that could not have been produced by request. The evidence supporting the charges finally adjudicated, one year later, was virtually all in the possession of the authorities before the search.
This did not seem to dampen the enthusiasm of the DA for the prosecution. Every discrepancy, every oversight, no matter how small, became a subject of further suspicion. A careless mistake on a DMV form became a misdemeanor for lying on an official form. A routine request for information from the DMV became a misdemeanor misuse of official power. The careless omissions on the annual Form 700 became 22 felonies. Every personal document was turned over to the CJP for their assessment of potential ethics violations. Official prosecutorial power unchecked by discretion is a terrible thing to experience, shocking in its destructive force. The process was described by an attorney I separately consulted about the mistakes on my Form 700 filings. She said, there is often a sort of “gotcha” quality to these kind of official inquiries. It was true here, of both the DA and the CJP. Their suspicions and my carelessness had produced a vicious circle, where every inconsistency, however innocent, became for the official world another act of deception, further proof of venality and intent.
For example, the CJP had provided the statement I had voluntarily made to them to the District Attorney, and minor inconsistencies in that document were held up as proof of my mendacity. I had incorrectly identified, by a few months, the date that I started billing the Nuttings a decade earlier. This, for them, was not a mistake, it was a “falsehood.” I incorrectly identified one of two nearly identical accounts held by Anne Nutting as the source of the 2004 loan – according to the DA, not a mistake, a “lie”. Even more remarkably, the DA turned over copies of everything they seized from my home to the CJP, who thus had unrestricted access to deeply personal and private materials to which they had no other official right. These included things like medical test results, notes from counseling sessions, and other materials that would have been considered private under even the broadest definition of the CJP’s mandate. To me it seemed that the CJP and the DA were in a circular and self-reinforcing frenzy of suspicion, in which any discrepancy, and ambiguity, any undocumented transaction became the source of new allegations of wrongdoing.
Meanwhile, released on bail, I began to investigate my accusers in earnest. I discovered that this was not the first time that Ali had inherited the estate of an elderly widow. Some years prior to his involvement with Anne Nutting, he had befriended a different elderly couple and agreed to help them with an estate plan that involved him caring for the widow after her husband died. In doing so, Ali then assisted the widow in changing her estate plan from one where the estate went to the family and to charity, to one where Ali inherited their home and the bulk of their estate. I was shocked. I could not conceive – to this day, cannot conceive – how the District Attorney could consider Ali, to be a victim in this case, when it was he, not me, who had inherited vast sums of money and property from several different elderly widows in his care. In fact, he inherited the Nutting’s home and stock holdings by gift from Anne exactly as she had tried to do with me – somehow, a crime for me who inherited nothing, but to the DA a heroic act for Ali, who took it all, to have prevented me from doing so. In contrast, by my own calculation, adding together every financial transaction between myself and the Nuttings over all the years of our relationship, I had a small net loss, not a gain. Even after a year long investigation, multiple subpoenas of financial records, and extensive forensic accounting, the DA could only come up with $6,000 worth of undocumented transactions to charge me with in “restitution” – and to arrive at even that number they had to discount other undocumented transactions on the other side of the ledger, like the gifted interest on the loan.
I had hired a well-known criminal defense attorney renowned for her cross-examination skills. I looked forward to her challenging Abelson and Mehrizi on the stand at trial. But it was not to be. While the elder abuse charge alone might have been possible to defend effectively, there were now some 30 other charges, including the 11 felony perjury counts for each year of Form 700 filings that didn’t declare the loan and that real estate investment (to which the defense was a truthful but woefully inadequate “I forgot”), and all the other “gotcha” misdemeanor omissions and mistakes that they had found combing through my papers looking for the Nutting’s lost property. If a jury didn’t believe that I was forgetful, I would be in state prison for decades. The DA had apparently finally come to some realization of their over-reach, and they were willing to offer me a deal with no jail time, but after arresting a sitting judge in his courthouse and publicly accusing him of massive theft in the millions of dollars, they had to make sure it looked like they were justified, that I was in fact a bad guy. They wouldn’t make me plead guilt to anything, but they needed no-contest pleas to two felonies, theft from an elder (for the bookkeeping errors in the trust account) and perjury (for the Form 700 omissions). In the end, offered a deal with no jail time in return for a no contest plea, balanced against the prospect of an enormously expensive and emotionally destructive trial in a dramatically over-charged case with many, many years of potential state prison exposure, I chose the safer path and accepted the deal. I did not abuse the Nuttings. I did not take financial advantage of them. I did not commit perjury. But I had been careless in my record-keeping, and blind to danger in my decision-making, and there was now a price to pay. I pleaded no contest and hoped somehow to move on with my life.
Shortly after the plea deal was finalized, the CJP began to press for a stipulation to end their proceedings. They proposed an entirely one-sided set of facts, devoid of every explanatory or mitigating fact. Like the District Attorney, their institutional prerogatives clearly outweighed any interest in a balanced factual narrative. It was in the interest of both these parties to justify my treatment at their hands by presenting as negative a portrait as possible, and that is what the stipulation required. For example, they refused to include any information on Ali and Mr. Abelson, and refused to include information on the Nutting’s estate planning for charity which I had prepared. In the end, as with the criminal case, it seemed far wiser to accept a settlement, however flawed, in preference to a long and public ordeal at hearing. Although the institutional mandate of the Commission is to defend the integrity of the judiciary, and to truly do so would require a balanced and understanding approach, for me the process was entirely hostile and antagonistic. I should have been informed of the charges against me before being required to produce evidence. I should have had a chance to meet with the investigator and explain myself without fear of self-incrimination in a parallel criminal process. The final stipulation should have contained the explanatory and mitigating factors that would help the public understand what really happened – that a judge made careless mistakes, not that there was a hidden criminal on the bench. Instead, once again the public narrative – as at the time of my arrest – presented only one side of a complicated and nuanced narrative.
VII. Lessons Learned
Perhaps the cruelest irony of all is in what happened, in the end, to the legacy of Lee and Anne Nutting. All of the financial and other personal arrangements between the Nuttings and me were built around one salient fact: their intense desire for privacy and independence. Almost everything that seemed suspicious to the DA – the trust, the loan, not involving others or reporting my suspicions to authorities – can be understood as benign, if they are understood as part of that effort. There is, unfortunately, no visible objective distinction between maintaining privacy and secrecy. The irony is, it is the actions of all of the others who styled themselves as the Nuttings’ protectors, who insisted on seeing my actions in their negative, rather than positive, light: the DA, the CJP, Mr. Abelson, and Mr. Mehrizi, that put Anne through a police investigation, a medical exam, on the evening news, on the front page of the paper, and ensured that the Nutting estate went to Ali and not to the charities for whom it had always been intended.
The institutional lesson is more nuanced, but I can see three interwoven institutional problems that contributed to my fate:
First, the separation of investigating and prosecuting agencies, police and DA, serves an important role in making sure the prosecuting office does not end up with a personal stake in the result of the investigation. In my case, the police concluded from their neutral investigation that I had done nothing wrong, but once the investigator from the DA’s office had invested her personal credibility in my guilt, the entire focus of that investigation became how to get me. There was no check or balance on that process, and the result was an imaginary flight of fancy that, once publicly acted on, had to be defended since it was a product of the office itself.
Second, over-criminalization can mean many things, but in my case it meant that by allowing disproportionate potential sentences for regulatory offenses, like mistakes on a reporting form, that can be found almost anywhere and against almost anyone, the power of the prosecutor to coerce unfair plea deals is exponentially increased. I did make mistakes in bookkeeping, I did forget to put some information on a form, but at most those should call for a correction or a regulatory fine. Calling them felonies, punishable in state prison, just like robbery or murder, makes a mockery of the system and puts the prosecution in a position to do what they did in my case, extort exorbitant consequences by invoking the possibility of dramatically disproportionate punishments.
Finally, the power of the internet and social media to destroy lives is a real and difficult problem that we are all much closer to than we think. Technological advances in human history, like tools, or the internal combustion engine, seem like they have in the progress they provide the seeds of their destruction, like war, and climate change. The speed and connectivity of the internet also mean that dramatically false narratives about an individual can spread instantly and permanently around the world, before there is any possibility of a neutral assessment and beyond any hope of ever being erased. I am now and forever on the internet found guilty of stealing millions of dollars, jewelry, and artwork from a helpless elderly neighbor, when all I really did was try to help her live out her life in dignity and peace. Be careful, it could happen to anyone – to you, too.