Appeals Court Rejects 5h Amendment Plea of Accused Filipino Caregiver

by Joseph G. Lariosa

CHICAGO (JGL) – If you had spoken up, you can no longer take back your words, that is, after you waived your right to remain silent. This is true especially during an investigation, where you mouthed off words that were self-incriminating.

This was the lesson learned by a Filipino woman caregiver Carmelita Pasamba and her husband, Edgardo Pasamba and her sister, Jocelyn Baker, when a three-judge panel of the Appellate Court of Illinois’s First Judicial District led by Justice Robert E. Gordon reversed a decision of Probate Court Judge Daniel B. Malone of the Cook County Court at the Daley Center in Chicago, Illinois, staying their civil case while their criminal case is being tried before the Cook County Circuit Criminal Court in the southwest side of Chicago. The other members of the panel are Justices Margaret Stanton McBride and Stuart Palmer.

The Pasamba extended family was accused of siphoning off more than $500,000 from the bank and other accounts of retired Chicago engineer, 95-year-old Marshall F. Davies, who was suffering from severe dementia.

The Cook County Public Guardian had filed a civil suit trying to recover Davies’ assets when the Pasambas managed to convince Judge Malone to stop the civil proceedings because their Fifth Amendment right to remain silent would be jeopardized and the “subject matters are overlapping both criminal and civil proceedings.”

In gutting Malone’s order, the appellate court said, Davies had suffered a substantial financial loss – more than $500,000. He has a right to proceed with his civil case against the defendants so he can recover his lifetime savings.

The court added, “Victims of fraud or other crimes are entitled to pursue their civil remedies. They should not be required to receive slower justice simply because the conduct they allege is egregious enough to attract the attention of criminal authorities.”

In rejecting their Fifth Amendment right to remain silent, the court said defendants have already given extensive deposition testimony that they cannot take back.

WAIVED THEIR RIGHT TO SELF-INCRIMINATION

The court added the defendants have also waived their privilege against self-incrimination. “The admissions that have been made were significant and a stay of the proceedings will be of no or limited benefit in the criminal proceedings because their admissions can and will be used against them.”

It added a stay would burden the court’s ability to manage its cases and an indefinite delay could cause the court to be in the position of waiting until the defendants serve their jail sentences in the event that they are convicted and sentenced to a period of incarceration.

The court also said interests of nonparties and the public favor prompt resolution of civil proceedings, especially promptly recovering misappropriated funds by people in fiduciary relationship, who manipulate the elderly, particularly when weighed against the interest in a merely conjectural criminal prosecution.

“We conclude that the trial court’s ruling is unreasonable and as a result, the trial court abused its discretion in granting defendants’ motion to stay the civil proceedings.”

When the Public Guardian represented by Atty. James Burton deposed the Pasamba defendants, the court records said, “none of whom invoked their privilege against self-incrimination.”

In her deposition, Carmelita Pasamba admitted she “received $50,000 a year as her salary for her duties” as Davies’ caregiver under the Power of Attorney prepared by Filipino American lawyer, Alfonso S. Bascos. She also “received $50,000 bonus for assisting Davies in selling his condo on May 8, 2008; $30,000 loan for home repairs on May 8, 2008, to be paid back when she could.”

HUSBAND KNEW HIS WIFE GOT MONEY BUT UNSURE OF SOURCE

Edgardo Pasamba testified he served as Davies’ driver but did not receive a salary. He occassionally received money from driving Davies and he received a 2000 Buick from Davies but did not pay Davies. He knew Carmelita received money to remodel their house but unsure where it came from and how much.

Jocelyn Baker noticed Davies’ dementia in 2009. “She obtain three loans from Davies, $10,000 on May 11, 2008; $15,000 on July 19, 2008; and $8,000 on Sept. 22, 2208, to repair her house. In January of 2011, she began repaying Davies $100 a month. She wanted to pay more but did not have enough money.”

Carmelita and Edgardo Pasamba’s son, Dennis Pasamba, also said he received $15,000 loan from Davies. These were $5,000 check on Oct. 15, 2008, a $5,000 check on Oct. 22, 2008, and a $5,000 check on May 20, 2010. One was “accidental check” Carmelita Pasamba thought she wrote from her own account instead of Davies’ account but she did not correct her mistake.

Citation to recover asset was initially filed against Carmelita and Edgardo Pasamba and Jocelyn Baker; Carmelita’s son, Dennis, and her daughter Donabel Copon; Atty. Bascos and St. Joseph Hospital.

According to the civil complaint, the Pasamba family wrongfully appropriated over $536,682 of Davies’ assets between 2008 and 2011 although Davies was “severely demented and incapable of entering into contracts or making financial transaction on April 24, 2008 based on an evaluation by psychiatrist, Dr. Geoffrey Shaw.”

Carmelita was also indicted for financial exploitation and forgery. While Edgardo Pasamba and Jocelyn Baker were indicted for financial exploitation.

St. Joseph Hospital was dismissed from the civil complaint as respondent after paying $250,000 in settlement.

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PHOTO CAPTIONS

Carmelita Pasamba and Edgardo Pasamba (JGL Photo used with permission from the Cook County Public Guardian office)

 

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