Counsel for a Payson doctor and his wife indicted for illegally taking over a patient’s assets say the county attorney’s presentation to the grand jury was flawed, did not present a full picture of the case and should be thrown out.
Dr. Michael Lowe and Heather Driscoll-Lowe’s attorneys filed motions with the court last week for a new determination of probable cause.
If granted, the court could remand the matter back to a grand jury for further determination or dismiss the indictment. Gila County Judge Peter J. Cahill could also reject the motions.
In his motion representing Driscoll-Lowe, attorney Michael Bernays said his client was falsely represented during grand jury proceedings and her constitutional rights trampled on.
“A woman seeking only to carry out the last wishes of an elderly friend is indicted for theft without ever having the grand jury have a real opportunity to consider the actual facts of the case or the law which might well justify the defendant’s actions,” Bernays said in court documents.
Bernays and Dr. Lowe’s attorney, Elizabeth Flynn, are asking the court to dismiss the county’s Oct. 27 presentation to the grand jury.
“The grand jury proceeding was so misleading and bereft of accurate statements of fact and law that it denied Driscoll her rights to due process and to those substantial procedural rights,” Bernays said in court documents.
Flynn echoed Bernays’ sentiments, saying the state withheld certain evidence because it went against the theory that the Lowes had taken advantage of Alicia Christopherson, “a vulnerable adult” while under Dr. Lowe’s care.
Gila County Attorney Daisy Flores said she would not comment on the motions and “any position we take will be contained in our pleading with the court.”
The state’s case centers on an investigation by Payson Police Det. Michael McArnerny.
McArnerny wrote in a police report the Lowes took advantage of their friendship with Christopherson when they had her sign all of her investments, some $500,000, over to them.
McArnerny based his claims on several people interviewed during his investigation who claimed Christopherson was not of sound mind to change her trust, given a medical condition.
Flynn said McArnerny’s version of the case is misleading and inaccurate.
“The state misled the grand jury to believe that Alicia suffered from dementia so severe as to make her incompetent to make decisions for herself for the entire last year before she died. That is not true,” Flynn said.
The trust agreement
Christopherson’s trust agreement was originally executed in 1993 with the help of a lawyer in the name of Christopherson’s step-grandson, Roger Wolfram.
Through the years, Christopherson amended the trust several times, naming different beneficiaries including RTA Hospice of Payson in 2000.
In 2002, Dr. Lowe started treating Christopherson.
In July of 2003, Christopherson named Dr. Lowe her final beneficiary.
At the time of the adjustment, Christopherson lived at home without assistance.
Dr. Lowe claims he was unaware of Christopherson’s actions. It was not until Christopherson was admitted into the hospice program in July of 2004 that the Lowes discovered Christopherson’s trust.
When Dr. Lowe uncovered this, he reportedly asked Christopherson to talk with her lawyer about the change, but she refused, Flynn wrote in court documents.
Instead, Christopherson signed the final amendment in front of a notary, a power of attorney and Dr. Lowe. Christopherson also transferred power of attorney to Driscoll-Lowe.
“By then, Dr. Lowe, his wife Heather and his young daughter had become ‘family’ to Alicia,” Flynn said. “Alicia had no other family who she identified as close, and no family members ever visited her in the last few years of her life.”
In fact, Wolfram did not discover Christopherson had died and he was no longer the beneficiary until six years after her death. That is when the investigation started.
While Dr. Lowe was Christopherson’s physician, Driscoll-Lowe helped Christopherson pay her bills. A week before her death, Driscoll-Lowe helped Christopherson buy a Land Rover, which a caregiver reportedly used.
However, McArnerny wrote a far more sinister portrayal of the Lowes in his police report.
McArnerny claimed that once Dr. Lowe had Christopherson’s trust, he had her sign everything over to him “when it was clear she was not in a good state of mind.”
“Alicia Christopherson was a vulnerable adult and Michael Lowe took advantage of her,” McArnerny wrote.
However, Flynn counters that the state misled the grand jury with McArnerny’s false statements.
“The state made it sound as if Dr. Lowe discovered the extent of her (Christopherson) assets, prescribed mind-altering drugs for her providing evidence that she needed to be admitted to hospice and had her change her trust to make him the beneficiary when she was not of sound mind to make such a change. Again, misleading and untrue assertions,” Flynn said.
Attorney: Testimony was misleading
Flynn said not only did McArnerny present misleading testimony, he got several facts wrong, including Christopherson’s age.
McArnerny told the jury he thought Christopherson was 86 when she died, but she was actually 78.
“Since his theory of the case was that Alicia was feeble-minded, his testimony intentionally misled the grand jury to believe she was significantly older than she was,” Flynn said.
Flynn also wrote in her motion that McArnerny was wrong when he inexpertly interpreted Christopherson’s medical records.
“He is not qualified to interpret what he read and then testify as to Alicia’s medical and mental condition on the date she signed the documents,” Flynn wrote. “It appears McArnerny was trying to convince the grand jury the Lowes were somehow holding Alicia’s pen to the papers and making her sign them while she was incapacitated.”
Based on an unfair presentation by the state, Bernays and Flynn asked the court to bring the issue before a grand jury for a re-determination of cause.
Flynn and Bernays were not allowed to cross-examine McArnerny during the original grand jury proceedings.