Attending five out of nine 4949 Swiss Ave. trial days was an interesting experience. The hours of case testimony coupled with wide and deep knowledge of Involuntary Redistribution of Assets (IRA) actions generated a disquieting familiarity that the average person – most of whom live unaware of the looming threats to their person and property – would never believe.
Thanks to our friends at Ramparts360 for helping to spread this message with a post entitled A Cautionary Tale: Socialite Robbed on Deathbed in Dallas County. In the middle of the trial, Estate of Denial® spent two days in Las Vegas attending Americans for Prosperity Foundation’s RightOnline 2012.
Intrepid citizen journalist Lou Ann Anderson has a blog called Estate of Denial where she sorts through corruption and makes sense of lawsuits in Texas. We got a chance to hang out at RightOnline 2012 and I enjoyed every minute of it. (She left her hazmat suit at home btw.)
When she poked me about this story, however, I became filled with dread in the middle of the second paragraph. And I will remind every hard working American who is aiming for prosperity: the hyenas are looking for you and they will find you. It’s your job to ensure they don’t get you or your family. “Stuff” only happens if you let it, so it’s your job to think of what could go wrong and guard against it.
Now read this. It will help.
Photo by Alex Anderson.
Dallas’ 4949 Swiss Ave. estate case: today’s verdict, the big picture
by Lou Ann Anderson | June 23, 2012 | Bell County Legal News Examiner
Guilty of attempted theft of more than $200,000. That’s the verdict rendered today by a Dallas County jury of 10 women and two men on the eighth day of the Mark McCay trial. The Dallas antique dealer faced the charge in conjunction with the estate of Mary Ellen Bendtsen, the late socialite who resided at 4949 Swiss Ave. in Dallas. The conviction could bring up to 20 years in prison. A hearing to begin the trial’s sentencing phase is scheduled in late July.
The verdict indicates the jury’s agreement with prosecutors that McCay acted with specific intent to commit theft by first having the 88-year-old Bendtsen execute a will on Feb. 22, 2005, as she lay in an ICU ward just hours after being brought to the hospital with a stroke diagnosis and later by filing that will for probate at 8:04 a.m. March 2, about seven hours after she died.
Probate abuse targets often think their cases are unique. Usually, they’re not. Significant patterns show themselves repeatedly. The McCay trial focused on 4949 Swiss Ave., Bendtsen’s notable yet decaying home. The house certainly provided a dramatic backdrop, but the case mechanics followed a familiar non-unique pattern. This case is, however, rare in that McCay and two others, his partner Justin Burgess and now-disbarred attorney Edwin Olsen, all face criminal charges for attempted theft – namely of Bendtsen’s interest in the Swiss Avenue house.
That article was written along with the following three others. Another reflective piece will be forthcoming.
Closing arguments in Dallas’ 4949 Swiss Ave. estate case trial (June 20, 2012)
Defense starts in Dallas’ 4949 Swiss Ave. estate case trial (June 18, 2012)
Dallas’ 4949 Swiss Ave. estate trial alleges exploitation, attempted theft (June 15, 2012)
In addition to our own commentary, EoD’s perspective has generated interesting response. Prosecution witness Danielle Verot posted this comment on our “today’s verdict, the big picture” piece here on EoD:
Someone pointed me to your coverage of the Mary Ellen Bendtsen, Swiss Avenue, Mark McCay trial testimony, specifically your reporting of my own testimony in the case.
Your advocacy is admirable and this website a treasure trove of information, with its comprehensive coverage of News-Worthy events – on the fate of us ALL as we age (as you point out so clearly). From birth to death, not one of us is immune from becoming victims – or perpetrators – of acts that WILL BE life-altering.
What a daunting task you have taken on, with all of the legal complexities involved and a “system” that, more often than not, favors the more powerful – in money and prowess.
Being the steward of one’s very life – to their utmost well-being and basic wishes to be cared for – calls for the repeated laying down of one’s own life and self-interests – sometimes in the smallest of ways. Interesting, isn’t it, that my eyes and heart were wide open to Ms. Bendtsen’s condition on the night of “the party” yet I later refused to get dragged into a custody hearing that “I knew nothing about” between her daughter and other strangers?
I can only now say that as the story unfolded in this case, the emotional punishment for me for the crime of self-preservation has been fitting; Ms. Bendtsen’s face is a constant reminder as I am learning more each day about “selfless” love in caring for the needs and protection of assets – to the sole benefit of an aged person.
Click here to read the full comment.
Here also are excerpts from an e-mail received from a north Texas attorney:
Just a quick note regarding your recent stories in the Examiner regarding the Swiss Avenue case . They are very well written and highlight what I perceive is a growing problem…..From my perspective, there is no reason for anyone to rob a bank these days. Rather than risking getting shot for $10k or so, the bad guy can drain six figures with a pen…..
We appreciate the kind sentiments expressed. And though this first trial is over, more is ahead.
While resolution of this case is certainly important to the family and friends of Mary Ellen Bendtsen, its outcome could also be precedent-setting for Texans across our great state. And who knows? Its criminal prosecution might set another example nationwide that theft via probate instruments (wills, trusts, guardianships, powers of attorney) is indeed a criminal act – a criminal act that is bad and harm-producing regardless the victim’s age!
Meanwhile, The Dallas Morning News also covered the trial. Here are a few other articles EoD readers may find of interest:
Attribution:
Jury convicts man of trying to swindle Swiss Avenue home from dying socialite
Jennifer Emily
June 21, 2012
The Dallas Morning News
http://www.dallasnews.com/news/crime/headlines/20120621-jury-convicts-man-of-trying-to-swindle-swiss-avenue-home-from-dying-socialite.ece?action=reregister
The limelight always found Mary Ellen Bendtsen. She made sure of that.
The Dallas socialite was center stage in her ramshackle mansion, where dust from collapsing ceilings covered its sweeping mahogany staircase and oversize glamour shots of Bendtsen in her younger years.
Seven years after her death at age 88, Bendtsen and her home have once again demanded an audience. For a week and a half, they were the focus of a criminal trial where a man who befriended Bendtsen for 15 years was found guilty Thursday of trying to swindle away her beloved mansion.
A Dallas County jury sided with prosecutors, who said Mark McCay took advantage of Bendtsen’s dementia by isolating her from family, telling Bendtsen that her daughter wanted to throw her into a nursing home and wooing her with parties, dinners, cocktails and compliments.
Less than two weeks before Bendtsen’s death in 2005, as she lay in her hospital bed after suffering a massive stroke, she signed a will leaving her interest in 4949 Swiss Ave. to McCay, now 50, and his partner. The home is in an Old East Dallas historic district developed more than a century ago.
Bendtsen’s only child, Frances Ann Giron, began sobbing when state District Judge John Creuzot read the jury’s verdict finding McCay guilty of attempted theft. Giron embraced lead prosecutor Donna Strittmatter and thanked her.
Giron said afterward that “justice was done” for her mother.
Giron, who was kept away from her dying mother’s bedside by McCay because he had Bendtsen’s power of attorney, said McCay belongs behind bars. McCay once forcibly removed Giron from her mother’s hospital room and she never saw her mother alive again.
“He needs to go to jail,” she said Thursday. “He needs to be off the streets. He’s a predator.”
The 7,000-square-foot house was Bendtsen’s identity. A friend of Bendtsen’s for half a century, Beatrice Grayson, who testified during the trial on McCay’s behalf, told jurors that “Mary Ellen was the house, and the house was Mary Ellen.”
Bendtsen fought Giron’s efforts to have her moved out of the mansion and in with her daughter. And Giron, who lived out of state until 2004, found it hard to argue with her mother.
Bendtsen, a former model, loved to throw parties at 4949 — as those familiar with the home call it — and she was known to be quite the charmer. As the house and Bendtsen aged, they both lost a little sparkle, but never any of the old-time glamour that drew friends and even strangers to them, including McCay.
McCay met Bendtsen by knocking on her door after someone told him about the house. He blinked rapidly as he stood next to his attorneys while the jury filed into the courtroom before their decision was read. He did not appear to react to the verdict.
McCay faces up to 20 years in prison but is also eligible for probation. He has asked Creuzot to decide his sentence. Creuzot set a sentencing hearing for July 27, and McCay remains free on bond.
After the jury left, McCay hugged two of his supporters, Grayson and Dixie Tidwell, and kissed them on the cheek. Grayson and Tidwell, who had also been friends with Bendtsen, left without comment. Both testified that the relationship between Bendtsen and McCay was like that of mother and son.
One of McCay’s attorneys, Jeff Buchwald, said that despite the jury’s verdict, “I still believe it was Mary Ellen’s wish that the property go to him. I don’t think it’s theft.”
The defense maintained throughout the trial that Bendtsen long wanted to leave McCay and his partner Justin Burgess the home, and that McCay kept Bendtsen’s family away at her request.
Buchwald said he believes the jury’s decision was “an emotional verdict” that came “from a moral standpoint.” He said he thinks the guilty verdict was based on a commonly held belief that people should not leave money or property to anyone who isn’t a family member.
Buchwald said McCay, who did not testify at the trial, believes he acted lawfully.
“I’m still not sure in his own mind that he doesn’t think it was all on the up and up,” Buchwald said.
Buchwald said he believed his client was hurt by evidence introduced at trial that showed McCay had befriended an elderly couple in the ’90s and tried to benefit from their estate. In that instance, according to testimony, McCay tried to keep family members at bay and hoped to inherit the couple’s house and property. No criminal charges were filed.
Strittmatter, who called McCay “the face of elder exploitation” during closing arguments, declined to comment after the verdict.
She said she didn’t want to speak about the case because McCay’s sentence is still pending and his co-defendants have yet to be tried. Burgess and attorney Edwin Olsen are also charged and face up to 20 years in prison. Olsen has also been disbarred.
In a video shown to jurors of Bendtsen signing the will on Feb. 22, 2005, Bendtsen looks pale and frail in her hospital gown.
She answers questions softly and repeatedly rubs her lips and eyebrows.
She had suffered a massive stroke that day and weeks before had been diagnosed as too mentally impaired to make legal decisions.
McCay and Burgess were at the foot of bed as Olsen asked questions before she signed the will.
When Olsen first asks Bendtsen who she wants to have her house, she replies, “I want it.”
What if you die? Olsen says. Who do you want to leave it to?
“To the boys … the boys over there,” she says, calling McCay and Burgess by their first names.
The will leaving Bendtsen’s interest in 4949 to McCay and Burgess was thrown out by a probate court. It was declared invalid because a notary signed it at her home and not in front of Bendtsen as the document stated.
The saga of the house and its legal drama was chronicled in a 2006 series in The Dallas Morning News.
The Dallas County district attorney’s office has said that there was a surge in the reporting of elder abuse cases after The News’ series was published.
The mansion, built in 1917, was in was in dire need of repair and updating when Bendtsen died.
It didn’t have central heat or air and lacked the proper plumbing for a washing machine.
The house went to Giron, and it sold for $525,000 last year.
WHAT’S NEXT?
Mark McCay was convicted Thursday of attempted theft. He faces up to 20 years in prison but is also eligible for probation. His partner Justin Burgess and their attorney Edwin Olsen face attempted theft charges. If convicted, they also face up to 20 years in prison.
July 5: Announcement setting for Olsen’s case. This typically offers attorneys handling the case an opportunity to discuss potential pleas or trial dates and other aspects of the case.
July 27: Mark McCay’s sentencing hearing. He faces up to 20 years in prison.
No court dates are currently pending for Burgess. Burgess and Olsen had trials dates set for June 11 but only McCay’s case went to trial.
Additional coverage:
Jury will resume deliberations tomorrow in 4949 Swiss case
Jennifer Emily
June 20, 2012
The Dallas Morning News
http://crimeblog.dallasnews.com/2012/06/jury-deliberates-in-case-against-man-accused-of-swindling-swiss-avenue-home-from-dying-dallas-socialite.html/
UPDATE: The jury has gone home for the day. They will resume deliberations in the morning.
Original post: A Dallas County jury is deliberating whether Mark McCay tried to swindle away the home of an aging Dallas socialite.
McCay, 50, is accused of convincing Mary Ellen Bendtsen to leave him and his partner her portion of the home in a will she signed in the hospital the day she had a stroke in February 2005. Prosecutors say he isolated Bendtsen from her family and took advantage of her mental state.
Defense attorneys say Bendtsen did not want to see her family and that she had long wanted to leave the home to McCay and his partner, Justin Burgess, instead of her only child, Frances Ann Giron.
In closing arguments, prosecutor Donna Strittmatter told jurors that McCay was “the face of elder exploitation.”
She said that McCay lied to Bendtsen, saying that Giron was going to send her mother to a nursing home when it was actually doctor-ordered rehabilitation. Strittmatter said McCay also lied to Bendtsen that Giron didn’t want to see her mother when he was the one keeping Giron away.
“With friends like Mark McCay, Mary Ellen Bendtsen didn’t need enemies, did she?” Strittmatter said.
Defense attorneys Jeff Buchwald and Karen Lambert said McCay was following Bendtsen’s wishes regarding her home and family. He was also trying to help his friend of 15 years stay in her home at 4949 Swiss Ave. in Dallas.
“You can’t steal from someone who wants to give you their property,” Buchwald said.
Lambert shifted blame to Giron and said Giron, who lived out of state until 2004, should have done more for her mother.
“If Frances Ann really loved her mother, all she had to do was step in and do the things Mark McCay did for 15 years.”
Bendtsen died at age 88 in March 2005 — less than two weeks after executing the will that left the home to McCay and Burgess.
The will was thrown out by a probate court, and the home went to Giron. It has since been sold.
Closing arguments set for Wednesday in trial of Dallas man who allegedly sought Swiss Avenue home
Jennifer Emily
June 19, 2012
The Dallas Morning News
http://www.dallasnews.com/news/crime/headlines/20120619-closing-arguments-set-for-wednesday-in-trial-of-dallas-man-who-allegedly-sought-swiss-avenue-home.ece
Defense attorneys for a 50-year-old man accused of trying to swindle aging Dallas socialite Mary Ellen Bendtsen out of her home rested their case Tuesday without calling him to testify.
Dallas County jurors hearing the attempted-theft case against Mark McCay will listen to closing arguments Wednesday before deliberating his guilt or innocence.
Prosecutors say McCay, his partner Justin Burgess and their attorney, Edwin Olsen, isolated Bendtsen from her family and persuaded her to sign a will not long before she died leaving her one-third interest in her beloved mansion at 4949 Swiss Ave. to McCay and Burgess.
That will was thrown out in probate court, and the home went to Bendtsen’s daughter. The house has since been sold.
McCay contends that Bendtsen, who died at age 88 in March 2005, did not want to see her family and had long wanted to leave the house to him and Burgess.
More friends of McCay and Bendtsen testified Tuesday that Bendtsen thought of McCay as a son and wanted him to have her home, which was in dire need of repairs and updating. The two knew each other more than a decade.
One friend, Cary Richards, said that McCay was distraught when Bendtsen died.
“It was like he lost his mother,” he said.
One issue during the trial is Bendtsen’s mental capacity at the time she signed the will giving her home to McCay and Burgess.
Bendtsen’s doctors testified last week for the prosecution that she was suffering from dementia. They said the dementia and problems from a massive stroke less than two weeks before her death would have prevented her from fully understanding legal documents.
Friends of McCay and Bendtsen said that Bendtsen’s mental capacity had not changed since they met her.
Psychiatrist J. Douglas Crowder testified for the defense that he believed Bendtsen would have had the mental capacity to make legal decisions about her will. Crowder said he reviewed Bendtsen’s medical records and interviewed the friends who said Bendtsen’s mental state was the same.
Prosecutors pointed out during a cross-examination that the doctor did not interview others, such as Bendtsen’s daughter and an Adult Protective Services investigator, who both testified that Bendtsen had diminished mental capacity.
Cases are pending against Burgess and Olsen. If convicted, each faces up to 20 years in prison. Olsen has been disbarred.
Defense opens case in Swiss Avenue theft trial
Jennifer Emily/Andrew Pantazi
June 18, 2012
The Dallas Morning News
http://www.dallasnews.com/news/crime/headlines/20120618-defense-opens-case-in-swiss-avenue-theft-trial.ece
A man accused of trying to swindle an aging Dallas socialite out of her home began presenting his defense Monday to Dallas County jurors hearing the case against him.
Prosecutors say Mark McCay took advantage of Mary Ellen Bendtsen and isolated her from family members to persuade her to leave him a portion of her beloved ramshackle mansion on Swiss Avenue in Dallas.
Bendtsen signed a will after having a massive stroke, leaving the home to McCay and his partner, Justin Burgess. That will was thrown out after Bendtsen died a short time later in 2005 at age 88. Bendtsen’s daughter was awarded the home, which has since been sold.
McCay, Burgess, and their attorney, Edwin Olsen, are charged with attempted theft. They face up to 20 years in prison if convicted. Trial dates are pending for Burgess and Olsen.
Defense attorneys Jeff Buchwald and Karen Lambert called witnesses Monday who questioned the prosecutors’ assertions.
Beatrice Grayson, who knew Bendtsen for half a century, told jurors that McCay was like a son to Bendtsen. The three of them regularly spent time together.
“‘I wish he were my son’ is what she would say,” Grayson told jurors. Grayson said that McCay visited regularly, brought Bendtsen food, took her out for dinner and had repaired some plumbing at the home.
Grayson, who is blind in one eye and hard of hearing, said that Bendtsen’s mental faculties had not declined over the years. Grayson said Bendtsen was sharp enough to make the legal decision to give McCay power of attorney and leave McCay and Burgess her portion of the home.
But that contradicts the opinion of medical professionals who testified last week for the prosecution that Bendtsen had dementia.
Grayson said that McCay was going to let Bendtsen stay at the home while Bendtsen’s daughter wanted her mother to leave the home, which was in dire need of repairs.
“She did not want to leave that house,” Grayson testified. “Mary Ellen was the house, and the house was Mary Ellen.”
Before prosecutors rested their case, they called witnesses to talk about an elderly couple McCay befriended in the 1990s. A caregiver said the couple, Jack and Irene Farrington, lived in filth when McCay hired her after he had been caring for them.
And an attorney testified that he had concerns about McCay’s relationship with the Farringtons.
The attorney, Paul E. Lokey, said McCay called him in November or December of 1997 and asked to set up an appointment. Jack Farrington wanted to name McCay in his will. McCay would have received 75 percent of their home if Jack Farrington had outlived his wife. But he died before his wife, who had been in worse health.
During the meeting, Lokey said he asked McCay to leave because of Jack Farrington’s demeanor. “In my opinion, it was subservient,” Lokey testified. “When I’d ask a question, he’d look at Mark.”
Lokey said that bank records show Jack Farrington wrote a $35,000 check to McCay and a $21,000 check to Burgess. Lokey testified that he did not believe Farrington was competent at the time because his mental state had declined.
There were no charges filed related to the
Testimony in the trial will resume Tuesday.
Estate of Denial® provides news, analysis and commentary on abusive practices occurring in probate courts and via probate instruments (wills, trusts, guardianships, powers of attorney). We provide original perspective to educate the public regarding this growing threat to both individual freedoms and property rights.