|By Andy Furillo, The Sacramento Bee|
|McClatchy-Tribune Information Services|
Five days earlier, O'Brien, with bad kidneys and restricted aortic blood flow, suffered a fall that put him in the hospital, according to testimony contained in the court file. Two days earlier, he had given his power of attorney to Pawlowski, to modify his estate plan.
What happened next remains a matter of debate: Pawlowski and Rosenfeld would later testify that, immediately after getting the call, they left the restaurant on
That new will -- in just 50 words -- left everything to Pawlowski, except for
O'Brien was right. He did die, within minutes of Rosenfeld's visit on that March evening.
Three years and two trials later, the will remains the subject of a fierce probate fight in
According to his testimony in the case, Heard had visited O'Brien in the hospital two days before his death. He told the court that Rosenfeld had referred him to Pawlowski, and that Pawlowski asked him to evaluate O'Brien's mental state, a process known as a "testamentary competency evaluation." He said he found O'Brien "really incoherent" during the visit, and unable to submit to the exam.
Heard, 63, never recovered from the injuries he sustained in the
Law enforcement officials are waiting for the results of both probes. Meanwhile, intrigue builds around the case that once again is in
Card table buddies
"Everybody liked Herbie," his brother said in a phone interview.
O'Brien bought a house, property records show, in a tidy Greenhaven neighborhood on
The petition for probate filed by Pawlowski did not list an estimated value of O'Brien's estate, but a trustee's accounting as of last
According to Rosenfeld, Pawlowski was one of O'Brien's poker buddies and closest friends -- he served as best man at Pawlowski's wedding. Pawlowski, 50, is chief of staff at the Banfield pet hospitals in
Rosenfeld, another card table regular with O'Brien and Pawlowski, is one of the most recognizable criminal defense lawyers in the Sacramento courthouse. He sports sharp pin-striped suits and slicked-back hair, and boasts a client list that has included high-profile murder defendants, sexually violent predators and a juror who came under scrutiny in a 2010 gang beating trial for posting his thoughts about the case on
O'Brien had married four times, according to his brother, and one of those wives brought
Slattery had some legal problems over the years, according to court records. In 2008, he was arrested in
Slattery was still listed as beneficiary on
O'Brien apparently thought the prognosis optimistic. Still in Kaiser the day after the fall, he called Pawlowski to say he needed to get his financial affairs in order immediately, according to the veterinarian. "He said he had three to five days to live," Pawlowski testified at the second trial.
'A mere scrivener'
Three days later, on
Her report stated that O'Brien's oxygen saturation level had dropped to 81 percent, meaning his vital organs were in danger of shutting down. She said she gave O'Brien oxygen and called Pawlowski, who held his friend's power of attorney over health care decisions. Pawlowski's cellphone records show he took the call at the steakhouse at
During testimony at the probate trial, Rosenfeld said that when he arrived at
"He acted solely as a friend and as a mere scrivener," Guthrie wrote of Rosenfeld in his court brief.
Rosenfeld said he had taken the statement by the time paramedics arrived, which according to medical reports, occurred at
A pivotal phone call
Pawlowski filed the will on
He has pressed the probate case from his cell in
In the first trial, in 2012, Slattery and his lawyer argued it would have been impossible for Rosenfeld, driving alone in his Hummer, to travel the 15 miles from the steakhouse to
The judge disagreed.
"The four simple sentences set forth in the will would not have taken much time to dictate, particularly for a man who knew he was dying and wanted to resolve his affairs before passing," Krueger wrote in his
Pawlowski and his wife, Kristi, the judge noted, had been friends with O'Brien for years and had tried to help him with his legal and financial planning, especially in O'Brien's dealings with Slattery. The judge approved the will as recorded by Rosenfeld.
Less than a month later, on
Head was still working with Rosenfeld at the time of O'Brien's death, he said, and "happened to know" that Rosenfeld had sent a psychologist to evaluate O'Brien's mental state just days before his death. He identified the psychologist as
Kessler contacted the psychologist, who at the time said he didn't recall the visit, according to court documents. A week later, Head, the attorney, received a letter from an attorney for Rosenfeld threatening a defamation lawsuit.
Asked during trial if steps had been taken to perform a competency evaluation, Pawlowski said, "They hadn't been, but ... I planned to do that."
In a deposition before the first trial, Kessler also asked Rosenfeld if he "had received or caused to be taken any statements or evidence of
The new information showed that Rosenfeld and Pawlowski "repeatedly misrepresented and concealed ... information material to the ultimate facts at issue in this case," Kessler wrote in his motion for a new trial.
In a sworn declaration, filed in opposition to Kessler's motion, Pawlowski said he recalled that "I did contact Dr. Heard about having an evaluation done." He said the psychologist made the visit but could not conduct the examination. O'Brien "was weak and very tired" after a dialysis treatment and was "not up to holding a conversation," Pawlowski stated.
He also cited a sworn declaration by Head, the attorney, saying Rosenfeld had told him that psychologist Heard met with O'Brien and found him to be incompetent. And the judge noted a second declaration by a legal research assistant in the office,
The weight of the statements, the judge said, "raises doubts about whether
"It also raises questions ... that relate to the credibility of witnesses at trial," Krueger wrote. "These questions are particularly relevant because the court based its prior judgment on its findings that Dr. Pawlowski, Mrs. Pawlowski and Mr. Rosenfeld were credible."
A man's last wishes
"Look, I'm just going to flat-out ask you," Kessler told Pawlowski in May, on the first day of the second trial. "Were you trying to hide the fact that Dr. Heard tried to evaluate
"I was not trying to hide it from the court," Pawlowski said. "I was -- I was trying to make things difficult for you, yes."
Pawlowski also testified that Rosenfeld had referred Heard for the competency evaluation.
"I referred Dr. Heard to Dr. Pawlowski and Dr. Pawlowski to Dr. Heard," Rosenfeld testified, but he said that he did not know why Pawlowski wanted Heard to evaluate O'Brien's mental capacity and that he wasn't aware of the result of the psychologist's visit.
"The context and their conversation, I am not privy to, and I don't know what happened and I don't -- I wasn't part of their agreement or retainer or anything from that point on," Rosenfeld testified.
In the second trial, Heard's testimony took center stage. He testified that he did remember the visit, and that Rosenfeld told him "he had a friend who was an executor, that the holder of the estate wished to switch the will ... and that they needed a competency -- basically a testamentary capacity evaluation."
Heard said he visited O'Brien at Kaiser on
The psychologist told the court he "likely" relayed the information to Rosenfeld, "but I can't say with certainty."
During the trial, Rosenfeld's former office mates repeated the assertions made in their declarations.
"I want to make sure we're clear on this," Kessler said. "You're saying that
"Yes," Head replied.
In briefs the judge took under submission last month, the lawyers laid out their final arguments:
On behalf of Slattery, Kessler challenged Pawlowski's credibility, contending he had purposely concealed the psychologist's examination attempt and his findings regarding O'Brien's mental state.
Kessler said Heard's testimony also "suggests that Rosenfeld lied" in the second trial about why Pawlowski wanted O'Brien evaluated and about the veterinarian's intent to change the estate plan and to have himself made the prime beneficiary. Rosenfeld, Kessler alleged, "in fact was the agent of Pawlowski" when he claimed to have taken O'Brien's dictation.
Pawlowski's attorney, Guthrie, countered in his post-trial brief that O'Brien had "clearly showed" his intent to modify the trust. Guthrie maintained that Heard never completed a competency evaluation, and that it was the effects of the dialysis that left O'Brien unable to submit to the exam, not a lack of mental capacity. Guthrie stated that the day before O'Brien died, his treating physician at
Rosenfeld, not being a direct party to the probate case, did not have an opportunity to formally respond to Kessler's argument. In an interview, he said, "I was simply a witness to a man who was a very good man and his last wishes. That was my entire role."
"Whoever wins or loses, I don't know and I really don't care," Rosenfeld said. "I just wanted my friend to go into death with some peace."
As for Kessler's statement that Heard's testimony suggested Rosenfeld had lied on the stand in the second trial, Rosenfeld said, "I don't know what
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