Arizona pedophile targets Modesto businesses by suing for disability discrimination

08/23/2014 8:41 PM

08/26/2014 1:48 PM

Each year since 2001, except when incarcerated, Robert McCarthy has left his Arizona home for short trips to California. That’s where the money is when you want to sue for disability discrimination.

McCarthy is a 59-year-old pedophile who stole his dead brother’s identity to illegally obtain food stamps and disability payouts, and to keep the alimony flowing from his ex-wife. He also posed as his brother in suing 57 California businesses before he was caught and sent to prison for fraud and sex crimes.

As he has done in numerous other California communities before and since, McCarthy rolled through Modesto, Ceres and Turlock on a four-day trip in May 2013, spending $500 on hotel rooms, alcohol, an ashtray and other items. Six months later, he sued 13 of the places he’d visited, saying they did not accommodate him and his wheelchair.

He passed through Merced County in January 2013, staying in an Atwater hotel and buying a quart of motor oil at a Merced Buick dealership. Three months later, he sued both businesses. He also sued a Los Banos hotel and a Merced restaurant on other occasions.

All of his lawsuits claim that the Arizona resident “intends to return … in the immediate future” to patronize the businesses he sued. McCarthy asks that judges order the companies to become wheelchair-friendly – and to award McCarthy $4,000 for each of the multiple problems he detects, and to triple the amounts to teach the companies a lesson. Defendants range from small, minority-owned liquor stores in poor neighborhoods to a Ford dealership, a Napa Auto Parts store and downtown Modesto’s DoubleTree Hotel. One target, Gas N Shop Mini Mart on South Ninth Street, had lost a 28-year-old family member to a robbery and murder three years before.

In a Modesto lawsuit, McCarthy complained that the painted symbol at a handicapped-accessible parking space had faded. Another time, he said he had trouble signing for a credit card because a service counter was a few inches too high; the owner says records show that McCarthy paid with a debit card that required pushing buttons, not a signature, and that the shop has a low counter for people in wheelchairs that McCarthy did not use.

One Modesto business spent more than $50,000 on efforts such as repaving a parking lot, replacing toilets, and lowering mirrors and soap dispensers. Most coughed up a few thousand dollars to avoid trial, which can be more expensive than paying a lawsuit to go away.

McCarthy’s San Diego attorney, David C. Wakefield, said such lawsuits are “noble efforts” to help the disabled and criticized media for having “a bias towards the business community.” His office had filed McCarthy’s lawsuits using the identity of McCarthy’s late brother 13 years ago, and Wakefield is accused of fraud in an unrelated civil lawsuit for suing on behalf of allegedly blind and wheelchair-reliant clients.

Wakefield’s former partner, Theodore Pinnock, signed some of McCarthy’s early lawsuits, before McCarthy was convicted in 2004 on theft and child pornography charges and sent to prison for 17 months. Pinnock later was disciplined by the State Bar of California for pocketing money that should have gone to a disabled child client and for trying to mislead a judge. Pinnock eventually was disbarred for misappropriating money received from disability settlements.

Lawsuits on a roll

Soon after McCarthy’s release from an Arizona prison in 2005, he resumed his “business trips” to California and has sued 189 companies since. In all, he has sued at least 254 businesses, according to a Modesto Bee review of court documents throughout California.

In a brief telephone conversation, McCarthy said he was expecting a nurse’s visit and did not have time to talk about his trips to Stanislaus and Merced counties. He did not answer or return subsequent calls.

Wakefield surmised in an email that exposing McCarthy’s past is an attempt to divert attention from their crusade of standing up for disabled rights.

In addition to McCarthy, at least three other partnerships of attorneys and disabled clients have brought at least 52 discrimination lawsuits against businesses in Stanislaus and Merced counties.

Most business owners contacted by The Bee know little about the people suing them. One said a plaintiff took issue with the parking lot and never came in his shop. None was aware of McCarthy’s sordid past.

Fraud and pedophilia

McCarthy’s older brother, Georg, was less than 2 years old when the toddler was run over by a car in 1955 near the family home in Massachusetts, according to a court document filed by police in Chandler, Ariz. Robert McCarthy was 2 months old. He contracted polio about the same time and has used a wheelchair since age 20, the probable cause synopsis said.

At some point, McCarthy used his dead brother’s name to get a Social Security card, two Visa credit cards, a Southwest Airlines Rapid Rewards card and a Wells Fargo Bank account. McCarthy used his own photo when obtaining identification cards in Massachusetts and Arizona and a United States passport, pretending to be his brother for each, the report said. And McCarthy used his brother’s identity to file dozens of lawsuits with Wakefield’s firm, all alleging that California businesses violated requirements set forth in the Americans with Disabilities Act of 1990.

“Investigators believe he did this to avoid detection by police, DES (Arizona Department of Economic Security), Social Security and his ex-wife,” the synopsis reads. “Due to the fact that he was receiving assistance from his ex-wife, he did not want to stop that flow of money. Nor did he want to stop the flow of ‘free’ money from DES and Social Security,” the document said, estimating that the otherwise unemployed McCarthy had fleeced nearly $14,000 from the government.

McCarthy, who went through bankruptcy in 1995, would not have been eligible for as much welfare if he had truthfully reported his income from California lawsuit settlements, the document said.

Detectives found much more than expected when they showed up at McCarthy’s doorstep with a search warrant in 2003.

While checking his computer, detectives discovered more than two dozen digital magazines with explicit photos of children engaging in sexual acts with men, and child pornography books and magazines in his bedroom. McCarthy was charged with seven felony counts of sexual exploitation of a minor, as well as theft and forgeries. A plea deal to reduced charges in 2004 sent him to prison for 17 months, after which he was placed on probation and required to register as a sex offender for the rest of his life.

Upon McCarthy’s release in 2005, a judge in Arizona denied his request to live next to a playground. However, the judge granted permission for him to visit California with a probation officer’s approval. McCarthy told the officer that his “visits would be short, two to three days,” and in his report, the officer wrote, “I believe (his) travel plans could be worked out.”

Three months later, McCarthy resumed filing lawsuits in California in his real name. He has brought several each year since, all with Wakefield’s help.

In an email, Wakefield said Rules of Professional Conduct governing California attorneys prohibit him from discussing McCarthy. “It appears that you intend to employ the very common tactic of attempting to divert attention from defendants’ failure to comply with the law, with personal attacks on those individuals who file to enforce the law,” Wakefield said. “ ‘Attack the messenger’ is a very commonly used diversionary tactic.”

Sued over ‘false claims’

In a previous email, Wakefield said media are biased toward businesses because they provide advertising. With their many lawsuits, disabled plaintiffs and their attorneys save taxpayers money by enforcing access laws, relieving government agencies of that regulatory burden, he said.

One of Wakefield’s former clients, Noni Gotti, is suing him in an ongoing case, saying he and his now-disbarred partner filed 240 lawsuits on her behalf but without her consent, “many if not all of which contained false claims,” Gotti’s lawsuit reads. Some of the lawsuits she objects to alleged that she was discriminated against because companies failed to accommodate her blindness or wheelchair needs in hopes of “extracting quick financial settlements.” But she sees well enough to drive and has never used a wheelchair, her lawsuit says.

The lawsuit, filed in San Diego Superior Court in 2012, says Wakefield and Pinnock conspired to make Pinnock “chief apologist for an enterprise they created to bring large numbers of false and inappropriate claims against small businesses which most likely lacked the financial resources to defend them.” Pinnock, who has cerebral palsy and uses a wheelchair, served as their frontman because he could generate “considerable sympathy,” the lawsuit says, until Pinnock was disbarred in 2012.

The lawsuit cites Southern California media exposés of some people Wakefield has represented, including Jon Carpenter, a convicted child molester who became a quadriplegic after an apparent suicide attempt in a Utah prison. He filed nearly 1,000 ADA lawsuits in Los Angeles County alone, the LA Weekly reported last year; Wakefield’s firm represented Carpenter in at least 94, Gotti’s lawsuit says.

Wakefield said, “I have not represented Mr. Jon Carpenter for at least five years, if not more.” He called Gotti’s lawsuit “meritless.”

David Peters represents Gotti and the group Lawyers Against Lawsuit Abuse. He has consulted 1,200 businesses sued for disability discrimination, none involving McCarthy.

McCarthy’s past could be relevant, Peters said, because cases often “come down to the plaintiff’s credibility.”

“How would you know if his claim is false?” Peters said. “Do you have to take the word of a convicted pedophile?”

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