Federal prosecutors say 78-year-old former WorldCom CEO Bernie Ebbers may not be in as bad physical shape as indicated in court filings seeking his early release from prison due to health concerns.
In a letter Monday to U.S. District Judge Valerie Caproni, Assistant U.S. Attorney Gina Castellano cites a note from a prison psychologist who listened in on phone calls between Ebbers and his daughter in recent weeks. Joy Ebbers Bourne has said in a sworn declaration that her father has dementia.
"In the calls, he was alert, aware and oriented to person, place, time and situation," the psychologist is quoted as saying, adding that Ebbers was asking about his daughter's efforts to get him out of prison. He is being held at the prison medical center in Fort Worth, Texas.
The psychologist notes that Ebbers has presented a much different persona when he knows he is being observed.
"The conversations between him and his daughter were very different then [sic] how he presented to this writer during our last encounter on 10/11/19 when he presented to this writer as though he didn't know he was in a prison nor the date and time," the psychologist writes.
In a response filed in court Tuesday, Ebbers attorney Graham Carner said the alleged discrepancies can be explained by factors that have nothing to do with fakery.
"It is commonly known that people suffering from dementia (which can have many forms) can experience symptom fluctuation (i.e., 'good days and bad days')," Carner wrote.
The response, which notes that cognitive issues have not been the focus of Ebbers' legal motion, cites other parts of his medical records that Carner says demonstrate Ebbers "has a substantially diminished ability to provide self-care in prison."
Carner noted that Ebbers has suffered multiple falls, and that according to the medical report, he weighed just 148 pounds last week, down from 200 pounds in July.
"Objective medical findings show that his age and medical condition qualify as extraordinary and compelling reasons for compassionate release," Carner wrote.
Caproni, a judge on the U.S. District Court for the Southern District of New York, had given the government until Monday to supply the additional medical data, most of which were filed under seal.
In addition to asking for any tests as to whether Ebbers was malingering, or faking his memory loss, the judge asked for information on Ebbers' rapid weight loss — the former bouncer has reportedly withered to around 160 pounds.
Castellano said an abdominal ultrasound performed late last month found "no definitively worrisome or sonographically acute findings," but further tests are scheduled next month.
Ebbers has served about 13 years of his 25-year sentence for orchestrating the $11 billion accounting fraud by the defunct telecommunications company. With good behavior, he is scheduled for release in 2028.