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But although both complaints said parents had contacted attorneys, the Fosters are the first to file suit against the agency. This lawsuit is "intentional, unreasonable, malicious and committed with ill will and evil motive," Mathews's attorney wrote. Mathews countersued under the theory of "malicious prosecution" because the suit was "inconvenient and embarrassing."
Mathews says that as soon as the Fosters informed her of Davis's criminal background, she called both HPD and the FBI, gave them the nanny's address and begged them to arrest him.
Her theory was that if they could find the nanny and fingerprint him, they could discover his true identity. "We took action immediately," Mathews says. "I wouldn't want any other family to hire him as a nanny. I was very concerned."
She says she spoke to the State Department's case agent in California and tipped off local agents the day they arrested him.
"We did everything we could, and we even helped," says Mathews's lawyer, Stacey L. Barnes, an attorney at Broemer & Associates.
Smith says he never spoke with Mathews and neither did any other Houston agent. He insists that they were following up on a lead from their California office.
Mathews fired her private investigator and sued her for not uncovering Stephen Glenn Davis's criminal history. Mathews and her attorneys say that in California, counties store criminal records in separate boroughs and that the private investigator slipped up by checking only a central location.
"I am just incredibly upset that my private investigator, whom I trusted to give me accurate information, gave me inaccurate information," Mathews says.
Kathy Griffin, owner of K. Griff Investigations, is the daughter of Michael "Griff" Griffin, a private investigator who has repeatedly campaigned for City Council and has owned Griff's Shenanigans, a Montrose Irish bar, for 30 years.
Griffin says she's conducted background checks on almost all of Mathews's nannies for the past 12 years. She says she doesn't normally search out of state, but she did this as a favor to Mathews, because the Fosters are VIP clients. She didn't have her researcher hand-search every county courthouse in California because Mathews didn't pay her to. Mathews paid her only $30 to check the nanny's driver's license and social security number.
"They hired her for a low-budget search," says Griffin's Houston attorney, Rex Burch. "It's like if you go to a car wash and you say, 'I want the basic wash,' you don't also get waxed and your wheels cleaned and your tires scrubbed and your engine degreased. You get the basic wash."
Still, Griffin says, she did some extra digging and informed Mathews's office that the nanny was an imposter. She says she expected Mathews to thank her. Instead, Mathews fired her.
Griffin's attorney says that the reason Davis's criminal record was not discovered was that his felony charge was prosecuted in municipal court -- he says Griffin searched the county criminal court, which had no arrest record.
Yet when the Houston Presscalled the San Joaquin County Courthouse, public information officer Leanne Kozak said Davis's criminal history dates back to 1990, when he was arrested for possession, manufacturing or selling dangerous weapons. Over the next ten years he was charged with drug-related offenses, DUI and domestic violence. In August 1995, he was charged with attempted homicide, assault with a deadly weapon and possession of a sawed-off shotgun -- the Stockton Record reported that Stephen Glenn Davis was accused of attacking his neighbor with a meat cleaver. Last October he was sentenced to 16 months in prison after pleading guilty to driving under the influence and having drugs and a loaded gun in his car.
"Maybe you just got a smarter clerk," Burch says. He says there are 5,000 reasons why Griffin and her researcher didn't discover Davis's criminal record. Maybe the files weren't in the computer three years ago, or maybe the clerk misspelled his name.
But the fact that the criminal record wasn't discovered is irrelevant, he says. During the upcoming trial's discovery period, Foster testified that the nanny interviewed on October 12, 1999, and started working at her house two days later. Griffin's initial criminal history report saying he had a clear record in San Joaquin County is dated October 19, 1999.
Even if Griffin's investigation had revealed that Davis spent a lot of time in the back of a patrol car, Burch says, the nanny had already spent five days working in the Fosters' home.
"And that's because NPI didn't even bother to wait for the results before they put him out there," Burch says.
Mathews says she has no idea as to what date the nanny started working for the Fosters; it's not listed in her file. Typically, after the background check is conducted, Mathews sits down with the nanny and the parents and runs through the contract. But Foster was always too impatient and eager to have nannies start immediately, and so after the interview, she invited them to work on a trial basis without informing the agency, says Mathews's former assistant, Ronda McCullough. "Charlotte is desperate -- she's gotta have someone right away," McCullough says.
After Bieri interviewed, McCullough says, Foster didn't return her phone calls. A few days later, Foster told her she had hired the nanny, and said to bill her credit card, McCullough says.