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MARIN COUNTY'S NEWS
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Justice For
Did Judge Smith Ignore Crimes In Divorce Trial?
By Jim Scanlon
When a
poor man's official files are missing, neglect or indifference are plausible. When a millionaire's files are lost
other possibilities emerge .
For seven years now, the case of Ettefagh
vs. Ettefagh Jr. and Ettefagh
Sr., lurched through Family Divorce Court without resolution, embroiling and confounding four Superior Court Judges and one
Court Commissioner. Judge Dufficy, facing a motion to
disqualify, removed himself and transferred out of Divorce Court. Judge Duryee left after she was reversed and rebuked by the Court
of Appeals for abuse of discretion. Judge Sutro, who
followed, was disqualified for inappropriately
discussing the case with Dufficy. Court Commissioner Heubach, was "routinely reassigned" before his
disqualification could be resolved.
Heubach and Sutro
both ignored the Appeals Court finding that Mrs. Ettefagh
did not have the financial resources to properly present her case while her
husband and his father had considerable wealth. To start off the latest attempt
to resolve the case in Marin, Judge Smith, following in the footprints of his
predecessors, ignored the Appeals Court finding and denied attorneys
fees to the Mrs. Ettefagh.
The trial started badly-and maybe should have ended there-when three boxes of confidential and sealed court
documents which had somehow been illegally removed from the Clerk's
office, were circuitously delivered to Smith's courtroom.
Judge Rules He Is Not Prejudiced
On the date the trial was set to begin, Smith dismissed a long,
detailed motion for his own disqual-ification, ruling
that there was no valid reason for disqualification contained in the 95 points
in a 29 page document.
The way Smith ruled on his disqualification seemed prepared and,
in a sense, judicial theater. After the presentation of the declaration of
prejudice at the beginning of the trial, Smith said he had no choice but to
stop the trial and refer the matter of his disqualification to another judge.
At that point, Judith Cohen, the attorney for the father, said, "No you
don't your honor!" and proceeded to read a section of rules governing
disqualification requiring that disqualifications may not be considered
if they are filed "once the trial begins." According to the
rules, trials actually begin ten days before the
trial date.
Smith ordered a recess while he retired to his chambers to
research the challenge. When he returned, he confidently went over the disqualification
document rejecting every point from 1 to 60, 70, 71 and 72 and so on, until he
got to 91. He threw them all out for having been filed "after the trial
began" except for 85, "Another party challenging me in another
case" and 91 that he refused to consider a request for attorney's
fees for the mother from an unused trust account of some $45,000. He denied
those too.
After Smith ruled on his own qualifications and found there was
"no valid reason for disqualification." He ordered the trial to begin
at once. Arthur Soll and attorney from Los Angeles
representing the mother "pro bono", without payment, was obviously
surprised and stunned by the finding He asked for a stay to file a writ, which
Smith denied and ordered Soll to call his first
witness for questioning.
The 3 Missing Boxes and False Information.
Two years previously Mrs. Ettefagh's attorney at that
time, Katherine Ballentine Shepherd a former FLEA
(Family Law Elite Attorney), now in exile, complained
about a missing tax document for 1998. At various times during the first few
days of testimony the three boxes of official documents which had been
erroneously or illegally removed from Superior
Court were inventoried by Judge Smith. Some sealed documents had been
opened, others still appeared sealed . Why anyone
might want to look through old tax files surreptitiously became apparent much
later when income tax documents in evidence were found to contain false
information.
An inventory by a supervising County Clerk found that the contents
of the boxes matched a computerized inventory of exhibits and that nothing
appeared to be missing. That level of investigation appeared to completely
satisfy Smith that everything was in order. The wayward documents were
incorporated into the official inventory and the trial proceeded as if nothing
had happened.
Another Missing Box
Over the next two days the father in law's daughter/accountant was questioned about financial matters and why
boxes of financial documents which she admitted having stored in her home could
not be located. She testified to receiving and distributing funds from her
father but to not knowing the original sources
of the money. Her examination was given preference since she was scheduled to
leave on the evening of the second day of trial on a 45 day trip to Iran and
India and would not be available for further questioning.
Culture Clash
"Child custody is not an issue," Judge Smith said at one point when
the adequacy of child support for the couple's 12 year old son came up.
"What this trial is about is money": How much property did the
married couple share as community property. Mrs. Ettefagh
is of upper class Turkish descent and is now a US citizen. The husband was an
Iranian citizen with a US residence permit at the time of his trial but may
have been naturalized recently. He was still the titular head of a large
textile corporation in Teheran.
The attorneys representing Mr. Ettefagh
and father both stated that the case should have been filed in Iran and took
the position that property that the wife claims belongs to her husband and was
therefore community property, actually belonged to the husband's father who was
described as an old world patriarch who was benevolently motivated to take care
of his large extended family.
Complicating the ownership disagreement is the enmeshed financial
relationship between the senior Mr. Ettefagh and his
adult children. In true old world paternal fashion, he was said to act in their
interest giving property and corporate shares to each and apparently retaining
the right to take his gifts back.
False Tax Returns?
A particularly sensitive-and perhaps criminal-issue, is the
grandfathers having purchased property in the
Copies of Mr. Ettefagh's US tax returns
for the late 1990s submitted by Mr. Ettefagh to
the Marin Superior Court to verify his income and expenses, presumably under
penalty of perjury, are clearly erroneous or fraudulent, and possibly involve
conspiracy to misstate income, submit false deductions, to use false or
incorrect social security numbers and place of residence.
Mr. Ettefagh readily admitted that the
tax returns submitted in his name were not accurate and with regards to his
residence being listed in
What was so bizarre about this testimony (which should be in the
official court transcript -repeat-"should") is that Judge Smith did
not stop the trial and sanction Mr. Ettefagh and his
father for introducing false documents as
evidence or refer the matter to federal authorities for investigation and
possibly for prosecution, loss of residence status, and deportation.
The court transcript should clearly show that Smith was aware of
the implications of this testimony and did not advise either the father or his
father of their right to silence, and that they appeared to be admitting to
crimes in a court of law, of all places!
To make matters worse, since Smith did not require corrected and
verified true declarations on income and expense it appears his final ruling
was based on documents that he knew or should have known were false.
Yet Another Missing File
In her deposition, Mrs. Ettefagh said
her long marriage which survived the turmoil and
depravation of the Iranian Islamic Revolution, US sanctions, and the eight year
war
The Coastal Post learned from public records that Mr. Ettefagh had been arrested in his sister's (the
accountant's) BMW by the Highway Patrol in May 2002 on an off ramp of highway
101 in
The Superior Court clerk's file regarding this criminal matter was
requested in September 2004, but was missing.
Letters were written to John Montgomery the Clerk of the Superior Court and
Judge Terrence Boren the Presiding Judge which were
not answered. Certified letters sent to Boren and
A File With Little In It.
There were no police, probation or district attorney reports, just
basic notations and a form with an illegible signature under John Montgomery's
name certifying that Mr. Ettefagh had satisfactorily
completed his term of diversion on November 16, 2004 and that criminal charges
as to Count 2 [possession of psylocybin mushrooms,
11377(A) H&S Code] were dismissed.
It is difficult to understand why phencyclidine one of the
original charges morphs into psylocybin and why
"more than an ounce" turns into "not more than an ounce".
There may have been some rationale, but we can't know.
One can also not be sure where Mr. Ettefagh
was, or what he had to do while on diversion, but in order to be on diversion
he would have had to admit he was guilty of possession of, at least psylocybin (Count 2), and this would have been therefore an
"official record" for the 16 months he was on the program. He would
have had been required to divulge this information to immigration authorities
on visa applications while traveling or in naturalization proceedings
.
This is not to begrudge Mr. Ettefagh his
opportunity to escape the devastating consequences of our country's extremely
oppressive drug laws we all have to live with, but there is such a pronounced
pattern missing files and favorable judgments so consistently rendered by the
Superior Court of Marin County towards Mr. Ettefagh
and his father over a seven year period, that it creates the distinct
appearance of blatant favoritism or worse.
The Court of Appeals
What makes the sequentially uniform actions of the Marin judges
involved in this case seem so unfair and prejudicial is the opinion of the
Appeals Court Judge who reversed judge Duryee:
"[The wife] is not in a position to finance this litigation,
while [the father and his father], on the other hand, have considerable wealth
at their disposal. The disputed issues of property division are complicated by
the intra-familial transfer of assets. [The
father] and the other members of the family have been uncooperative in
discovery ...
Recent developments in this case further indicate that
without a ... fee award [the mother] will not have access to legal
representation and will be greatly hampered in her ability to present the
complex property issues at trial"
The Large Black Dog
While judge Sutro had this case and was
attempting to move to a disposition, Mrs. Ettefagh
was compelled to act as her own attorney and quite naturally, not being an
attorney, did not know the decorum. Sutro's brute
force methods might have worked except and he was disqualified for conferring
on the case with the recused, resigned Judge Dufficy. They were both disciplined by the California
Commission on Judicial Performance for conferring.
Here is a transcript excerpt of how judge Sutro,
who denied Mrs. Ettefagh an award of attorney's fees,
handled the case:
"The wife: You are biased against me. You went in this morning with
opposing counsel in the back door without my presence in chambers.
The judge: That is a complete falsehood and I'm not going to argue with you.
The wife: You admitted to it in the morning.
The judge: Mrs. E. you're being contemptuous of the Court right now. I'm
ordering you to take the witness stand. Do you hear me? Get up and get in the
witness stand. You're being called as a witness in this case.
The wife: I am verbally disqualifying you since you're biased against me.
The judge: There is no basis for your doing that.
The wife: There is a basis doing that, it's 128 CCP
128. It's a verbal disqualification. It is a family law case,
Lee vs. Regans (sic) was disqualified in a family law
case.
The judge': I'm going to tell you one more time, if you don't get in the
witness stand, I'm going to have the bailiff put you in the holding cell unless
you take the stand. Do you want to go into the holding cell?
The wife: You are biased against me , your honor. You
cannot hear my case.
The judge: All right. Do you want to go into the holding cell?
The wife: Do you have any financial benefit in this case?
The judge: Mrs. E ...
The wife: Did you know that ...
The judge: All right. Into the holding cell.
The wife: The petitioner and the respondent did not sign dissolution of
marriage. Did you know that?
The judge: When you're ready to testify the bailiff will release you from the
holding cell.
The Bailiff: Ma'am, come with me now.
The wife: Don't touch me. I know my rights.
The Bailiff: Get in the holding cell now.
The wife: I will not Do not touch me.
The judge: Mr. Bailiff, you better get some help. OK counsel, there is no point
in my staying on the bench until Mrs. E. decides to take the witness stand.
The wife: What authority do you have, our Honor, over matters from two
countries? That's what I would like to know from you.
(Whereupon, the courtroom was cleared and MS E was placed in a holding cell and
a brief recess taken)
Four Bailiffs placed her in the holding cell. She would not allow
a body search by the men so a female bailiff was called. She remained in the
cell for 20 minutes. She was never charged with contempt. There was no mention
again in the transcript of the incident. She never complained. No one else
complained even though a large black dog and a bailiff was
placed behind her chair during all further proceedings.
She said for a long time she had strong feelings of revulsion
whenever she turned off the freeway towards the
The presence of the black dog is not mentioned in the transcript:
not a whine or a bark or a bow wow during the days that he or she stood guard.
The grounds for Sutro's disqualification came from
his admitting in court that he had conferred with judge Dufficy
who had earlier recused himself from the case.
The Verdict
The Coastal Post withheld it's report of the trial from the
November 2004 edition over concern that a report critical of judge Smith and
other judges might create the impression of having caused a prejudicial outcome for Mrs. Ettefagh
who had suffered within our court system for over seven years.
Judge Smith's decision basically gave all recoverable assets in
As expected she is ruined financially. She can however, work out
of her home at a minimum wage according to court documents. Another