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February 2001

The Case Against Kamena

By Louis Nuyens

By the time of this printing, the date should be set for the recall election of Marin County District Attorney Paula Kamena.

According to recall proponents, Kamena has failed in her duties through conscious wrongdoing and by covering for county corruption. Kamena characterizes the recall as backed by sore losers and misguided medical marijuana advocates.

The following outlines main elements of the pro-recall argument.

Family Court Cover-Up

Former Marin Civil Grand Juror Martin Silverman was so affected by what he heard on the Grand Jury, and when he and other grand jurors were blocked from investigating Marin Family Law Court (FLC) matters by the County Counsel's office, that he felt he had to take action. Motivated by the same sense of civic duty that led to his Grand Jury service, but barred by Grand Jury rules from disclosing confidential Grand Jury evidence or deliberations, he took what many view as a commendable, inventive step, and arranged for an independent investigation. The result was the 'Winner Report,' a scathing evaluation of the Marin Family Law Court system that called for further investigation and immediate suspensions of Judge Michael Dufficy and Commissioner Sylvia Shapiro.

Rather than seek to evaluate the merits of the Winner Report, Kamena immediately launched a threatening probe of Martin Silverman. Once the recall commenced, Kamena dropped the potentially embarrassing probe by handing it off to state Attorney General Bill Lockyer.

The Winner Report is commonly viewed as having sparked the spate of recall efforts by citizens dismayed by FLC decisions. It was assailed on relatively technical points in a vigorously defensive media campaign by insiders of the County legal community, but raised many substantive issues-about bias favoring insider attorneys, and other issues-which might reasonably justify further investigation.

The Winner Report's criticisms of the Family Law Court system were given dramatic support by the open testimonial of a system insider, Larkspur attorney Kathryn Ballentine Shepherd. Shepherd, who admitted to being one of the attorneys likely to benefit from the biases of the Courts, criticized the FLC system in general and Judge Dufficy in particular.

Yet no independent investigation into wrongdoing was commissioned. Recall supporters say that the local sponsor for such an investigation would rightly be the DA.

Incidentally, both Silverman and Shepherd say they have had no personal involvement in the recalls.

Credit Card Cover-Up

Public code is clear on the matter of unauthorized use of public funds: any public servant who uses public funds and "…makes any profit out of, or uses the same for any purpose not authorized by law… is punishable by imprisonment in the state prison for two, three, or four years, and is disqualified from holding any public office in this state." State law would obviously supersede local policy.

When misuse of County credit cards by Supervisors Annette Rose and John Kress was discovered, Kamena's first reaction was not to look deeper, but to announce that nothing illegal had been done. Even recently, in explaining her reasons for not prosecuting, Kamena alternately insists that there was no intent of criminal activity, that there was no criminal activity, and that county policies were too ambiguous to establish wrongdoing. Critics insisted that Kamena was compelled by law to prosecute, even if the offense was minor.

Fielding Greaves, Secretary of the Marin United Taxpayer Association, writing to the Coastal Post (August 2000), said that he could find no record to back up County claims that County credit card rules apply to all County employees except Supervisors. He urged, "prompt investigation by Marin's reluctant DA Paula Kamena."

Assuming that there are ambiguous policies on the books, and-as challenging as it would be to believe-that the inappropriate credit card uses were not deliberate (which critics say is not, legally, a valid excuse from prosecution), the possibility that campaign finance funds were involved means potentially serious violations of FPPC regulations. Critics argue that such allegations should be thoroughly investigated and the results openly published.

Kamena chose to smooth the matter over rather than delve into it.

One might expect that Kress and Rose are indebted to Kamena for her continued inaction.

Kinsey Cover Ups

Supervisor Steve Kinsey is now an outspoken defender of Kamena against the recall effort. However, Kamena could cost Kinsey tens of thousands of dollars, and possibly his contractor's license, with very little effort.

On his own property, Kinsey allegedly performed illegal, not-to-code construction to install a second structure and an add-on, and illegally installed a not-to-code septic system. Even in the laissez-faire of West Marin under Kinsey, in which illegal and ill-advised developments have allegedly proliferated, it is not customary that the County will repeatedly grant extension after extension, without so much as proper requests, to multiple violators of County codes related to both public safety and environmental protection. But, as quietly as possible, that is exactly what Kamena has allowed for Kinsey.

When Forest Knolls resident Jerry Knight alleged that Kinsey was behind the destruction of private property by law enforcement personnel, and voiced suspicion that Kinsey may have been behind the subsequent raid of Knight's Forest Knolls home by over 10 law enforcement personnel (who just happened to be on hand, at night, when a household alarm just happened to go off) who ransacked the residence after claiming to see marijuana paraphernalia through the window, Kamena did not investigate Kinsey's role or the actions of law enforcement personnel. Instead, she proposed to charge Knight with felony possession of morphine and codeine because he had dried poppy stalks, found during the raid, such as those commonly sold by florists, a charge soon dropped. When the Knights sought legal redress, the County intimidated them into dropping their complaint with threats that they would lose both the properties they own if they lost their case.

Bolstering the argument that Kamena had cause investigate, an earlier, documented case of relatively minor harassment of a San Geronimo Valley resident adds indications that inappropriate retaliatory harassment tactics may be in Kinsey's nature.

Critics point to the firings of Marin Environmental Health Services employees Ed Stewart and Dave Mesagno, and allegation of improper actions by the County in accommodating the French Ranch development, as other issues related to Kinsey that should have been openly scrutinized by the DA but were not.

Maligning Mardeusz

Events surrounding the Carol Mardeusz child custody case for her daughter make for a roller coaster ride of complexity, with alleged wrongdoings by both the Sonoma and Marin Family Law Courts. But the most outrageous actions apparently took place in Marin, directly under the watch of Kamena.

Right now, Mardeusz is in jail, serving a sentence on allegations of attempted abduction and perjury, but according to Ron Mazzaferro, a private investigator and legalist who resides in Sonoma County and who has been working in a pro bono capacity to assist Mardeusz for the past three years, it would be more appropriate for Kamena to be in jail. The basic facts according to Mazzaferro follow.

When the first case began to fall apart, an indictment was obtained through appointment of a criminal grand jury, a process in which only the prosecution was heard. Mazzaferro says that the DA's office knowingly elicited and suborned pejurous testimony from grand jury witnesses Leo and Betty Magers to gain the indictment. To gain the conviction of Mardeusz, Kamena's office teamed up with FLC Judge Verna Adams to set up a 'kangaroo' proceeding.

The critical piece of evidence against Mardeusz was her application for a custody hearing in the Dufficy court. The copy of that petition produced by the prosecution did not match the certified copy from the County's own records - it was apparently altered by the prosecution. Yet Adams did not allow procedural determination of which version was valid, and without plausible justification ordered the jury to disregard all key arguments of the defense. The jury was essentially given no option under Adams's direction but to convict.

Normally a jury has tremendous powers, including recourses when it feel a judge's directions may be inappropriate; but the jury has to know of these rights in order to exercise them. Mazzaferro believes it to be unlikely that this jury was apprised of those powers. Members of a jury could also, normally, be approached by a defendant, or the defendant's counsel, to seek such recourses after a questionable verdict; but, in a highly unusual move, the judge ordered the names of the jurors to be sealed.

The argument that Mardeusz's treatment has been proper depends on the idea that virtually every person who has looked into the Mardeusz case is somehow imbalanced.

Mazzaferro, who primarily does legal technical work for attorneys, calls Mardeusz's treatment by Kamena's office blatantly illegal and "bizarre."

Mardeusz attorney Patricia Barry was so infuriated by the Adams courtroom that she could not restrain outbursts that landed her in a cell usually meant for prisoners.

Nedra Ruiz, an attorney with the renowned Tony Serra firm, and who is also working for Mardeusz, also criticized Adams for restricting volumes of relevant evidence, tactfully calling Adams's actions "errors," and predicted that the DA would jail Mardeusz for reasons of political animus.

County Public Defender Mark Davis also sides with Mardeusz. Former Mardeusz attorney,

Kate Dixon, who worked pro bono, openly accuses Kamena of destroying medical evidence in the Mardeusz case and dares Kamena to sue her over her saying so. Mardeusz herself worked for over 15 years as a court reporter and has impeccable character references.

Patient Persecution

Believing Kamena to be supportive of medical marijuana use, Lynnette Shaw, of the Marin Alliance for Medical Marijuana (MAMM), originally endorsed Kamena in her race for DA. and was slow to believe Kamena's role in increased harassment of MAMM patients. Shaw's support, and the medical marijuana issue, tipped the scale that put Kamena's recall on the ballot. Because of her role in signature gathering, Shaw has become a central figure in the recall effort.

Shaw says that, while the Family Court critics have a case against the FLC judges, the recall effort against Kamena, which was added later, is the pivotal one. "The County offices of Marin have become a cottage industry of corruption. The DA has the ability and the responsibility to follow up, by investigation, on plausible citizen accusations, allegations and concerns, rather than do everything in her power to 'kill the messengers.'"

Shaw also maintains that Kamena's choice to ignore Proposition 215, the medical marijuana initiative, puts Kamena in direct violation of the California state constitution. While the issue is not fully resolved at the federal level, the state constitution orders state agents such as Kamena to adhere to the laws of the state unless specifically ordered to the contrary by the United States Supreme Court. Since the US Supreme Court has not yet ruled on the matter, Shaw says Kamena's standing orders are therefore spelled out by Proposition 215. Shaw points out that Oakland and San Francisco have worked out guidelines acceptable to patient advocacy groups-all Kamena would have to do adopt either of those guidelines-but Kamena's aggressively draconian guidelines continue to ignore 215 and criminalize legitimate medical marijuana patients. And, Shaw adds, Kamena offers the same treatment to registrants of the County version of a registration program, a pet project of Supervisor Kinsey, which Shaw says is deficient in patient privacy and numerous other patient protections.

Wasteful Ways

Shaw also contends that Kamena's guidelines on and investigations of medical marijuana users is a needless waste of public funds. She cites the recent Voelker case as an example.

Speaking of public waste, recall opponents have been seeking to raise animosity against recall proponents by saying that the recall election would have to be a special election and would cost $500,000. However, the cost may be largely in the hands of the board of Supervisors: state elections code demands that the recall election be combined with a normally scheduled election, if possible, and is usually flexible enough regarding timing that such a combination is possible. Look for ongoing coverage in the Coastal Post.

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