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April 2001

Bizarre Court Case Ensnares Marin's First Female District Attorney

Marin Could Lose Most Progressive DA in History

By Jim Scanlon

In all the hundreds of thousands of criminal cases that have passed through Marin County's courts, perhaps none is stranger and has aroused more passion and unforeseen consequences, than that of Carol Mardeusz who is currently incarcerated in the Marin County Jail, due to be released in April.

During her passage through Marin Courts, she has been convicted of four felonies and a misdemeanor for committing perjury in documents filed with Family Court Judge Michael Dufficy. Recall petitions were filed by her supporters against four judges, and Marin's first woman District Attorney. A Family Court Commissioner, who was appointed and could not be recalled, was publicly vilified. One of Mardeusz's supporters, a former member of the Grand Jury, was investigated for breach of oath. A lawsuit against one of the judges filed in Los Angeles County was recently dismissed. Contempt charges against her attorney for calling a female judge a "whore" are pending, and a complaint for unfair political practices is pending against the Reverend Lynette Shaw, the founder and owner of the Fairfax Cannabis Club who resuscitated and bankrolled the recall movement against the District Attorney.

Of all the recall petitions filed, only the one against Kamena has gotten sufficient voter signatures to actually hold a special recall election scheduled for May. The special election upset county officials because of the cost which is estimated to be between $500,000 and $700,000. In an unexpected twist to the recall, the brother of Mardeusz, Tom Van Zant, filed nomination papers to be an alternative candidate, should Kamena be recalled. Van Zant graduated from law school three years ago. If Kamena is recalled, he will become the District Attorney.

How did it come about that only Kamena out of a crowd of judges is the only one facing recall? The first woman DA in Marin is a veteran prosecutor and administrator responsible for perhaps 10,000 cases a year, a staff of 130 including highly trained professionals, with a budget of $12 million. She is by most estimates, the most popular, open, innovative, concerned, prevention and treatment oriented District Attorney in the history of Marin. How did this happen?

The Mardeusz case actually starts in the Sonoma County Family Court where she appeared in 1992, in an action to deny visitation to the father of her youngest daughter. Since Family Court proceedings are confidential the details are unknown, but for one reason or another, custody was removed from Mardeusz and awarded to the father. She was later convicted in Sonoma Criminal Court for violating a court order after she misrepresented her situation in the Sacramento Family Court and attempted to remove her daughter from school without authorization.

What got her into trouble in Marin was that she repeated with Judge Dufficy the same scenario as in Sacramento with the same result except that now, as a repeat offender, she was formally charged with perjury and child stealing. Few people become enmeshed in court systems the way she has, involving three different Family Court Systems and two Criminal Court systems. According to information at a web site supporting her, she is a court reporter, is highly susceptible to stress and complained about the Sonoma County District Attorney for ignoring her report that Richard Allen Davis, the murderer of Polly Klaas was stalking her older daughter.

While it is not unusual for individuals to complain bitterly about one court jurisdiction it is odd for such turmoil to exist in so many court systems and involve so many outside supporters.

While the Mardeusz case was proceeding through the courts, a group of her supporters and other critics of Marin's Family Court, commissioned an investigation by a Karen Winner, a New York author and investigator, which resulted in a report based on cases including Mardeusz, which was highly critical of the Family Court, Judge Dufficy and Court Commissioner Sylvia Shapiro. Dufficy later transferred to other duties.

While it only takes a few dozen signatures to institute the recall of an elected official, it takes a fixed percentage of the electorate to actually hold a recall election. The Family Court critics easily provided the signatures to initiate the proceedings but were only able to gather a few hundred towards the necessary 13,000 or so necessary to hold an election. In this manner the recall of the all the judges petered out-except for District Attorney Kamena.

At this point the Reverend Lynette Shaw of Religion Church Jesus, the founder and owner of the Fairfax Cannabis Club, became involved with the recall movement. Shaw has had a difficult time with local authorities in establishing and running a legal, but controversial cannabis club in Fairfax. As provided for with the passage of Prop. 215 (the Compassionate Use of Marijuana Act), the club supplies client/patients with marijuana/medicine prescribed by doctors.

Shaw joined the recall, but only against Kamena. Her supporters together with paid signature gatherers from Ritter House-an alcohol detoxification residence-and College of Marin Students, managed to get enough signatures to hold a special election to recall Kamena. So the campaign of the Family Court critics was taken over by Shaw and totally directed away from Family Court.

Shaw has refused to reveal the source and amounts of money spent on gathering the recall signatures. Supporters of Kamena complained that signature collectors did not reveal that the petition was to recall the DA, but, rather, that it was to support the use of medical marijuana. A complaint is pending before the Fair Political Practices Committee in Sacramento. The FPPC does not acknowledge or deny receipt or investigation of any complaint. Complaints are investigated and closed with a letter or they are referred to the Committee or to a civil law judge for hearing. Fines of from $2,000 to $5,000 can be assessed.

The District Attorney's could not investigate because of an obvious conflict of interest. There is no way of knowing if the FPPC will rule on the complaint before the election in May.

What is troubling about this recall is that it represents very narrow special interests. All the woes of Carol Mardeusz are now focused on the Marin County District Attorney whose office prosecuted her in Superior Court based on evidence gathered by investigators, referred to her office, prosecuted in open court with apparently competent council before a jury which convicted her. The recall of the DA has nothing to do with Family Court.

Similarly all the frustration of Fairfax Cannabis Club and supporters of the use of medical marijuana is now focused solely on District Attorney Paula Kamena. How to implement the use of marijuana for suffering people is a problem that is vexing the entire state because possession and use of marijuana is defined under federal law as a serious crime. Kamena has implemented a policy based on that of Mendocino County, however this policy does not satisfy Shaw.

It should be noted that the legal sale of marijuana can be viewed as a highly profitable emerging market. Since there is at present a highly profitable illegal market in the millions of dollars, it seem reasonable to assume that the campaign to recall a District Attorney on the issue is being closely watched by all persons with a business interest in marijuana.

Whatever the deficiencies of the District Attorney's Office, real or imagined, they are overshadowed by her outstanding overall creative leadership of her department.

The DA's Office has basically no role in Family Court except to enforce payment for child support. Kamena has established a "Fatherhood Program" to insure visitation rights for non custodial parents to motivate them to contribute emotionally to their children, not just financially. Only when Family Court matters become criminal cases to they go to the District Attorney for review.

According to Kamena, the District Attorney's Office screens between 10,000 and 12,000 requests for prosecution each year. From 1998-2000, approximately 800 cases involved Marijuana charges, including sales, transportation and cultivation-either standing alone, or in combination with other crimes involving property or violence. Of these cases, 73 involved a defense of medical marijuana. Sixty of these cases were filed for prosecution and about half were dismissed when documentation for use of medical marijuana was obtained. Of the remainder, 20 resulted in guilty pleas, two in hung juries and the rest are pending. According to Kamena, the reasons for filing for prosecution were possession and/or cultivation of large amounts, or repeat offenses.

The Cannabis Buyers Club of Fairfax (Marin Alliance) is under considerable pressure from the Fairfax Town Council, the Planning Commission, and some of it's neighbors. Some of the restrictions proposed for its operation seem unfair and impractical. Taking over the recall against Kamena is a gamble that could be a disaster for the medical use of marijuana movement if recall fails. It could be a bigger disaster for medical marijuana should the recall actually succeed with Van Zant, an inexperienced person in charge of a complex department, and his sister and her supporters a source of additional turmoil.

Looking at the larger picture, Kamena has been a good District Attorney. Perhaps her greatest achievement was obtaining the funding and establishing a "kid friendly" children's' center for child victims of sexual abuse and violence. Additionally she fostered special attention on abuse of the frail and elderly, focus on violence against women, and the establishment of special response teams to deal with sexual assault.

Kamena helped start a Juvenile Drug Court to deal with young people outside the formality of court and is working on the establishment of a similar kind of adult drug court. Her Office of Consumer Fraud is highly active: it's head successfully sued Microsoft some years ago which is quite an accomplishment. She was instrumental in establishing and funding a five county "High Tech Task Force" to deal with "white collar crime" computer fraud and identity theft.

She recently told the Coastal Post she is proud of her efforts in promoting bicycle safety on Marin's roads. For thirty one years she has worked in different parts of the Criminal Justice system: As a counselor in Alameda and Marin and as a Probation Officer in Marin where she worked her way through law school. In the District Attorney's office she rose to be a senior prosecutor and successfully got convictions in three high profile murder cases, one, an unusual murder for hire case.

Kamena recalled a case she successfully prosecuted several years ago involving a former police chief and San Francisco Supervisor, so she is upset by criticism that she shied from prosecuting two Marin County Supervisors for misuse of county credit cards. "We looked at that very carefully" Kamena says, "and we determined that we could not get a conviction based on the way the credit cards were issued and the long standing practice of allowing supervisors to reimburse the county when the cards were improperly used. The policy was unclear. We recommended correction and the policy has been corrected. Our motto is 'Prevention, prosecution and protection'."

 

 

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