Missing Court Documents In Private
Contentious Divorce Case Returns
By Jim Scanlon
A Sensational Announcement
The foundation of our system of administering justice is the inviolability of the court record. Elaborate precautions are taken to preserved and protect the documents that record the facts, the who, what, when and where and what happens in court. They take on a sacred, holy aspect and are usually treated that way. Any unauthorized access to official record casts doubt on the integrity of the entire process. Judges come and go. All that a new judge or an Appeals Court judge have to go on, is the official record. It has to be complete. Any sloppiness, a willfully unauthorized addition here, a deletion there-snip, snip-would be like modifying the genes of an organism-with a different, extra judicially modified organism created.
At a routine hearing on a pretrial motion on September 21, Arthur Soll an Attorney from Los Angeles representing Semrin Ettefagh pro bono presented three boxes of documents to the court which he said contained records belonging to the official Superior Court record of the divorce case. He said they had been given to him by a local attorney who found them in his office beneath other documents relating to one of his cases. An employee of the attorney had mistakenly picked up the documents at the Clerk's office with other documents.
Judge Smith, the Family Law judge suggested, (without comment or question) that Soll leave them in court with his clerk, or take them to the County Clerk's Office "upstairs." Smith had just ruled against Soll's request to release unused funds from a trust account to assist him in preparing for the trial which was due to begin in two weeks and left the bench. The boxes were not opened or otherwise examined. One might think Smith was dealing with a hat or a cane that someone carelessly left in court.
Soll did not seem fully aware of the sensational nature of his announcement, he seemed to have expected a different reception. When the judge left, he stood for a while at the lectern, as if confused and undecided, with the 3 boxes, with "Ettefagh" written on them, at his feet. There were two spectators next to this writer. We looked at each other in confusion and amazement. What did this mean? With all that has gone on, why this case? It all seemed to pass in an instant! Mrs. Ettefagh, who seemed upset and agitated, whispered loudly to her attorney, "Inventory?" "Someone said, "Why not call he police?"
After a few minutes, judge Smith returned and stood in the courtroom door to the passageway to his chambers, repeated his previous suggestion to Soll, and left. With the assistance of the court clerk and the bailiff, the boxes with whatever they contained were returned to the inner sanctum of the Hall of Justice, the mystery of their errant journey unknown and unsought.
After seven and a half years of turmoil in Family Law Court which included the disqualification of judges Dufficy and Sutro, and a failed attempt to disqualify the entire Superior Court with a change in venue, and judge Dufficy's voluntary exit from Family Law Court, not to mention allegations of ethnic slurs, fraud, forgery, money laundering and bribes-the case of Ettefagh vs. Ettefagh returned. A two week trial is scheduled to start in October before Vernon L. Smith, the third Family Law judge on the case.
An Uneven Contest
So far three judges have denied Semrin Ettefagh funds resulting from assets from her marriage to pay for legal representation in court proceedings. Despite assets estimated in the hundreds of millions of dollars in Iran, Germany, England, France and California. Semrin has been forced to represent herself and her sons. Growing up in a sophisticated, cosmopolitan Turkish family, and a graduate of UCLA, she has done a commendable job as a trial lawyer of last resort, but has, so far, not fared compared well with Judith Cohen, her husband's attorney, a well known FLEA (Family Law Elite Attorney) who is highly regarded as a winner in divorce court and as one might expect, is highly paid.
In the controversy that swirled around Family Law Court four years ago there was an extensive list of complaints and complainants about judge Dufficy who consistently denied the validity of all complaints. There is, however, ample evidence that he was disciplined for actions which correspond to, at a minimum, three of them. (Coastal Post, April 2004, "Did Judge Dufficy Lie And Deceive The Voters?").
On October 7, 2002 Richard S. Horn, Staff Counsel for the California Commission on Judicial Performance wrote:
"I am writing to inform you about commission action following your complaint dated July 23, 2001. As to the second judge named on the complaint form submitted by you, the commission has considered the matter and, as to certain allegation[s] taken an appropriate corrective action.
"The commission has asked me to express its appreciation for your advising us of the matter. Bringing this matter to our attention has served a useful purpose.
"As to the first judge named on the complaint form [Sutro], the matter remains under consideration."
It has to be gratifying to have your complaints attended to and validated. It also has to be gratifying when a judge that you felt was unfair and unjust to you resigns from a position of authority over your fortune and family, but it also has to hurt deeply when a judge who was disciplined can state publicly and repeatedly, without consequences, that there was never any validity to the complaints made against him. And, to add insult to injury, receive the support of every sitting judge, every retired judge in Marin, the vast majority of the legal community and get re elected by the people of Marin. Nothing changed.
Ettefagh vs. Ettefagh is "stuck" in Marin. Nothing much has changed. Smith follows Sutro and Dufficy. This mother, like other mothers here, seems to be locked in a struggle with her husband and his attorney and the judge! Nothing has changed-except perhaps the official court file.
No questions were asked in court on September 21 about the nature of the sealed documents or how any documents relating to a contentious case involving assets worth hundreds of millions of dollars could get out of the control of the Clerk's Office. No police investigation, no impounding, no examination for evidence of tampering or alteration, no questioning of the attorney who found the records, the clerk who picked them up, no deposition from Mr. Soll. The only person upset was Mrs. Ettefagh.
The Coastal Post called the attorney who found the boxes, a well know lawyer not considered a court insider (or a FLEA) who according to the SF Weekly was the first attorney in Marin to openly challenge Dufficy an old school mate (Odor, Odor In The Court, 2000). He confirmed Soll's version and said it was "An innocent mistake." He said he did not return the documents directly to the County Clerk because he thought it better to give them to Mr. Soll.
The writer of this article asked a file clerk at Civic Center if a person could take a court file out of the building. The woman hesitated for a few seconds, her face contorting as if she had simultaneously smelled a skunk and bit into something bitter. She raised her arm and pointed threateningly towards the hallway, "You wouldn't get out that door!" Court records are sacred to clerks, probably all clerks-but maybe not everyone else!
In April the Coastal Post learned of a situation in which the entire personal court file of the private attorney representing a woman in a contentious Family Law Case disappeared from the same office in which the court files in Ettefagh case were discovered.
A Drug Bust And A Missing Court File
In April 2002, early in the morning, Mr. Ettefagh was arrested by the California Highway Patrol on Highway 101 in Sausalito for possession of Marijuana and psylocybin mushrooms. The Computerized Log at the Civic Center which is open to the public notes a petition was filed five months later followed by a series of court appearances, until finally in May 2003, a few days short of a year later, the father qualified for diversion-that is a program usually afforded to first time offenders not charged with felonies-to escape the onus of having an official criminal record if they conform to certain conditions. Diversion would be of enormous benefit to a legal resident from the Middle East and from an "Axis of Evil" country at that.
A report was prepared by the Probation Department, and, one has to assume that report was favorable and that the District Attorney's Office concurred. One further assumes there were no associated driving offense(s), that he had no prior record and that the drugs were his. The only thing odd was that a person believed to be a multi-millionaire, was represented by the Public Defender's Office at the diversion hearing.
An appointment to view the criminal file was made three days in advance by this writer, as required, but when the time came, the file could not be found. There was no record of the file being signed out and there had been no activity noted since July when a certified copy was sent to the Department of Homeland Security. With obviously sincere apologies, the clerk said we would be notified as soon as the file was found.
The computer summary notes that diversion will expire before the end of the year, however, the Probation Diversion Office refused to provide any information.
A diversion case would have the lowest level of supervision available in the criminal justice system, nevertheless it is hard to believe that a middle eastern businessman reported to be a multi-millionaire with interests and connections in Iran would not arouse intense interest at the Hall of Justice, especially since September 11, 2001. One would also think the drug charges would be a legitimate subject for consideration in Family Law Court.
After all, this still is a family, as most people know, even if it is torn apart. There is a college age son who is apparently stuck in Iran and a 12 year old boy with medical problems. It is all too usual in divorce proceedings in Marin, for children to be ignored and parents, especially the mother, to be impoverished, threatened and even jailed. Both fathers and mothers are drained financially, physically and emotionally.
The mutually beneficial relationship between judges, wealthy attorneys and the professionals that make up our eco-system of divorce, benefits, as conflicts drag on and on, year after expensive year.
Is Judge Smith Next?
Over the years, two superior court judges have been removed from this case and one of them disciplined for judicial misconduct. One wonders why so many judges favored the father, a millionaire, by consistently denying the mother attorney's fees. And why, with all that has gone on, is judge Smith resisting the loss of control? This case has been the "kiss of death" for its judges. The clich has it that if one does not learn from history, one repeats it. Unfortunately this family is being dragged along the courts historical route.
A Trapped Family
How can this mother obtain her fair share of the family's assets, so painfully accumulated during a fundamentalist Islamic revolution and eight years of war with Iraq? How, when she is being denied funds for legal representation and investigation? How can this woman hope for justice in any Marin court when the court itself has been so wracked with controversy over the past seven years? No local attorney will represent Mrs. Ettefagh pro bono. She seems to have been lucky to obtain free representation in Los Angeles but with the very first court appearance there is confusion because of the peculiarities of the local rules which give a "home team " advantage to the locals. Mrs. Ettefagh might have gotten more sympathy from a court in Iran.
The venue needs to be changed. In another county a FLEA would lose insider, or "home field" advantage.
The trial is expected to take place October 5 - 19, 2004-but don't bet on it!