Marin Superior Court Update January 2005
By Jim Scanlon
New Trial In County Elder Swindle Case
The County of Marin (defendant) has appealed a judgment ordering a new trial in the case of Lillian Abernathy, an elderly widow suffering from a form of reduced mental capacity. The family of Mrs. Abernathy sued the Marin County when her county social worker, who met the elderly woman during the performance of her official duties, helped the old woman in changing her will to name the social worker as the heir to her Kentfield home in place of her family.
A jury, after a trial that lasted several weeks, and following instructions from judge Lynn O'Malley Taylor, found that the social worker and "the county" had not changed the will to intentionally inflict injury on Mrs. Abernathy. In other words "not guilty." However, in an unusual assertion of independence, the jury told the judge it found the social worker's actions, and by implication, the county's actions, outrageous, and there should be consequences. (Coastal Post, County Gives "Green Light" to Elder Swindles, May 2004"
Judge Taylor reviewed her own actions and her instructions to the jury, and decided that she was in error on numerous points, and ordered a new trial. (She resigned several weeks later) The County Counsel who tried the case (and technically won) appealed the order for a new trial-and that is where the case now rests.
Is Something Wrong?
An unusual aspect of the trial was that the District Attorney's, husband, a psychologist , testified as a paid expert witness for the county and the social worker, that Mrs. Abernathy was competent to change her will and name the social worker.
County Social Workers would normally be expected to protect frail and elderly persons and to investigate anyone suspected of using undo influence on the aged and infirm elderly, and, if the evidence warranted, to forward their findings to the District Attorney's Office to file charges and try the suspects in criminal court. Both these agencies are currently officially charged with investigating "Elder Abuse" in the county.
Is There Something Wrong With This Picture?
Mrs. Abernathy currently lives with her step son and his family in Minnesota. There is no telling when the Appeals Court will act on the case and when the new trial will start.
Fugitive Mom To Stand Trial
The Marin IJ reported in its Christmas Day edition (She just wants to see her daughter) that the "Woman At The End Of Her Rope" (Coastal Post June 2004) who was arrested in South Carolina last January after three and a half years as a fugitive from Marin County's Divorce Court, saw her child once for 45 minutes since they were separated a year ago!
According to court records, Jonae Rogers, a 41 year old West Marin native, a hair dresser, sold her business and her Point Richmond condo and fled the county in August 2000 because "I'm so fearful of not being able to protect [her daughter]." Her reasons for leaving were contained in an emotional farewell letter to a friend, a copy of which was attached to court documents and her FBI arrest warrant.
In her letter, she begged forgiveness for leaving, explaining that she was "at the end of my rope." She alluded to something that happened with her ex husband "in front of the police station ....[which] confirmed my fears of his behavior and temper... [which] ... I saw ... when I was pregnant." She also wrote, among other things, "I have no faith in the Marin County [Family Law] Court system [which] has wiped me out financially and physically." She asked her friend to continue to work towards reforming the family court system.
Rogers and her husband separated a few months after marrying. She had been the primary parent from birth until late 1999 when Judge Dufficy signed a mutually agreed upon joint custody arrangement whereby the child stayed with her father during specified days. The mother's violation of Dufficy's joint custody decree was characterized as "child abduction" and "kidnapping" by the District Attorney's Office" and eventually resulted in her arrest a year ago on January 6, 2004. She was in jail from January through May 2004 on bail set at $500,000.
Uproar In Marin
At the time the mother left Marin the uproar over favoritism in Dufficy's court was most intense and, as noted, Dufficy resigned from Family Court, allegedly for reasons of health. There was also a recall movement directed against Dufficy and the District Attorney over the jailing of another mother for violating a custody decree of Dufficy. This mother was fearful of her daughter's placement with her father who she characterized as violent. She served her time in the Marin County Jail and is now off probation. Her daughter, living with her father later found her step mother dying on their kitchen floor. The cause of her death was inconclusive and no one has so far been prosecuted in the suspicious death. What can one say? Mistakes were made?
Were these women treated more severely because of the recall movement? Were they treated more severely to set an example to other outspoken women to "shut up or else?"
The IJ On The Job.
Rogers appeared in criminal court in San Rafael with her attorney on December 22, to face what is essentially a charge of contempt of the stipulated order.
A Marin Independent Journal photographer and reporter were present at the hearing and a large attractive photo of Rogers leaving the court room appeared on the front page of the Marin Section on Christmas Day. The article which accompanied the photo by Nancy Isles Nation, was straightforward and informative although it did refer once to her criminal charge as "abduction".
The trial is scheduled to start February 10, 2005 at 10 AM in the Hall of Justice, Civic Center before Judge Gregory Caskey.
What Is Wrong With The System.
Practically speaking, under our legal system, the assumption is usually made that the court is never wrong, and if it is, somehow, someway, that wrong will be corrected. But to correct a court order requires, above all, lots of money to purchase legal representation. If the money is lacking it is virtually impossible to challenge any order of a judge in Family Law Court. The Superior Court never investigates what it does, the District Attorney's office doesn't, and doesn't allow the Grand Jury to investigate any aspect of the court system.
During the uproar over Dufficy's Family Court Judgeship, the FBI may have investigated "something" as rumors had it, but the FBI doesn't talk about investigations past or present.
Theoretically the State Commission on Judicial Performance investigates judges, but it's procedures are so Byzantine and secretive, it's secret discipline so slow and obscure, that a judge like Michael Dufficy can be disciplined repeatedly and still state publicly that all complaints about his misconduct are baseless! And he can get away with it. (See Coastal Post April and May 2004 "Did Judge Dufficy Lie and Deceive the Voters?" & "Tainted Case, Tainted Election")
So, if a judge gives your ex wife or your ex husband all your joint assets plus half your pension, awards attorney's fees to your ex, or if your children are taken from you or you and your ex and your children are trapped in a system that is making lawyers rich while bankrupting both of you --- and you don't have money, lots of it --- you are helpless!
A Pattern Of Discriminating Against Women
The Coastal Post reported extensively in 2004 on 4 women who had and continue to have, great difficulties in Divorce Court (One case overlapped with Sonoma). Three were jailed for varying periods of time (months), under extremely high bail, three had their children taken from them permanently, without investigation, evaluation or review by the District Attorney with little more than pro forma "rubber stamped" approval by the sitting Family Law Court Judge --- for violating, or allegedly violating, a custody decree signed by Judge Dufficy.
In three cases the men involved had the money to hire local lawyers to represent their interests, while the women, with little or no money, and denied any award of attorney's fees by Marin judges, were all forced, at one stage or another, to represent themselves in court, to their detriment and the detriment of their children. Family violence was a factor, to a greater or lesser extent, in each case. In one case, there were documented concerns of possible child sexual abuse and neglect from multiple sources, including an MD.
The Importance of Mothers
In three cases the Marin District Attorney filed criminal charges against the mothers, set excessive bail, and, without any background investigation, placed children, or acquiesced to a child being placed, in the care and custody of the other parents, without conditions, evaluation, or even temporary followup supervision. It seems totally incomprehensible that public prosecutors can be so trusting of people they know little, or nothing, about! They are accountable, apparently, to no one.
In all human cultures, except possibly Marin, women who gives birth to children are considered indispensable to their emotional and physical development, and their absence, for whatever reason, is considered a calamity. It is possible to have a substitute mother --- Abraham Lincoln's "beloved mother" was his step mother and one often finds women and occasionally unusual men, who can fill that role when the mother is dead or missing, but every step further away from mother weakens the bond of caring and is fraught with great danger for the child. It seems incomprehensible that a mother's loving service to a child is so casually tossed away because of a conflict, not with the ex spouse, but with the court! The full, overwhelming coercive power of the state is used to crush and silence mothers anxious about their children.
Fathers, nurturing fathers are important, but the biology, being so different, they can never be regarded as equal. And since men, in all cultures and during all times, commit the vast majority of crimes, especially crimes of violence, it would seem reasonable to hold them to a stricter standard in family disputes and to acknowledge the fear of violence by women.
It is sensible public policy to encourage the involvement of fathers with their children, but it is not an either/or choice of father or mother. And involving a father by removing and exiling the mother is insane! In each of the cases we have considered, the Marin County Judiciary, in routinely depriving children of their mothers has been wantonly negligent in insuring the welfare of the children involved.
Guilty Of Something.
In Rogers' case, she was apparently automatically guilty of something or other which required that her daughter be protected from her. She was denied, and continues to be denied access to her daughter. Just one example: in examining court records over a four month period, there was no instance where the current Family Law Judge, Vernon Smith, assigned to this case for over a year, ever personally investigated, or asked for, or considered an independent assessment of the physical or emotional condition of the child during the time she was with her mother or how she adjusted in the father's home. No apparent concern for the effect, if not the wisdom of total maternal depravation!
It appears to the Coastal Post that Rogers was never anything other than a loving mother who made great personal sacrifices for her daughter and we hope that a jury see her in this light.
Perhaps in Criminal Court, where different rules apply, like the US Constitution, where she can have her reasons for leaving presented to a jury composed of ordinary men and women, she may get the sympathetic hearing denied to her and her child by the secrecy and cronyism of Marin's dysfunctional Divorce Court.
A Mom, Helping Others, Alone Again For Christmas
"V", no longer lives in Marin, she is a mother, without a criminal record, who lost her home, her good name and saw her relationship with her three children utterly destroyed by Marin's Family Law Court in cooperation with the District Attorney's Office after she was arrested while living with her children under the protection of a Domestic Violence Shelter. Her children were taken from her and she was transported, in shackles, by commercial aircraft across the country and then driven in a prison van throughout the state, from state prison to state prison, under degrading, humiliating conditions to Marin where she was jailed under very high bail ($500,000) until she admitted her only charge --- a misdemeanor violation of a custody decree! The Coastal Post, which related her ordeal, (Family Court Targets Another Mother, Sept. 2004) asked her for an update on her situation. She wrote the following.
"I thought that I would send a short e-mail to let you know how things are going for me. As I said before, I have a new job and like it very much. Learning new things always keeps my mind busy so that I don't think about myself so much.
"I miss my kids and being without them for another Christmas (the 4th) is so hard. They don't have much of a relationship with me as I am too far away and don't have regular contact with them. I used to get e-mails from them and would e-mail them too but each time their dad would get mad at me, that would end as he would take the computer away from them so they just quit bothering.
"I have made and purchased some gifts for them, not a lot but enough to show that they are still in my heart and mind. I hope to bring them over to Marin after Christmas Day as I am never allowed to even speak to them on the phone on Christmas Day.
"Tomorrow I am going to a local memorial for the homeless and I have been asked to speak about my own situation. I am luckier than most as I am working, have a car and no substance abuse problem to deal with. I hope that I can focus on the fact that homelessness is something that can happen to anyone in the right (wrong) circumstances and I hope that I can also adequately explain why I appreciate the experience for what it has taught me about the homeless-perseverance in the face of adversity, character building and having faith in God to find a way for me to grow as a Christian in the trials and suffering. I hope that I can speak for those who cannot speak for themselves or are too embarrassed by their situation, which is common. I am not afraid to tell my story although I don't feel proud that I have gotten to this point in my life.
"Something that a local minister said this past Sunday has stuck with me ... he said that 2000 years ago the shepherds were equivalent to the homeless today. He said that they were looked down upon as they tended to smell bad, slept in caves with the sheep, were very dirty and could barely support themselves and their families, yet in the bible God chose the shepherds to witness the birth of Jesus. He said that the shepherds were given an honor as they were the lowest of the low and they would forever be remembered as being special messengers for God.
"I think maybe that I am supposed to be a messenger for the homeless, the down hearted and for victims of abuse, both domestic abuse and legal abuse. Maybe I can give others some hope that they can survive it too. As for the homeless that end up dying on the streets, maybe I can bring some humanity to their lives, remind everyone that they were someone's' brother, sister, son or daughter and at one time they were most likely held close and loved deeply by their families. That part should not be forgotten in the circumstances that brought them to the streets.
"I have much to consider for tomorrow. I want to do them justice. I pray that I don't start to stutter!
"Anyway, I hope that you are doing well. What are you writing about this month? Are you spending the holiday with family?
"I have found about 'excitotoxins' which are chemicals that cause brain damage from PTSD, trauma, fear or abuse. (They can also be caused by foods such as MSG.) I have found several lawsuits where this was used as proof that the people experienced so much fear as to cause permanent brain chemical and cell damage. I believe that we suffer from this and it could be a reason that we got to the point of running away to try and protect ourselves and our children from abuse. I also believe that my problems are directly caused by the fear of my ex and his attorney and the lack of protection from the judicial system that was supposed to protect us even when they knew what was happening.
"Anyway, I am out of time here at the library and I have written another long letter when it was supposed to be a short note. Take care and I hope to talk to you soon.