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MARIN COUNTY'S NEWS MONTHLY - FREE PRESS
(415)868-1600 - (415)868-0502(fax) - P.O. Box 31, Bolinas, CA, 94924

 

Justice For Sale:
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
US, in his son's name, to help him obtain  a "green card" or residence permit. Investing money in the US helped him obtain a residence permit after the Kohmeni revolution while his son, Mr. Ettefagh, stayed in Iran with his wife to operate the family's textile factory. He gave his father power of attorney to act on his behalf in the US because, as he testified, he had always had complete faith and trust in him. The factory got very busy making army blankets during the Iraq-Iran war. The Iraqis began using poison gas which, besides killing Iranians, contaminated blankets which had to be burned and replaced.
   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
California when he was actually residing in Teheran, he said he thought it would help him with his application for a "green card," an admission it seems, under oath, to immigration fraud and probably perjury.
   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
Iraq, but began to deteriorate and was made worse by her husband's use of opium.
   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
Sausalito. The charges were misdemeanor of possession  of phencyclidine (PCP or Angel Dust) a violation of Health and Safety Code 11377 and  H&S Code 11357(c) possession of more than an ounce (28.35 grams)of marijuana. PCP is sometimes added to marijuana cigarettes to produce the combination known as "bazooko."
   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
Montgomery received no answer, so, in early February 2005, it was a great surprise to receive a telephone call from the Clerk's record room that the file requested five months previously had at last been found. It contained the unanswered letters.

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
Civic Center's  Hall of Justice [Post Traumatic Stress Disorder]. One wonders where the judge got the idea of using a dog in a courtroom to induce compliance years before the Abu Ghraib scandal? One wonders also how the opposing attorneys felt as they silently acquiesced to this disgusting performance? (See Jill Kramer's article "Money & Justice, Justice Denied" Pacific Sun November 20-26 2002.)
   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
California  to the Father in Law. Mrs. Ettefagh is awarded valuable property in Iran, which, or course, she cannot access or recover. She got the confederate money.
   As expected she is ruined financially. She can however, work out of her home at a minimum wage according to court documents.  Another
Marin County woman has been taught a lesson.

 

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