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STATE TAKES OVER GRAND JUROR PROBE

By Guy Ashley © 2000, Marin Independent Journal, June 9, 2000

Citing potential conflicts with a recall campaign mounting against her, Marin District Attorney Paula Kamena has handed over her office's investigation of possible misconduct by a former county grand juror to the state attorney general.

"The appearance of retaliation is too strong" for her office to continue its probe of Martin Silverman of San Rafael, Kamena said. "Therefore the case is being transferred."

A spokesman for Attorney General Bill Lockyer confirmed that Lockyer's office decided yesterday to take over the investigation. The probe began in March after Silverman announced that he contributed money to hire investigator Karen Winner to look into alleged wrongdoing by two Marin family law jurists.

At the time, Silverman said his participation in funding Winner's report grew out of an effort begun in 1997 when he and other grand jurors were blocked from investigating family court matters by the county counsel's office, which opined that the panel lacked authority to review the courts. The report offered a scathing indictment of the local family law system that demanded the immediate suspensions of Judge Michael Dufficy and Commissioner Sylvia Shapiro.

In April, Kamena took the unusual step of acknowledging her office's probe of Silverman after critics, including Silverman himself, accused the DA of trying to intimidate him amid growing community demands for reforms in the local court system.

Kamena has been unwilling to comment on the nature of the probe, but Silverman said an investigator from the district attorney's office told him the inquiry focuses on whether he breached the vow he took to keep his activities as a grand juror confidential.

News of the probe brought Kamena under the wrath of court critics who said the investigation smacked of the kind of cronyism at the Marin courthouse that Winner said was at play in several controversial family law decisions.

But the investigation continued for several weeks, until Kamena's name was added to a list of court officials targeted in a recall campaign. Petitions against Dufficy and judges Lynn Duryee and Terrence Boren also have been filed with an eye on a possible recall election next year.

Kamena says the recall campaign - which Silverman says he has nothing to do with - makes it inappropriate for her office to continue its review of Silverman's actions.

"If we decided to prosecute, I don't think there is a citizen who wouldn't think it was retaliatory ... either saying it's because of the petition against me or that I'm trying to protect the judges," Kamena said.

Silverman said yesterday that his conscience is "absolutely clear" that he didn't breach his grand jury obligations.

Of Kamena's decision to hand the probe to the attorney general, Silverman said: "My guess is maybe she's trying to clear the decks of what was a misbegotten effort in the first place. I think this is a convenient and comfortable way for her to transfer the responsibility to someone else."

Before serving on the grand jury, Silverman took an oath to "not disclose any evidence brought before the grand jury, nor anything which I or any other grand juror may have voted on."

According to state law, any grand juror who "willfully discloses any evidence adduced before the grand jury," or discloses "in what manner he or she or any other grand juror has voted on a matter before them," is guilty of a misdemeanor. The crime is punishable by up to a year in jail and a $1,000 fine.

Kamena said her office had not reached a conclusion on whether to prosecute and that the matter is now in the hands of Joyce Blair, a deputy attorney general working in San Francisco. Blair could not be reached for comment yesterday, but Nathan Barankin, who is Lockyer's press spokesman in Sacramento, confirmed that the state has taken over the probe.

Barankin said it is too early to say how long the attorney general's investigation will last. "We've accepted the case on behalf of the district attorney in light of real or perceived conflicts that may exist," he said. "We'll evaluate the case and proceed as is appropriate."

Silverman's attorney, Leonard Bjorklund, said he is surprised that no conclusion was drawn after months of investigation by the Marin district attorney's office.

The fact the DA is handing the matter over at this stage "is giving the appearance there is some merit to this investigation - and there absolutely is none," Bjorklund said.

Bjorklund said he's concerned the probe will have an undesired secondary impact, in that it might make committed volunteers think twice before offering themselves for grand jury service.

"Sure I may want to do my duty as a citizen," he said. "But if I'm going to wind up crucified for trying to seek a remedy for something I perceive as wrong, then who needs it?"

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Contact reporter Guy Ashley via e-mail at