by Kathryn Joanne Dixon

Governments react to terrorism by creating secret tribunals presided over by selected judges.  Such creations are not new to the courts in Marin County, California.  In that venue, on November 29, December 6 and 7, 1999, such a secret tribunal, dominated by a dictatorial, rogue “judge,” convened to replace the traditional grand jury.  Terrorism, however, was not at issue.  The protection of a child abuser and drug user was the reason this "special" criminal grand jury was impaneled.  Why did presiding Judge Michael Buck Dufficy assemble this strange tribunal?  Why did the Marin County District Attorney Paula Kamena and her deputy Kelly Vieira-Simmons, (now Judge Kelly V. Simmons, appointed in 2005 to the Marin Superior Court) conspire with Judge Dufficy to create and control this "special" criminal grand jury to criminalize a protective mother.

What was in the mind of federal Magistrate Judge James A. Larson, when he informed his employer, the United States Department of Justice, San Francisco division, that he was called to serve on a grand jury duty in Marin County?  Was he unaware of Canon 4 of the Code of Conduct for United States Judges which enumerates the extrajudicial activities permitted a federal judge. His UCLA Law School education and 40 years of legal experience must have apprised him of Canon 4 (C) (1) of the American Bar Association Model of Judicial Conduct which states: (1) A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice or except when acting pro se in a matter involving the judge or the judge's interests.’

Ethical rules were probably not foremost in Larson’s mind as he battled the traffic from his Mill Valley home to the Marin County Courthouse designed by Frank Lloyd Wright.  Once there he had plenty of time to sit with a group of fellow citizens who had left their jobs, homes and families for the day awaiting their selection as grand jurors.  People made small talk, complained, and read paperback novels and newspapers, as they waited to be called.  It must have just slipped through the legal loophole in Larson’s mind that federal statute 28 U.S.C. 1983(6)(C) provides that federal judges are exempt from sitting on federal grand juries. This statute was passed to avoid the reality and appearance of the improper influence on a grand jury by a federal judge.  Larson apparently didn't want to apply by analogy the federal rule to a State court situation.  The Marin County grand jury was, after all, a state criminal grand jury.  California is one of the few states lacking a statute directly forbidding state and federal judges from sitting on grand juries.  The prudent thing for Magistrate Larson to do that fall day might have been to avoid any appearance of impropriety by refraining from sitting on a state grand jury.  After all, if the other grand jurors knew he was a federal magistrate they could be swayed to adopt his point of view over that of other grand jurors when ascertaining the facts and applying the law.

On November 29, 2001, Larson took his place in the courtroom audience. The clerk spun her official contraption full of names on slips of paper and pulled out name after name. The potential grand jurors, now selected for voir dire, i.e. questioning, took their positions in the jury box.

The man who would question the jurors to determine their qualifications, competency, residency and ability to serve was Presiding Judge Michael Buck Dufficy.

Dufficy explained to the potential grand jurors that he called a special criminal grand jury in Marin County and that they might be picked to sit on it.  Dufficy did not explain why it was “special”.  It meant the current sitting criminal grand jury that was reviewing various crimes committed in Marin County, was not able to handle the case. Usually special grand juries are called in matters such as murders, rapes, drug smuggling or such heinous felonies which require such substantial time and effort that the regular grand jury just can't handle it as it determines other cases before it.  This was the first “special” grand jury called in Marin County in many years.

Dufficy also told the potential grand jurors that he knew nothing about the case before him—specifically that he didn't know who the defendant was and didn’t know anything about him or her.

The case before this special grand jury, as outlined in brief by Judge Dufficy to the grand jurors, was against a then nameless women (Carol Mardeusz), who was alleged to have committed perjury on a temporary restraining application by stating a court order existing in Sonoma County gave her full custody of her child. The Marin District Attorney’s position was that this order did not exist or did not apply. The woman obtained an order from Judge Dufficy in Marin County and used it to try to kidnap her child from a school.

What Judge Dufficy either didn't recall from his brief recitation of the facts, or didn't say that it was that Judge Dufficy, himself, had reviewed Mardeusz’ application, and signed an order granting Mardeusz temporary custody of her ten year old daughter, pending a hearing in fifteen days.  Obtaining such an order is a common procedure in family courts in California, especially when allegations are made, as Mardeusz had made, that the other parent has abused the minor child.  Mardeusz then took Judge Dufficy’s order to the Rohnert Park Police station and asked the police to take it to the Hahn Elementary School in order that she and the police could pick up her daughter and deliver her to Mardeusz in accordance with the court order.  When the police got to the Hahn school, a school official called the father Leo Magers who in turn called his lawyer, Catherine A. Conner. Conner immediately called Judge Dufficy and claimed that the order Mardeusz relied upon was false. Then Judge Dufficy called Sonoma County Judge Giordano who had been involved in Mardeusz’s custody case, and decided after the conversation, to withdraw his order. So informed, the Rohnert Park Police told Mardeusz they could not pick up her child.

If Judge Dufficy is to be believed, he did not know that the special grand jury would be hearing a case in which he himself was a witness.  In fact, later after the grand jury indictment, Judge Dufficy did testify as a witness for the prosecution in the Mardeusz  trial.  His authoritative sounding judge-like testimony helped convict Carol Mardeusz.  In California, a judge cannot judge a case, or call a grand jury in a case in which he is a witness.  However, lack of knowledge of a conflict of interest is a defense to a charge of conflict of interest.  Judge Dufficy was fully aware of the intricacies of the law.  Dufficy also recognized that as a long time Family Law Court judge, he was under fire for his handling of Marin's family law cases. The privately funded Karen Winner Report was in the making.  Once completed the report would charge Judge Dufficy with conflicts of interests in numerous family law cases. Shortly thereafter Judge Dufficy would resign from the Marin family law bench citing a heart condition brought on by stress. He moved on to judge the probate court where complainants against him reside in the hereafter.

United States Magistrate Judge James A. Larson lives in Mill Valley with his attorney wife and two children.  The local newspaper, the Marin Independent Journal, had been running many articles citing the growing political unrest within Marin's Family Law Courts.  Features in the local press, on television and on the internet publicized the fact that Carol Mardeusz had filed federal lawsuits detailing the abuse of her civil rights related to her child custody dispute. Several cases were filed in the very courthouse where Magistrate Larson worked - the United States District Court in San Francisco.

On November 29, 1999 Judge Dufficy questioned Magistrate Larson during the voir dire of the potential grand jurors.  Larson gave his full name, stated he lived in Mill Valley and said he was a federal Magistrate Judge.  Dufficy did not hesitate and he chose Magistrate Larson as Grand Juror No. 10.

Judge Dufficy then proved he was ethically challenged.  After choosing 19 citizens to serve, Dufficy appointed Larson as the Grand Jury Foreman.  Larson accepted.  Deputy District Attorney Kelly Vieira-Simmons, who was presenting the case to the grand jury, did not object. The deal was struck -- a strange, corruptible tribunal with its own judge -- Larson -- set up to replace the grand jury.  A grand jury is traditionally a panel of citizens convened to hear evidence by themselves, without a judge presiding over their deliberations.  However, Larson was and is a judge - a fact no one could really forget.  Nor was any grand juror asked to ignore the fact.  Larson would preside as a de facto judge over this special grand jury.  He would be present not only to hear evidence and to deliberate with the other grand jurors.  His stature as a federal judge would have an impact. Larson would make rulings on law and evidence for the other grand jurors.  However, those most responsible - the courtroom insiders - had no cause for worry.  This was a secret process.  Grand jury proceedings are secret until and if, they are unsealed by a court order at a later date.  By then, the defendant is too shocked by the arrest and the fear of imprisonment to research conflicts of interests.  Rarely, does the press rifle through heavy grand jury transcripts. Dufficy, Kamena, Larson and Vieira-Simmons had created a new type of tribunal—one in which a federal judge magistrate would be foreman of a state grand jury. Unprecedented. Chic! Sophisticated!  Cool!  So Marin!

Larson’s first act as grand jury foreman was to disobey the law of the State of California and flaunt Judge Dufficy’s instructions.  Foreman Larson appointed Juror No. 8, a Mill Valley Middle School vice principal, to be the Secretary of the Grand Jury.  Judge Dufficy had clearly instructed the jury to elect a secretary. However, in this tribunal, Larson determined that Penal Code section 916 which mandated the secretary for a grand jury be elected by at least 14 fellow grand jurors, did not apply.  Instead, new jury head Larson picked the secretary who would record the order of witnesses and introduction of exhibits.  How could the other grand jurors ignore Larson’s power?

Neither was Magistrate Larson shy about the fact he was a judge.  He asserted it aggressively when the grand jury first convened.  Larson said, “Good morning, ladies and gentlemen. Even though I’m a judge I’ve never done this before either. As you can tell from listening to the instruction it’s not all intuitive, so anybody who has any questions, please let me know, and if I can’t answer them, then I’ll run down the hallway and get the answer from Judge Dufficy.” The record also notes that not once did Larson ask Judge Dufficy any questions during the proceedings. The implication was the other grand jurors could rely on their leader Larson.

Larson told his fellow grand jurors, “The one part of the experience that I have had is one of my duties is to take the return of the indictment when on criminal duty.  I’ve learned from that that the Grand Juries are generally pretty informal.  Whenever anybody has a question you should ask it as long as it’s at an appropriate time.  Try to relax.  Don't be intimidated by the process.  I’m sure by combination of resources we’ll do the right thing. Any other questions?”

The grand jurors must have been in awe that one of their fellows had experience taking “returns of criminal indictments.”  Larson implanted in their minds that he had authority and special knowledge. Yet, Larson was Marin County “cool” when he remarked that grand juries are 'generally pretty informal’.   Magistrate Larson knew that federal grand juries from whom he took “returns” were not conducted informally, but in accordance with the statutes, the law and the judge's instructions.  They are not Marin cool!

Larson set himself up in the role of judge of the grand jury tribunal.  Then he was given the full opportunity to exercise his power.  Judge Dufficy instructed the grand jury that: ”The foreperson, however has the same right to order irrelevant and improper questions and answers stricken from the record as does a judge in a trial court, but any juror has a right to question the decision of the foreperson and call for a vote of the jury on the relevance and propriety of the questions and answers.”  Therefore, Judge Dufficy's specific instructions imparted special power to federal Magistrate Judge Larson, the foreperson, in addition to the implicit powers he exercised by virtue of his federal position and legal experience.

However, throughout the grand jury testimony, whenever deputy district attorney Kelly Vieria-Simmons asked improper questions which were in violation of the California Evidence Code, Larson never ordered these answers stricken nor did he ask that the questions be rephrased to conform to the Evidence Code.

In the case this grand jury was hearing, several jurors expressed their concerns that the case as presented by Deputy D.A. Vieira-Simmons was incomplete.  Ms. Vieira-Simmons relied solely upon the testimony of police officers when addressing the abuse of Carol Mardeusz's daughter by her father Leo Allen Magers.  An officer was called to the stand and asked to detail the allegations in the complaint alleging abuse. Vieira-Simmons then asked the officer if his investigations resulted in any charges being brought and the answer was always "no". Several grand jurors asked to hear from the doctors who examined the child and asked to hear direct testimony about their findings. Vieira-Simmons circumvented the questions by the jurors and ultimately told them she could not call the doctors.  A defense to the charges Marin County was bringing against Carol Mardeusz was the necessity defense of justification for taking the child Mardeusz away from the other parent who was abusing the child in order to protect the child.  Mardeusz had sole legal custody of her daughter and had medical proof and testimony of other witnesses which showed that Leo Magers was abusive to daughter. 

However, deputy district attorney Vieira-Simmons did not call even one physician or psychiatrist to testify about any findings of abuse one way or the other, despite many questions by grand jurors.  At no point did Larson ever inform the grand jurors that they could obtain this type of testimony. Larson aggressively suppressed this testimony.

When some jurors asked Vieira-Simmons whether doctors examined the child, she had the duty, as a prosecutor, to state whether the evidence existed and its nature. Penal Code 939.71 requires that the prosecutor must inform the grand jury of the nature and existence of exculpatory evidence. Larson remained silent, when Vieira-Simmons did not inform the jury, as the Code requires.

In response to these jurors’ questions about medical treatment of the child, Vieira-Simmons should have, at that point, or when the subsequent testimony of witnesses occurred, told the grand jurors the identities of the doctors, and provided a brief explanation about what the nature of their testimony would be.  For example, she should have stated what the incident of abuse was at what time and what the results of the examinations were.  At the time the grand jurors were asking their questions, Vieira-Simmons knew that doctor reports and eyewitness testimony existed that showed the child had been abused. The prosecution crafted its presentation to the grand jury in a manner that deliberately excluded such evidence.

Vieira-Simmons spent most of her presentation to the grand jury trying to suppress, explain away or mislead the grand jurors concerning the abuse of Carol Mardeusz' daughter. Here are some examples of Vieira-Simmons’s suppression of evidence, met with Jury Foreman Larson’s educated silence:

Juror No. 13: Was there any time when H has been in all these investigations where a psychologist talked to H rather than just a police officer?

Ms. Vieira-Simmons: I am not permitted to answer that question.

Juror No.13: Are you going to present any medical evidence? Has H been examined to see if the charges--

Ms. Vieira-Simmons: What I can tell you is that when I say that the police officers have fully investigated the case, it involved and could involve having taken her to see persons and despite that no evidence was found to substantiate it. I cannot tell you anything more than that.

Vieira-Simmons reached the point of exasperation at grand jurors’ questions and began to deceive the grand jurors about the existence and nature of any medical testimony:

Juror No. 3: Why are certain pieces of potential evidence not allowed?

DDA Vieira-Simmons: Why am I not answering some of the questions? The reason I'm not answering some of the questions is that I know who my witnesses are and I know who they are not. And I am not going to bring a psychiatrist or psychologist, if one exists, to testify. I'm not bringing in a medical doctor to testify.

Now, when the police officers testify you can ask them, if you wish, if a medical exam was conducted. I know that, I believe, at least two of the witnesses will say “yes”. But you cannot ask, for instance, what was the medical finding because that would be hearsay. That would be, can you tell me what the doctor told you.

So, you will have to make a leap, if you wish, that if a medical examination was conducted and no criminal charges were filed and there was no evidence to substantiate the allegation, you're going to have to figure out what that means because I'm not going to have a doctor here to tell you.

That's why I'm not answering some questions because I don't have everybody here. I have police officers, I have an attorney, and I have the people who have been accused. And that's about it.

Finally Vieira-Simmons misstated the law of evidence. Larson again maintained his educated silence.

Juror No. 12: As far as I know, don't doctors, psychologists, have doctor client privilege to not divulge information based on the personal contact with whom they're actually treating so it's kind of would be a mute point.

DDA Vieira-Simmons: There is a privilege and if it comes to that point we can discuss what the legal rules are.

In fact, Penal Code 939.6 allows a qualified officer, under certain conditions to testify before a grand jury as to hearsay statements made to him.  Vieira-Simmons misrepresented the law. (Footnote 939.6)  Vieira-Simmons wanted the jurors to believe that the testimony of medical doctors would be “privileged”, therefore they could not hear it. Vieira-Simmons failed to timely tell them the truth about the law of privilege, and instead alluded that she would explain it later. This could have reasonably misled the jury so they would believe they had no ability to call doctors as witnesses because of the law of privilege. In fact, California does not allow any physician patient privilege in criminal matters pursuant to California Evidence Code Section 998.  A psychotherapist and patient privilege, however, does apply in California pursuant to Evidence Code section 1014(a). There would have been no privilege in regard to Children’s’ Protective Service reports or the Redwood Children’s Center reports or tapes because these were part of the process of a criminal investigation, and did not constitute private therapy. Evidence from these two agencies would have revealed that Carol Mardeusz' daughter had been abused.

Magistrate Larson was very selective is imparting his legal knowledge. In this instance Larson maintained his educated silence failing to enlighten his fellow grand jurors about Vieira-Simmons's errors of evidence and errors in the law.  Discouraged and defeated by the collusion between the foreman Larson and Vieira-Simmons that resulted in a stone wall, the grand jurors' questioning was finally silenced. The exculpatory evidence that the father abused the child was never presented to the grand jury.  When documents were presented to the grand jury, all references to abuse were redacted as “irrelevant.”  Presumably, the grand jury secretary foreman Larson selected, marked the exhibits as he was told, including the redactions.

When all the evidence had been presented, members of the grand jury asked Larson what standard of proof was required to return an indictment against the accused.  Judge Larson did not refer this question to Judge Dufficy for enlightenment, instead he stated the standard was confusing, and then gave his own erroneous opinions about the standard.  Finally, he discouraged the grand jurors from questioning the standard, and began the grand jury proceedings expressing his personal "hope" that the grand jury would not insist on an explanation of the standard in order clarify the evidence. What follows is an example of how Larson worked hand in glove with deputy district attorney Kelly  Vieira-Simmons to spoon feed a finding of indictment to the grand jury:

Magistrate Larson - Juror No. 10:  Okay. Let me read once again the standard that you're going to be applying here. Frankly, I think this is kind of confusing, and hopefully it will become more clear in the course of the testimony. "The grand jury shall find an indictment when all the evidence before it, taken together, if unexplained or uncontradicted, would, in its judgment, warrant a conviction by a trial jury."

Now, what's going to happen basically is the District Attorney will present her side of the case and it's very rare for there to be any kind of defense presented.  Sometimes there may be a neutral witness or ambiguous witness who will be presented and maybe, in that light, the standard will become more clear.  But the problem I have with this, what it means to say, if unexplained or uncontradicted, I take it that that will be the guts of the discussion that we'll have at the close of the presentation.

Juror No. 2:  Is it all one sided?

Larson - Juror No. 10:  Yes.  There will not be a defense attorney in here objecting to questions or cross examining any of the witnesses.  Nor will there be a defense presented presumably at the close of the District Attorney's case. In a sense that's our responsibility, to make sure that the evidence is fairly considered and we make an independent judgment whether or not this person or these persons should be indicted.

Juror No. 7:  It's the second part of that that I have a little bit of confusion with - "would warrant conviction".  We're supposed to believe that given the evidence that's being shown, that if it was uncontradicted or unexplained, if it went to trial that person would be convicted on that evidence.  We're actually not necessarily looking to see if this should be explored further, but that we believe this would lead to a conviction.

Larson - Juror No. 10:  Right. The operative term there is "warrant" whatever that means. There's different standards in the law, I'm sure you're familiar with.  In terms of evaluating evidence, for example, if we were sitting as a trial jury, we would be called upon to determine whether or not the evidence establishes beyond a reasonable doubt that the person is guilty.  That's not this standard.

If it were a civil case we would be deciding whether or not one proposition or the other was established by a preponderance of the evidence.  And this standard should be considered to be less than that.

I'm surprised they don't use the term "probable cause".  In any event, at the appropriate time, we'll have some discussions of that. And, as I say, the evidence may be so clear none of us really has any questions about whether we need to get into the nuances of this terminology.  Let's hope for that. If not, then we'll talk about it some more.

In any event this is the language to keep in mind.  And if any of you want it repeated at any point, we can take a look at it or ask me to read it again.  Okay. Any other questions before we get started?

Juror No. 7:  Actually, I'd like you to read it again.  I would like to write it down.

Larson - Juror No.10:  This is taken right out of the California Penal Code.  This is a direct quote: "The Grand Jury shall find an indictment when all the evidence before it, taken together, if unexplained or uncontradicted, would, in its judgment, warrant a \ conviction by a trial jury."

In fact, Judge Larson gave the grand jurors an incorrect standard of proof to return an indictment by using the words “warrant a conviction”.
In 1992, the Supreme Court of California in Cummiskey v. Superior Court, 3 Cal. 4th 1018, ruled:  “We conclude, therefore, that the standard of proof under section 939.8 for returning an indictment is "probable cause."  Accordingly, the prosecutor must explain to the grand jury that section 939.8 requires a finding of "probable cause" before an indictment is returned.”  As stated in Criminal Law Procedure and Practice, Continuing Education of the Bar, Fifth Edition, Section 8.21: "The standard of indictment set out in PC 939.8 (whether the evidence warrants a conviction by a trial jury) is no longer a correct statement of law."

Jury Foreman Larson didn't tell the grand jurors they must find probable cause to indict, as the California Supreme Court requires. Instead, Judge Dufficy instructed them using the incorrect phrase “warrant a conviction”. Dufficy and Larson parroted each other’s mistakes, as Vieira-Simmons stood silently by. Here is Judge Dufficy in action, misstating the law once, and repeating it for good measure.

Judge Dufficy: Guilt or innocence is not the test. The test, as I have previously instructed you, is to be found in Penal Code Section 939.8, and it reads: The Grand Jury shall find an indictment when all the evidence before it, taken together, if unexplained or uncontradicted, would, in its judgment, warrant a conviction by a trial jury.

Judge Dufficy:  Under our law, the test of the sufficiency of the evidence for the return of an indictment is stated as follows, and I quote: "The Grand Jury shall find an indictment when all the evidence before it, taken together, if unexplained or uncontradicted, would in its judgment, warrant a conviction by a trial jury"...

Only the 19 Special Criminal Grand Jury members know what standard of proof they actually used when they deliberated after the words "warrant a conviction" (whatever that meant) had been hammered into their heads by two judges - Larson and Dufficy.  Their deliberations remain secret. The grand jurors cannot be interviewed.  If they speak out, as a matter or conscience, they may be charged with a crime by the Marin District Attorney's office.  Former District Attorney Paula Kamena and her staff did just that when they vindictively brought criminal charges against an outspoken member of another grand jury who had criticized the family courts in Marin County.

The strange, hand-picked criminal tribunal aka grand jury selected by judge/witness Dufficy did the job.  All the while they truly believed they were a common grand jury and Larson was a legitimate foreman of the grand jury who exercised judicial authority in answering their questions and concerns.  He did so, in the place and stead of Judge Dufficy, who after all, unbeknownst to the grand jurors, was going to be the main witness for the prosecution, if an indictment were returned, and a trial commenced.  As a result of the grand jurors vote, the indicted protective mother, Carol Mardeusz, who had always had legal custody of her daughter, had to stand trial for numerous felonies and, after a jury trial conducted by Judge Verna Adams and prosecuted by deputy attorney Kelly Vieira-Simmons, Mardeusz was convicted.  She was sentenced to 9 months in jail and five years supervised probation, with a no contact order regarding her daughter.

The question remains, why did James A. Larson risk his career as a federal magistrate to throw his federal judicial weight behind such a corrupt "special" criminal grand jury proceeding?  The sole goal of this rare criminal grand jury was to criminalize a protective mother trying to rescue her child from a serial child abuser.  Large amounts of taxpayer money and the power of the Marin County District Attorney's office, Judge Dufficy, Judge Adams and the criminal courts were put to work to protect a child abuser. Leo Magers pleaded no contest to felony child abuse of his daughter on Monday, October 3, 2005 in Solano Superior Court. 

Kathryn Joanne Dixon © October 6, 2005