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FORMER MARIN COUNTY DISTRICT ATTORNEY PAULA KAMENA
AND CURRENT MARIN COUNTY SUPERIOR COURT JUDGE KELLY VIEIRA-SIMMONS
COMMITTED PROSECUTORIAL ERRORS IN THE CAROL MARDEUSZ TRIAL

By Kathryn Dixon

A recent article by this reporter described the grand jury corruption and the cover-up of child abuse that was orchestrated by former Marin County District Attorney Paula Kamena and her then-deputy district attorney Kelly Vieira-Simmons (Click.).  Under Kamena's authority, Vieira-Simmons conducted a "special" criminal grand jury impaneled by then-presiding judge Michael Buck Dufficy.  The sole purpose of this grand jury was to indict and prosecute Carol Mardeusz, the protective mother of a child who was being terribly abused by her natural father, Leo Allen Magers.

Vieira-Simmons whose actions were condoned and supervised by Kamena violated Penal Code Section 939.71 and ignored Johnson v. Superior Court, 15 Cal. 3rd 248 which requires the prosecutor to present truthful evidence to a grand jury and to present exculpatory evidence when material to the grand jury determination.

Section 939.71 reads as follows:

939.71, Exculpatory evidence; duties of prosecutor

(a) If the prosecutor is aware of exculpatory evidence, the prosecutor shall inform the grand jury of its nature and existence. Once the prosecutor has informed the grand jury of exculpatory evidence pursuant to this section, the prosecutor shall inform the grand jury of its duties under Section 939.7. If a failure to comply with the provisions of this section results in substantial prejudice it shall be grounds for dismissal of the portion of the indictment related to that evidence.

(b) It is the intent of the Legislature by enacting this section to codify the holding in Johnson v. Superior Court, 15 Cal. 3d 248, and to affirm the duties of the grand jury pursuant to Section 939.7.

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 grand jury foreman and U.S. Magistrate Judge James 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.

Vieira-Simmons knowingly lied to the grand jury members because she knew that Carol Mardeusz' daughter had been subjected to a medical doctor's examination including use of a culposcope to determine abuse.  She also knew that she and assistant district attorney Paula Kamena who was chief of the criminal division at that time under District Attorney Jerry R. Herman, had made the determination not to prosecute Leo Magers and his mother Dr. Betty Magers in spite of what the examination revealed.  Vieira-Simmons and DA Kamena ordered the evidence of the examination destroyed (Click.). They did so even though Novato police officer Brett Gripe had found enough evidence to book Leo Magers on February 6, 1995 for violation of Penal Code Section 288(a) lewd and lascivious conduct regarding his daughter.

The case of Carol Mardeusz and her daughter came back in 1999 to Paula Kamena's desk after Jerry Herman resigned and she assumed the office of District Attorney.

According to an article by Jill Kramer in the Pacific Sun on April 18-24, 2001:

The grand jury was impaneled in December 1999, in order to speed up the judicial process, which was slowed to a crawl by Mardesz's legal maneuverings "There were a long series of events that caused delay," says Vieira, "between challenging judges, working her way up and down through the appellate system, going to the judicial council, changing lawyers, not being able to enter a plea because of whatever illness she might have had." (Mardeusz has a diseased kidney and severe physical reactions to stress.) "And our concern was that during this time the child was terrified that the mother was going to come and try to take her."

Vieira has been the district attorney's specialist in sex assault cases for the last eight years. She interviewed the little girl and felt that she needs to be protected from her mother.  "When you're looking at this case, instead of thinking about 'poor mother,' think about ' poor daughter,' says Vieira.  "She is afraid of her mother.  At some point, custody was changed for reason."

Kelly Vieira-Simmons is not a psychiatrist, psychologist or medical doctor, yet she made the determination that she alone was the expert in determining child abuse and she chose her office or a law enforcement center to subject Haleigh Magers-Mardeusz to an interview.  She did so despite the fact that her supervisor District Attorney Paula Kamena's greatest claim to fame was that she was a founder of the Jeannette Prandi Children's Center where abused children were taken to be interviewed in a comfortable setting by medical and psychological experts in the field of child abuse to determine whether or not they had been abused.  Kamena did not take Mardeusz' daughter to the Prandi Center.  Instead she formed her judgment that Leo Allen Magers was not abusing his daughter, as the mother claimed, based perhaps on Vieira-Simmons's totally inadequate examination or based perhaps on no examination at all. They bitterly griped that Mardeusz was delaying through perfectly legal methods their "rush to judgment" to convict her.  Kamena and Vieira-Simmons then called for a special grand jury to indict Carol Mardeusz who had attempted to get a court order to take her child away from the abuser.  Eventually they succeeded in convincing a special grand jury to indict her for attempted kidnap and related charges.

In a Nazi-style trial before Judge Verna Adams, a close personal friend of Judge Dufficy and one of his infamous FLEAS (Family Law Elite Attorneys), Carol Mardeusz was convicted. The prosecutor was deputy district attorney Kelly Vieira-Simmons acting at the direction of then- district attorney Paula Kamena.  Judge Adams made certain that the words "domestic violence" were not permitted to be uttered in her courtroom in order to protect accused abuser Leo Magers from any testimony that he had committed "domestic violence".  The jury commenced hearing evidence in 2000.

Judge Verna Adams ruled in motions in limine that the jury could not hear testimony or received evidence that Leo Magers abused his daughter.  Therefore Carol Mardeusz could not raise the defense of "necessity" -- that is that it was necessary that she rescue her daughter from immediate harm.  "Necessity" is a complete defense to attempted kidnap.  The jury rendered deaf, dumb and blind by Judge Adams orders excluded evidence of abuse, convicted Mardeusz.  She appealed.

On April 28, 2003, the First District Court of Appeal in Case No. A093398, upheld the conviction of Carol Mardeusz on six of seven counts regarding attempted child abduction and contempt of court, and dismissed one count because it was duplicative of another charge.  However, the court of appeals lambasted Marin District Attorney Paula Kamena and her deputy district attorney Kelly Vieira-Simmons for asking witnesses improper questions.  Coincidentally DA Kamena retired effective January 2005, halfway into a safe term shortly after Leo Magers was accused of beating his children in both Paris, France and Benicia, California.

The First District Court of Appeal ordered that its opinion cannot be published in official reports.  However, those in the know should keep a copy of this opinion in their briefcases just to add to their collection of cheap shots the Marin County District Attorney’s office can throw at witnesses to create a smoke screen that will confuse a jury enough to convict an innocent person.

Kamena staked her reputation and that of her assistant Kelly Vieria-Simmons on the outcome of the Carol Mardeusz trial.  The Mardeusz case was famous in Marin County because the manipulation of jurors by the judges and district attorney's office led to the attempted recall of Kamena and several family law judges on the grounds of corruption in the family courts.  Convicting Mardeusz was imperative to the political future of DA Paula Kamena, Family Law Judge Michael Dufficy and, of course, prosecutor Kelly Vieira-Simmons.  Winning the conviction of Mardeusz was essential to defeating a recall that ultimately failed.  Kamena was so intent on winning the recall that she was quoted in a February 15, 2001 Daily Journal article written by John Roemer as saying, "I'll win by such a landslide that no one will run against me, she vowed, quoting the message on the mug that holds her morning coffee: "Losing is not an option."

The Santa Rosa News-Pointer article of March 27, 2001 by John Jackson said that Paula Kamena pointed out "a whole string of accomplishments."

"One of those accomplishments of which she is most proud is her leadership in developing the Jannette Prandi Children's Center, a peaceful and comforting centre where child victims of sexual and other abuse of those who have been interviewed in a warm and comfortable setting."

"If I were to die tomorrow, I would feel I had made a huge contribution," she says of the Prandi Center.

The First District Court of Appeal’s justices Pollack, Corrigan and Parrilli criticized Kamena’s and Vieria-Simmons' performance in this political trial.  They found that Vieira-Simmons engaged in "clearly improper" questioning of some of the witnesses. This questioning essentially consisted of Vieira-Simmons asking character witnesses whether they knew that all or some the judges in Marin County and Sonoma County and all or some the district attorneys in Marin County and Sonoma County or all or some of the probation officers in these counties believed Mardeusz to be dishonest.

How could any witness know what all judges, district attorneys or probation officers thought of Mardeusz’ honesty or even what one thought, if one didn’t know them?  Only an all-seeing, all-knowing witness or a witness who knew the official personally, could answer such questions. Yet Judge Verna Adams overruled the defense counsel Patricia Barry's objections to these questions and let Vieira-Simmons plow on with her strange queries.

Vieira-Simmons' first target was Registered Nurse Barbara Parrett.  Ms. Parrett, a friend of Mardeusz who holds a masters of science degree in psychiatric nursing, testified that her opinion of Mardeusz’s character was that she is honest.  The court decision notes: "On cross-examination, Vieira (Simmons) asked Parrett if her opinion of Mardeusz would change "if I were to tell you that the Sonoma County Court system has a different view of Miss Mardeusz’ level of honesty?"  Parrett replied "no" and the prosecutor asked, "Would your opinion change if the Sonoma County District Attorney’s Office, the entirety of that office, shared an opinion that Miss Mardeusz was not an honest person?" Mardeusz’s attorney objected, "Improper question, your Honor," and the court overruled the objection. The prosecutor then asked, "Would your opinion change if the Sonoma County Probation Department did not share your view and shares the view that Miss Mardeusz does not have a reputation for honesty?" to which Parrett replied "no."

Surely the jury hearing this testimony must have thought that the entire judicial system and district attorney’s office of two counties thought Mardeusz was dishonest.  After all, Vieira-Simmons was cloaked with the authority of the “People of the State of California” and a top member of Kamena’s prosecutorial team and she urged them to think so.  Kamena was in charge. The errors of her deputy district attorney are ultimately hers to own for she represents the "People of the State of California".  Did Vieira-Simmons take a poll of all these judges and district attorneys to obtain some foundation for her questioning?  No.  Did all these judges and D.A.’s testify against Mardeusz?  No. Only Judge Dufficy did.

This witness called by Vieria-Simmons was the same Judge Dufficy who nominated Paula Kamena for the California State's 1994 Prosecutor of the Year Award by writing, "I have never seen a prosecuting attorney perform with such dedication, tenacity and skill as Mrs. Kamena did in the McDonald-Braunberger murder case."

How many officials in these offices in two counties actually had any personal knowledge of Mardeusz?  Only a few.  Perhaps the jury would have merely laughed at the Marin County District Attorney’s office if Vieira-Simmons' had asked Ms. Parrett, “Would you opinion change if the President of the United States and the Congress shared an opinion that Mardeusz was not an honest person?”  However, Vieira-Simmons' question, akin to that, was rather more cunning and calculating.  She gambled she could pass it by Judge Verna Adams without being reprimanded.  It turned out to be a convincing cheap shot question! The jury convicted Mardeusz.  If the jury had not heard Vieira-Simmons "clearly improper" questions would Carol Mardeusz have been convicted?

The First District Court of Appeals condemned Vieira-Simmons' method of questioning finding that the questions posed to Parrott and other witnesses were clearly improper. The court said, "It is highly unlikely, if even possible for the prosecutor to have a good faith belief that all the judges, district attorneys and probation officers or these organizations as entities, believed Mardeusz to be dishonest.”

Kamena’s star prosecutor Vieira-Simmons also pulled one of the oldest crooked D.A. tricks in the book: Put a character witness for the defendant on the stand and ask him a poisonous question such as "Do you know the defendant beats his wife?” when there is zero evidence that the defendant ever beat her.  The character witness testifies “no”.  Meanwhile the D.A. gives the jury that smug and pious look, indicating that the D.A.’s office really knows he beats her, and wouldn’t have asked the question, if they didn’t possess hard evidence. The D.A. hopes the jury will buy the pure gossip thrown at them because it’s blessed by the District Attorney’s say-so.  By law, Judges bar that type of questioning as being without foundation and inflammatory.  However, Judge Verna Adams let the jury hear it.  Later, Judge Adams didn’t bother to give any jury instructions to attempt to cure the effects of these improper questions upon the jury.

Vieira-Simmons repeated her line of improper questioning to two more witnesses, empowering these questions and responses with even greater weight in the eyes and ears of the jury. Judge Adams let it all roll in.

The First District Court of Appeals noted that Vieira-Simmons also asked Mardeusz’ character witness, her sister Mary Ann Modick improper questions: "Ms. Modick, if I can now refer you to your testimony where you indicated that you felt your sister was an honest person...[I]f I were to tell you that, in fact, judges of the Sonoma County Court have indicated that they do not believe your sister is an honest person, would that affect your opinion?" to which Modick replied, "no".  The prosecutor continued, "If I were to suggest to you that Judge Dufficy of Marin County has testified that your sister, in fact lied in an application, would that alter your opinion regarding her honesty?"  Modick replied that it would not, as Mardeusz’ attorney interjected by objecting that the question misstated the evidence.  Objection overruled!. Judge Verna Adams let the jury hear it.  The jurors now had reason to believe that the self-appointed God of the Marin County Court – Judge Dufficy, himself, was just one of the many judges who did not believe Mardeusz was an honest person.

Vieira-Simmons plowed on to the next witness. She asked Mardeusz’s brother, Lawrence Van Zandt if he was "aware of a report written by a probation officer in Sonoma County by the name of Susan Rivett indicating that she believes that, in fact, your sister is a dishonest person?" Van Zandt replied, "I have no idea."

The First District Court of Appeals held that Vieira-Simmons' line of questioning of Modick and Van Zandt was improper in form.  The court said, "Here, the prosecutor offered no foundation to indicate that these witnesses would have any reason to know of Mardeusz’ reputation in the courts, the district attorney’s office or the probation department.” 

Finally, the justices opined that it was not reasonably probable that the erroneous and improper questioning by the Marin County District Attorney's office affected the judgment. The court stated, “Although the questions allowed on cross examination were improper we cannot say that there is a reasonable probability that they affected the outcome of the trial.”

Even though this Appellate Court did not overturn the jury’s verdict because of the deputy district attorney’s improper questioning, a question will always remain – what would the jury really have decided if this slew of improper questions were not asked by Vieira-Simmons and allowed in by Judge Adams?

Mardeusz, and those supporting the recall of Kamena, stood up to family law corruption, and the Marin County District Attorney’s office and deputy district attorney Vieira-Simmons Kamena convicted Mardeusz of felonies by the use of a tainted grand jury and by asking improper questions of the character witnesses supporting Carol Mardeusz.

What was real basis of the attempted kidnap charge that Kamena slammed against Mardesuz?

In the fall of 1999, Marin District Attorney Paula Kamena decided to prosecute Carol Mardeusz because she had presented an ex parte application to Judge Michael Buck Dufficy requesting a temporary restraining order against Leo Magers and seeking temporary custody of her daughter. Dufficy signed the order, and Mardeusz contacted the Rohnert Park Police and sought their assistance in picking up her daughter at school.  School authorities and Leo Magers’ attorney Catherine Conners alerted Judge Dufficy, who telephoned Sonoma County Judge Giordano. Giordano determined that Sonoma County Superior Court Judge Cerena Wong had signed an order in 1996 (obtained ex parte, without a hearing) which stated Mardeusz was to have no contact whatsoever with her daughter. Upon hearing this, Judge Dufficy revoked his order.

Based on this flimsy scenario magnified into a kidnap charge and based on her personal failure to have the victim of the abusive behavior of Leo Allen Magers interviewed at the Prandi Center, Kamena threw the book at Carol Mardeusz and marked her life with six felony convictions. Worse, she marked the lives of Mardeusz's two daughters with great pain.  Carol Mardeusz’s true state of mind as Parrett, Van Zandt and Modick tried to show, was to save her daughter. 

Ironically, the First District Court of Appeal’s opinion has also marked the lives of Kamena and Vieira-Simmons for life. The opinion, at best, depicts Vieira-Simmons (promoted to Marin Superior Court Judge in 2005) as an amateur who didn’t know how to cross-examine fairly and follow the law.  At worst, it depicts Vieria-Simmons and her supervisor Kamena as manipulative attorneys who corrupted the law of cross-examination in order to rip up character witnesses' testimony and taint the jury’s opinion of the defendant.  Judge Verna Adams let all the misconduct happen on her watch. The three female court officers have demonstrated that they can be just as cruel, sexist, manipulative and unjust as their male counterparts. 

Carol Mardeusz appealed the decision of the First District Court of Appeal to the Supreme Court of California.  Her appeal was denied.  The case is closed.  However, the case remains a reminder of who Paula Kamena, Kelly Vieira-Simmons and Judge Verna Adams really are – it is a look into their dark souls.

Kathryn Joanne Dixon © October 10, 2005
 


Click. LEO ALLEN MAGERS
PLEADS NO CONTEST TO
FELONY CHILD ABUSE OF
HALEIGH MAGERS-MARDEUSZ

by Virginia McCullough
 


 

Click. MARIN COUNTY'S GRAND JURY CORRUPTION
AND THE COVER-UP OF CHILD ABUSE
by Kathryn Dixon

 

Click. LEO ALLEN MAGERS PLEADS
NO CONTEST TO DRUNK DRIVING -- .20 BLOOD ALCOHOL CONTENT
by Virginia McCullough