Beyond the video

Supervisors will weigh Mirkarimi's arm-grab against larger, precedent-setting issues

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Eliana Lopez displays her bruise in the infamous video at the center of the case against Ross Mirkarimi.

steve@sfbg.com

The Board of Supervisors received the official misconduct case against suspended Sheriff Ross Mirkarimi this week, with a majority of Ethics Commission members urging supervisors to give more weight to the 45-second video that started this sordid saga than the voluminous record they have compiled at great expense over five months of hearings.

Yet Chair Benedict Hur, the commission's sole vote against finding that Mirkarimi committed official misconduct, last month argued that supervisors shouldn't take such a narrow view of this decision, expressing concern about the "dangerous precedent" of removing an elected official for conduct unrelated to his job.

Ironically, Hur will be the one presenting the commission's case to the board later this month, a decision his colleagues made because the other options weren't good and because they said he has been so knowledgeable and fair-minded through the process. While Hur is likely to play it straight, the supervisors will have an opportunity to elicit his true perspective — raising questions that will be central to the sheriff's future.

Will supervisors see their decision as a matter of showing zero tolerance for even minor acts of domestic violence, as Mayor Ed Lee and some women's groups are urging? Or will they see this as governmental overkill in pursuing a punishment that doesn't fit the crime, overturning an election and giving mayors too much power to go after their political rivals?

Is this just about Mirkarimi and his actions, or are there larger, more important principles involved in this unprecedented decision?

In the video, Mirkarimi's wife, former Venezuelan soap opera star Eliana Lopez, displays a small bruise on her right bicep and tearfully tells the neighbor who filmed it, Ivory Madison, that Mirkarimi caused it the previous day, Dec. 31, and "this is the second time this is happening." She also said that she wants to work on the marriage, but that, "I'm going to use this just in case he wants to take [her son] Theo away from me."

Lopez last month spent more than three hours on the witness stand being grilled by Deputy City Attorney Peter Keith and Ethics commissioners, explaining why she made the video and how she believed Madison was an attorney and their conversations were confidential. She repeatedly insisted that she was not a victim of domestic violence and criticizing city officials and prosecutors for persecuting her family and taking away her husband's livelihood.

There was nothing in the testimony that obviously impeached Lopez or hurt her credibility. To many observers -– particularly Mirkarimi supporters, who made up the vast majority of those giving public comments to the commission -– her testimony marked the moment when the city's case began to unravel. Indeed, on Aug. 16 the commissioners voted unanimously to reject most of the charges that Lee filed, including witness dissuasion, abuse of authority, and impeding the police investigation.

In the end, there was just that video, and commissioners on Sept. 11 added a final statement into the record that they believed it more than anything Lopez has said since then. Even Hur said that he found it compelling, and that more may have happened on Dec. 31 than Lopez and Mirkarimi have admitted.

But there really isn't much evidence to support that belief, and Hur said in August that it shouldn't matter anyway. If the city's vague and untested official misconduct language can apply to low-level misdemeanors unrelated to an official's duties, he said, "we are opening this provision up to abuse down the road."

 

Comments

Why would she say that unless the mayor had indeed consulted with her? It doesn't make sense.

Posted by Guest on Sep. 20, 2012 @ 12:17 pm

speak far more loudly than any that suggest Eliana or Ross were untruthful; i.e., Lee's demeanor on the stand, his getting whisked away, Walker's extemporaneous reaction to Lee's testimony, Olangue's reaction to being questioned regarding Walker's statement, Aaron Peskin's testimony, Aaron Peskin's phone record, the DA's initial deferment to the EC, the EC's disinterest in pursuing the matter, the DA's subsequent quietude.

All the EC had to do was call supervisors to testify, but they strangely leapt to the decision that the possibility that Lee had perjured himself had no bearing on an official misconduct case that he himself had caused to be brought before them. Likewise, the DA could have easily investigated if he hadn't been uncomfortable with what such an investigation might have uncovered.

As for the video that Ivory Madison had Eliana make ("Screw him!"), I've said it before that while it is not inconceivable that she -- perhaps after being coached by Ivory ("Screw him!") -- intentionally made an ambiguous statement which was nontheless literally true, that Eliana's obvious difficultiy with English should carry great weight in explaining the awkward contstruction.

Anybody who has ever stuggled with a second language knows that sometimes you end up saying what you know how to say instead of what you really mean.

Posted by lillipublicans on Sep. 20, 2012 @ 5:50 pm

You know - on circumstantial evidence including hearsay.

Posted by Troll II on Sep. 20, 2012 @ 6:36 pm

The contortions you go through for your man Mirk are beyond belief, lilli.

Posted by Guest on Sep. 21, 2012 @ 3:20 pm

She may think it's because Lee appointed her. Who knows? Her statement was ambiguous.

Posted by Guest on Sep. 21, 2012 @ 3:48 pm

The most likely interpretation is that she meant that if she said too much to the press about the case that she might then have to recuse herself. Which is what she had been told by the City Attorney

The other explanation is that she took that moment to drop a bombshell, that there were extenuating circumstances that had not been disclosed. Makes no sense unless you are a Mirkaloonie.

It is sort of laughable that a momentary pause, an ambiguous statement by Olague creates some kind of evidence.

But Lopez holding her bruise up to the camera? Means nothing because Ivory Madison was holding the camera.

Posted by Guest on Sep. 21, 2012 @ 4:41 pm

I notice the focusing of attention to the black and blue on Eliana's inner upper arm now I'm CERTAINLY not saying this isn’t important BUT that has been settled and resolved in terms of being taken care of.....the continued attention on RM and this issue reminds me of the magician trick..
So what else is happening?
Ed Lee's election fraud (nope don’t see it) , Willie Brown's takeover of SF economics as he sells the city to the corporations to the great harm of the people of SF those wanting to BUY influence on line outside his office (Nope don’t get it ) the Go Lorrie money laundering case the money going to Ed Lee (ah ah nope don’t see it) the Archway Veritas Inv., Andrew Hawkins money laundering case (almost identical to Go Lorrie) the money going to Ed Lee (what nope don’t see it) the $600,000 that Ron Conway the republican angel investor in twitter gave to Independent election committees for Ed Lee who then steers a tax holiday for Twitter (nope don’t know what your talking about) the voter fraud taking place in Chinatown ( the what ...nope cant see it I am looking a something else) the district attorney G. Gascon former Gavin Newsom appointee cant find evidence in the "filmed" witnessed Chinatown election fraud (nope don’t know what your talking about G. Gascon cant find enough evidence in the Archway Veritas Inv money laundering case even with a whistleblower (nope I m busy on the official misconduct thing I saw the arm )the co-opting of the Anti DV movement to remove an elected official by undemocratic means (huh excuse me can you email me or something

Posted by happy guest on Sep. 22, 2012 @ 9:27 pm

The video was coached and anyway proves nothing. Besides I don't care what you believe. Why don't you admit your real reason: the political one.

Posted by Avkanediv on Sep. 19, 2012 @ 1:01 pm

The video coems across as spontaneous and authentic. You could sense her fear, her feeling that a "powerful man" might destroy her life and her tears looked genuine, even if she is a soap actress.

Posted by Guest on Sep. 19, 2012 @ 1:15 pm

I know. Ya gotta love it. The video was coached. But her testimony wasn't. No lawyers were involved in the making of that testimony. She just spoke the truth without regard to the effect it would have on her husband getting his job back.

Oh well....

Posted by Troll on Sep. 19, 2012 @ 1:30 pm

Is it really your belief that everyone who wants Mirkarimi gone does so because they're part the "downtown machine" or sympathize with it, while everyone who wants him reinstated does so because removal doesn't fit the crime?

Posted by Guest on Sep. 19, 2012 @ 3:41 pm

number of people are downtown types. It's amazing, by that argument, that we're not a republican town.

Many who want Ross gone now voted for him last year. They didn't realize who they were really voting for.

Posted by Guest on Sep. 19, 2012 @ 3:51 pm

Good Question The machine isnt downtown its everywhere its every elected official that is controlled helps Willie Brown downtown ...to be accurate . A GOOD example Gavin appoints Gascon DA(huh the guy has never tried a case) >incumbent advantage> funding >gets elected DA now there is another piece on the board so when Ed Lee engages in election fraud money laundering campign fraud ballot fraud he is safe WHY what do you think G. Gascon the DA says "insufficient evidence" the Chinatown ballot fraud was on FILM witnessed....and they are good witnesses did Gascon prosecute ... nope "insufficient evidence"....the Archway Veritas Inv apartment conglomerate with Andrew Hawkins same money laundering as the Go Lorrie case all for ED LEE guess what ? do you think G Gascon would do it again ? impossible right sorry "insufficient evidence" AND there is a whistelblower in the case!!!! so when you say "downtown machine" and think your example will look makie those asserting the political machine is involved look ridiculous wrong you look ridiculous ....as far as punishment fitting the crime that is over RM accepted responsibility and thats done. The Sheriff was voted in and the voters if they wish can vote him out with a recall.

Posted by happy guest on Sep. 23, 2012 @ 11:08 am

They have had two major arguments about her penchant for taking their son back to Venezuela for long periods of time while she makes movies. TWO MAJOR ARGUMENTS..not two momentary arm grabs. read the transcripts from the Ethics commission....do the hard work of actually knowing what you are talking about.

Posted by Guest on Sep. 19, 2012 @ 8:40 am

Mason Mayer got three years probation and a year of DV counseling on a misdemeanor false imprisonment plea for these crimes:

http://sfappeal.com/news/images/trent.1.JPG
http://sfappeal.com/news/images/trent2.JPG
http://sfappeal.com/news/2012/03/brother-of-google-executive-allegedly.php

Ross Mirkarimi got the exact same treatment from Gascon for turning the family van around and a momentary grabbing of Eliana's arm -- I am *NOT* saying he's guilt-free @! -- but it doesn't seem balanced.

It's great that Ben Hur expressed reservations about codifying a process wherein a mayor could expand his powers through this deeply flawed interpretation of the city charter -- just as it was well that Paul Renne early on in the "Ethics Commission" hearings discounted much of the hearsay nonsense from Ivory Madison that the city attorney brought before them -- but I do not place much credence in the premise that he is an impartial judge.

Rather, I have some suspicion that Hur carefully carved for himself a position which would serve the interests of power without needlessly diminishing his own credibility -- and by extension that of the EC.

Posted by lillipublicans on Sep. 19, 2012 @ 8:41 am

Lilli, I truly hope that you are planning to go down to the meeting to remind the Supervisors about the Mason Mayer case.

Once the supervisors hear that Mayer was much more abusive than Mirkarimi they will immediately exonerate Mirkarimi.

Of course, during the entire EC hearing NOT ONCE did ANYONE mention that Mirkarimi was NOT the worst abuser in the world.

Of course not. They were probably ordered by Rose Pak not to.

You need to go down there and set the record straight, my good friend Lilli!

Posted by Steroidal Progressive on Sep. 19, 2012 @ 9:06 am

demonstrates exactly how fair DA Gascon's treatment of Ross Mirkarimi was!

Everybody gets treated the same no matter whether they momentarily grab their spouse's arm or pummel their significant other repeatedly with both fists while straddling them, and then slam their head against a marble floor, threatening them with death.

The *real* unfairness was committed by LA's prosecutor when he failed to offer OJ Simpson a chance to undergo a year of domestic violence counseling and three years probation.

There's no political vendetta involved in Gascon leaking heresay evidence to the media in order to compel the sheriff to agree to a plea deal which was far out of parity with his transgression. And naturally in addition to the criminal penalty, Ross should be stripped of his job and pay since he's one of those damned progressives.

Voters be damned.

Posted by lillipublicans on Sep. 19, 2012 @ 9:37 am

While watching the infamous video, one must remember that Eliana primarily speaks Spanish. In her sworn testimony before the Ethics Commission, she often received the help of a translator. I can't believe the Commission completely ignored this fact when discussing their interpretation of the video, in which several vague statements were made:

"This is the second time this is happening." - referring to verbal disagreements over taking their son to Venezuela

"He said that he is very powerful and he can do it" referring to Mirkarimi's status as an American with an American-born son and how it could give him an advantage in a custody battle.

Eliana explained both of these points well in her testimony. Most Commissioners ignored this, however, and chose to go with their own interpretation of the video. Ridiculous.

One also needs to ask why the Commission on the Status of Women NEVER even spoke with Eliana before voting to toss Ross. So much for victims' advocacy. Also, the Kathy Black and Beverly Upton were members of the Justice & Courage Oversight Panel, which voted to toss Ross without ever speaking with Eliana.

Posted by Erika McDonald on Sep. 19, 2012 @ 9:54 am

Very good comment Erika. This so called ethic's commission have completely ignored what Eliana Lopez had to say.

This commission was used as a tool by the power that be to create an appearance of fairness. They have failed miserably. Thanks.

Posted by jccourt on Sep. 19, 2012 @ 10:30 am

as her translator-facilitated testimony before the unethical commissioners made abundantly clear.

For the EC to have decided that their interpretation of an ambiguous statement from a 40 second video must take primacy over her sworn testimony to them is frankly disgusting. Shame on them! Shame!

And as jccourt (the real one, obviously) has pointed out below, the degree to which Eliana's statement in the video *is* ambiguous can also be explainable by the intent behind its making and the ersatz nature of the "legal help" she was being given by the videographer.

Posted by lillipublicans on Sep. 19, 2012 @ 11:36 am

Eliana lied when she thought it would give her an advantage in her battle with Ross, and then told a different story when she decided that Ross having no paycheck is not in her interest.

She's a phoney and I don't buy Erika's "just a poor dumb hispanic chick" shtick.

Posted by Guest on Sep. 19, 2012 @ 11:52 am

You lie -- and you lie repeatedly. How often cannot be fully determined since you are posting under "Guest" in this case.

Eliana certainly made an ambiguous statement and this *may* have been due to pressure being put on her by her erstwhile friend, self-styled crusader for *other* women's rights, and ersatz lawyer Ivory Madison. We *know* that it was Madison's idea to make the video and it was staged to appear more dramatic.

D'ya know? If people are lying about you to hurt you politically, but sparing no effort to cause damage on personal, professional, and economic planes as well, then, when you defend yourself, you will leave yourself open to being accused of simply acting out of pecuniary self-interest.

It is an accusation without merit because it neccessarily follows the act of answering the initial accusation.

Oh, and I don't care for your kind of straw man imputation that Erika intimated that Eliana was a "dumb chick." How disgustingly racist for you to come up with such rubbish; it surely reveals the sexist and racist underpinnings to your own thinking.

Posted by lillipublicans on Sep. 19, 2012 @ 12:17 pm

an excuse for her contradictions. Take it up with her if you think she was stereotyping hispanics, women or those who struggle with language.

Posted by Guest on Sep. 19, 2012 @ 12:37 pm

"It was Erika who used Eliana's foreigness and lack of smarts as
an excuse for her contradictions."

Disgusting troll liar.

If I asked you to prove it, you would no doubt imp her to create the "evidence" you needed.

Making allowances for a person's lack of fluency in a language has no bearing on the person's mental acuity. Your racism and complete lack of intellectual integrity shine through clearly. And reflects accurately on your cohort of anti-Mirkarimi hater scum.

Posted by lillipublicans on Sep. 19, 2012 @ 12:49 pm

It is interesting that the dumber a troll the more racist. Finally the haters have succeeded in mobilizing the sane people to stand up to them. Whatever happens this ain't over not by a long shot.

Posted by Avkanediv on Sep. 19, 2012 @ 12:59 pm

Why do Ross supporters hate non-Ross supporters so much?
So much anger and hate and loathing in pro-Ross comments it really shows in the way they treat other posters that don't agree with them.

The majority of people in SF don't want a sheriff that abused his wife or a sheriff that is convicted of a crime, especially a sheriff convicted if false imprisonment.

Most didn't realize what the heck his politics were at all, I thought he was a green party, didn't even know he jumped ship to the dems.

Posted by Guest on Sep. 19, 2012 @ 6:48 pm

What about all the vicious slander aimed at the "victim", Eliana Lopez? How about all the comments about how she supposedly is just out for financial gain, without any evidence to support that claim? And those of you who imply she's a liar? Isn't that hateful? If you get a response equaling the venom you've been spewing, it's because you are being downright malicious and cruel to Eliana. Aren't you supposed to be on the side of the "victim"? What do you have to say for yourselves?

Posted by Guest on Sep. 20, 2012 @ 12:13 pm

"We *know* that it was Madison's idea to make the video and it was staged to appear more dramatic."

Oh, we do, do we?

Posted by Guest on Sep. 19, 2012 @ 2:48 pm

How do you "know" the truth? You and your bosses want one testimony and trash anything else as a lie. How stupid do you think we are.

Posted by Avkanediv on Sep. 19, 2012 @ 12:56 pm

contradicts herself. He only needs to know that she said two opposite things on two different occasions. In both cases, what she said was what she thought was in her own personal best interests at the time.

The "truth", whatever it is, appears not to matter so much.

And when you find yourself defending Ross because he "only" assaulted his wife once rather than twice, you're not on solid ground.

Posted by Guest on Sep. 19, 2012 @ 1:13 pm

Nobody was assaulted and you know it. If anyone was none of the haters would give a s**...

Posted by Akvanediv on Sep. 19, 2012 @ 3:37 pm

(his words: "I committed an act of violence against my wife"), it's not clear to me why you're calling Ross a liar.

Posted by Guest on Sep. 19, 2012 @ 3:48 pm

So akvanediv, you're calling Ross a liar.
Well you've finally come to your senses, welcome to the sane world.

Posted by Guest on Sep. 20, 2012 @ 10:19 am

Take a look at the legal definition of assault (and battery, while you're at it). Criminally or civilly, what Mirkarimi did to his wife clearly qualifies.

Posted by Guest on Sep. 20, 2012 @ 11:34 am

Eliana Lopez has never felt threaten, and is not afraid of her husband. Thanks.

Posted by jccourt on Sep. 20, 2012 @ 11:44 am

The texts and emails between her and Ivory Madison tell a different story, not to mention the video.

But how she "feels" doesn't matter; the facts show she was legally assaulted. "Thanks."

Posted by Guest on Sep. 21, 2012 @ 3:50 pm

bring in the police. Not even momentarily.

In terms of "legal assault," the texts and emails don't refer to anything different from what Eliana and Ross have said all along, that there was a single instance of an arm grab.

The video was made at the behest of Ivory for the expressed purpose of Lopez holding it in reserve for a feared possible future custody battle, with Madison acting as Lopez as her attorney and therefore it should have not been released to the police or the DA, and *certainly* not to the public.

People make mistakes. Ross made a momentary error in judgment when he grabbed his wife's arm, for which he has apologized while also being punished severely.

If it wasn't for his position and political opportunism on the part of the local machine, nobody would have ever heard about it.

Thanks.

Posted by lillipublicans on Sep. 21, 2012 @ 4:54 pm

The issue is whether the texts and emails show that Lopez felt threatened by her husband. They clearly do, as does the video: Both in the fact that she made, and by her tears on camera.

She was legally assaulted because her husband bruised her. That's the definition of criminal assault!

"If it wasn't for his position and political opportunism on the part of the local machine, nobody would have ever heard about it."

Ivory Madison never has been "part of the local machine," and the minute she called the police (according to her, to gather information anonymously), it was going to be news. She never acted as Lopez's attorney, and only handed over the video to the cops under a search warrant.

Posted by Guest on Sep. 21, 2012 @ 6:09 pm

Actually you aren't qualified to pontificate about what the issue is, as evidenced by your provably false statements.

For instance, your claim regarding the email and text messages is absolute BS.

For instance, someone grabbing another's arm is *not* an assault, but a battery; just being technical, but in this case technical and *not* wrong, like you.

Now: If you can name another case -- any town, any time! -- where an arm grab resulted in a DV prosecution, bring it.

Otherwise, STFU. Deal?

Oh, and thank you.

Posted by lillipublicans on Sep. 21, 2012 @ 6:43 pm

She was cajoled into making the video for confidential safekeeping in case she ever had a divorce/custody fight with her husband. She says exactly that in the video. Her husband grabbed her arm during an argument. They both say that and have never NOT said it. They had two such arguments about her penchant for taking their son to Venezuela where she makes movies. She had just returned from such a trip when they had the second argument which led to the momentary arm grab. pay attention.

Posted by Guest on Sep. 21, 2012 @ 8:04 am

The so called ethic's commission did not believe the testimony of Eliana Lopez, instead they choose to believe a video made to possibly abuse the system in the advent of a child custody dispute.

The US Supreme court ruling Crawford V. Washington is clear. You cannot use a video unless there is corroboration,

Which means that Eliana Lopez has to corroborate what she says or imply in the video in court, and be cross examined by the defendants attorney.

That video is worthless evidence as per the US Supreme court. End of story. Thanks.

Posted by jccourt on Sep. 19, 2012 @ 10:12 am

Don't you get sick of being wrong all the time?

Posted by Guest on Sep. 19, 2012 @ 11:52 am

In Crawford, the Court held that cross-examination is required to admit prior testimonial statements of witnesses that have since become unavailable.

Lopez was not only not unavailable, she actually testified!

this case is clearly distinguishable from the facts of the Crawford case, and regardless, your application of the law is faulty.

Thanks.

Posted by danimalssf on Sep. 19, 2012 @ 12:18 pm

[Under Crawford, testimony cannot be admitted unless the witness is "unavailable" and there was a prior opportunity for cross-examination. n180 However, if a defendant caused the declarant's unavailability, the Crawford Court recognized that the doctrine of forfeiture may allow such evidence in even if the defendant had no prior opportunity for cross-examination. n181 According to the Court, "[T]he rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability." n182 Although relatively few courts have relied on this exception in admitting domestic violence testimony, forfeiture may now become an important tool in admitting testimonial evidence in domestic violence cases.]

http://www.ncdsv.org/images/The%20Admission%20of%20Evidnece%20in%20DV%20...

Posted by lillipublicans on Sep. 19, 2012 @ 1:14 pm

it is obvious that while you cut-n-pasted from the article, you didn't read the whole thing.

danimalssf = same one guy, speaking for himself
Liliipublicans = same miopic, reactionary putz

thank you, come again
- Apu

Posted by danimalssf on Sep. 19, 2012 @ 2:50 pm

Our educational systems has failed us if he is typical of what is coming out of schools and colleges.

Posted by Guest on Sep. 19, 2012 @ 2:56 pm

Shhhh...lilli's meds may or may not have kicked in yet.

Posted by Guest on Sep. 19, 2012 @ 4:46 pm

Commenting that intelligent commenters are Putz. Says much about you Danimalssf. Thanks.

Posted by jccourt on Sep. 20, 2012 @ 10:14 am

Calling commenters intelligent when it's suits you, while chastising the ones who don't....says much about you JC.

Posted by Guest on Sep. 20, 2012 @ 10:17 am

Wrong again Guest. Unlike you, I do not chastise people. Thanks.

Posted by jccourt on Sep. 20, 2012 @ 11:36 am