Plenty of drama at the Mirkarimi hearing


I’m glad I got to the courtroom early; by the time Judge Susan Breall called the case of People v. Ross Mirkarimi, there wasn’t a single seat available, and Her Honor wasn’t allowing standing room.

What followed was a quick “not guilty” plea to three misdemeanor charges – and then a session that lasted more than two hours, with a long interruption, as the prosecution and defense argued over whether Mirkarimi was such a threat to his wife and two-year-old son that he should be forced to stay away from them and avoid any form of contact until after what is expected to be an early March trial.

In the process, Mirkarimi’s wife, Eliana Lopez, made a passionate plea against the restraining order and Deputy District Attorney Elizabeth Aguilar-Tarchi introduced new evidence to support her claims that the newly elected Sheriff is not only guilty of domestic violence but too dangerous to allow into his own home.

In the end, Breall – who once worked as a prosecutor in domestic violence cases – issued the order forbidding the sheriff from any contact with his wife and child, and told Mirkarimi and his attorney, Robert Waggener, to return to court Jan. 23 to set a trial date.

Breall angered Lopez – and some courtroom observers – by saying she was concerned that the 36-year-old Venezuelan soap opera star was new to the country and lacked fluency in English and a family support system. Waggener noted that the length of time Lopez had lived in the United States and her language skills weren’t part of the evidence in the case and had nothing to do with the need for a protective order. He later told me that it was unusual for a judge to mention or consider that sort of information in a restraining order.

In fact, Breall noted that she had learned about Lopez’ background from reading the newspapers, leading Waggener to insist that the judge stick to the facts before her and not rely on news accounts that the attorney said were inaccurate.

At times, the proceedings turned bizarre: After Lopez had been identified by her full name and discussed at some length, her attorney noted that the last name and address of a domestic violence victim should not be in the public record. Breall agreed, and from then on referred to her only as “Eliana L.”

A little late for that, of course: The local news media have put her picture and full name on the front pages and the airwaves repeatedly in the past week.

Early in the proceedings, Breall asked if Lopez had seen a victim advocate in the District Attorney’s Office, noting that such a visit was part of standard procedure in these kinds of cases. Shortly afterward, Lopez left the courtroom; we later learned she had walked down the hall to the D.A.’s Office and met with the advocate.

Waggener asked repeatedly during the afternoon that statements from Lopez be taken in a closed courtroom, citing her privacy rights. Breall declined, and refused to put any documents under court seal.

After delaying the case for roughly an hour while Lopez had her meeting and Waggener read over the documents that had already been published in local newspapers but had only that day been provided to him, the judge came back and heard arguments on the stay-away order – and we learned more about the evidence that the D.A. will be presenting in the case.

Waggener noted that after reading the documents he had received, he saw nothing that would justify barring Mirkarimi from seeing his family. Aguilar-Tarchi started to discuss what the now-famous videotape that neighbor Ivory Madison made of Lopez showing a bruise and discussing a confrontation with her husband, but Lopez’s lawyer interrupted with an interesting new claim: She said that when Lopez had met with Madison, who is a lawyer, she believed that everything she said would be protected by attorney-client privilege and thus shouldn’t be admitted as evidence.

That will no doubt come up later – but for now, Breall wasn’t interested.

Then Lopez took the stand.

Speaking in English – relatively fluent English – she first chided the judge for the comments about her language skills and her residency in the U.S. “This idea that I’m a poor little immigrant is insulting,” she said. “It’s a little racist.”

She said that, rather than being adrift without a support system, she was someone who had been living on her own for 16 years, had her own career and her own apartment in Venezuela (one larger and nicer than her home in San Francisco). She said she’s spent time in Los Angeles and New York and had traveled in Mexico, London, Tibet, Europe and all over Latin America.

“I don’t need the support of my (extended) family,” she said. “I support my family.”

She also said that the press coverage, while unfair, was nothing she couldn’t handle: “I’ve been working in TV for 15 years,” she noted. “Check out the press in Venezuela. This is nothing.”

Then she got into her point: She saw no need for a protective order, didn’t fear her husband and found the whole idea abhorrent. “The violence against me is that I don’t have my family together,” she said. “This country is trying to pull my family apart, and that is the real violence.”

Aguilar-Tarchi wasn’t done, though. After Lopez finished, she repeated some of the allegations in the video, but then described text messages that Lopez had allegedly sent to Madison. “She told a neighbor that she was afraid,” the prosecutor said. “She asked if she could change the locks on the door. She asked if she would have to go to the police or if the police would come to her.”
The text messages also stated, Aguilar-Tarchi said, that Mirkarimi was scared and didn’t want the story to come out and that he had taken Lopez and their son, Theo, on a vacation to Monterey in an effort to prove that everything was fine. “My little Theo is so confused,” one of the messages allegedly said.

Waggener argued that the case wasn’t yet on trial and that much of the evidence was hearsay. And, he said, “in terms of what this court sees all the time, broken bones etc., this is on the low end.” He explained that the couple had been together from the day of the incident – New Year’s Eve – until the day the original protective order was issued, “with no complaints or evidence of violence.” He called the description of the videotape (which hasn’t been shown in court) “highly distorted.”

Breall said some nice (if somewhat condescending) things about Lopez, who she called “charming,” but wasn’t swayed. “I am going to treat this case like any other case,” she said, issuing the order that would keep Mirkarimi away from his wife and child until the end of the trial. Waggener later said he would come back to Breall to seek a modification in that order next week. Breall said the trial would start no later than March 5.

(In an interesting side note, the prosecution demanded that Mirkarimi give up the three guns in his possession. I never knew he kept guns in his house. At any rate, they’ve already been turned over to the authorities.)

I walked out thinking: This is just awful. There’s really nothing positive you can say about it.

I’ve known Ross Mirkarimi for years; I’ve never seen any hint of violence in his behavior. Of course, I’m not that close to him, and I don’t know anything about his marriage. Still, somebody who has been part of the progressive community for a long time has been accused of something really terrible, and it has a lot of us shaking our heads and, frankly, wondering what to think. You want to stand by a friend who’s in trouble (and lord knows, I have plenty of friends who’ve been arrested and charged with all manner of crimes, and some of them were guilty as sin, and they’re still my friends).

But I’ve also helped a close friend through episodes of domestic violence, and I can tell you it isn’t a minor deal, or a private family affair (as Mirkarimi foolishly and inappropriately stated). It’s a serious crime, and for many years, the cops and the courts didn’t treat it that way. And because it used to be really hard for women to get stay-away orders (and in some areas, it still is), women have been badly hurt and sometimes killed.

It’s only because progressive political leaders (the same progressives my blog trolls love trash at the slightest provocation) demanded changes in the law that the rules now allow for prosecution even if the alleged victim doesn’t cooperate. It’s only because of progressive reforms that a case like this is even in court.

And I agree with those reforms. As I’ve said before, there’s no excuse for intentionally injuring anyone – and there’s less than no excuse for injuring your spouse. If that’s what Mirkarimi did, he should be held accountable. It doesn’t matter what side of the political divide he’s on. If he’s guilty of domestic violence, I’m not going to make excuses for him.

More than a misdemeanor charge is on the line. All Mirkarimi has done professionally is progressive politics and law-enforcement, and by most accounts, neither one has much room for someone who has a DV rap. (Although I have to say – there are an awful lot of cops who have DV allegations against them and are still on duty.)

If Mirkarimi weren’t the elected sheriff, this case might well have been handled a lot differently. He could have accepted a misdemeanor plea, taken DV courses, gone into therapy, tried to put his marriage back together. That’s pretty standard in first-offense cases. But to do that would be to admit something he can’t easily admit to and remain in office.

So Mirkarimi knows his only real chance is to win a “not guilty” verdict and then try to rebuild his reputation. Given the stakes, I can’t imagine that he would so much as raise his voice half an octave against Lopez over the next few weeks; one more allegation it would be the end of everything. But Breall must be worried (as any modern judge would be in any prominent DV case) that if she refused to issue the restraining order and something bad did happen, her ass would be very much on the line. So she did the obvious thing.

And the media circus continues.

The only possible bright side (and I always look for a bright side) is that a lot of people who weren’t talking about domestic violence are now discussing it, on the front pages. They’re talking about how a lot of women are trapped by batterers, how they’re afraid to testify and can’t (or don’t want to) leave, how all of us, particularly the police and the courts, are responsible for protecting victims who can’t find a way to escape. And that’s a whole lot of women.

All of that said, we have to remember that Mirkarimi is still innocent until proven guilty. The mayor has no business removing him from office at this point; he hasn’t been convicted of anything. It’s only a few weeks until his trial (Mirkarimi has made it clear he wants this over as quickly as possible, so by law he has to face a jury within 45 days). After that, if he’s guilty, the mayor and the supervisors can worry about whether to vacate the Sheriff’s Office – unless Mirkarimi makes that decision himself.

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