More on the Mirkarimi case

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I wrote up the Jan. 19 hearing on the domestic violence charges against Sheriff Ross Mirkarimi, but a few more points are worth thinking about as the embattled sheriff prepares for another court hearing Jan. 23.

For one, the stay-away order that Judge Susan Breall issued doesn't allow Mirkarimi to have any contact with his two-year-old son for the next 45 days. That seems not only harsh but bad for the kid, who doesn't understand why he can't see his daddy and is, not surpisingly, confused and upset. There are no winners in this case (except the folks who would just as soon see Mirkarimi gone and replaced with a more traditional law-enforcement sheriff), but the biggest loser, the one I feel worst about, is the kid. If the judge was really worried about Mirkarimi being a danger to his son (which, frankly, seems like a huge stretch), then she could have authorized supervised visitation. That's not at all unusual in these kinds of cases, and would at least give the child a chance to have contact and a relationship with his father during the period when all of this is being sorted out in adult court.

There's not a lot of talk about the inherent conflicts of interest in this case, issues that come about from a sheriff who was once an investigator in the District Attorney's Office facing criminal charges filed by that same office, which is now run by a former police chief who the sheriff clashed with repeatedly when he was a supervisor. I don't know the law on this or how it could possibly play out, but there's an interesting article about it all here.

It's odd that the conflict piece ran in a publication that makes its living bashing local progressives, but everything about the media in this case is odd (except that fact that it's become an international zoo). The one writer who has talked seriously about Mirkarimi's right to be treated as innocent until proven guilty -- and the only major voice in the media urging him not to step down -- is the Chron's conservative columnist Debra Saunders

Another interesting media tidbit: I don't know Mirkarimi will enough to have any insight into his behavior in romantic relationships, but one person who really does -- his longtime former girlfriend, journalist Evelyn Nieves -- has been quoted only once in the bottom of a New York Times/Bay Citizen story, to wit:

“I was shocked when I read about it,” Evelyn Nieves, a journalist and a past partner of Mr. Mirkarimi’s, said in an e-mail. “Ross and I were together for the better part of a decade — eight years or so — and never once did he even come close to being physical during an argument.”

“It’s just not his way,” Ms. Nieves added. “He was way more prone to proposing that disagreements be talked out. He could talk and talk.”

Again: Doesn't mean he's not guilty. Doesn't mean he hasn't changed. Just interesting that only one publication has even tried to contact and get a quote from Nieves.

I'm not a lawyer, of course, but it seems to me that the defining moment in this case will not be the trial but the pre-trial hearing in which Mirkarimi's lawyer tries to get a judge to rule that the videotape of Eliana Lopez talking about her injury and her fear of her husband can't be used in court. Bob Egelko has an excellent piece here; he points out that if the video isn't admissible as evidence, the case will collapse. If a judge rules (and the legal arguments seem to support it) that the prosecution can't introduce the video or show it to the jury, then I suspect the district attorney will have to drop the charges; if Lopez refuses to testify against her husband, there's nothing else to go on.

But this is a domestic violence case, and judges (no surprise) are political, and how many members of the local bench really want to be the one who ended such a high-profile case (and in effect, let the suspect walk) on what the media will call "a technicality?"

 

 

 

 

 

Comments

will probably not prevail. And if this were any other case, that would be it. But it isn't any other case. Our Sherriff is responsible for the department that enforces restraining orders, takes care of DV inmates, runs DV programs and interacts with all aspects of DV cases.

So there cannot remain a glimmer of a doubt that Ross is guilty if he is to keep his job. What does that mean? It means that the video should be shown because it represents a significant part of the truth of this case regardless of it's formal admissibility.

So even if the video is tossed, it should be shown publicly so that we the people can have confidence that there really is nothing to these allegations. Dropping the case won't suffice.

There's only real two possibilities here. Either Ross never raised a finger and the whole thing is a mistake or a misunderstanding. OR he is guilty of DV even if it isn't provable in a court of law.

And one thing is very clear. If this had happened three months ago, Ross would have lost the election. So we have to ask whether he will retain any mandate or authority unless he comes completely clean about what he did.

We have a right to know and, given the SFBG support for sunshine, you should be arguing for full disclosure here. The public right to know trumps whether Ross can get off a misdemeanor on a technicality.

Posted by Guest on Jan. 20, 2012 @ 4:01 pm

"What does that mean? It means that the video should be shown because it represents a significant part of the truth of this case regardless of it's formal admissibility." ~Guest

I would say it's debatable whether the video "repesents a significant part of the truth". Perhaps it is just "the truth" as you interpret it...because, after all, it IS an interpretation. Maybe even a tendency towards bias on your part.

Let me ask you, do you think you could be an impartial juror if you were called to serve the jury in this case? Have you seen all of the evidence? Have you listened thoughtfully to testimony from credible witnesses? (like Ms. Nieves) Do you understand the underlying motives of the parties? Do you even know these people? I know I don't...and certainly not from just reading about it in the press. So, how can you be so sure what happened?

Well, I do have a creative imagination, so I can imagine other possibilities than "the truth" that you appear to have latched on to, unquestioningly. Here's just one possibility (again, I'm not saying it happened like this). What if both parties were afraid? The relationship was in trouble, and they both knew it. As a consequence, they were each terrified of losing their son to the other. What happens when people are on the verge of breaking up, and a child is at stake? Ask any divorce lawyer. In all likelihood, you're going to hear an exaggerated version of "the truth" from both sides. Could this be what the video is really about? I don't know. But I think it's worth pondering, because there might be another explanation than the one that seems most obvious.

What astounds me is that everyone is so supremely confident that they know exactly what occurred, and all based on what they've read or seen in news accounts of the story. Does the press ever get things wrong? What happened to keeping an open mind until you've weighed all the evidence? (assuming you have access to it).

If you want an instructive story, check out Kurosawa's flick Rashomon, and reflect on how difficult it is to know "the truth" about anything. Or better yet, read the story that the movie is based on, "In the Grove" by Ryunosuke Akutagawa.

Perhaps it would be a good idea if we all shut up until the case goes to trial. If the DA is able to prove that Ross Mirkarimi is guilty, I will join you in asking him to step down as sheriff. But not until all the evidence in.

Posted by Lisa on Jan. 20, 2012 @ 5:45 pm

I'd rather see hard evidence than what people are saying. The video shows (we all know) a bruise and an obviously scared wife saying it was caused by Ross.

So unless you think the bruise was faked and the wife was lying, then that consitutes something closer to the reality of what happened than all this careful damage control and spin that we're now hearing.

So even if Ross gets off on this technicality, and he may, he owes it to us all to fully disclose and reveal.

Posted by Guest on Jan. 21, 2012 @ 8:31 am

Wow, did I call it or what? This appears to be the postion that Mirkarimi's defense attorney is taking, anyway~

"Stiglich also argued that a 45-second video recorded by Madison of Lopez talking about the incident should be inadmissible because the video was meant to be used in a custody battle, not to prove she was criminally abused."

http://www.mercurynews.com/breaking-news/ci_20020892

Posted by Lisa on Feb. 22, 2012 @ 3:53 pm

You only want it suppressed?

So you want Mirk to get off on a technicality? Is that it?

Posted by Greg on Feb. 22, 2012 @ 5:07 pm

it's hard to respect someone who engages in this malicious tactic, much less take you seriously.

Posted by Lisa on Feb. 22, 2012 @ 7:15 pm

in one sentence you say that Nieves is a credible witness and then in the very next one you say you don't even know her.

Posted by DanO on Jan. 21, 2012 @ 9:34 am

According to her bio, Evelyn Nieves has been a professional journalist for more than 20 years. She has worked for the Washington Post and the NY Times as SF bureau chief, and currently works for the Associated Press (SF bureau). I would say that her entire career as depends on her credibility as a reporter.

Posted by Guest on Jan. 21, 2012 @ 4:42 pm

Because it keeps getting repeated, it must be true.

Posted by matlock on Jan. 21, 2012 @ 2:15 pm

Tell that to Joanne Hayes-White.

Posted by Guest on Jan. 21, 2012 @ 3:31 pm
Posted by Guest on Jan. 21, 2012 @ 3:33 pm

What about the part about witness intimidation?
If he is convicted on that count, but not the DV counts, then he should step down.
How can he be sheriff when convicted of intimidation?
I just dont see a good way out of this for him.

Posted by Guest on Jan. 20, 2012 @ 4:18 pm

I know he's been charged with witness intimidation (or something like that) but I didn't read of any evidence that he intimidated anyone or tried to.

That charge was due, IMO, to the prosecutors being imaginative in what they could throw against the wall to see what would stick.

And they knew that, even if the WI charge didn't stick after a long time before it was thrown out, they'd have ppl like you that would take the red meat (either intentionally or unintentionally) they were handing out to tarnish the reputation of Ross even more so.

And I agree with Tim that the order that he can't communicate with his son is ridiculous and I'd go so far as to say that judge is committing child abuse and thus probably should not be a judge - if that's her level of judgement.

Posted by Guest on Jan. 20, 2012 @ 9:10 pm

The judge is biased, but then progressives have never gotten a fair shake in local SF courts. Nearly every progressive electoral victory has come on appeal, with the 1% that run this town taking it to the US Supreme Ct at every opportunity.

Posted by Guest on Jan. 21, 2012 @ 9:08 am

She seemed to handle this case like most others - by the book.

Posted by Guest on Jan. 21, 2012 @ 9:51 am

Here is something slightly off the wall I want to throw out as evidence of bias, the title of her published paper, "Violence against Women."

https://www.ncjrs.gov/pdffiles1/nij/grants/199660.pdf

Not "Domestic Violence" but "Violence Against Women."

Violence against women is a real issue obviously, but when you compare how Joanne Hayes-White was never even charged for smashing a pint glass against her spouse's head you have to suspect that the issue before the court now in the mind of the judge is just what she wrote about, "Violence against Women" rather than the broader "Domestic Violence."

Posted by Guest on Jan. 21, 2012 @ 11:21 am

I am Greg, and I approve this message

Posted by Greg on Jan. 21, 2012 @ 11:38 am

But yes, I think it's important to know, and it vindicates what I've been saying all along. Now maybe you could try responding to the substance for a change.

Posted by Greg on Jan. 21, 2012 @ 1:51 pm

Breall blogs for redroom? would that indicate bias?

(google search: susan breall redroom)

Posted by Guest on Jan. 21, 2012 @ 12:14 pm

Good lord, the Board of Supervisors had a progressive majority for some time.

Are you as a progressive complaining that people take legislation through the courts? As a progressive, you are complaining about the courts?

Posted by matlock on Jan. 21, 2012 @ 2:12 pm

I think I posted this on some other board, but it seems like California Evidence Code 1370 would apply. That section provides an exception to the hearsay rule in DV cases. If she refuses to testify, she becomes "unavailable" and the video could come in. Not sure why the Egelko article didn't mention it.

Posted by The Commish on Jan. 20, 2012 @ 4:19 pm

Clearly the draconian TRO is an attempt to force cooperation from Lopez.

"The oft-cited issue of victim attrition in cases of domestic violence is, from a prosecutor’s perspective, a problem of uncooperative victims who require coercive measures to force participation."

https://www.ncjrs.gov/pdffiles1/nij/grants/199660.pdf

Violence Against Women: Synthesis of Research for Prosecutors
by David A. Ford ; Susan Breall

Posted by Guest on Jan. 20, 2012 @ 4:31 pm

Ross would no doubt have plenty of time to further intimidate a witness if the RO were not in place.

Posted by Guest on Jan. 20, 2012 @ 4:54 pm

Something else that's routine:

"Jim Collins, the chief's attorney, said Monday that Sean White had called the domestic violence investigator on the case and said he wished to recant his account. Police investigators confirmed Collins' statement.

Police usually drop investigations in such misdemeanor cases if the alleged victim files a written recantation, authorities said. Collins said White was expected to submit his statement as soon as today."

http://articles.sfgate.com/2005-06-21/bay-area/17378332_1_domestic-viole...

Posted by Guest on Jan. 20, 2012 @ 5:10 pm

If you're the same person who posted both of these links, I think the Guardian should hire you!

I guess all Lopez has to do is put it in writing, and all this should go away, because that's routine. Something tells me it won't work in this case though... because this case is all about politics!

The part about the judge is just... well, I'm speechless. I've been called a conspiracy theorist for suggesting that the judge has a biased mindset, but this is exactly what I'm talking about.

Posted by Greg on Jan. 21, 2012 @ 12:08 am

politically support the defendant.

In fact, the judge did what any judge would have done - imposed a safety-first RO while the process of discovery continues.

The idea that you're more neutral and unbiased than a trained and experienced judge is assinine.

Posted by Guest on Jan. 21, 2012 @ 8:33 am

Because we never in a million years would have guessed that right after recusing herself for administering the oath to the new sheriff Dianne Feinstein's daughter would assign the former domestic violence prosecutor at the DA office as the judge.

That just came from out of nowhere.

Posted by Guest on Jan. 21, 2012 @ 8:59 am
Posted by Guest on Jan. 21, 2012 @ 9:52 am

Beall takes all DV cases as she is the judge in department 24 which is the DV court.

Posted by Guest on Jan. 23, 2012 @ 8:06 pm

I asked the question of how she got picked days ago, and I feel that we're no closer to the truth.

Do I believe the "Guest" who says she was handpicked by Katherine Feinstein? If so, that's pretty damning.

Do I believe the "Guest" who says that she takes all the DV cases as a matter of course? If that's true, then we essentially have a DV prosecutor presiding over DV cases, which raises some serious concerns about the whole system.

For all I know neither nameless Guest is correct. Neither has given us a link, or even told us how they know this information. But it is a very important question, one that I'd like to know the answer to.

Posted by Greg on Jan. 23, 2012 @ 9:31 pm

The time to complain about Susan Breall being the judge in Department 24 was when she was selected to be the judge in Department 24, not when your horse gets his ass stuck in Department 24.

Posted by Guest on Jan. 24, 2012 @ 11:48 am

Not just this case. And your post begs the question, how exactly does one get their "complaint" heard? I might have "complained," but no one asked me. No one even *told* me. They just did it, and the process by which they made that appointment isn't even known! Last I heard, it's not a democratic process. The public gets no say, not now, not then, not ever. This is a big problem in the system.

Posted by Greg on Jan. 24, 2012 @ 1:08 pm

So true.

Posted by Guest on Jan. 21, 2012 @ 11:05 pm

So true.

Posted by Guest on Jan. 21, 2012 @ 11:05 pm

all about politics? riiiiight.
biased judge? where do you get that from?
and the conspiracy in the selection of this judge, as if Gascon had any say in the matter? I know you have your crush on Ross and that apparently he can do no wrong in your eyes, every, but I think it is time you stfu already and let the process play out. it is really tiring to try to read reasonable positions on this matter and then wade through your sea of biases nonsense

Posted by DanO on Jan. 21, 2012 @ 9:38 am

They both seem to have that in common.

Posted by Guest on Jan. 21, 2012 @ 9:53 am

Don't like what I have to say? Don't read it.
You want to tell people to stfu? Lead by example.

Posted by Greg on Jan. 21, 2012 @ 1:57 pm

What is even more strange about the Argonaut's article is that the editor, Warren Hinckle, is apparently, according to Google, (search: warren hinckle red room) a member of Ivory Madison's website.

Posted by Guest on Jan. 20, 2012 @ 4:36 pm

Uh, you know who else is a member of Ivory Madison's website? Evelyn Nieves.

Posted by elMano on Jan. 20, 2012 @ 5:10 pm

What I'm sayin'....

Posted by Guest on Jan. 20, 2012 @ 5:22 pm
Posted by Guest on Jan. 21, 2012 @ 12:23 pm

Gosh even my grandfather shows up in Google as connected to red room.

Posted by Guest on Jan. 21, 2012 @ 12:47 pm

If I were an investigator and had five extra minutes I might devote that time to Warren Hinckle. Probably the reason for his sudden sympathy to progressives, whom he despises.

if he really doesn't know anything about it he'd probably still get a kick out of the attention...

Posted by Guest on Jan. 20, 2012 @ 4:41 pm

1) Newsom's alternate on the DCCC
2) girlfriend is property manager of SF Mart, future home of Twitter
3) seems to be a member of Ivory Madison's redroom.com

If you favor conspiracy theories and are kinda focused on the four days Madison sat on her evidence, have at it....

Posted by Guest on Jan. 20, 2012 @ 4:54 pm

Plus it probably wouldn't be completely unreasonable for an attorney to ask what contacts the judge has with Ivory Madison.

Posted by Guest on Jan. 21, 2012 @ 12:30 pm

The mayor knows Mirkarimi should win in court ...

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/01/20/BA271MRSSV.DTL

Ed Lee wonders whether Ross Mirkarimi can do job

Posted by Guest on Jan. 21, 2012 @ 1:00 am

The mayor knows Mirkarimi should win in court ...

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/01/20/BA271MRSSV.DTL

Ed Lee wonders whether Ross Mirkarimi can do job

Posted by Guest on Jan. 21, 2012 @ 1:00 am

When a deputy sherriff or police officer is accused of domestic violence, he is forced to take a paid leave of absence. Why should'nt Mirk the Jerk do the same? Oh i get it, he is better than the rest of us.

The arrogance of the top 1% ceases to amaze me.

Posted by Guest on Jan. 21, 2012 @ 6:43 am

The practice at the Sheriff's Department for the past 30 years with regard to Deputy Sheriffs charged with misdemeanor crimes is NOT to suspend them pending the prosecution -- including in cases that have involved domestic violence and child endangerment.Moreover, Richard Hongisto was charges with criminal contempt of court, did not take a leave of absence, was not suspended after being convicted, or removed after serving a five day jail sentence. In 1880, Sheriff Thomas Desmond was charged with three felonies, did not take a leave and was not suspended, and the charges were thrown out by the court. He later was charged again in an off-duty incident of fist fight and did not take a leave or face suspension then either.

But, hey, what are facts in the heat of a passionate disagreement?

Posted by Guest on Jan. 21, 2012 @ 7:55 am

1880......

Posted by Guest on Jan. 21, 2012 @ 8:17 am