Motion could cripple case against Mirkarimi if granted

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Sheriff Ross Mirkarimi's attorney is seeking to prevent jurors from hearing key evidence in the case.
Evie Pit

(UPDATE 2/27: The judge today denied the defense motion to suppress this video. More details here.) The domestic violence case against Sheriff Ross Mirkarimi could be dealt a crippling blow if the judge approves yesterday's defense motion to bar videotaped testimony that his wife, Eliana Lopez, gave to their neighbor, Ivory Madison. But even if Mirkarimi beats the criminal rap, his political future could still depend on finally offering a detailed explanation of exactly what happened during that New Year's Eve incident.

Yesterday's motions were the subject of a cover story in today's San Francisco Examiner, but they were strangely buried on page C2 in the San Francisco Chronicle, which also chose not to provide details of the motion, which makes a fairly compelling case for barring the videotape that is the only evidence that Lopez may have had a bruise on her arm, allegedly inflicted by Mirkarimi.

The motion argues that the videotape is inadmissible hearsay evidence that doesn't meet the legal standard of an immediate reaction to a crime. Not only was it recorded the next day, but both Lopez and Madison say on the tape that it was intended to be used only if Lopez left Mirkarimi and sought sole custody of their two-year-old son, Theo.

“The videotape itself was the product of a reflective and deliberate decision to create evidence for purposes of a custody proceeding,” Mirkarimi attorney Lidia Stiglich argued in her motion, citing caselaw that makes such considered actions inadmissible. As the Examiner noted, the motion suggested Lopez might have ulterior motives in such an instance, making it possible that she misrepresented to Madison what had happened. Lopez denies that Mirkarimi abused her and is not cooperating with the prosecution.

Madison is quoted in the motion as saying the video was being made in case there was ever a child custody case and that “I really don't know” what happened that night, but she believed it wasn't an isolated incident, allegedly telling police, “she definitely didn't describe it as 'he grabbed my arm one time and left this mark.'”

Stiglich told the Guardian that barring the videotape from admission would be huge: “It's a significant piece of evidence.” Some legal observers have even said the entire case against Mirkarimi could crumble if that evidence is barred, and that the ruling on its admissibility could really go either way depending on which judge gets assigned to the case tomorrow.

"We are not suprised nor concerned with the motion filed by Mr. Mirkarimi's attorney and we will continue to handle legal issues in the courtroom and not in the media," District Attorney's Office spokesperson Omid Talai told us. He wouldn't characterize how important that evidence is to the case, but he did say, "Every case is filed based on the totality of evidence."

Yet Stiglich said much of the case rests of that videotaped evidence, which she believes presents a distorted view of what happened. “These statements are essential to their case, and there are issues with that type of testimony,” Stiglich told us.

Yet if Mirkarimi beats the criminal rap by suppressing that evidence, it's unlikely to help him in the court of public opinion. Neither Mirkarimi nor Lopez have provided a full explanation or alternative narrative of what happened that night, how the alleged injury occurred, or other crucial details, and Stiglich said she doesn't think now is the time for that kind of tell-all.

“I don't think anyone should be making factual statements outside the courtroom at this point,” Stigich told us, confirming that she has advised against Mirkarimi making those kind of public statements, although she said he has been anxious to do so.

Motions in the case could be heard as soon as tomorrow, but Stiglich said she doesn't expect opening statements in the case to take place under the week after next. She estimates witness testimony in the case will take about a week.

Then, after it's all over and the jury renders a verdict, we'll all see how much Mirkarimi's team discloses about what actually happened that night and with earlier instances where Mirkarimi allegedly got physical with Lopez and a previous girlfriend, Christina Flores, who prosecutors also hope to put on the witness stand.

And if there are still questions to be answered, then we can all push Mirkarimi for a fuller accounting, render our own judgments, and determine where we think the truth lies and what that says about the public officials involved in this case.

Comments

Unless it rises to the level of a crime, it's a private, family matter. The self-appointed activists and hypocritical politicians and their shills keep repeating this line of faux outrage about how "domestic violence" is not a private matter. But that whole argument presupposes that there is, in fact, domestic violence involved. Which is essentially a declaration of guilty before any evidence has been presented. What I've been arguing all along is that if no one has any complaints, I'm inclined to give the accused the presumption of innocence, and I'm inclined to believe the alleged victim. Now it's looking more and more like there never was any domestic violence... perhaps just a nasty argument and maybe preparations for a possible future custody battle. I neither know nor care. The state of Ross and Eliana's marriage has nothing to do with his job, so it's none of my business or yours. Had there been some complaint, some differing version of how that bruise got there, it would have been a much tougher call. As it is, though, this case should never have gone to trial. And as we can see from the article I posted below, Gascon almost NEVER brings such cases to trial. The only reason he did was pure politics.

Posted by Greg on Feb. 26, 2012 @ 9:10 am

We need to hear how that bruise got there. If it was an "accident" then Ross and his wife should get their stories straight and tell us.

Oh wait, they can't talk to each other to "fix" their accounts.

Posted by Guest on Feb. 26, 2012 @ 11:39 am

First of all, no is claiming that he hit her. The allegation is that he GRABBED her -- get it straight -- and that's how she (supposedly) got the bruise. But there are any number of ways it could have happened...

She might have gotten bruised while holding her two-year old son, who was squirming, hitting or kicking at her...

or she might have reached out to slap Ross and he grabbed her to keep from getting hit himself...

or she could have bruised herself and made it seem like Ross did it (to get custody of Theo)...

or she might have been bruised inadvertently when she knocked up against some household object, then forgot how it happened, and assumed that it was Ross's fault...

or she doesn't know how it happened, but the neighbor coached her to say that it was her husband who did this to her...

or he really did grab her, gently, and she wrenched her arm away violently and that's how she got the bruise...

This is conjecture, of course, but then so are the rants of so many lunatic trolls who can't possibly wait for the trial to get underway to see what the evidence is. Like good little vigilantes, they're prepared to to play judge, jury and executioner.

Posted by Guest on Feb. 26, 2012 @ 5:11 pm

One angle not yet touched here:

Lopez, the former Venezuelan soap opera star, says she is "not one of those poor little Guatemalan Indian girls."

I think she is telling Ross indirectly that she will back him up in the domestic violence case ("a private matter. a family matter"), but she's letting him know that he will be facing a brutal divorce battle down the road. After all, she's not "a little Indian Guatemalan girl" (the racist undertones are unbelievable.)

This will be a terrible distraction for the Sheriff of San Francisco. He should resign.

Posted by Guest on Feb. 24, 2012 @ 7:12 pm

"poor little Indian Guatemalan girl?" The quote I heard was "poor little immigrant."

Posted by Greg on Feb. 25, 2012 @ 9:48 am

painting herself as a vulnerable "victim".

Not buying it.

Posted by Guest on Feb. 25, 2012 @ 10:39 am

It was said in the context of rejecting the patronizing attitude of the mostly white American judiciary who took it upon themselves to "save" her. She was making it clear that she doesn't need this kind of "saving."

Posted by Greg on Feb. 25, 2012 @ 4:59 pm
Posted by Guest on Feb. 25, 2012 @ 5:16 pm

Earth to American Exceptionalist: not everyone in the world yearns for a US Green Card. Eliana had a good life in Venezuela. She came to this country for love, not for economic opportunity. Unfortunately, she found a country where the judiciary is so corrupt, so politicized, that the ruling class would tear families apart in order to settle political scores... and then add insult to injury by by telling her it was all for her own good.

Posted by Greg on Feb. 25, 2012 @ 6:42 pm

and head back to where she "had a good life."

Posted by h. Brownnose on Feb. 26, 2012 @ 12:14 am

She has got a son and may not want to leave him. It it not possible to leave and take her child at least not at this time.

Posted by Guest on Feb. 26, 2012 @ 7:17 am

And your comment is totally irrelevant. Did it occur to you that she might want to stay with her husband? If, however, her marriage were to fail, I suspect she'd be on the first plane to Venezuela. Given her comment about the kanagaroo court proceedings, "At times like these, I really miss Venezuela," I certainly don't think she's staying here for our lovely freedoms, or the work opportunities.

Posted by Greg on Feb. 26, 2012 @ 8:55 am

And she was preparing for a divorce. Ross is worth more alimony is he still has a job, hence her "support" of him.

Posted by Guest on Feb. 26, 2012 @ 9:08 am

Ah, "poor little imigrant" was it? The White Landino anti-Chavez class in Venezuela lets its roots show.

Posted by Guest on Feb. 25, 2012 @ 10:19 am

I googled the term, and I came up with nothing.

And do you have personal knowledge of Ms. Lopez's political leanings? From what I can tell, she's scrupulously avoided making any statements one way or another about Chavez.

I'm guessing that you're just pulling conjecture out of your ass, but if you actually know that she's anti-Chavez, please tell us how you know this. Not that it matters in the case, but I'm just curious.

Posted by Greg on Feb. 25, 2012 @ 5:07 pm

Greg, obviously you have never spent any time in Latin America or in Spain.

Some education for you on the privileged class:

http://en.wikipedia.org/wiki/Ladino_people

Posted by Guest on Feb. 25, 2012 @ 9:06 pm

Quite a bit of time, in fact. Obviously, your geography is a little weak. Ladino is a term primarily used in Central America, specifically Guatemala. Ms. Lopez is Venezuelan (that's in South America, fyi). Maybe you seized on the apocryphal quote that was attributed by you or another guest above in reference to "Guatemalan indians," which apparently Ms. Lopez never actually said, and then you got it all mixed up in your head.

And besides, you said "Landino," not "Ladino." I still come up with nothing for "Landino." Perhaps it's a Ladino who owns land?

Posted by Greg on Feb. 25, 2012 @ 10:14 pm

Greg, obviously you have never been to Latin America or Spain.

Hint, hint: There is an underbelly of seemingly poor, indolent, colored folks (Andalusians and native-Americans) in both places, according to the Ladino class of priviledge.

Posted by Guest on Feb. 26, 2012 @ 10:32 am

You used the term Landino [sic] twice, so I'm not nitpicking some silly typo. You wrote the term out of ignorance, and then you have the audacity to try and cover up your ignorance by correcting yourself after the fact and then suggesting that I don't know what I'm talking about. Please find me the Wiki article on "Landino." Or else just admit that you were wrong. How hard is that?

Oh yeah, and while you're at it, could you explain again how you know that Eliana is anti-Chavez?

You seem to be attributing a lot to her that you really have no frickin' clue about. I think it's just conjecture pulled out of your ass, and you're upset that I'm calling you on it.

Posted by Greg on Feb. 26, 2012 @ 10:41 am

The right-wing reactionaries will nitpick you to death. You must persevere until the revolution happens in Amerikka.

Posted by Guest on Feb. 26, 2012 @ 4:37 pm

You mean she's not a member of the PARTIDA Chavista, Greggy?

Posted by Guest on Feb. 26, 2012 @ 9:19 pm

Clearly you don't know much about Latin America, as shown by your misspelllings, extremely poor knowledge of geography, and inability to even name the political party that you claim she's a member of (or not... I'm not sure which). Generally, folks who know very little about a particular subject at least have the common sense to keep their mouth shut about it. But you keep flaunting your ignorance like some badge of honor.

Well OK, I'm game, if only to be entertained by seeing how far you can stuff your foot in your mouth.

So the "Partida Chavista" you're referring to, would be the PSUV. As far as I know, she hasn't said one way or the other whether or not she's a PSUV supporter. But you seem to have the inside track on all things Latin American. Why, you've even coined your own term, "Landino!"

And you claim a stalker's breath of knowledge specifically about Eliana Lopez (except that your "inside information" seems to be pulled out of the ass, but we'll leave that aside for a minute). Now I have no idea what her thoughts on Venezuelan politics are. She's not running for office, so it's her prerogative not to publicly wade into that. But I admit I am curious, so do tell. But show your work. I'm dying to hear just how it is that you're privy to this information.

Posted by Greg on Feb. 26, 2012 @ 10:07 pm

That bruise as shown in the Chron today is big. Looks like bare-knuckle stuff.

The really frightening part of today's Chron report is poor little Theo running into the street after his crying mother (he is only two years old) and him calling to her to "please not tell anyone."

I think this is all a prelude to a very nasty public divorce batter.

The sheriff needs to quickly plea no contest so he can get on with his life.

Posted by Guest on Feb. 25, 2012 @ 10:23 am

So he will cause untold damage by struggling to bail himself out of this unfixable emss until he becomes just an embarrassment.

Posted by Guest on Feb. 25, 2012 @ 10:41 am

All this discussion of evidence, hearsay, divorce proceedings, legal technicalities...

Really, it doesn't matter.

Ross' name is synonymous with "wife beater" in this town. His most popular and recognizable picture is a mug shot. The only time you ever see him on the news is stepping out of a courtroom where he was the defendant. The new round of bruise photos are just taking it to a new level.

If he were to get off on a technicality that is *not* a political victory for him. In fact, it would only add to the tremendous negative cloud that surrounds him - and will continue to surround him - until he loses his reelection bid about four years from now.

And what I just laid out - him still actually holding the office for the entire term - is his best case scenario.

He's done. DONE.

Posted by Longtime Lurker on Feb. 25, 2012 @ 12:20 pm

And yes, the conservatives in this town are hoping and praying that Ross gets off on a technicality, so he can be a lame duck sheriff until he loses the next election.

Posted by Guest on Feb. 25, 2012 @ 12:36 pm

and if he prevails? he's not 'done' if he's innocent.

Posted by Guest on Feb. 26, 2012 @ 5:41 pm

Those of us in the Green Party defend our own kind until the bitter end.

Expecting him to stick around--for 20 years. This should be a family matter. A private matter.

Seriously, the reactionary forces are turning this into a circus show.

Posted by Guest on Feb. 25, 2012 @ 12:50 pm

Party or even, as with Ross, leave it in disillusionment?

Of course you want it to be deemed a private and family matter. So does he. But it's a criminal and public matter whether you like it or not.

While if this feels like a circus to you, then blame the person who caused it - Ross. In reality, it's just the criminal justice system doing it's job - convicting and punishing offendors, especially violent ones.

Posted by Guest on Feb. 25, 2012 @ 1:02 pm

But the trolls are outdoing themselves to convict him in the press with all the self-righteous fury of a vigilante mob.

Posted by Guest on Feb. 25, 2012 @ 5:36 pm

Or does he have something to hide?

Posted by Guest on Feb. 25, 2012 @ 6:00 pm

A lot of the Ross-haters have tried to feed us the bogus line that the DA has no choice, he's not being selective, this is standard procedure... yadda yadda yadda. Oh, and all that stuff about Turman and Hayes-White not being prosecuted -this is a different DA, they say -one who takes domestic violence much more seriously.

Well it turns out that he doesn't seem to take it that seriously at all, and in fact he's very, very selective about the cases he prosecutes. And prosecuting cases with non-cooperative witnesses is not standard operating procedure after all... not by a long shot.
http://www.citireport.com/2012/02/da-gascon-dropped-hundreds-of-domestic...

Well well well... so just what is the motive for this very unusual prosecution, which has little chance of success but just might ruin the reputation of a public servant who the ruling class just happens to hate?

Posted by Greg on Feb. 25, 2012 @ 11:47 pm

Little chance of success?

You wish. You're a lawyer suddenly?

Posted by Guest on Feb. 26, 2012 @ 9:06 am

If you read the article I posted, that becomes crystal clear. It tears to shreds all the arguments that the shills have used to defend Gascon's kangaroo proceedings.

Posted by Greg on Feb. 26, 2012 @ 9:12 am

on with every ounce of energy you could summon.

That's the real bias here.

Posted by Guest on Feb. 26, 2012 @ 11:34 am

"What I've been arguing all along is that if no one has any complaints..."

Ludicrious, Greg. So if a woman is afraid to complain due to fear of more violence against her, she should shut up, and the DA should not investigate?

Tell that to the children of all the women murdered by their husbands because they were afraid of talking to the police.

"A family matter. A private matter', indeed!

Posted by Guest on Feb. 26, 2012 @ 10:36 am

Tell it to DA Gascon, who apparently never prosecutes these kinds of cases (see link above), except when he wants to instigate a political show trial.

Give it up already. These arguments no longer have any shred of credibility after that article came out.

Posted by Greg on Feb. 26, 2012 @ 10:48 am

Again, tell that to the many children now motherless due to domestic violence cases ignored by DAs nationwide.

Sisters and wommin are paying attention now!

Posted by Guest on Feb. 26, 2012 @ 11:16 am

A fitting metaphor for the kangaroo court of DA Gascon and the handpicked domestic violence prosecutor now acting as the "impartial" judge.

Posted by Greg on Feb. 26, 2012 @ 11:32 am

When wommin exert their rights, that is now called "kangaroo court" proceedings?

Did you sleep through all the struggles of the women's rights movement?

Posted by Guest on Feb. 26, 2012 @ 11:54 am

That didn't take some bright spark very long at all.

Heh.

Posted by Guest on Feb. 26, 2012 @ 11:40 am

This comment thread is about as asinine as they come. Stiglich is known as a good lawyer. Any good lawyer files the motion to exclude the tape. It would be ineffective assistance of counsel not to file that motion. For all those saying it was underhanded and sleazy to file the motion, get over it. The rules of evidence are there for a reason. My guess is the tape comes into evidence, but trying to exclude it is perfectly legitimate.

That being said, RM could have handled this a lot better given he's a public figure. He should have just pled no lo (he'd probably just be sentenced to counseling), issue apologies all over town, attend his counseling, and move on. Fighting this tooth and nail, and hiring numerous lawyers for his wife when she's not charged made him look bad. And it's going to cost him a fortune.

Posted by The Commish on Feb. 26, 2012 @ 10:59 am
Posted by Greg on Feb. 26, 2012 @ 11:33 am

I get that, Greg, but even if he's found innocent of the crime, he's already lost since he's a public figure, there is a tape, there is a police affidavit making him out as a monster, and the press is all over the story. Pleading no lo isn't pleading guilty.

Posted by The Commish on Feb. 26, 2012 @ 1:06 pm

Why did he try and talk the neighbor out of giving evidence?

Why is he trying to suppress a video which, if he is innocent, would prove that?

Why has neither he nor his wife provided any alternative theories of how those bruises occured?

Why was his wife that scared of him?

Why was his child so upset and worried?

Too many questions being evasively avoided.

Posted by Guest on Feb. 26, 2012 @ 3:47 pm

Why did he try and talk the neighbor out of giving evidence?
Evidence of what? Maybe he didn't do anything, but perhaps doesn't want his marriage to be dissected in the media? Ya think?

Why is he trying to suppress a video which, if he is innocent, would prove that?
How would a video of a bruise prove anything one way or another? Again, it just shows a bruise, not how it got there.

Why has neither he nor his wife provided any alternative theories of how those bruises occured?
Because his lawyers advised him not to talk to the press while the case is going on.

Why was his wife that scared of him?
Who says she is. You? The self-appointed advocates that the "victim" wants nothing to do with? She denies that she's scared of him. I'll take her word over yours.

Why was his child so upset and worried?
Uh... maybe because he can't see his daddy due to the violence that Gascon and his political prosecution is perpetrating on Ross's family.

Too many questions being evasively avoided.
Too many assinine questions. The only question that really matters is why do the Ross-haters want to release a video that cannot prove anything one way or another?

The answer to that is obvious. I already answered it above. They believe that it will show something embarrassing. Even if it's not criminal, it will further the goal of embarrassing a public servant they loathe.

I don't think you're going to get the voyeuristic satisfaction of ever watching that vid, but once this case is thrown out, Ross and Eliana will talk to the press and finally give their side of the story.

Posted by Greg on Feb. 26, 2012 @ 4:15 pm

Easy. It could show there was no bruise, or it could show the wife explaining how she walked into a door, or it should show his wife saying Ross is a peace-loving, non-violent man whom she trusts completely.

And if that is what the video showed, we'd have seen it already. But of course it shows a bruise that we have now all seen, and his wife attributing it to her husband whom she was clearly terrifed of enough to run to a neighbor's house for safety.

Ross is desparate to keep it hidden. so, damning or exculpatory? Gee, whaddaya think?

Posted by Guest on Feb. 26, 2012 @ 4:30 pm

It can't prove anything one way or the other. She may say one thing on the video, another thing now. Why assume that what she says in the video and not now is the truth?

Posted by Greg on Feb. 26, 2012 @ 5:37 pm

exposed to a perjury charge. the video can prove a number of things, such as the existence of the bruise, how bad it was, what she said at the time about how it was caused.

It can also exonerate Ross if it states that it was an "accident" but of course if that were the case, Ross would be begging to have it admitted in court.

Posted by Guest on Feb. 27, 2012 @ 6:44 am

Lying on a video is not perjury. Lying to some bullshit fake attorney-cum-feminist revenge fantasy writer is not perjury. Particularly if the latter may have coached her to lie. Perjury is when you lie on the witness stand, and as far as I know Eliana hasn't taken the witness stand yet. I don't think she'd be exposed to a perjury charge by saying that she wasn't being truthful in all those previous non-witness stand statements.

That said, to be on the safe side, if I were her, knowing the vindictiveness of the San Francisco political establishment, and the politicized judiciary, I'd want a guarantee that I'd have immunity from prosecution before I testified to anything. Which, by sheer coincidence I'm sure, is exactly what she got her lawyers to secure for her!

Posted by Greg on Feb. 27, 2012 @ 8:30 am