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

other testimony, then she is exposed to a perjury rap. And that's the essence of her dilemma here. Unless she was completely lying about that bruise, then she either has to corroborate what she said on that tape or claim that the tape is false i.e. she was lying then.

So either she picks up a perjury rap OR she loses all credibility as a witness because the jury will know she's a liar anyway.

And immunity from prosecution is only granted IF you agree to testify against the defendant. Have';t you ever watched Law and Order? Otherwise she may be treated as a hostile witness.

Posted by Guest on Feb. 27, 2012 @ 10:11 am

"but once this case is thrown out, Ross and Eliana will talk to the press and finally give their side of the story."

I doubt it. I think what they will do is get a divorce, an ugly divorce.

This is what happens when you mix a soap opera star with a hot-headed male prone to violence

Posted by Guest on Feb. 26, 2012 @ 9:25 pm

try and get off on technicalities.

I agree with you that Ross is not winning the bigger picture fight here though - for his credibility. It's shot down in flames.

Posted by Guest on Feb. 26, 2012 @ 11:36 am

with a few, select members of my fellow progressive intelligentsia. The overwhelming consensus amongst we progressive elites was that Ross' political career is done, finished, kaput - OVER.

He's alienated some important domestic constituencies in this town - the non-profit sector serving women and victims of domestic violence will never forgive him and the women's libbers won't either. So in our esteemed opinion Ross is toast. He'll make it through this one term but he will not be awarded another.

I suggest my fellow progressives get together and put together a long-term plan on who will replace Ross in 2015. May I suggest a meeting at Daly's Dive this week sometime in the evening? I can debut an advance copy of my highly anticipated memoirs - which due to a conservative conspiracy against me will be self-published sometime this year.

Posted by h. Brownnose on Feb. 26, 2012 @ 5:16 pm

progressive agenda in this city. If Ross cares more progress than his own interests, he will stand down regardless of whether the manages to get out of these counts.

Posted by Guest on Feb. 27, 2012 @ 6:42 am

Your concern for "the progressive agenda" is noted.

Posted by Greg on Feb. 27, 2012 @ 8:19 am

post in the right place.

I think there is genuine concern here though - that Ross may damage the cause if he becoems too obsessed with his own survival over all else.

Posted by Guest on Feb. 27, 2012 @ 10:07 am

This is my concern, too. His derrogatory behavior toward women is especially appalling.

Posted by Guest on Feb. 27, 2012 @ 1:33 pm

It is kinda sad and pathetic when trolls try and acquire some credibility by hiding behind other's names. In the above case however it is understandable. The reason this particular character's proboscis is sepia is because his head is inserted so deep into his colon that only shit and santorum dribbles out.
GO GIANTS.

Posted by Patrick Monk. RN on Feb. 27, 2012 @ 1:18 pm

Are you talking about this "Greg" character? I'd surmise there are at least three people named Greg here. It might be simpler if we all posted as Greg.

Anyway, this topic is now moot as the judge has ruled the video is in.

This will be really interesting now.

Posted by Guest on Feb. 27, 2012 @ 1:33 pm

Obviously I don't know 'who', they lurk in the dark where only the shadow knows, but I do know this site is infested with imping, sophomoric wannabe's, it's kinda sad and pathetic but I guess it amuses them.

Posted by Patrick Monk. RN on Feb. 27, 2012 @ 2:59 pm

As always the combined brilliance of two old, progressive dinosaurs is no match for anyone else.

Anyway - see you at Bucks this week!

Posted by h. Brownnose on Feb. 27, 2012 @ 1:39 pm