Video admitted in Mirkarimi trial

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A videotape and related statements that the prosecution said was critical to the domestic violence case against Sheriff Ross Mirkarimi will be admitted at a trial set to begin Feb. 28, Judge Garrett Wong has ruled.

The ruling allows prosecutors to show the roughly 50-second video in which Mirkarimi's wife, Eliana Lopez, tearfully recounts the incident of New Years's Eve, 2011 and shows a bruise on her arm.

"Without this evidence we have no legal recourse to completely move forward with this case," prosecutor Elizabeth Aguilar-Tarchi told the judge, reflecting what observers have been saying for weeks: The case against the sheriff could hinge on how the trial judge interprets a complex part of the state's Evidence Code.

At issue is whether a statement that would normally be excluded as hearsay can be allowed in court as a "spontaneous or excited utterance" -- a statement made after a crime when a victim or witness hasn't had time to reflect on the events or plan to fabricate or alter the story of what happened.

In this case, the video was made a day after the alleged violence, and Mirkarimi's lawyer, Lidia Stiglich, argued that it was carefully scripted and staged for reasons that had little to do with Mirkarimi's specific behavior the day before.

In fact, she said, Lopez and Ivory Madison, a neighbor who made the video, discussed how the information would only be used if Mirkarimi and Lopez divorced or had a custody fight over the couple's two-year-old son, Theo.

Lopez was hardly still excited or emotional over the incident, Stiglich said: "There is evidence that Ms. Lopez went shopping, made phone calls, including two calls to Ms. Madison, and texted [Madison's] husband."

The video, Stiglich argued, "was the antithesis of a spontaneous statement" -- it was made after Lopez had a day to calm down and was made specifically for evidence in a child-custody case, the attorney noted.

But Aguliar-Tarchi insisted that Lopez was sufficiently emotional that the time frame wasn't the central issue -- and Judge Wong agreed. "Time is a factor to consider, but not determinative," he said from the bench. "What is crucial is the mental state of the speaker."

The ruling complicates Mirkarimi's defense: Photos released by the District Attorney's Office from the video show a clearly upset Lopez showing the camera a bruise on her upper arm and saying that this wasn't the first such incident.

If Wong hadn't accepted the video, it's likely that the District Attorney's Office would have to drop the charges, since Lopez has refused to testify and the rest of the case is so thin and circumstantial that it would be hard to present it to a jury. "This is the focal point and crux of our case," Aguilar-Tarchi said.

Now Mirkarimi will have to come up with a more compelling narrative as to why the story that his wife described to a camera wasn't an accurate reflection of the facts. 

The ruling could certainly be grounds for appeal -- based on the courtroom discussion, the video falls very close to the line in what can and can't be admitted, and while the judge has broad discretion on these issues, criminal defendants have challenged such rulings in higher courts numerous times. But the jury -- and the news media, and thus the public -- will now be allowed to see what is by any definition a very damaging video that will hurt Mirkarimi's political career, whatever the outcome of the trial.

 

 

Comments

Interesting that a case the Chronicle has been working so hard to compare to a domestic violence murder (see Heather Knight's reporting)...interesting that the Chronicle runs a story on the most important issues....from the Bay Guardian..and not their own reporter..WHY?

Posted by Guestcoppersmom on Feb. 27, 2012 @ 12:48 pm

Interesting that a case the Chronicle has been working so hard to compare to a domestic violence murder (see Heather Knight's reporting)...interesting that the Chronicle runs a story on the most important issues....from the Bay Guardian..and not their own reporter..WHY?

Posted by Guestcoppersmom on Feb. 27, 2012 @ 12:49 pm

Where was the Chronicle reporter..why are they using the bay guardian reporting?

Posted by Guestcoppersmom on Feb. 27, 2012 @ 12:52 pm

It's funny how soon we forget that the Bay Area Guardian wrote and endorsed Ross Mirkarimi ONLY. No second or third choice. Now they are here to hang this guy out to dry. They should be called Bay Area Enquire.

Posted by Guest on Feb. 27, 2012 @ 1:11 pm

grounds. Given the perp here is not only in a prominent public position but actually running an important LE department, there needs to be full disclosure and sunshine on this case. It goes beyond Ross's culpability and alsos trikes at the integrity of the system.

Hopefully the video contents will become public domain at the right moment so that voters can make up their own minds rather than be told what to think by protagonists on both sides of this battle.

The best outcome might be for Ross to plead "no contest" to one of the two non-DV charges to avoid the anger management classes (which he clearly should attend anyway) and there might be a way for him to retain his job with a misdemanor. He probably will lose his firearm license but he hardly needs a gun anyway as a penpusher.

Whether he should stay in office under these circumstances is another issue of course. His credibility and authority is significantly compromised.

Posted by Guest on Feb. 27, 2012 @ 1:18 pm

no need to say more. she is amazing!! but so is Assistant DA Liz Tarchi

Posted by Guest on Feb. 27, 2012 @ 1:19 pm

Hey, let's all have a moment of silence for Tim. If Mirkarimi were a Republican, Tim's tone would be a little different(!). It's so hard to be a hypocrite, so keep up the good work Tim!

Posted by Guest on Feb. 27, 2012 @ 1:20 pm

when you have such a vested interest in someone, as the Bay Guardian has in Mirkarimi. That's one of the draw backs of being a true believer, you spend a lot of time identifying yourself with the leadership.

When the leadership lets you down in what is looking to be a very dramatic fashion, the first place to look is at "the conspiracy," as so many progressives did, that avenue is drying up it seems.

Posted by Guest on Feb. 27, 2012 @ 1:46 pm

So the Bay Guardian has joined the anti-progressive cabal in reporting on this private, personal, family matter, as our friend Greg keeps calling it?

Who knew the Guardian had right-wing tendencies? Not me.

Posted by Guest on Feb. 27, 2012 @ 1:28 pm

As I said yesterday and as any member of the progressive intelligentsia knows - Ross is a goner.

Again - we all need to meet this week, sometime in the evening, at Bucks to work out a path forward. Someone else buys - I pontificate.

Posted by h. Brownnose on Feb. 27, 2012 @ 1:36 pm

SEIU leadership to the Buck to further bolster the intellectaullality down there at the Buck. What is needed by the progressive intelligentsia is A. your long awaited book in the trenches of progressive intelligentsia, and B. a unified front of free and diverse voices speaking in narrow unison on the subject at hand, the white male establishment keeping down Ross Mirkarimi.

Posted by Gabs Haallaand on Feb. 27, 2012 @ 1:56 pm

Well if SEIU is buying then I'm pontificating - also will be distributing the first chapter of the hotly-anticipated memoirs of my years in the political trenches, sprinkled with a few witty bon mots gleaned from decades of participating in sparkling repartee with fellow progressive intelligentsia.

It's no holds barred - it's brutal but honest. It's classic h. Brownnose - a San Francisco legend!!

Posted by h. Brownnose on Feb. 27, 2012 @ 3:37 pm

At the end of the day, you, Gabbie, Mr/s. Articulate, will reach a decision for us at the end of the day.

Posted by Guest on Feb. 28, 2012 @ 5:23 pm

I think Buck doesn't give a fck anymore. He got a job with the SEIU and will be pumping up city famiy pension frills for the next few years.

Posted by Guest on Feb. 27, 2012 @ 1:41 pm

@ H Brown, I bet you a drink you are wrong about that. Does anyone remember who Ruby Rippey Tourk is anymore?

Posted by Myrna on Feb. 27, 2012 @ 1:49 pm

Just FYI, this is not the original h brown, just some sad sophomoric wannabe.

Posted by Patrick Monk. RN on Feb. 27, 2012 @ 2:54 pm

everyone is here, but I never got the memo?

Whatever happened to "focus on the message, not the messenger"?

Posted by Guest on Feb. 27, 2012 @ 3:26 pm

Join us Pat - together we are blazing a new path forward for the progressive intelligentsia in this town. As long as someone else is buying - I'm pontificating!

Posted by h. Brownnose on Feb. 27, 2012 @ 3:29 pm

Yawn

Posted by Patrick Monk. RN on Feb. 27, 2012 @ 4:08 pm

debate here rather than taking snide shots at anyone who posts here with a different viewpoint.

You're such a girl's blouse at times.

Posted by Guest on Feb. 27, 2012 @ 4:34 pm

I have been posting 'substance' here and elsewhere for decades, and, as I have stated before, always enjoyed and welcomed discussions with those of different opinion. It may surprise you to know for example that I consider Tony Hall to be a man of 'substance' and integrity, and if not a 'close friend', at least a valuable and respected acquaintance; he was on my personal short list for Mayor last time around.
Unfortunately over the last few years this site has become infested with the likes of Paul T, brownnose-claptrap, and the like. We all used to engage in open discussion, despite being polar opposites on many issues. For example; Arthur was a worthy adversary; The Commish is constant; Matlock used to be, though I'm afraid he may be in the early stages of dementia, but hopefully it's just other nameless trolls imping.
I freely admit to being snide, snarky and insulting at times, but only to those who IMHO warrant the abuse. My dad used to tell me to 'suffer fools gladly', he may have been right, but I ain't him. I tend not to get to involved in, or comment on, the minutiae, bureaucratic bullshit, legalese, and addenda to sub-sections, etc. There are others who have the minds, time and patience to wade through that crap, I think most of them are lawyers or 'politicians', 'nuff said. As Leonard Cohen sings:-
www.youtube.com/watch?v=mEQldSi-heE
.. but now approaching my 70th year of wandering through this vale of tears, I increasingly rely on my gut, heart, experiences, common sense and sensual faculties; if it looks like a duck, walks like a duck, smells like a duck - fuck it - whip up some sauce a l'orange and roast the sucker.
So what about Mulberry harbors on TI for Ellison's pissing match?
PS. Love the phrase 'girl's blouse', new one to me, kinda stimulating, maybe next lifetime.

Posted by Patrick Monk. RN on Feb. 27, 2012 @ 5:59 pm

That sets a new low standard.

Posted by Anonymous on Feb. 27, 2012 @ 7:41 pm

YAWN

Posted by Patrick Monk. RN on Feb. 27, 2012 @ 8:50 pm

He (and h) are really into the "crabby old man" routine perfected by the likes of Walter Mathau - and just as dated.

Posted by Guest on Feb. 27, 2012 @ 8:54 pm

And like h, our good, kind friend pat has been the recipient of rent subsidies from San Francisco for decades. Both could earn more and allow someone more needy to live in sf, but neither do.

Posted by Greg on Feb. 28, 2012 @ 10:42 pm

SNOOZE

Posted by Patrick Monk. RN on Feb. 29, 2012 @ 9:32 am

If you rent in San Francisco and you have ever been before a judge in San Francisco Superior Court this is a familiar story.

Appeals courts often over turn rulings from SF Superior.

Posted by Guest on Feb. 27, 2012 @ 1:55 pm

tried in criminal court.

Do you even think before you open your mouth?

Posted by Guest on Feb. 27, 2012 @ 2:18 pm

Why should judges be biased against tenants and progressives only in Superior Court?

The entire strategy of the Landlord bar is that defendants don't have the money to appeal. I 'm sure it is the same in criminal.

Posted by Guest on Feb. 27, 2012 @ 2:27 pm

were in trouble, I'd trust an experienced judge a lot more than a dozen bozo's off the street.

This judge's decision was based on the law and not on the facts. Ross will have his day in court in front of a jury. And if his lawyer manages to keep women off the jury, he might even get away with it.

Posted by Guest on Feb. 27, 2012 @ 2:41 pm

Any tenant who has ever stood before a judge in san francisco superior court knows EXACTLY what I'm talking about.

Our elite overlords rule us based on the theory that we are too dumb to know better and they are absolutely correct and you are watching here in this trial.

Posted by Guest on Feb. 27, 2012 @ 3:41 pm

"This judge's decision was based on the law and not on the facts."

Exactly why it will get thrown out on appeal.

Posted by Guest on Feb. 27, 2012 @ 3:44 pm
Posted by Guest on Feb. 27, 2012 @ 4:29 pm

"I'd trust an experienced judge a lot more than a dozen bozo's off the street."

Not me. Even though we are supposed to have a system of elected judges, the judicial branch has figured out a way to subvert that by having judges retire before reelection. That is how the judiciary becomes conservative and biased against the locals.

http://articles.latimes.com/2002/feb/22/local/me-thelaw22

"Most state judges are appointed by the governor when judges retire or die during their six-year terms. As a result, most never face an election race."

Posted by Guest on Feb. 27, 2012 @ 4:00 pm

In fact, Mirkarimi's judge was appointed by Gov. Schwartzenegger, not elected by the citizens of san francisco.

That is why progressives simply don't have a prayer in San Francisco Superior Court. This trial will be most instructive to the handful of sheep paying attention.

Posted by Guest on Feb. 27, 2012 @ 4:08 pm

We want good judges, not those who can summon political support from vested interests, or are simply well-funded or politically connected.

While SF juries are notoriously unreliable. Why? Just show up for jury service sometime. Anyone with a responsible job tries hard to get excused, leaving the usual layabouts, ne're-do-wells and social misfits.

Who knows. Ross might even get off if the jury is packed with the kind of people who show up for city hall meetings.

Posted by Guest on Feb. 27, 2012 @ 4:28 pm

“Judge Wong is smart, thoughtful and fair,” Stiglich said after his naming on Friday. “We couldn’t have asked for a better assignment.”

Read more at the San Francisco Examiner: http://www.sfexaminer.com/local/2012/02/mirkarimi-judge-knowledgeable-no...

Posted by DanO on Feb. 28, 2012 @ 11:45 am

It's just painfully being drawn out...

Posted by Guest on Feb. 27, 2012 @ 2:08 pm

modern American politics. Ross needs to plead this out to stop the damage to the progressive community.

Posted by Guest on Feb. 27, 2012 @ 2:19 pm

If Ross can survive this, he can survive anything. I predict that Ms. Stiglich, who is one of the best damned lawyers in SF, will get him off. He will go on being sheriff, and will be the best sheriff SF ever had, besides Sheriff Hennessey. And he will be reelected many times. It ain't over, til it's over!

Posted by Guest on Feb. 27, 2012 @ 5:03 pm

Dream on, but he's a dead duck and we all know it

Posted by Guest on Feb. 27, 2012 @ 5:25 pm

WTF Tim?? C'mon!! It shouldn't matter that Ross is a progressive.
I would expect the guardian, of all outlets, to understand the complexities involved in domestic violence and the resistance of victims to testify.
Shame on you, you're no different than the corporate and right-wing media.

Posted by Guest on Feb. 27, 2012 @ 2:28 pm

Tim was quoting the defense attorney.

What I find odd about this article is that there is no mention that the judge refused to let in testimony regarding conversations Lopez had on January 4th, and his "tbd" on the issue of whether Flores would be allowed to testify about her alleged abuse. Leaving out these defense team "wins" tends to perpetuate the sentiment in some circles that the fix is in against RM.

if you're going to report on the story, report it, but don't cherry pick the facts

Posted by DanO on Feb. 27, 2012 @ 2:38 pm

The judge said that her testimony was old and probably didn't have probative value at this point. However Flores was invited to SF to give her account to the judge before a final ruling is made.

But yes, the SFBG should have at least linked the Chronicle story if they are going to rely on it for their scoops!

Posted by Guest on Feb. 27, 2012 @ 3:11 pm

Ross isn't gone. He has the resources to appeal. What is happening in court is predictable and it is predictable what will likely happen on appeal.

Posted by Guest on Feb. 27, 2012 @ 2:28 pm

stand down pending the apeal, which could take months. And appeals are only on matters of law, not the facts.

I doubt an appeal would change a guilty verdict in a situation like this, as the judge simply followed the law and allowable exceptions to the hearsay rule.

Posted by Guest on Feb. 27, 2012 @ 2:42 pm

Lots of appeals are completely predictable wtf.

Posted by Guest on Feb. 27, 2012 @ 3:38 pm

Admit it, you lost and you don't like it, so you make stuff up.

Just like Ross, in fact.

Posted by Guest on Feb. 27, 2012 @ 4:30 pm

I am not defending Mirkarimi here; I've said repeatedly that domestic violence is a serious crime, and if he's guilty, he needs to be held accountable. I thought the hearing this morning was fascinating and I tried to present what both sides said. I thought Mirkarimi's lawyer made a compelling argument on what the law says about heresay in these types of cases, and I thought the D.A.'s presentation was a little weaker. But I'm not a lawyer and the judge clearly disagreed with me.

That's not saying Ross is innocent (or guilty). But this was a crucial part of the trial, and his defense will now be more difficult.

Posted by tim on Feb. 27, 2012 @ 2:36 pm

Would you have ever have shown such sympathy towards a DV defendant if it had been, say, Gavin Newsom?

You'd have been all over him like a rash.

Posted by Guest on Feb. 27, 2012 @ 3:13 pm