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

HEARSAY!

Posted by Guest on Feb. 27, 2012 @ 3:28 pm

seriously? let the court try the case then give your opinions. I know both people in this case one personally and have sat by and watched the circus far too long. I think Mirkarimi will be found guilty (his own friends are telling him to plea bargain) and Lopez will finally feel safe and not threatened anymore. As for flores, she is also a victim who initially wanted to just put her abuse behind her (as so many women do). Now it is back in her face watching someone else go through it. why shouldn't she say something.

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

friends and confidents. He should cop a plea now to save this city and his office the humiliation of a trial.

It's exactly this type of arrogance and intransigence that got him into this mess in the first place. The guy cannot be saved.

Posted by Guest on Feb. 27, 2012 @ 4:32 pm

Still trying to deny the man due process aren't you...? why?

Posted by Guestcoppersmom on Feb. 27, 2012 @ 6:29 pm

then what should we attribute his intransigence to? Hubris?

Or is he wed to the idea that, as he told his wife: he's a "powerful man"?

Posted by Anonymous on Feb. 27, 2012 @ 7:44 pm

You mean Ms. Flores? the one who has already recanted much of what she told the police?The same Ms. Flores who self-describes as an "IMPROV DIVA"?

Posted by Guestcoppersmom on Feb. 27, 2012 @ 6:27 pm

Because an abuser always blames the victim. Usually the abuser says the victim "made him do it." Sorta like all of Mirkarimi's defenders on this site.

Either you're an abuser or you're currently being battered - either way it's sad to see.

Posted by Guest on Feb. 27, 2012 @ 6:38 pm

Seriously Tim,

Can you honestly say that the substance and tone of your articles on Mirkarimi would have been the same if he were a Republican?

Posted by Guest on Feb. 27, 2012 @ 3:02 pm

if this was Ed Lee or Gavin Newson or anyone who isn't a darling of the progressives?
The coverage surely would have been more probing and inquisitive.
DV is an insidious issue and as has been shown many, victims are often reluctant to come forward for a multitude of reasons.
Those who have interacted with Mirkarimi are not the least bit surprised here given his previous eruptions and temper.

Posted by Guest on Feb. 27, 2012 @ 4:35 pm

a slacker college dropout trying on a suit and tie - it just doesn't fit or feel right.

Posted by Guest on Feb. 27, 2012 @ 4:42 pm

Anyone who thinks Mirkarimi is not going to get absolutely devastated in local court and will have to seek fairness in Appeals is simply too stupid to rule themselves.

http://www.aaba-bay.com/aaba/showpage.asp?code=garrett%20wong%20press%20...

"The Asian American Bar Association of the Greater Bay Area (AABA) praises the appointment of Garrett L. Wong to a judgeship in the San Francisco County Superior Court by Governor Arnold Schwarzenegger"

Posted by Guest on Feb. 27, 2012 @ 4:05 pm

The smoking gun - the judge was appointed by a Republican - and he's an ASIAN!!

Declare a mistrial already - this case is finished.

Posted by Guest on Feb. 27, 2012 @ 4:39 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 @ 11:47 am

Feinstein's daughter the presiding judge could forsee defendant may ask for another judge but they know how to deal with that over there in SF Superior....

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

Another smoking gun - daughter of the state's senior Democratic senator and a JEWESS!

There are dark conspiracies afoot here friends...

Posted by Guest on Feb. 27, 2012 @ 4:41 pm

This is a real legal issue. . . is this hearsay evidence or not? And, as Tim writes, it's right on a legal line and could have gone either way:

"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."

That is not pro vs. anti Ross reporting. It's not Democrat vs. Republican reporting. It's just responsible legal reporting. Do we want to understand the law at issue in this court case or not? I do.

And one thing I already know is that the judge decides matters of law, the jury matters of fact.

Unless an appeals court throws out Judge Wong's decision on this matter of law, the jury will have to make a tough call as to the facts they can rightly conclude from the video. Is this incontrovertible evidence,"evidence introduced to prove a fact in a trial which is so conclusive, that by no stretch of the imagination can there be any other truth as to that matter"?

Most certainly not. I can think of at least two or three plausible narratives that would explain the video, maybe more, not all of which include Sheriff Mirkarimi grabbing his wife's arm hard enough to create that bruise.

Not being a lawyer, I don't know whether the jury will have to conclude that this is incontrovertible evidence to convict in a criminal misdemeanor trial.

Can you answer that question, Tim? If the jury is supposed to conclude that this is incontrovertible evidence, then I don't see how the DA's office could expect to win, despite its admission, especially since the prosecutor admitted that it's the best they've got.

I'd also like to know whether, if Sheriff Mirkarimi appeals the decision, as expected, everything stops until there's a decision in that appeal. Your report seems to conclude not, but can you answer that decisively, Tim?

Please keep up the responsible legal reporting.

Posted by Guest Ann Garrison on Feb. 27, 2012 @ 5:04 pm

While there are many ways a bruise can be caused, the wife clearly stated that Ross caused it thru a violent act. And neither her nor Ross had advanced any contrary theory.

If Eliana admits she lied then, her word is shot - no jury will believe anything she says.

While if she lies about it at trial, that's perjury.

So either Ross is guilty or Eliana gets a perjury beef. Which essentially means will Ross throw his wife under a train, if she lets him.

Given that she is in legal trouble too, and obviously wants out of an abusive marriage, then it makes sense for her to ask for immunity in exchange for testifying against Ross. She will also then be in better shape for a divorce battle.

Ross is done and dusted. Stick a fork in him.

Posted by Guest on Feb. 27, 2012 @ 5:31 pm

I can't think of a lot of reasons for the after the fact behavior of those directly involved.

The cult of San Francisco progressivism is so interesting.

Posted by matlock on Feb. 27, 2012 @ 6:11 pm

Wow, you drank all the koolaid. I can't wait for a Republican to mess up -- I'm sure you'll be right there defending him every step of the way.

Posted by Guest on Feb. 28, 2012 @ 9:09 am

The question the jury is going to have to decide isn't whether the tape is incontrovertible evidence. The question is going to be whether all of the evidence, taken as a whole, proves guilt of DV beyond a reasonable doubt.

As for the appeal question, that would happen after the trial. If M ends up "winning" despite the admission of the tape, there'd be no need to appeal.

Posted by DanO on Feb. 28, 2012 @ 10:32 am

Paragraphy 10 of this story makes an absurd claim....that the photos "show" Lopez saying that the bruise "wasn't the first time"... Where do you find those talking photos anyway?

Posted by Guestcoppersmom on Feb. 27, 2012 @ 6:23 pm

that Ross had assaulted her several times.

Simples.

Posted by Anonymous on Feb. 27, 2012 @ 7:46 pm
Posted by Pat Monk's prostate on Feb. 28, 2012 @ 11:31 am

Damn right.
The grass wasn't planted just so you could pave it over.
http://www.youtube.com/watch?v=94bdMSCdw20

Posted by Patrick Monk. RN on Feb. 28, 2012 @ 8:18 pm

Dear SFBG, why do you allow these haters to piss all over your fine newspaper?

Posted by Guest on Feb. 28, 2012 @ 12:47 pm

I thought you had a comment policy. But there are so many trolls impersonating (progressive) commenters that you might as well call your site 'TrollVille'. You really love your readers, don't you? Why is there no way to flag abuse?

Posted by Karina on Feb. 28, 2012 @ 1:39 pm

We 'hear hear" you. We experienced a heavy influx of traffic from SFGate yesterday, we are doing our best to evaluate comments to see if they adhere to our policy standards. We do our best to delete inappropriate comments when we see them. 

 

Posted by marke on Feb. 28, 2012 @ 2:44 pm

Heavens! The commoners from sfgate? Do they even know how to read? Why am I forced to read an opinion that differs from my own incredibly narrow and self righteous thoughts?

Posted by Greg on Feb. 28, 2012 @ 10:47 pm

New designation.
MRNC's. Mitt/Rick/Newt/Clones.

Posted by Patrick Monk. RN on Feb. 29, 2012 @ 3:55 pm

during one of my many important meetings with the movers and shakers down at City Hall. Several aides to some of our most progressive supervisors mentioned legislation to ban trolldom. While I see its usefulness I am concerned it may violate the 1st Amendment. Nonetheless I am looking forward to a spirited discussion on the positives and negatives of a ban on trolling and trolldom in the City of San Francisco.

Posted by h. Brownnose on Feb. 29, 2012 @ 4:05 pm

imitation of Don Quixote, then let him. It's a harmless habit for an old man to indulge in.

Posted by Anonymous on Feb. 29, 2012 @ 4:54 pm

Thank you. Your acquiescense is appreciated.

Posted by Patrick Monk. RN on Mar. 01, 2012 @ 10:09 am

Down at the Buck, where we await your book on the travails of your battles in the trenches of the progressive intelligentsia, we have discussed the merits of allowing trolling through trolldom.

There is nothing that creates a more unified agreement, trolling is hate speech, and in most enlightened intelligentsia countries hate speech is banned. For example in Europe, where we all strive to be intelligentsia at, they ban all forms of non agreement.

Not agreeing with the intelligentsia's (and we await your book) is of course hate speech. Trolling needs to be stamped out, non agreement is anti intelligentsia and thus hate.

Posted by gabs haalland Jones on Feb. 29, 2012 @ 5:46 pm

troll. That's about the level of honest debate here.

When even Ross's friends are telling him to cop a plea, not to mention most of the Buck, why are the last three Ross supporters in town (Greg, Lisa and Monk) in such denial?

Posted by Anonymous on Feb. 29, 2012 @ 5:59 pm

While things are not looking good for Ross.

We can all laugh or cringe at the antics of meth huffing preachers who see male prostitutes. But when it's one of your own it's a conspiracy?

So strange.

Posted by matlock on Feb. 29, 2012 @ 6:28 pm

devoid of any wit, creativity or signs of intelligent life.

Posted by Patrick Monk. RN on Mar. 01, 2012 @ 10:11 am

Far more creative than your usual ramblings or mentions of "hagfish."

Posted by Guest on Mar. 01, 2012 @ 11:53 am

YAWN

Posted by Patrick Monk. RN on Mar. 01, 2012 @ 1:49 pm

Ross Mirkarimi is no progressive. No one who is known to treat people the way he has treated people for decades (abysmally) is a progressive as I understand the word.

Posted by Guest on Mar. 01, 2012 @ 12:22 pm

The soap opera continues thanks to the recent disclosures about Ross' underpants collection and his plan to create a "mommy baby" home for his wife and little Theo.

He needs to step down for awhile before he becomes a perennai laughing stock.

And the legal bills must be mounting considerably, given that he has two retained for himself and one for the wife.

Posted by Guest on Mar. 07, 2012 @ 10:57 am