"This was such a wipeout psychologically": Mirkarimi tells the story Lee didn't want to hear

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Ross Mirkarimi and family at his Jan. 9 inauguration, days after the scandal broke and four days before charges were filed
Luke Thomas/Fog City Journal

As Ross Mirkarimi and his legal team prepare for a trio of legal hearings that could determine the future of his career, the suspended sheriff sat down with the Guardian for nearly two hours in his first extended interview recounting what happened during that fateful New Year's Eve conflict with his wife, their actions in its aftermath, and whether any of it should cost him his job.

As the story continues to unfold, and the facts come out, it’s becoming more and more clear that neither of two central players – Mirkarimi’s wife, Eliana Lopez, and the neighbor who called the police, Ivory Madison – had any idea how this would play out, or, apparently, any desire for the incident to bring down the elected sheriff.

Mirkarimi has been in a bind for much of the last four months: Because of a pending criminal case, he hasn’t been able to tell his side of the story. And since he pled guilty instead of going to trial, his version of events is only now beginning to trickle out.

And the interview made clear that the man who has in the past been accused of arrogance has lost a lot of his ego.

“This was such a wipeout psychologically,” Mirkarimi said. “It makes me immensely insecure and has left me in vulnerable state.”

He looks it – the elected sheriff’s face is drawn, almost haggard. His once-frequent smile and laughter is almost gone.

>>Read our full Mirkarimi coverage here.

He’s a politician who freely admits he had marital troubles, was in some ways a bad husband, treated his wife poorly and, in an incident sparked by his own anger, physically hurt her. He knows he’s let down his supporters and damaged his once-bright political future.

He’s struggling to keep his job, arguing that the incident has been blown out of proportion and inappropriately used to remove him from elected office, with Mayor Ed Lee showing a reckless disregard for the truth before making the rare decision to institute official misconduct proceedings.

And you don’t have to endorse Mirkarimi’s actions or even agree that he should stay in office to find indications that the mayor’s case against him is shaky and at times clearly unfair.

Judge Harold Kahn will hear arguments today [April 19] that the City Attorney's Office should be barred for overseeing the official conduct proceedings, and the next day he will hear Mirkarimi's main challenges to Lee's actions, including the arguments that the city's official misconduct statute is unconstitutionally broad and that Mirkarimi was denied due process before being suspended without pay.

Then, on April 23, the Ethics Commission will convene to discuss procedures for handling the case.

Some key issues that could affect the outcomes of the city and court processes involve what Mirkarimi actually did – as opposed to what others have suggested he did. The whole thing may hinge on whether the sheriff did anything to hinder the domestic violence investigation, what his plea deal to official misconduct entailed – and whether the mayor made efforts to differentiate between fact and rumor.  

But let's start at the beginning, just before lunchtime on New Year's Eve, with a story that Mirkarimi told in great detail as we peppered him with questions seeking details on what happened, what his motivations and thoughts were at critical junctures, and what it all meant.

Around 11:45 am on Dec. 31, Mirkarimi, Lopez, and their nearly three-year-old son, Theo, got into their red 1998 Dodge Caravan to go to lunch at Delfina Pizzeria. Just before leaving their house on Webster Street, the couple had started talking about how Lopez wanted to take Theo on a trip to her native Venezuela to visit her father, who is battling cancer.

“It was not an unfamiliar topic,” Mirkarimi said, recounting how it had become an issue of increasing concern by him after her three previous trips had each been extended. They had been having marital problems, and he told us he was concerned that she might not come back – or that Theo could be at risk of kidnapping.

“We didn't have a plan and there was no permission,” Mirkarimi said, with “permission” meaning his written permission to take their son out of the country, which he had learned from a lawyer was required. “The body of our quarrel on Dec. 31 is we need a plan.”

But Lopez told him in the car than she had also talked to an attorney and she contested that it was as clear-cut as Mirkarimi claimed. He later learned that the “attorney” Lopez was referring to was their neighbor, Ivory Madison, a writer who had attended law school and noted her “legal training” on the www.redroom.com website she ran with her husband, lawyer Abraham Mertens. But Madison hadn't taken the bar exam and wasn’t licensed to practice law in California.

“This was a sucker punch, it really walloped me,” Mirkarimi said of the news that Lopez was speaking with an attorney, and it made him angry. “I was acting inappropriately, I swore at my wife and said ‘where is this coming from?' So I could have handled it better.”

“I decided, because we were quarreling, to make the unilateral decision against Eliana's wishes to turn the car around,” he said.

This, he contends, was the act that constituted false imprisonment, the misdemeanor charge that he pled guilty to last month in exchange for prosecutors dropping misdemeanor charges of domestic violence, dissuading a witness, and child endangerment. Mirkarimi contends this was the only point in their conflict in which he restrained his wife's freedom. Other reports suggest that he didn't let her leave the house shortly after the conflict, which he denies.

Mirkarimi’s criminal attorney, Lidia Stiglich, told us false imprisonment is a very broad term, and because it was such low-level charge, there wasn't a specific action it covered. In other words there’s nothing factual in the legal record or anywhere supporting the notion that Mirkarimi actually held his wife against her will.

“You don't need to agree to a factual basis to plead to a misdemeanor,” Stiglich said, noting that Mirkarimi's interpretation is reasonable, but prosecutors might mean something different by it. “We can agree to disagree,” she said, although she acknowledges that vagueness has opened him up to a variety of interpretations in the political arena.

In other words, the notion that a sheriff, who oversees the jails, has pled guilty of false imprisonment looks just terrible, and has been been played up in the press. But it’s not clear that he actually imprisoned anyone, beyond refusing to take his wife and son to lunch. It’s an oddity of law, and the nuance doesn’t play well in a scandal-crazed media.  

But back to the day of the incident.

“I was loud, I was gruff, I was just pissed off, and I am ashamed of my behavior,” Mirkarimi said. By the time they got back home, the sheriff-elect had calmed down, but Lopez was getting increasingly angry at being mistreated.

He said she quickly got out of the car and was brusquely trying to remove Theo, who was crying and upset over his parents' conflict, from his car seat. “I got scared because Theo was in danger a little bit,” he said, his voice choking up and eyes filled with tears, saying that he reached back and grabbed Lopez's right arm, with three fingers under her arm, while he was still seatbelted into the front seat.

“Eliana reacted like, get away from me, and she tugged her arm,” he said. “The incident was minutes.”

Inside the house, tensions quickly de-escalated, he said, and they didn't discuss the conflict again that day. They went grocery shopping together, brought home takeout for dinner, and Lopez went out briefly that night while Mirkarimi stayed home with their son.

But the next morning, she showed him the bruise that had formed on her right bicep where he grabbed her. “She said, 'Look,' and it just crushed me,” Mirkarimi said, adding that he apologized for hurting her and that he agreed to go to couples counseling.

Lopez had been asking her husband to seek counseling for some time, he acknowledged, and he’d been putting it off. “I take full blame that that didn't happen earlier,” he said.

Then, mid-morning, Lopez told him that she was going to talk with their neighbors, Madison and Mertens, who Mirkarimi considered “nice people. They were supporters during my race, but I didn't know them that well.” He said that he didn't think much of it or worry that she might talk about the previous day's incident, although he said he did make the connection after she left that perhaps this was the “lawyer” Lopez has referred to the day before – something she later confirmed.

From Mirkarimi's perspective, the next few days were uneventful. The family left for a long-planned vacation to Monterey the next day, staying at the Intercontinental Hotel and taking Theo to the Monterey Bay Aquarium. He said they talked “a little” about their New Year's Eve conflict. “We were trying to gauge each other and our comfort level in talking about this,” he said. 

But Mirkarimi didn't know about the storm that was brewing. He said he had no idea that Lopez had heeded Madison's suggestion on Jan. 1 to make a video in which Lopez tearfully recounted the grabbing incident and displayed her bruise. Lopez, a former Venezuelan soap opera star, has consistently denied publicly that Mirkarimi ever abused her and has said, directly and through attorney Paula Canny, that the video was intended solely to be used in child custody proceedings if their marriage continued to devolve and that Lopez assumed she was getting legal advice and that the communications were private and subject to attorney-client privilege.

But Madison, who has not returned calls from the Guardian or other media outlets, wrestled with whether to go to the police and sought counsel on the question from several people, as information obtained by Mirkarimi's team during discovery showed, including Phil Bronstein, the former editor for the Examiner and Chronicle who now chairs the board of the Center for Investigation and Bay Citizen.

Madison had two phone conversations with Bronstein, the veteran journalist told us. He said he knew Madison socially and “she gave me a brief narrative of the events.

“I said you should do whatever you think you should do to keep Eliana safe,” Bronstein told us.

Bronstein said he doesn't know what happened between Mirkarimi and Lopez, but he understood from Madison that she was acting on behalf of Lopez, that the two women were communicating by text and e-mail, and that “I got the impression that Eliana was still trying to figure out what she wanted to do.”

“Eliana was continuing to e-mail with Ivory, saying he was being nicer now,” Bronstein said, but Madison was still concerned enough that she didn't want to let the incident go, so Bronstein said she decided to call the San Francisco Police Department on Jan. 4 to get information on whether domestic violence incidents could be reported several days after they occurred, a decision he learned about after the fact.

“Ivory called the police hotline hypothetically to get information on when they can file,” Bronstein said, recounting a phone conversation they had on the afternoon of Jan. 4. But he said Madison was told by police that she could be charged with obstruction of justice for not reporting a crime – which isn't exactly true under California law – and that SFPD had sent officers to her house to discuss the matter.

Shortly after that visit from police, Madison called Bronstein to tell him the story. “She was surprised that an inquiry had triggered a police investigation,” Bronstein said. Madison's initial refusal to turn the videotape over to police, who needed a court order to seize it, is another indication that perhaps she didn't want this case to explode the way it did.

In one version of events that Bronstein has discussed, Madison told him she wanted to help Lopez get in touch with three people who might be able to talk to Mirkarimi and convince him to seek counseling. Madison asked Bronstein if he had phone numbers for Aaron Peskin, Mike Hennessey and Art Agnos.

The odd thing about that is that Lopez already knew the three, and that their contact information was in the couple’s house.

But Mirkarimi had no idea any of this was going on, or even that his wife had discussed their conflict with Madison and made the videotape. “Everything happened on the 4th of January and literally I was the last one to know,” Mirkarimi told us.

Months later, Mertens wrote an op-ed for the Chronicle (“A neighbor's side of Ross Mirkarimi case,” 3/20) in which he alleges Mirkarimi “paid a team of lawyers to relentlessly attempt to discredit, dissuade, and harm my wife,” although he didn't return Guardian calls seeking comment or clarification of what he meant.

“The last time I spoke to Eliana was when she called me on Jan. 4. I recognized what I thought was Ross' voice in the background as Eliana pressured me to destroy evidence and lie to the police. Then she repeatedly called Ivory, demanding that Ivory destroy the video, e-mail and texts from Eliana about the incident,” Mertens wrote. The allegation was parroted in the city's official misconduct charges against Mirkarimi, which claim he “or his agents” sought to destroy evidence and obstruct the investigation.

But Mirkarimi and his lawyers say the charge is simply untrue. “The idea that he sought to get the videotape back or destroy it is nonsense,” Waggoner said, noting that Mirkarimi wasn't even home as these events unfolded – on that fateful January day, he attended a ceremony marking the demolition of the old jail and then was in a long Budget Committee meeting, followed by a farewell celebration from the Local Agency Formation Commission. In other words, he couldn't have been “in the background” during that call.

In fact, as far as we can tell, there is no evidence anywhere that Mirkarimi ever contacted Madison or Mertens. “I never talked to Ivory Madison and I never talked to her husband, Abraham Mertens, after any of this happened,” Mirkarimi said.

Mirkarimi said that Lopez first told him that she had told Madison about the grabbing incident by phone on the afternoon of Jan. 4, shortly after Madison told her in the street that she had called the police and they were on the way. Lopez didn't know what to do and wanted to come meet her husband near City Hall. The officers that came tried to talk to Lopez, but she refused.

“She was panicked because she thought things were getting out of control with this neighbor and she asked for my recommendation,” Mirkarimi said, noting that Lopez literally ran from their home to City Hall and met Mirkarimi outside on Grove Street. It was then, he said, that Lopez first told Mirkarimi about making the videotape.

Mirkarimi said he greeted the news with stunned disbelief, and that his first instinct was to try to help his panic-stricken wife, but that he didn't know what to do. “She was petrified about what was going on...She was frantic and I was getting frantic too,” he said. “I didn't have a remedy, except oh my God, I think we need an attorney.”

They made a couple calls to find an attorney, and he said Lopez had the idea of having their friend, Linnette Peralta Haynes, a domestic violence advocate with the Our Family Coalition, reach out to Madison about why she had gone to police and what could be done at that point. “I had no idea what they were going to talk about,” Mirkarimi claims. Peralta Haynes didn't return our calls and she is reportedly being sought as a witness by the City Attorney's Office in the official misconduct proceedings.

Mirkarimi is adamant that he never did anything to gain possession of the videotape, dissuade his wife or any other witnesses from talking to police or prosecutors, or otherwise interfere with the investigation, even though Lopez was appealing to him to do something.

“She really wanted me to stop it, and I was like, dear, this bell has already rung and I don't think we can unring it,” Mirkarimi said.

Lopez has said publicly that she felt betrayed by Madison, and Canny filed motions to suppress the video on the grounds of attorney-client privilege, conflicts that seem to have soured the relationship between the two women and fed feelings by Mertens that Madison was wronged for doing the right thing during the media circus that followed.

As a result, as part of Mirkarimi's plea deal last month, the District Attorney's Office insisted that Mirkarimi publicly apologize to Madison. It was an odd demand, since nobody (other than an op-ed writer in the Chron who gave no substantiation for his charges) had ever said that Mirkarimi had any contact at all with Madison.

DA's spokesperson Stephanie Ong Stillman explained the insistence to us this way: “Ivory Madison's actions were courageous. She found herself in a difficult situation trying to protect a friend who was in danger. In a surprising and disappointing turn, she was vilified for this act of courage. She suffered much unnecessary public scrutiny.”

Stillman wouldn't deviate from that prepared statement when we asked specifically what Mirkarimi had done to Madison – or if there was any indication that the sheriff had ever done anything to “vilify” her – but she did said that the insistence on that direct apology was about encouraging witnesses of domestic violence, an underreported crime, to come forward. “We didn't want other witnesses to be discouraged from reporting crimes after seeing what Ivory Madison went through,” she said.

Yet Stiglich said Canny's motions and the divisions that developed between Lopez and Madison had nothing to do with Mirkarimi: “There were lot of actions taken by Eliana's lawyers that caused a backlash that affected Ross.”

It’s not a minor issue: The allegation that Mirkarimi attempted to dissuade witnesses and used his official position to gain advantage is central to the mayor’s formal misconduct charges. But Mirkarimi and Stiglich maintain that there is nothing in the public record that supports the charge that he dissuaded witnesses or that he used his position as sheriff to gain advantage either before or after the incident.

“I was very surprised to see the allegation from the Mayor's Office about dissuasion [of witnesses or interfering with the investigation] because there was no evidence of that,” Stiglich said. “He was the last person to know there was a video and that police were involved.”

It appears that Mirkarimi thought his guilty plea would end the case – and it was crafted not to give the mayor any grounds for removal. “I would not have entered a plea in a way that would inhibit my ability to be sheriff,” Mirkarimi said. “This was a very lucid conversation.”

In fact, he said, his instinct was to fight the charges all the way. “We were dying to go to trial,” Mirkarimi said.

But the cops and the DA’s Office did an excellent job of creating pre-trial publicity that made it almost impossible for Mirkarimi to get an impartial jury pool. Jury surveys showed that more than 70 percent of the potential jurors had already formed a negative opinion about Mirkarimi based on news coverage, he said.  

He has belatedly sought to address other oft-repeated misimpressions, disputing telling his wife that he would get custody because “I am a powerful man” (he says he told her the U.S. has powerful child custody laws) and saying journalists have distorted his comment that the conflict was “a private matter.”

In a charge that will be central to the upcoming legal battles, Mirkarimi and his attorneys say Mayor Lee wasn't interested in hearing from Mirkarimi or discovering the truth about what happened before deciding to suspend Mirkarimi without pay and bring official misconduct charges against him. That, they say, denied the elected sheriff his due-process rights.

In his sworn affidavit in the case, Lee characterized his March 19 meeting with Mirkarimi – which he began by asking Mirkarimi to resign within 24 hours or be suspended – this way: “I explained to Sheriff Mirkarimi that I wanted to give him an opportunity to talk to me about this issue. It was a free flowing conversation with no time constraints. Sheriff Mirkarimi told me that he has not yet told his side of the story. I said, Okay, and waited for him to tell me his side of the story. He did not. Instead, after pausing, he asked me whether the suspension was based on his conduct as Sheriff. I responded that it was based on his conduct as a public official. I paused again and waited for Sheriff Mirkarimi to give me whatever information he thought important. He did not. Instead, Sheriff Mirkarimi asked me whether the suspension would be with or without pay. I told him it would be without pay. After giving him another chance to ask questions or give more information, I told Mr. Mirkarimi to consider my instruction to resign over the next 24 hours.”

But Mirkarimi said that narrative isn't accurate or complete. He had sought to talk with Lee the previous week to explain what happened, but Lee refused. And when he showed up to talk to Lee on the March 19, he brought Sheriff's Department legal counsel Freya Horne with him and asked that she be included in the conversation, but Lee refused, so there were no witnesses to the conversation.

“I went into that meeting with the express purpose to tell the mayor everything...As soon as I walk in the door, he gives me a little bit of preamble and then asks me to resign,”Mirkarimi said. “I said I'd really like you to talk to Eliana, can I give you her phone number? Nothing...I was asking questions and I wasn't getting answers.”

Asked why he didn't just start telling the full story, as Lee's narrative indicates he was ready to hear, Mirkarimi insists that Lee simply informed him of the decision he had made and didn't want to hear anything else. “He wanted the meeting to end after a minute, and I dragged it out by asking questions,” Mirkarimi said of the 15-minute meeting. Asked why he didn't take a more forceful position, insisting on Horne being there or telling his full story, Mirkarimi said, “I'm the guy who's trying to be contrite, not the one to walk in there with muscle.”

But now that those lines have been drawn, Mirkarimi says he intends to mount a vigorous defense, and he has some serious muscle on his legal team, including Waggoner and Shepard Kopp, who has worked on a variety of high profile cases.

Waggoner said the mayor's affidavit, which he made under penalty of perjury, “is not truthful,” noting the inconsistency between telling Mirkarimi that he had made a decision to suspend him and saying he wanted to hear his side of story.

“That claim is undermined by his statements after when he describes how the meeting went down,” Waggoner said, saying he's hopeful that the courts will agree that Lee acted inappropriately. “All that language undermines his initial claim that the purpose of the meeting was to gather information.”

That’s a central question: Did the mayor give the sheriff a chance to defend himself before making the highly unusual decision to suspend him? Or did Lee base that decision on evidence (like Mertens' opinion piece) that lacked substantiation without giving Mirkarimi a chance to rebut it?

In other words, was Lee’s decision already made when he met with Mirkarimi? And if so, did the city’s chief executive deny another elected official the basic legal right to a fair hearing?

That’s what the courts will address.

Then if the case moves forward, the Ethics Commission will hold hearings –and again, Mirkarimi is at a disadvantage. The Mayor’s Office, through the city attorney, is already sending subpoenas to witnesses and preparing testimony. The defense can’t do that – because there are, at this point, no rules of evidence, no rights for the defense to compel testimony and, frankly, nothing for Mirkarimi’s lawyers to go on.

Four of the five members of the Ethics Commission are lawyers. At some point, they’re going to have to find a way to make this case comply to the rule of law.

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