The City Attorney's Office laid out much of its case against suspended Sheriff Ross Mirkarimi yesterday when it released a list of witnesses and their expected testimony, as requested by the Ethics Commission, and it offers little support for the city's accusation that Mirkarimi dissuaded witnesses or sought to destroy evidence of a crime, which are among the most serious allegations in the official misconduct case against him.
The longest and most significant section in the brief was the testimony of Ivory Madison, the neighbor who initiated the police investigation into whether Mirkarimi physically abused his wife, Eliana Lopez, during a Dec. 31 incident that she subsequent reported to Madison, who made a video of her story and a bruise on her arm.
It was the most detailed account yet of what happened from the perspective of Madison, who has refused media interviews, and it differs in some key areas from accounts that Mirkarimi gave to the Guardian and other media outlets.
For example, Mirkarimi said he grabbed his wife's arm in the car during a heated argument and that tempers had cooled by the time they went inside. But Madison is expected to testify that, “Inside the house, Sheriff Mirkarimi pushed, pulled and grabbed Ms. Lopez, who was crying and screaming, as was their son. Ms. Lopez asked Sheriff Mirkarimi to stop, and said look what you're doing to our son. Ms. Lopez then ran out of the house. While both inside and outside the house, Lopez was yelling, do you want me to call the police. When Ms. Lopez yelled about calling the police while outside, Sheriff Mirkarimi said no, come inside. Ms Lopez went back inside.”
It is unclear from the memo whether Madison was a direct witness to those events or whether they were relayed to her by Lopez, but it sounds like the latter given that the story is in a paragraph that began with the phrase “According to Ms. Lopez.” Since the incident, Lopez has consistently denied that Mirkarimi abused her and downplayed the conflict. The only other neighbor on the witness list, Callie Williams, wasn't at home during the conflict, but she's expected to testify that Lopez told her about that and an earlier instance of abuse and that “Sheriff Mirkarimi was scared that she was going to tell people what happened.”
While Madison's expected testimony confirms Lopez's account that the video was made to be used in the event of a child custody battle if the couple divorced, Madison's account paints Lopez as actively worried about her safety: “Ms. Madison suggested calling the police. Ms. Lopez was afraid that the police would not believe her and would not protect her from Sheriff Mirkarimi, and was concerned about what the police could do to protect her.”
It also confirms what journalist Phil Bronstein, a friend Madison called for advice, told the Guardian about Madison's initial call to police being a simple inquiry and that she didn't intend to initiate a police investigation just yet. And it indicates that “Ms. Lopez was unhappy about the investigation. Ms. Lopez called Linnette Peralta Haynes (Sheriff Mirkarimi's campaign manager in the November 2011 election) on her mobile phone. After speaking with Ms. Haynes, Ms. Lopez handed her phone to Ms. Madison. Ms. Haynes attempted to dissuade Ms. Madison from cooperating with the police and attempted to persuade Ms. Madison to lie to the police.”
Yet there is nothing in Madison's expected testimony to indicate Mirkarimi was behind any of these efforts, and he denies it and says that he wasn't even aware that Lopez had talked to Madison or made a video or that police had been called at that point. Peralta Haynes, who sources say is in the late stage of a difficult pregnancy, hasn't cooperated with the investigation so it's obviously speculative on the city's part to indicate that she was acting as Mirkarimi's “agent” in thwarting the investigation, as the city is claiming.
The only “evidence” that the city seems to offer in support of its accusation that Mirkarimi tried to thwart the criminal investigation comes from Madison's husband, Abraham Mertens, who is expected to repeat the claim he first made in a controversial March 20 op-ed in the San Francisco Chronicle that, “During the time that SFPD inspectors were interviewing Ms. Madison on January 4, Mr. Mertens received a telephone call from Eliana Lopez urging him to make Ms. Madison stop talking to the police. Mr. Mertens heard Sheriff Mirkarimi's voice in the background,” a more resolute version than Mertens had previously given when he wrote in the op-ed: “I recognized what I thought was Ross' voice in the background.” Mertens also has not answered Guardian calls.
Mirkarimi categorically denies that he was present during that phone call and says that he was in meetings at City Hall and that he wasn't aware that any of this was happening at the time. And he has denied urging Peralta Hayes to get involved, but her testimony could evolve into evidence if the city can show they talked before she spoke to Madison, but that's still speculative. The city is seeking live testimony from Peralta Haynes about her communications with Mirkarimi on Jan. 4 and before.
During the recent Ethics Commission hearing on setting up procedures for the hearing, Mirkarimi attorney Shepherd Kopp noted that the city hadn't done key interviews or collected physical evidence (such as phone records or the Lopez video) to support its charges against Mirkarimi before making its allegation, something that Deputy City Attorney Peter Keith didn't dispute, noting that the the city had not yet received much of the evidence that it intends to present, such as the video.
The city appears to be banking on compelling incriminating testimony from Lopez and Mirkarimi, who they plan to treat as hostile witnesses. The other interesting name on the city's witness list was Mayor Ed Lee, who the city is recommending give live testimony and who could also likely be subjected to a vigorous cross-examination that could have interesting political ramifications.
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