The testimony of the star witness in Mayor Ed Lee's official misconduct case against suspended Sheriff Ross Mirkarimi came in for harsh criticism by the Ethics Commission last night, with that body striking most of it as prejudicial and unsupported hearsay evidence that should have never been introduced, something that even the city's attorneys admitted and apologized for.
It was a serious blow to the city's case that also undercuts the written testimony of the city's domestic violence expert, attorney Nancy Lemon, who based much of her analysis and judgments on this discredited and disallowed testimony of Ivory Madison, the neighbor and confidante of Mirkarimi's wife who reported the Dec. 31 domestic violence incident to police.
Meanwhile, Lee was confronted by a large pack of reporters following his monthly appearance before the Board of Supervisors earlier the day, which peppered him with pointed questions about his decision to bring what is evolving into an expensive, complicated, and nasty prosecution of Mirkarimi rather than simply allowing him to be recalled by voters. The exchange made news when Lee characterized Mirkarimi's arm-grabbing incident as “the beating of his wife.”
Mirkarimi and his attorneys labeled that comment and much of the city's case as simply a smear campaign that goes well beyond the narrow question of whether Mirkarimi committed official misconduct and should be removed from office, which the commission is still in the process of setting up procedures to answer.
Yesterday's hearing dealt mostly with deciding whether to exclude or allow the written testimony of nearly two dozen witnesses. The only testimony that was stricken entirely was that of Paul Henderson, Lee's criminal justice adviser, who testified that Mirkarimi's guilty plea to misdemeanor false imprisonment for the grabbing incident would hurt his ability to function as the sheriff. The commission found the testimony to be irrelevant and prejudicial, clearly upsetting Deputy City Attorney Sherri Kaiser.
But the big news from last week's hearing was the dim view that the commission took of Madison's 22-page declaration, which painted Mirkarimi as domineering and oppressive, a bleak picture that she attributed to his wife, Eliana Lopez, as conveyed during repeated conversations between October and December as the couple was having marital problems. Madison is the main source supporting the city's most serious allegations: that Mirkarimi abused his wife and then tried to thwart a police investigation
Commissioner Paul Renne – a career litigator appointed to the commission by the District Attorney's Office – took the lead role in criticizing Madison's testimony and the city for allowing it, ruing the fact that it was used by the Examiner and other media outlets to paint a defamatory “portrait of verbal abuse and child neglect inside Mirkarimi's fear-ridden household,” as the Examiner put it on the cover of yesterday's paper.
“I saw that and I thought maybe this idea of [taking initial testimony through written] declarations is not protective of the interests of everyone,” Renne said.
“I was disappointed by the content of Ivory Madison's declaration. A first-year lawyer should know that much of it is inadmissible and it should not have been given to us,” Renne told Deputy City Attorney Peter Keith, calling it “clearly hearsay, clearly having the intention of poisoning the well of this hearing.”
Keith didn't even try to defend most of the declaration, responding to Renne by saying, “We have an independent witness that is represented by [her own legal] counsel and we didn't have control over everything that was submitted...I think the criticism is well-taken and we didn't mean to put matters before the commission that are not relevant.”
“But you were the one who submitted the declaration,” Renne responded, telling Keith that the city must avoiding engaging in character assassination that goes beyond the scope of the commission's inquiry, which will result in a formal recommendation going to the Board of Supervisors near the end of summer.
“My recommendation is we reject the declaration and you bring her in for live testimony,” Renne recommended. The rest of the commission seemed to agree with Renne's criticism, but it opted to go through the declaration line-by-line, removing most of it from the proceedings. Madison is also expected to testify live and be subjected to a tough cross-examination by Mirkarimi's attorneys, who say she has blown the incident out-of-proportion and broke the confidence of Lopez, who denies that Mirkarimi was ever abusive.
In arguing unsuccessfully for much of Madison's written testimony to remain in the record, Keith told the commission that it was the basis for Lemon's assessment of patterns of behavior by batterers, thus undercutting that testimony as well.
“If they're untrue, they're meaningless, right?” Renne asked Keith, referring to the sensational tales Madison told about Mirkarimi's controlling behavior.
But Keith said that even if the stories Lopez told Madison were untrue or highly embellished – as Lopez's attorney, Paula Canny, has implied as she characterized her client as building a child custody case in the event the couple divorced – they are still relevant to understanding why Madison reported Mirkarimi to the police.
“Whether or not these actions happened, it's relevant to her concerns,” Keith said.
But Mirkarimi attorney Shepherd Kopp said that, like much of the city's case, hearsay testimony based on flawed and prejudicial information should be irrelevant to these proceedings and shouldn't be allowed as evidence against Mirkarimi.
“Their expert, Ms. Lemon, can believe what she wants, but that doesn't mean it should come in as evidence,” Kopp said.
The hearing was continued to next week when Mirkarimi, Lee, and other key witnesses are expected to begin giving live testimony before the commission on June 28 and 29. Click here to read the various documents associated with the case.