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.