SAN FRANCISCO (CBS SF) – A critical piece of video evidence in the domestic violence case against San Francisco Sheriff Ross Mirkarimi was once again the subject of arguments in court Wednesday as his trial approaches.
Mirkarimi, 50, pleaded not guilty to domestic violence battery, child endangerment and dissuading a witness in connection with a Dec. 31 incident in prosecutors say he bruised his wife Eliana Lopez’s arm during an argument.
The prosecution’s key evidence in the case is a 55-second video recorded by the couple’s neighbor Ivory Madison on Jan. 1 that reportedly shows Lopez crying, pointing to the bruise and recounting the incident. Prosecutors on Friday filed a motion that included still images from the video.
Lopez has denied the charges against her husband.
After Mirkarimi’s attorney Lidia Stiglich on Monday fought to have the video excluded as evidence under the court’s hearsay rules, Lopez’s attorney Paula Canny argued in a pretrial hearing Wednesday morning that the video should be blocked because it was made under the guise of attorney-client privilege.
KCBS’ Bob Melrose Reports:
Canny wrote in a motion filed with the court that Madison’s biography on her book-selling website, http://www.redroom.com, says she is “trained as an attorney … interned at the California Supreme Court, and served as Law Fellow at Americans United for the Separation of Church and State.”
Prosecutors countered that while Madison graduated from law school, she has not passed the bar exam and is not licensed to practice law in California.
Canny argued to Judge Garrett Wong Wednesday that Lopez “had a reasonable belief that Ivory Madison was acting as an attorney,” noting Madison’s biography and that in Venezuela, Lopez’s home country, graduating law school is all that is necessary to become an attorney.
“My client could have gone to anyone,” she said. “She didn’t discuss this with anyone because she wanted confidential legal advice.”
In a written declaration by Lopez filed with the court, she said that on Jan. 4, Madison approached her outside her home.
Lopez said Madison “ran up to me and said to me, ‘You are going to kill me. I called the police and they made me tell them…’ I interrupted her. I was totally shocked and I yelled at Ivory Madison, ‘NO, this is wrong. I came to you for legal help. You do not have my permission.’”
Prosecutor Lindsay Hoopes said that every single reference to Madison in statements by Lopez from the video and in emails and texts have identified her as “a neighbor and friend,” not an attorney.
Wong denied Canny’s motion, saying that while Lopez may be the holder of attorney-client privilege, “the evidence is not being used against her” so the motion lacks standing.
Canny also asked for the case to be dismissed and the district attorney’s office to be sanctioned for releasing still images from the video last Friday as part of a filing with the court, citing a 2008 last passed by voters to protect victims’ rights to privacy and dignity.
“They knew when they put those photos on that brief, and gave it to the press, that they knew it would go viral,” Canny said, noting that the photos have been published by media across the country and internationally.
She said the images were released “as an attempt to coerce (Lopez) into testifying” in the trial, saying prosecutors are “so out of their mind to get Ross Mirkarimi that they trampled my client’s rights.”
Hoopes argued that the photos were necessary to show Lopez’s emotional state the day after the incident.
The 2008 law, known as Marsy’s Law, “was not intended to allow victims of crimes to affect how the people bring their case,” she said.
Wong also denied that motion by Canny, as well as a third motion arguing that Lopez’s phone records should be excluded from evidence because she was not notified that they were being subpoenaed.
Canny said outside of court after Wednesday morning’s hearing that she plans to file an appeal of Wong’s rulings on Thursday.
The juror pool began being winnowed down Wednesday afternoon, but remaining in the pool is a former colleague of Mirkarimi’s—Supervisor Eric Mar.
Mar, who served alongside Mirkarimi on the city’s Board of Supervisors before Mirkarimi was elected sheriff in November, was one of 196 potential jurors who gathered Wednesday at the San Francisco Hall of Justice for initial instructions about the case.
When Wong told the potential jurors the name of the defendant in the case, many began murmuring to each other.
Wong noted the high-profile nature of the case, urging jurors not to post online or talk about it even though “there’s going to be a lot of temptation.”
The potential jurors then were asked if they have any hardships that would prevent them from serving in the trial, which Wong estimated would be done by March 16.
Roughly half of the 196 potential jurors declared hardships, while the other half—including Mar—filled out questionnaires asking them a variety of questions.
The questions included information about their backgrounds, their opinions on domestic violence-related issues and their level of awareness of the case, as well as whether they know Mirkarimi, Lopez and more than two dozen other people connected to the case.
Those remaining jurors will return to court at 9 a.m. Monday, when prosecutors and defense attorneys will begin weeding out people with potential conflicts or biases to finalize the 12-person jury along with two to four alternates, Wong said.
Mar said after filling out the questionnaire that he did not know when he responded to jury duty Wednesday that the case would involve his former board colleague.
“I didn’t know it was going to be this case but I had some sense it was coming up,” he said. “I guess I’ll be conflicted out, but it’s up to the judge.”
Mar said the case was “fascinating,” but he is not allowed to talk about its specifics, not only as a juror but as a supervisor.
Under the City Charter, Mayor Ed Lee has the option of suspending Mirkarimi as sheriff, which would lead to an Ethics Commission hearing and then a hearing by the Board of Supervisors, which would need nine votes from the 11-person board to remove him from office.
Mar said if he is in court all day Monday, he will miss one of his duties as supervisor—he chairs the board’s Land Use and Economic Development committee, which meets at 1 p.m. that day.
The case is expected to return to court Friday morning when Wong will hold a private hearing with Christina Flores, an ex-girlfriend of Mirkarimi’s who filed a police report last month saying that he also abused her during their relationship prior to his marriage to Lopez.
After the meeting in judge chambers, Wong will rule on whether Flores will be admitted as a witness in the trial.
Flores’ name was excluded from the list provided in the juror questionnaire Wednesday, but district attorney’s office spokesman Omid Talai said “it’s a typographical error and we still intend on calling Christina Flores” as a witness.
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