A judge ruled today that a critical piece of video evidence in the domestic violence case against San Francisco Sheriff Ross Mirkarimi will be admissible in his upcoming trial.
Mirkarimi, 50, has pleaded not guilty to misdemeanor charges of domestic violence battery, child endangerment and dissuading a witness in connection with a Dec. 31 incident in which he allegedly bruised the right arm of his wife, Eliana Lopez, during an argument in which his 2-year-old son Theo was present.
Mirkarimi was excused from attending today’s hearing, at which Judge Garrett Wong considered various motions filed by the defense and prosecutors over whether to admit statements made by Lopez to neighbors Ivory Madison and Callie Williams in the days after the incident.
One of those statements was made in a 55-second video recorded by Madison on Jan. 1 that reportedly shows Lopez crying, pointing to a bruise on her arm and recounting the incident. Prosecutors on Friday filed a motion that included still images from the video.
Assistant District Attorney Elizabeth Aguilar-Tarchi told Wong the video is “the focal point and crux of our case,” and argued that it should be admissible in trial under exceptions to the court’s hearsay rules.
Aguilar-Tarchi argued that the exceptions allow for certain spontaneous statements to be admissible if they are made under the stress of excitement and are made before there is time to contrive or misrepresent facts in a case.
She pointed out that Lopez was crying during the video, which she called “the functional equivalent of a 911 call.”
Defense attorney Lidia Stiglich argued that the passage of 18 hours between the alleged incident and the statement to Madison gave her time to reflect on the incident.
Stiglich also said that the video was made for use in a custody dispute, not for a criminal case, since Lopez said in the video she was concerned Mirkarimi might try to take her son away from her.
“Just being emotional about something is not sufficient” for a statement to be admissible in trial, Stiglich said.
However, Wong ruled that the video could be used, saying it showed “a woman who is still crying and visibly upset the next day,” and that the statement’s “brief, cryptic and halting” nature “do not reflect any hint of contrivance.”
While admitting the video and other statements Lopez made to Madison on Jan. 1, Wong denied the admission of further statements she made to Madison and Williams on Jan. 4.
Wong also weighed the question of whether an ex-girlfriend of Mirkarimi’s, Christina Flores, will be allowed to testify in the trial.
Days after charges were filed against Mirkarimi on Jan. 13, Flores filed a police report saying that he was also abusive to her when they dated between June 2007 and December 2008.
Aguilar-Tarchi said Flores described Mirkarimi as a “Dr. Jekyll and Mr. Hyde” whose aggressive actions “in many instances mirror the current case.”
Stiglich argued that Flores had not reported any abuse to authorities until now, and that there are no witnesses or evidence to corroborate her accusations.
“The prejudicial nature clearly outweighs any probative value” in having Flores testify, Stiglich said.
Wong ruled that he would take the arguments under submission and ordered Flores, who lives in Southern California, to come to San Francisco as soon as possible for a private meeting with the judge so he can determine whether to allow her to testify.
Wong also ruled on a motion by the defense to dismiss the case based on prosecutors releasing the pictures from the video of Lopez talking to Madison that Stiglich argued had tainted the jury pool.
Wong said he was “concerned about a fair and impartial jury pool” and ordered that the video not be released to the press before it was shown in trial.
Both sides returned to court this afternoon to deal with other issues in the case, including whether emails from Madison’s work account can be subpoenaed as evidence and motions filed by Lopez’s attorneys to dismiss the case and whether Lopez made the statements to Madison, who has a law degree, under attorney-client privilege.
Wong said that the case will return on Wednesday morning to deal with the motions by Lopez’s attorneys.
Potential jurors will then come in on Wednesday afternoon to fill out a questionnaire, and jury selection will begin on March 5, Wong said.
Stiglich said following this afternoon’s hearing that she expects a juror pool of between 175 to 200 people to be brought in, and that they will be told that the trial is expected to last about three weeks.
She said she was disappointed that the judge ruled against her on the matter of the video but said “we’re going to just keep pushing on and we’re going to just win it on trial.”
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