she was bruised by the sheriff—the only real evidence that the prosecution has against Mirkarimi.
Both Mirkarimi, 50, and his wife, Eliana Lopez, 36, wanted the videotape suppressed. And despite the court ruling, they are still trying to suppress it.
Since Lopez has refused to testify against her husband, the prosecution is not believed to have any case if it cannot use the videotape.
The Superior Court’s three-judge Appellate Division Friday rejected a claim by Lopez that she made the video in a confidential discussion with her neighbor, whom she believed to be a lawyer, according to a sworn declaration she filed with the trial court.
The neighbor, Ivory Madison, is a law school graduate but is not a licensed attorney. Lopez said in a sworn declaration, however, that Madison told her she was a lawyer and that their discussion would be confidential. State law would allow Lopez to claim lawyer-client confidentiality if she reasonably believed Madison was a lawyer.
The prosecution asserts that Lopez confided in Madison as a friend and neighbor, not as a lawyer.
The city court ruled against Lopez in a brief order, but did not explain its reasoning. Lopez’s attorney, Paula Canny, asked a state court to review the ruling.
The prosecution is led by District Attorney George GascÛn, who periodically clashed with Mirkarimi when GascÛn was chief of police and Mirkarimi a member of the county Board of Supervisors.
Mirkarimi was born in Chicago, of an Iranian immigrant father and Russian ethnic mother.
The 55-second video is crucial to the prosecution’s case against Mirkarimi, who is charged with misdemeanor domestic violence, child endangerment and dissuading a witness in the New Year’s Eve incident in which prosecutors say Mirkarimi grabbed his wife’s arm hard enough to bruise it during a fight in front of their 2-year-old son.
Mirkarimi’s attorney, Lidia Stiglich, challenged the video in a new motion Friday, arguing that evidence of an out-of-court statement by a now-unavailable witness would violate Mirkarimi’s constitutional right to confront and question his accusers.
A 2004 US Supreme Court ruling bars prosecutors from introducing evidence of hearsay statements that are “testimonial”—a witness description of a crime that might be used in a prosecution—if the witness can’t be cross-examined.
The San Francisco Chronicle noted that at a pretrial hearing last month, Stiglich told trial Judge Garrett Wong that Lopez had not gone to Madison as a crime victim trying to build a case against her husband, but instead was documenting evidence for a possible custody dispute over the couple’s son if Mirkarimi should seek a divorce. On Friday, however, the attorney changed her argument, the Chronicle pointed out, and said the video also was intended for a possible criminal case.
“That tape was developed to be used as testimony, if necessary, possibly in criminal [prosecution], possibly in child custody or divorce,” she told reporters.
In her new motion, Stiglich quoted Madison as telling the district attorney’s investigators that she had told Lopez her bruise would fade in a few days, and that “if you go to the police Ö you need to have evidence of this.” Madison said Lopez agreed and decided to record her statement, Stiglich said.
“The videotape was recorded for an evidentiary purpose” and must be excluded from evidence under the Supreme Court ruling, Stiglich said in papers filed with Wong.
“I don’t think that any of us agree we should be tried by videotape,” Stiglich told reporters. “You can’t cross-examine a video. You can’t ask a video what they were thinking, how they were feeling, what their motivations were, what happened before and what happened after.”
Earlier, Judge Wong ruled that an ex-girlfriend of Mirkarimi could testify. Prosecutors said Christina Flores will tell jurors about four alleged incidents of verbal abuse, one of which elevated into violence, to show a pattern of domestic abuse.
Flores’ described during her pre-trial testimony a volatile relationship with Mirkarimi from 2007 to 2008.
She said he grabbed her arm hard enough to cause bruising after she confronted him in February 2008 when she found a pair of women’s underwear in his apartment that did not belong to her. She said he grabbed her after she told him she would leave him.
“I yelled immediately,” she said according to a transcript, “very, very loud. And it shocked me and him and he immediately let go . . . and apologized for it. And I think he did it [grabbed her arm] without realizing he was doing it.
She said things swiftly settled down and she spent the night with Mirkarimi.
Two days later, she said Mirkarimi noticed the bruise and Flores said it happened when he grabbed her arm. She said he told her, “I’m sorry, didn’t mean to do it. It was an accident.”
Flores said they also fought about Lopez, a Venezuelan actress who met Mirkarimi at a conference in South America and got pregnant during what Flores said he told her was a one-night encounter. Flores said she wanted him to return her possessions left at his house. “I don’t wish to add them to your ex-girlfriend graveyard at your home,” she said she told him.
Stiglich, in trying to keep Flores from testifying at the trial, asked why she never reported the alleged violence and waited to come forward.
Flores said she decided to file a police report after media reports said Lopez was refusing to cooperate with police. “I felt she was bullied into taking her story back,” Flores said.
The trial began March 5. So far, the lawyers are still working through jury selection.