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Wednesday, March 14, 2012


            The recent courtroom drama involving San Francisco Sheriff Ross Mirkarimi's spousal abuse case that just ended in a copped plea could benefit from a little discussion. I’m sure some the public would like to know what the hell happened. Unfortunately the press hasn’t seen fit to educate their readers about what was going on with the evidence. I am not second-guessing. Nor am I being a Monday morning quarterback. But as a former editor of the evidence section of Matthew Bender’s Trial Master, I’m going to take a shot at helping out readers who might be curious.

            To begin, it doesn’t take much to run afoul of California’s spousal abuse law. You don’t have to hurt your spouse. It’s enough to touch her or him in a way that is offensive. California Penal Code section 243(e)(1) defines spousal abuse as a battery against certain specific people, including a spouse. But a battery must be willful in that the touching must be harmful or reasonably anticipated to be offensive. Merely touching your spouse is not a battery, if it were every loving gesture would violate the law. Simply reaching out during an argument, in hope that the touch will be taken as remorseful or conciliatory, is not a battery, even if the person touched doesn’t like it. She’s got to do or say something that tells hubby: “Don’t touch me you bastard.” So if he reaches out to caress with loving intent and she pulls away, her conduct could be the cause of a bruise but it does not make a battery.

            The big piece of evidence against the sheriff was a videotape made by RedRoom virtual literary salon founder and principal, Ivory Madison. Madison is a law school grad but not a licensed attorney. Still, she knows how to prove up a case of spousal abuse. As the story goes, Mirkarimi’s wife, Eliana Lopez, ran from their home to that of Madison, her neighbor where she spilled out a story of spousal abuse spiced up by showing off a bruise on her arm. Madison suggested that they videotape the bruise along with a statement from Lopez. Madison gave the DA this evidence and the DA decided to prosecute the sheriff.

Lopez subsequently decided that she wanted no part of a criminal case. (Not unusual in spousal abuse cases.) The defense wanted to have the tape excluded as hearsay.  (In SEE YOU IN COURT, I explain what hearsay is -- an unsworn statement made by someone who is not testifying that is being used to prove the truth of a fact at issue.) Now the statement made by Ms. Lopez certainly was unsworn and it didn’t look like she was about to testify against Sheriff Mirkarimi. Ordinarily that would make it hearsay. Except that there are a whole lot of exceptions to the hearsay rule. One exception (California Evidence Code section 1370) is rather new (1996) and applies to spousal abuse. For the videotape to qualify as admissible evidence in a trial several conditions must be met.

First, the person who made the statement has to be unavailable. Well, a wife who doesn’t want to testify against her husband can’t usually be forced to. Ms. Lopez surely could fall into the unavailable category.

Then the statement has to be made close in time to the abuse. Check. Ms. Lopez ran from her home to Ms. Madison's.

The statement has to relate to how the injury happened. Ms. Lopez’s statement to Ms. Madison does that.

It has to be written down or recorded electronically. We’ve got us a videotape here. Check again.

Finally, the statement has to be made under circumstances that would indicate it was reliable. This includes some corroboration. Well, the bruise itself fits that corroboration bill. But the court is required to consider whether Ms. Lopez had a bias or motive to fabricate the story including whether it was made in contemplation of a lawsuit. This is where things should have gotten a bit dodgy for the prosecution. Ms. Lopez said she was making the statement to shore up a potential custody fight with the sheriff.

But the defense attacked the videotape based on a claim that Ms. Lopez thought that she was talking to an attorney and tried to get the video tossed based upon attorney-client privilege. Unfortunately, Ms. Lopez claimed a friendship with Ms. Madison so there is some reason to believe that she knew Ms. Madison was not actually a lawyer.

Worse from the point of view of the defense is the inference a court can draw from these events.  People usually can be presumed to be telling their lawyers the truth. If Lopez went running to Madison displaying the bruise and voluntarily making a video, thinking she was a lawyer, it asks a lot of a judge to assume she was lying. So in playing out the attorney-client privilege card, the defense dug itself a hole on the reliability issue.

While there is nothing in the law that prevents any litigant from making contradictory arguments, it’s a pretty bad strategy.  You can really screw yourself when you run toward your own end zone. After the defense lost the attorney-client privilege argument they ended up having to say Ms. Lopez lied to a person she though might be her lawyer. They had to say that the whole thing was a frame-up. Sheriff Mirkarimi was going to have to testify that his wife is a dirty rotten liar who is not above faking evidence. Or he was going to have to get his wife to say it. Not a good position to be in.

So much for the videotape. It’s going to get into evidence one way or another. Now for the sex and lies.

The sheriff has this ex-girlfriend. Seems she found a pair of panties in the sheriff’s bedroom that weren’t hers. The sheriff wasn’t fessing up they were his. She says he claimed they were her panties and angrily asserts she’s intimately familiar with her own underwear and knows what isn’t. And she’s ready to get on the stand. We know “hell hath no fury like a woman scorned,” and this lady was scorned. Looks like maybe he got himself a bit of nooky while the cat was away, and it caused a fight.

But why is this little bit of dirt relevant? The prosecution has got to come up with something. The wounded woman claimed that she got a bruise on her arm during that fight the same way Ms. Lopez sustained her injury. She never called the cops about it, so all the prosecution’s got to do is get her to testify to the tiff. She’s game for that. The DA claims the sheriff has a modus operandi of putting his hands on women he’s arguing with-- committing batteries. He doesn’t hurt them. He just has a propensity for using his hands.  That could make scorned woman’s tale of woe admissible. But that’s not the whole story. What the prosecution really wants to do is dirty up the sheriff.  He’s a liar and a cheat. Hell, he’s a politician. What else is new?

So what’s a very unlucky and careless sheriff to do? He’s got to get on the stand and testify about that incident. Deny he’s a liar and a cheat. And you can bet there will be a few women on the jury who won’t like it, plus a lot of snickering. It doesn’t matter that he inflicted no harm on scorned woman. It doesn’t matter whether or not he caused a bruise. All the prosecution has to show is that he engages in offensive touching. The whole point of is to force him to take the stand, something his lawyers didn’t want in the worst way.

But if it hadn’t been for the videotape we’d never hear about the panties because there’d be no evidence of a bruise. The bruise could have been caused by a hysterical response to a benign touching and might therefore not count as sufficient corroboration. And if there hadn’t been a big brouhaha about whether Lopez believed Madison was an attorney, the tape might not have been allowed, because there seems to be no dispute that Lopez made it in anticipation of litigation. That’s plenty of reason to doubt the reliability of Ms. Lopez’s account and could have resulted in the exclusion of the video.

The key to this case was the reliability of Ms. Lopez’s statement to the camera and that issue was decided by the initial position taken by the defense. It might well have been the right decision. We don’t know what the defense knew. But once made, it was going to be next to impossible to turn a one-eighty and argue unreliability.

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