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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