In domestic violence prosecutions such as the forthcoming case against new Sheriff Ross Mirkarimi, it is not uncommon for victims to refuse to cooperate with law enforcement.
Eliana Lopez has publicly denied that her husband abused her, even telling a Venezuelan radio station this week that the accusations were part of a politically motivated conspiracy to dethrone him.
Even though Lopez is refusing to cooperate, the San Francisco District Attorney’s Office is pursuing charges against Mirkarimi. Prosecutors possess a videotape, made by Lopez’s neighbor, which they say shows a tearful Lopez discussing an altercation with her husband on New Year’s Eve and also documents an injury to her arm.
“Often the initial statements of a domestic violence victim are the most accurate,” said District Attorney’s Office spokesman Omid Talai, who declined to discuss the Mirkarimi prosecution but spoke generally about the challenges posed by such cases, which he handled as a prosecutor in Los Angeles.
“If victims are unwilling to testify, or if they change or recant their stories, previous statements — including those in reports, police communications, tapes or prior inconsistent testimony — may be admissible,” Talai said.
Marin County defense attorney and former prosecutor Jim Reilly agreed the lack of victim testimony can be countered by other evidence.
“A videotape would be powerful evidence that could easily overcome a jury’s reluctance to convict in the face of a noncooperative witness,” Reilly said.
Mirkarimi, who was charged last week with three misdemeanors — domestic violence battery, child endangerment and dissuading a witness — is scheduled to be arraigned this afternoon. He has denied ever abusing his wife and has pledged to fight the charges.
A trial could come within 45 days if he refuses to waive his right to a speedy trial .
There will likely be discussion at today’s arraignment of last week’s emergency protective order barring Mirkarimi from contact with Lopez, their 2-year-old son and his home. Prosecutors in domestic violence cases typically seek to extend such orders throughout criminal cases. Mirkarimi’s defense can be expected to challenge that.
The charges could bring up to a year in County Jail or probation.
Source: District Attorney’s Office