Sheriff Ross Mirkarimi’s attorneys argued Wednesday that his wife’s statements to neighbors about alleged domestic violence are inadmissible in court, suggesting they may have been part of a calculated effort to obtain child custody if their marriage failed.
Attorney Lidia Stiglich filed a 17-page motion Wednesday asserting that statements by Eliana Lopez to two neighbors are inadmissible as hearsay because such testimony must be spontaneous. The statements would be part of the legal groundwork for the introduction of a videotape of Lopez made by one of the neighbors.
“The videotape itself was the product of a reflective and deliberate decision to create evidence for purposes of a custody proceeding,” attorney Lidia Stiglich wrote.
Mirkarimi, 50, is charged with three misdemeanors — domestic violence battery, child endangerment and dissuading a witness — in connection with a New Year’s Eve incident in which prosecutors say the sheriff and his wife argued over their young son and he grabbed her arm, causing a bruise.
The prosecution’s case would suffer a major blow if it were prevented from introducing the neighbors’
testimony and video. Both Lopez and Mirkarimi have publicly denied that there was any spousal abuse, and the motion said “it is unclear whether Lopez will be unavailable as a witness.” A trial judge could be appointed as soon as Friday.
Prosecutors assert that the comments by Lopez were a spontaneous reaction to domestic violence. But the motion asserts that they were actually part of a well-considered plan to establish evidence in the event that the couple split up and became locked in a child-custody battle.
Neighbor Abraham Mertens allegedly told police that Lopez confided to his wife that she was dissatisfied with her marriage and was “thinking about leaving Ross and taking Theo.”
Statements to police by Mertens’ wife, Ivory Madison, allegedly indicate that the focus of her conversation with Lopez was about the couple’s future, and her fear that she would lose her son in a custody battle with the sheriff.
“It’s really more about Theo,” Madison, a law school graduate, reportedly told police, adding that “a police report is really important when you get to that custody stage” and that Lopez had wanted her help “gathering evidence.”
Madison suggested making a videotape, and recorded a 45-second video of Lopez showing a bruise on her arm, stating that it had “happened yesterday” and was the second time she had been bruised.
“I’m going to use this just in case he wants to take Theo away from me,” Lopez says on the video. “Because he did, he said that, that he’s very powerful, and he can, he can do it.”
Madison allegedly told police, “I really thought that we would never have to use this video, uh, unless, [Mirkarimi] got nasty in the divorce proceedings.” Mertens told police that the two women spent hours talking that day.
“The way she described it to me, it sounded like, it wasn’t that he just grabbed her arm once, it was that they were sort of having uh, you that he, maybe he was, uh, I mean that’s the thing, I really don’t know but she definitely didn’t describe it as ‘he grabbed my arm once and left this mark,’” Madison allegedly said.
Stiglich contended that Madison’s account that Lopez told her there had been a physical confrontation with Mirkarimi “was uncertain,” and that Madison admitted that she “may be getting some of the details wrong because I certainly wasn’t paying very close attention.”
Following the lunchtime incident, the couple “engaged in a range of normal everyday activities,” Stiglich wrote, including a trip by Mirkarimi to Trader Joe’s. Lopez and the couple’s 2-year-old son Theo spent an afternoon in Alamo Square park. That evening, the family ordered in from a local kebab restaurant they often frequent, whose owner will testify that Lopez “seemed ‘very much’ herself and appeared happy,” Stiglich wrote.
Mertens told police that Lopez had called Madison that night, but never mentioned there had been any incident, Stiglich noted.
The next morning, Lopez came to the door and “seemed okay,” Mertens told police.
On Jan. 3, Lopez and Madison “had a long talk about whether or not she was going to go to the police,” Madison told investigators, after which Lopez said she would consider it. It was Madison who eventually went to police.
On Jan. 4, Lopez spoke with another neighbor, Callie Williams, and asked her if she had heard the fight and showed her the bruise on her arm. Williams told police that Lopez “seemed strong” and wasn’t crying. Williams said that she’d “never heard her afraid” and that Lopez’s “main concern is her son.”
Williams also told investigators that she did not know when Lopez’s arm had been grabbed on New Year’s Eve, or if it had been during a car ride or at the couple’s home.
Lopez later texted Williams, stating that what she had previously told her “was too dramatic,” Stiglich’s motion said.