Statements by Sheriff Ross Mirkarimi’s wife, Eliana Lopez, to a neighbor the day after an alleged New Year’s Eve domestic violence incident, and a video the neighbor made of a tearful Lopez discussing a bruise on her arm, can be admitted by prosecutors at trial, a judge ruled Monday.
Judge Garrett Wong’s ruling was a huge victory for the prosecution, especially because Lopez later publicly denied there was any abuse and may refuse to testify.
Mirkarimi’s attorneys said they were disappointed by the ruling but pledged to push forward and win the case at trial.
“We feel good about pitching our case to a jury,” said attorney Lidia Stiglich. “We always have.”
Mirkarimi, 50, has pleaded not guilty to misdemeanor charges of domestic violence battery, child endangerment and dissuading a witness. Prosecutors allege he grabbed and bruised Lopez’s arm during an argument in which the couple’s 2-year-old son was present on New Year’s Eve. Mirkarimi allegedly asked Lopez not to report the incident to police.
At issue Monday was whether Lopez’s statements, made to her neighbor Ivory Madison the next morning, nearly 20 hours later, were spontaneous or, as Mirkarimi’s attorneys claim, a calculated attempt to establish a case against Mirkarimi in a possible child-custody battle.
Prosecutor Elizabeth Aguilar Tarchi argued the statements were “the fundamental equivalent of a 911 call,” made to someone Lopez considered a close friend.
Not allowing them “would most certainly have a chilling effect on the prosecution of all domestic violence cases,” Tarchi said.
Stiglich, who suggested that Lopez did not appear afraid that day, argued that the video was “the antithesis of a spontaneous statement,” created in case her marriage failed and an ensuing custody battle became “nasty.”
Wong ruled that the statements and video “were sufficiently spontaneous and related to the incident” to fall into an exception in the law about hearsay.
“The issue here is the mental state of the speaker,” Wong said. He said he reviewed the videotape on Friday.
“The evidence shows that this is a woman who is still crying and visibly upset the following day,” Wong said. He added that on the video, Madison was not prompting Lopez “to make self-serving statements.”
“Her immediate thoughts for her son are clearly ... instinctive,” Wong said.
The judge is continuing to weigh whether evidence can be admitted of similar alleged behavior by Mirkarimi against a previous girlfriend, Christina Flores, who came forward after the case was made public.
Stiglich argued that Flores’ accusations were “suspect,” and were being used by prosecutors “to prop up an otherwise weak case.”
Today: Case not in session
Wednesday: Possible hearing on motions from Lopez’s attorney, beginning of jury hardships
Thursday and Friday: Possible further pretrial motions