Nancy Lemon’s Testimony in DV Case against SF Sheriff Mirkarimi

The original article can be found on SFGate.com here.

Saturday, March 10, 2012 (SF Chronicle)
Court OKs Mirkarimi case video, but fight not over
Bob Egelko, Rachel Gordon

In a victory for the prosecution, a San Francisco court panel refused Friday to block a video in which Sheriff Ross Mirkarimi's wife reportedly accused him of grabbing her during an argument and bruising her arm from being used as evidence in his trial.

But the fate of the video, which is at the heart of the prosecution's case, remains up in the air. Attorneys for Mirkarimi and his wife have not given up on having it kept from jurors.

The Superior Court's three-judge Appellate Division rejected a claim by Mirkarimi's wife, Eliana Lopez, that she made the video in a confidential discussion with her neighbor, whom she believed to be a lawyer, according to a sworn declaration she filed with the trial court.

The neighbor, Ivory Madison, is a law school graduate but is not a licensed attorney. Lopez said in a sworn declaration, however, that Madison told her she was a lawyer and that their discussion would be confidential. State law would allow Lopez to claim lawyer-client confidentiality if she reasonably believed Madison was a lawyer.

The prosecution asserts that Lopez confided in Madison as a friend and neighbor.

The panel ruled against Lopez in a brief order, without explanation.

Stephanie Ong Stillman, spokeswoman for District Attorney George Gascón, said, "We are pleased with the court's ruling and look forward to moving ahead with the trial."

Lopez's attorney, Paula Canny, asked a state appellate court to review the ruling.

The video is crucial to the prosecution's case against Mirkarimi, who is charged with misdemeanor domestic violence, child endangerment and dissuading a witness in the Dec. 31 incident in which prosecutors say Mirkarimi, who was on the Board of Supervisors at the time, grabbed his wife's arm hard enough to bruise it during a fight in front of their 2-year-old son.

He has denied assaulting his wife. Lopez has not cooperated with investigators and has said publicly she was not abused. She also has refused to testify for the prosecution. The video, twice ruled admissible by trial court Judge Garrett Wong, is the prosecution's only firsthand evidence of the alleged assault.

Mirkarimi's attorney, Lidia Stiglich, challenged the video in a new motion Friday, arguing that evidence of an out-of-court statement by a now-unavailable witness would violate Mirkarimi's constitutional right to confront and question his accusers.

A 2004 U.S. Supreme Court ruling bars prosecutors from introducing evidence of hearsay statements that are "testimonial" - a witness' description of a crime that might be used in a prosecution - if the witness can't be cross-examined.

At a Feb. 22 pretrial hearing, Stiglich told Wong that Lopez had not gone to Madison as a crime victim trying to build a case against her husband, but instead was documenting evidence for a possible custody dispute over the couple's son. On Friday, however, the attorney said the video also was intended for a possible criminal case.

"That tape was developed to be used as testimony, if necessary, possibly in criminal (prosecution), possibly in child custody or divorce," she told reporters.

In her new motion, Stiglich quoted Madison as telling the district attorney's investigators that she had told Lopez her bruise would fade in a few days, and that "if you go to the police ... you need to have evidence of this." Madison said Lopez agreed and decided to record her statement, Stiglich said.

"The videotape was recorded for an evidentiary purpose" and must be excluded from evidence under the Supreme Court ruling, Stiglich said in papers filed with Wong. The judge had rejected a similar but less-detailed argument by Stiglich on Feb. 27. She said she is now trying a new approach.

"I don't think that any of us agree we should be tried by videotape," Stiglich told reporters. "You can't cross-examine a video. You can't ask a video what they were thinking, how they were feeling, what their motivations were, what happened before and what happened after."

Also on Friday, the trial judge said he would allow UC Berkeley law school lecturer Nancy Lemon, a renowned expert in domestic violence, to take the witness stand for prosecutors.

She is allowed to address the cycle of abusive relationships and the behavior and credibility of domestic violence victims - for example, why a victim may recant being injured and why a victim may remain in a violent relationship.

Lemon also can discuss the typical behavior of batterers and methods they use to exert power and control over their victims.

Wong also will allow narrow testimony on the progression of domestic violence being considered a private, family matter to being a public one. Mirkarimi had said right after he was sworn in as sheriff in January that the allegations that he abused his wife were "a private matter, a family matter" - remarks that Stiglich said were taken out of context.

Ruling against the prosecution, the judge said Lemon will not be allowed to testify on the effects domestic violence has on children.

Jury selection continues Monday. There are now 144 out of a pool of 447 prospective jurors left.

Bob Egelko and Rachel Gordon are San Francisco Chronicle staff writers. begelko@sfchronicle.comrgordon@sfchronicle.com

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