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Tuesday, May 8, 2012

Ross Mirkarimi Hearing: Judge Grants Eliana Lopez More Time to Fight City Over Video

Posted By on Tue, May 8, 2012 at 2:17 PM

click to enlarge Lopez has had Mirkarimi's back throughout the investigation.
  • Lopez has had Mirkarimi's back throughout the investigation.

Update 2:32 pm: Judge Garrett Wong granted Eliana Lopez's attorney's motion for continuance today. This means she will have more time to prepare her argument that the court should not release to the city the video of Lopez describing an alleged domestic assault by her husband, suspended-Sheriff Ross Mirkarimi. Her opposition brief is due Thursday and the city's reply is due Monday.

Original post:

By this point in the Ross Mirkarimi saga, it almost feels as if we've already seen the infamous New Year's day video: Mirkarimi's wife Eliana Lopez showing the camera a bruise on her arm; tearfully explaining that the injury was the result of an argument with Mirkarimi about Lopez taking their son, Theo, to Venezuela; and then saying that "This is the second time this is happening ... we need help and I'm going to use this just in case he wants to take Theo away from me because he ... said he is very powerful and can do it."

Of course, the tape has not been released, but has been in police custody and was admitted as evidence for Mirkarimi's criminal trial. The City Attorney's Office has requested that the court give them access to the video so that it can be used as evidence in the suspended-sheriff's hearing before the Ethics Commission, in which Mayor Ed Lee is arguing that Mirkarimi committed official misconduct and should be removed from office.

Lopez's attorney, Paula Canny, requested yesterday that the ruling on the video's release be delayed because she needed more time to show the judge that releasing the video would violate the Victims' Bill of Rights, as well as Lopez's First Amendment right to privacy. Judge Garrett Wong will decide at today's hearing whether or not to grant the delay.

In a letter last week to the attorneys representing the mayor, Canny said, "The only function that the video tape serves is to humiliate and embarrass Eliana Lopez. Is that really how the City of San Francisco wants to treat crime victims?"

Canny argued that releasing the video would set a dangerous precedent.

"In this instance, you seek a video tape in an effort to remove somebody from office," she wrote. "In another instance, perhaps you would seek to obtain a SART report from a rape victim as well as photographs from that person in order to discipline an employee who plea bargained a rape case into some non-sexual offense.... Who is to say that if the City Attorney's Office has a standing as a third party claimant to obtain materials, that a non-governmental third party entity would not have the same right?"

But Lee's attorney, Peter Keith, countered in a court filing yesterday afternoon that the video is "valuable evidence" of Mirkarimi's misconduct, as it "contains the victim's statement close [to] the Defendant's acts" and "shows the victim's demeanor accompanying that statement and the victim's injury."

This is especially valuable for the city attorney, because Lopez has defended her husband and has not cooperated with the investigation into his possible misconduct. Mirkarimi pleaded guilty to false imprisonment stemming from the December 31 domestic dispute.

Keith argued that Lopez's requests are not covered by the Victims' Bill of Rights, which, he wrote, "did not create any substantive rights other than the enumerated right to notice and to be heard regarding sentencing and other matters." The law, he claimed, does not include "the right to control dissemination of judicial records." He also stated that the privacy claims are not valid because the entire case, including the video tape, "have been subject to intense media coverage."

The video was filmed the morning after the dispute between Lopez and Mirkarimi. Lopez went to their neighbor Ivory Madison's house, and Madison told her to create the video so that she would have evidence of the bruise in the event of a custody battle. Madison later called the police to report the incident. The police obtained the video through a search warrant.

From the start, Lopez, who is currently in Venezuela, has asked for the video to remain private. She maintains that Madison, who has a law degree but is not a licensed attorney, broke a confidentiality agreement by contacting the police. In an April op-ed in the Chronicle, she wrote:

I sought legal advice from Ivory Madison about custody issues. I did not seek her help "as a friend." Ivory Madison promised me that our conversation was confidential and that the video that she advised me to make would be secret, to be used only in the event of a custody dispute.
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