After Sheriff Ross Mirkarimi pleaded guilty to a misdemeanor charge of false imprisonment in connection with an argument he had with his wife, Mayor Ed Lee suspended him and brought charges to remove him for official misconduct. Mirkarimi exercised his right to contest the removal before the San Francisco Ethics Commission and Board of Supervisors.
The City Attorney’s Office argues that Mirkarimi’s conduct necessitates his removal on four grounds: The sheriff engaged in dissuasion of witnesses. The sheriff will be compromised in handling probationers in jail, because he is one himself. The sheriff supervises cases involving domestic violence. And the conviction for false imprisonment is an offense of “moral turpitude.” (The last argument is not true; in California, even involuntary manslaughter is not a crime of moral turpitude.)
The City Attorney’s Office criticizes Mirkarimi for not cooperating with a law enforcement investigation. However, the sheriff faced the possibility of a serious misdemeanor prosecution. In light of that, Mirkarimi exercised his constitutional rights, including the Fifth Amendment right to remain silent and Sixth Amendment right to counsel. The prosecution had the entire burden of proving its case beyond a reasonable doubt, and the sheriff had no responsibility to aid those who sought to convict him. These rights trump whatever duty a law enforcement officer may ordinarily have.
The City Attorney’s Office further claims that the sheriff engaged in dissuasion of witnesses. Yet, after a lengthy investigation by the mayor, there is no evidence that Mirkarimi counseled any witness, directly or indirectly, not to cooperate with an active police investigation. The fact that the sheriff and his wife sought a private resolution of their dispute does not amount to dissuasion.
Let us return to the second and third points. We are personally aware of many state and federal judges who were placed on probation for misdemeanor offenses and continued to serve effectively and honorably. We know of a judge who was placed on diversion for domestic violence. Certainly, as role models, they failed. Nevertheless, we know that these judges did not favor policies that would benefit themselves. They were allowed to make their amends, and the public benefited greatly from their continued service. The same opportunity should be accorded to Mirkarimi.
While domestic violence should not be taken lightly or minimized, neither should it be blown out of proportion. Based on Eliana Lopez’s testimony before the Ethics Commission, the involved offense was no more than a “technical battery” in a domestic violence setting. There was no evidence that the sheriff intended to inflict either pain or injury upon his wife. It is telling that the district attorney settled for a plea to a lesser offense that was only tangentially related to the original filed charges, i.e., false imprisonment for not allowing his wife out of the car. If the District Attorney’s Office had a solid and serious domestic violence case, they would have pursued it.
Hence, the Ethics Commission should ponder whether the sheriff’s conviction and probation warrant his removal under the City Charter, a five-year bar to city employment and a possible loss of his accumulated pension and health benefits. In other words, is the punishment proportionate to the offense at hand? We submit that it is not.
In our respective careers, we were exposed to the problems that both men and women had in the offices they held. We found ourselves listening to the informal confessions of elected and appointed officials, as well as the members of our community. After we gave counsel, we always reflected upon the fact that none of us is perfect.
The removal of the sheriff would be out of proportion to the nature of his offense. Therefore, the Ethics Commission should recommend to the Board of Supervisors that the mayor’s charges be rejected.
Geoffrey F. Brown was the elected San Francisco public defender from 1979 to 2001 and is currently a professor of law at Bay Area law schools. Ramin Naderi-Alizadeh was his legal and administrative assistant from 1991 to 1993 and is currently a criminal defense and civil rights attorney.
This article was corrected on August 15. The original article incorrectly stated that voluntary manslaughter is not a crime of moral turpitude in California.