Third challenge to video in Ross Mirkarimi case 

click to enlarge Sheriff Ross Mirkarimi's lawyers filed a motion Friday seeking to prevent prosecutors from using a video made neighbor Ivory Madison. - S.F. EXAMINER FILE PHOTO
  • s.f. examiner file photo
  • Sheriff Ross Mirkarimi's lawyers filed a motion Friday seeking to prevent prosecutors from using a video made neighbor Ivory Madison.

Sheriff Ross Mirkarimi’s effort to prevent prosecutors from showing jurors a video of his wife with a bruise from an alleged New Year’s Eve domestic violence incident is continuing with a new challenge: that he can’t cross-examine his own wife about it in court.

The evidence, made by neighbor Ivory Madison, is vital to the prosecution, in light of statements by attorneys for Mirkarimi’s wife, Eliana Lopez, that she will refuse to testify against her husband.

The basis for the new motion, filed Friday by Mirkarimi’s attorneys, is a 2004 U.S. Supreme Court decision, Crawford v. Washington. The court ruled that a recorded pretrial statement made by a suspect’s wife to police that was used against him violated his Sixth Amendment right to confront witnesses because he could not cross-examine his wife, who was not required to testify.



In Mirkarimi’s case, his attorney Lidia Stiglich cited Lopez’s and Madison’s statements that the video was made for evidence if there were a future legal battle over custody of the couple’s young son. On the video, Lopez says Mirkarimi told her “he’s very powerful” and could take away the child from her.

“I don’t think any of us should agree that we should be tried by video,” Stiglich told reporters Friday. “You can’t cross-examine a video.”

Also on Friday, a Superior Court appellate panel denied a separate motion by Lopez’s attorneys to exclude the video. Lopez’s attorneys had argued that Lopez had gone to Madison, who has a law degree, for legal advice and thus the video was protected by attorney-client privilege.

Yet another motion by Mirkarimi’s attorneys that the video contained nonspontaneous hearsay statements also has been denied.

The trial judge has not yet ruled on the current motion. Jury selection in the case resumes Monday.

aburack@sfexaminer.com

Bay City News contributed to this report.

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