Mirkarimi did not have to appear in court Wednesday because the judge excused him from attending the hearings and motions. Instead, it was his wife's day in court. Eliana Lopez and her lawyers are fighting to keep the 50-second video out of court. It shows her bruised arm and she appears to be in an emotional state. The video was taken by her neighbor Ivory Madison. Lopez went to her home after she and her husband, Ross Mirkarimi, argued on New Year's Eve.
Lopez now says she went to Madison because she wanted legal advice from her neighbor who has a law degree and so she thought their conversation would be confidential. "I'm here to assert my client's privilege, her right as a client, to restrain who she believed to be her attorney from disclosing things," explained Lopez's lawyer Paula Canny.
Lopez has refused to cooperate with the district attorney and has denounced the domestic violence charges as politically motivated.
The video is the prosecution's most critical piece of evidence. On Monday, Judge Garrett Wong denied Mirkarimi's motion to block it. On Wednesday, it was his wife's turn, claiming she had the attorney-client privilege of confidentiality, but the judge denied the motion saying that the attorney-client rights did not apply, in part, because the video was not being used as evidence against her.
Outside the courtroom, her attorney angrily voiced her disappointment. "It might be like, you know, a baseball manager commenting on a bad call by an umpire, but what I would like to do is kick dirt on it," Canny said.
On Wednesday afternoon, potential jurors were called to the Hall of Justice for an orientation meeting with Judge Wong. As expected, the form they have to fill out includes questions about domestic violence and whether they recognize the names of those associated with the case.
There is a very large jury pool of about 200 people in this trial. The reason for that is that it is difficult to get jurors to serve in domestic violence trials and this one appears to be no exception. By the late afternoon, about half of the jury pool was in the judge's court room asking to be excused for various hardship reasons.
Normally we don't see a jury questionnaire in a misdemeanor case like this, but this case involves the sheriff and has been highly publicized. The questionnaire may hold some clues as to how this trial may unfold.
ABC7 News obtained the questionnaire which asks potential jurors if they have been involved in a disagreement over child custody, visitation or support.
"We may very well hear testimony that disputes over the care or custody of the son [which] was the thing that led to all of this," ABC7 legal analyst Dean Johnson said.
The prosecution argues the couple's son, Theo, was present during the argument which led to the bruise on Lopez's arm. Johnson says the witness list includes a forensic pathologist, named Dr. Terry Haddix, who has testified in the past on the origins of scrapes and bruises.
"I would suspect she's going to testify probably as a defense witness about what 'really caused' Lopez's bruise on her arm," Johnson siad.
Lopez is refusing to cooperate with the district attorney and has denounced the domestic violence charges as politically motivated against her husband. Canny says she will appeal the judge's decision and hopes the appeals court will intervene by the end of the week.