A three-judge panel ruled the video can be used as evidence in the domestic violence trial against Mirkarimi. Prosecutors must be breathing a sigh of relief. The appeals judge of the superior court made the decision quickly after receiving all of the motions and responses to this controversial but extremely critical piece of evidence.
The appeals division of the San Francisco courts denied the writ filed by the attorney for Eliana Lopez. They had asked the three-judge panel to overturn Judge Garrett Wong's decision allowing the video. The 50-second recording shows a crying Lopez pointing to a bruise on her arm, which she says was caused by her husband during an argument on New Year's Eve. Prosecutors say the video is their key piece of evidence as well as the testimony of Ivory Madison, the neighbor who recorded it.
Lopez's attorney Paula Canny had argued that her client believed Madison was a lawyer and that the video should be inadmissible under the attorney-client confidentiality law. Madison has a law degree, but is not a licensed attorney. The panel said in its order that the arguments in the writ were too broad and denied Canny's request.
"When you're seeking a writ on a trial judge's decision about the admission of evidence, appellate courts are very, very reluctant to second guess the trial judge on those kinds of issues," explained ABC7 legal analyst Dean Johnson.
Lopez has refused to cooperate with the district attorney and has denounced the charges against her husband as politically-motivated. On Friday afternoon, the judge heard a motion by prosecutors to include UC Berkeley law professor Nancy Lemon as an expert witness on domestic violence. Lemon has written a textbook on the issue and says she has interviewed more than 1,000 domestic violence victims. The judge will permit her to testify, but with limitations.
Late Friday, Mirkarimi's lawyer Lidia Stiglich filed yet another motion to disallow the video. She says since Lopez refuses to take the stand, Mirkarimi's lawyers cannot cross examine the testimony from the video. "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," she said.
Lopez has refused to testify without immunity and Judge Wong has refused to give her that immunity. Jury selection is slated for Monday. The potential jury pool consists of about 140 people.