San Francisco Sheriff Ross Mirkarimi made another appearance in court to face domestic violence charges today, hours after his attorney filed a motion asking a judge to exclude statements his wife made to neighbors that are key to the prosecution's case.
Mirkarimi has pleaded not guilty to misdemeanor charges of domestic violence battery, child endangerment and dissuading a witness in connection with a Dec. 31 incident in which he allegedly bruised the arm of his wife, Eliana Lopez, during an argument in which his 2-year-old son Theo was present.
Mirkarimi appeared in court for a brief pre-trial conference in advance of his trial date Friday, when the case will be likely be sent to a trial judge. However, actual trial proceedings will not begin until next week.
The trial judge, who has not been determined, will have to consider a motion filed by Mirkarimi's attorney Lidia Stiglich today in which she argued that statements Lopez made to neighbors Ivory Madison and Callie Williams in the days after the New Year's Eve incident should not be admissible in court.
Stiglich argued in the filing that exceptions that allow for out-of-court statements by a victim -- such as spontaneous statements made under duress -- do not apply to Mirkarimi's case since Lopez's statements were made many hours after the alleged incident.
Stiglich also argued that a 45-second video recorded by Madison of Lopez talking about the incident should be inadmissible because the video was meant to be used in a custody battle, not to prove she was criminally abused.
In the video, Lopez pointed to her arm and said, "This happened yesterday, um, the end of 2011, and this is the second time this is happening. And I tell Ross I want to work on the marriage, we need help, I have been telling him we need help, and I am going to use this just in case he wants to take Theo away from me. Because he did, he said that, that he's very powerful, and he can, he can do it," according to the filing.
Madison told police that Lopez only made the video to be used in case the couple divorced and had to go through custody proceedings, Stiglich wrote.
"I really thought that we would never have to use this video, uh, unless, (Mirkarimi) got nasty in the divorce proceedings," Madison said, according to the filing.
Stiglich wrote, "Lopez's stated fear that she would lose her son in a custody battle ... is clearly not a case where the declarant had 'no motive to deceive.'"
Stiglich also argued that Madison's statements about the case should not be admitted in the trial because she admitted to not listening closely during her conversation with Lopez.
She told police she "may be getting some of the details wrong because I certainly wasn't paying very close attention," Stiglich wrote.
She added that Madison also claimed Mirkarimi had taken Lopez to Monterey on Jan. 2 to isolate her after the incident, while the trip had in fact been planned a week earlier.
As for Lopez's statements to her other neighbor, Williams, which included a mention of another possible incident last March, Stiglich wrote that Williams told police that Lopez did not seem frightened and that her "main concern is her son," and that Lopez later texted her to say her previous statements were "too dramatic."
The motions were not discussed during this afternoon's brief hearing, at which Stiglich handed over some evidence to the prosecution for discovery.
Mirkarimi, who faces up to a year in jail and three years' probation if convicted of all charges, was initially ordered to stay away from Lopez and Theo when the charges were filed last month, although a family court judge ruled on Feb. 8 that he could have visits with his son.
Mirkarimi told reporters in court before the hearing that he is enjoying his visits with his son.
"He's my BFF," he said, adding that he hopes "this ends soon so we can get back to some semblance of normalcy."