SAN FRANCISCO When Sheriff Ross Mirkarimi returns to court on Friday to fight domestic-violence charges, the first order of business will likely be for a judge to decide whether prosecutors may introduce a key piece of evidence against the new San Francisco lawman.
At a pretrial hearing earlier this week, Mirkarimi's lawyers asked a judge to exclude a 45-second video a neighbor shot of his wife showing a bruise she said was the second such injury that her husband, 50, has inflicted on her.
A 17-page defense motion also argues that all the statements his wife, Venezuelan soap opera actress Eliana Lopez, made to neighbors the day after an alleged New Year's Eve argument are inadmissible under the so-called hearsay rule.
The defense attorneys say Lopez, 36, had protested that she was reluctant to make the video and only did so in case she and Mirkarimi separated and were involved in a battle for custody over their 2-year-old son Theo.
Lopez has said she does not wish to press charges against her husband. Consequently, her statements to neighbors, Ivory Madison and Callie Williams, and the video of Lopez's bruise are expected to be the prosecution's critical pieces of evidence against the embattled sheriff.
A trial on the misdemeanor charges was scheduled to begin on Friday. Mirkarimi was charged on January 13, five days after he was sworn in as the city's first new sheriff in three decades, with domestic violence battery, child endangerment and dissuading a witness. He pleaded not guilty a week later.
The incident in question stemmed from a quarrel the couple had over her plans to take their son on a trip to Venezuela, according to a police affidavit and Mirkarimi's attorney.
Police said Lopez went screaming into the street outside the couple's home and showed her neighbors a bruise on her arm.
Before Madison turned on the video camera, she told police officers, Lopez told her, "'I'm not gonna talk; I don't want to be on this tape,'" the defense motion says. But Lopez did talk.
The video shows a bruise on Lopez's arm while she says, "This happened yesterday, 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 ... said that ... he's very powerful, and ... he can do it."
Defense lawyers Lidia Stiglich and Mike Hinckley have argued that the only statements admissible as evidence if Lopez does not testify are spontaneous statements made under stress. The attorneys describe Lopez's statements to Madison and Williams as "the very antithesis of spontaneous declarations."
Mirkarimi, one of the founders of the California Green Party, served on the San Francisco Board of Supervisors before taking office as sheriff in January.
Earlier this month, a judge loosened court-ordered restrictions on contact between the sheriff and his son, approving an agreement between Mirkarimi and Lopez allowing him additional visitation with the boy, who turns 3 in April.
"I'm just hoping this ends soon so I have some semblance of normalcy," the sheriff told reporters during a courthouse appearance on Wednesday.
(Additional reporting and writing by Ronnie Cohen; Editing by Steve Gorman and Tim Gaynor)