Elections

steve@sfbg.com

Mayor Ed Lee and his attorneys are presenting a voluminous yet largely speculative case against suspended Sheriff Ross Mirkarimi in their effort to remove him for official misconduct, broadening the case far beyond their most damning core accusation -– that Mirkarimi dissuaded witnesses from telling police that he bruised his wife’s arm during an argument on Dec. 31. And so far, there’s no evidence to support that key allegation.

In fact, Mirkarimi and his attorneys insist there was no effort to dissuade witnesses, one of many unsupported aspects to a case they say should never have been filed without stronger evidence. And they say the mayor’s team is now compensating for the weakness of its case by piling on irrelevant accusations and witnesses in an effort that amounts to character assassination.

There are even signs that the city is nervous about its case. Knowledgeable sources told the Guardian that the City Attorney’s Office last week offered to settle the case with Mirkarimi, offering a substantial financial settlement if he would agree to resign, an offer that Mirkarimi rejected.

It was one of a series of rapidly unfolding developments that also included a raucous Ethics Commission hearing, the disclosure of phone records by Mirkarimi’s side, a new list of charges, and the city’s release of the video Mirkarimi’s wife, Eliana Lopez, made with neighbor Ivory Madison, documenting the bruise in case of a child custody battle over their son.

Lopez has maintained that Mirkarimi never abused her and that she’s been hurt most by the efforts to prosecute him and remove him from office.

“I hope they realize after reflection that what they have done is irreparable and perpetually damaging to me and my family,” Lopez said in a statement condemning the city’s release of a video that she fears will remain online for her children and grandchildren to see.

Yet all indications are this spectacle is only going to grow more sordid, divisive, and sensational as it moves forward — belying the statement Lee made last week as he introduced his annual budget: “As many of you know, I’m a person who does not like a whole lot of drama.”

SIMPLE OR COMPLEX?

The May 29 Ethics Commission hearing to begin setting standards and procedures for the official misconduct proceedings against Mirkarimi illustrated two sharply divergent views on when elected officials should be removed from office. It also displayed the increasingly bitter acrimony and resentments on each side, emotions only likely to grow more pronounced as the hearings drag on for months against the backdrop of election season.

Both sides would like to see the decision as a simple one. Lee and his team of attorneys and investigators say Mirkarimi’s bruising of his wife’s arm and his unwillingness to cooperate with their investigation of what followed make him unfit for office. Mirkarimi and his lawyers admit his crime, but they say that’s unrelated to his official duties and that the rest of Lee’s charges against him are speculative and untrue.

Yet there’s nothing simple about this official misconduct case — or with the implications of how each side is trying to counter the others’ central claims. So despite the stated desires of some Ethics commissioners to narrow the scope of their inquiry and limit the number of witnesses, San Franciscans appear to be in for a long, dramatic, and divisive spectacle, with Mirkarimi’s fate decided by the Board of Supervisors just a month or so before the five supervisors who have been his closest ideological allies face reelection. Nine of 11 votes are required to remove an official.

The Mayor’s Office wants to call the most witnesses and present an elaborate (and expensive) case that includes a number of outside experts on law enforcement and domestic violence, painting a portrait of Mirkarimi as a serious wife-batterer whose past and future actions can be divined from that malevolent distinction, making him obviously unable to continue as San Francisco’s chief law enforcement officer.

“The extent of the abuse was far greater than what Mr. Mirkarimi has testified to,” claimed Deputy City Attorney Peter Keith, going on to say “there were attempts to control what she ate,” an apparent reference to Mirkarimi’s decision not to take Lopez to a restaurant for lunch on Dec. 31 because they were having a heated argument. He also repeatedly referred to Mirkarimi as a batterer and said “batterers behave in a certain way.”

Mirkarimi attorney Shepard Kopp calls that portrayal exaggerated and unfair, ridiculing the Mayor’s Office claims that its domestic violence expert, attorney Nancy Lemon, can predict Mirkarimi’s behavior based on grabbing his wife’s arm once: “Apparently she’s some kind of clairvoyant in addition to being an expert,” Kopp told the commission as he unsuccessfully sought Lemon’s removal from the witness list.

Ethics Commission Chair Benedict Hur took the lead role in trying to limit the witness list, focusing on stripping it of the various law enforcement experts who plan to describe how different agencies might react to dealing with Mirkarimi. “What I don’t understand is how his ability to do his job relates to whether he committed official misconduct,” Hur said.

Mirkarimi’s team says its case could be very simple, with only Lee and Mirkarimi called as live witnesses — but the attorneys reserved the right to offer testimony to counter false or damaging claims made by the Mayor’s Office.

Hur tried to limit the case to just witnesses and arguments that relate to Mirkarimi’s actions, but he was outvoted by those who wanted to let the city argue how those actions would affect perceptions of Mirkarimi by the many people that a sheriff must interact with.

In the end, the commissioners agreed to trim the eight expert witnesses sought by the mayor down to three and to cut its 17 proposed fact witnesses down to 12, calling 15 total witnesses. Mirkarimi’s team will call 10 witnesses, down from an initial 17. All witnesses will submit written declarations and then be subjected to live cross-examination if any of their testimony is disputed.

EVIDENCE AND SPECULATION

The speculative and prejudicial nature of some of the city’s case was attacked at the hearing by Mirkarimi’s attorneys and the large crowd that came to support him.

Commissioner Paul Renne asked the Mayor’s Office attorneys why they hadn’t summarized the expected testimony of their expert witnesses and “How are any of those opinions relevant to the issues in this case?”

“I have not had time to work with the witnesses to see what their opinions are,” replied Deputy City Attorney Sherry Kaiser, prompting Kopp to incredulously note, “The mayor is preparing the expert witnesses without knowing what their testimony will be. How can I respond to that?”

The issues of bias and conflicts of interest also came up surrounding what sources should be called as witnesses. Mirkarimi’s team wanted longtime Sheriff Michael Hennessey, Mirkarimi’s predecessor, while the Mayor’s Office pushed for Acting Sheriff Vicki Hennessy to convey how the Sheriff’s Department should function.

“Vicki Hennessy was a political appoint of Mayor Lee,” Waggoner objected, although the commission decided to use that appointee.

On several critical procedural questions, the commission sided with the Mayor’s Office, ruling that the commission decision needn’t be unanimous, that guilt could be established based on a preponderance of the evidence rather than beyond a reasonable doubt, and that normal rules of evidence won’t apply, with some hearsay evidence allowed on a case-by-case basis.

The pro-mayor decisions angered the roughly 200 Mirkarimi supporters who packed the commission hearing and an overflow room, many bearing blue “We stand with Ross” stickers and flyers, which had “Respect Eliana” on the flip side. There were only a couple of Mirkarimi critics at the hearing wearing white “I support Casa de las Madres” stickers, referring to the domestic violence group that has been calling for Mirkarimi’s removal since shortly after the incident went public.

Mirkarimi got a rousing welcome from the crowd when he arrived at the hearing, his voice choking up and eyes welling with tears as he said, “I cannot tell you, on behalf of me and my family, how grateful we are.”

The crowd was boisterous during the proceedings, loudly reacting to some claims by the deputy city attorneys and offering comments such as “Ed Lee is the one you should put on trial,” with Hur finally recessing the hearing after an hour and having deputies warn audience members that they would be removed for speaking out.

Renne, a career litigator and the District Attorney’s Office appointee to the commission, raised the most doubts about both the standard of guilt and rules of evidence being lower than in criminal proceedings, telling his colleagues, “I have some reservations.”

PHONE LOGS

Mirkarimi’s team also released to the Chronicle and the Guardian redacted phone records from Mirkarimi, Lopez, and Linnette Peralta Haynes — a family friend and social worker who served as Mirkarimi’s last campaign manager. The city has sought to portray Haynes, who has not been cooperating with the investigation, as a conduit to Mirkarimi’s efforts to dissuade Lopez and Madison from going to the police on Jan. 4.

Mirkarimi previously told the Guardian that he was unaware that Lopez had told Madison about the abuse incident or that they had made a video of her injury until several hours after Madison had called the police and they had come to the house to talk to Lopez, during which time Mirkarimi was in a series of meetings at City Hall.

The phone records seem to support that claim. They show that Lopez and Haynes — who is close to Lopez and recently went to Venezuela to visit her — exchanged a series of telephone calls on Jan. 4 starting at 11am. Their longest conversation, nearly 40 minutes, occurred at 11:18am.

Neither woman could be reached to describe the substance of that call. At 12:24pm, Lopez sent Madison — with whom she had been communicating by phone and text over the previous couple days — a text message indicating that she didn’t want Madison to report the incident to police, but that she would instead go to her doctor to document the injury.

A minute later, Madison called the police to report that Lopez had been abused by Mirkarimi.

Starting an hour later, the records show, Haynes and Lopez called each other but didn’t connect until 3:31, when they had a nearly 14-minute phone conversation, presumably discussing the fact that police had visited the house, with Lopez reportedly giving the phone to Madison at one point so Haynes could talk to her.

Yet the phone records indicate that neither Lopez nor Haynes tried to reach Mirkarimi until after that conversation, despite the city’s claims that Mirkarimi “or his agents” used his power to dissuade witnesses, most notably Lopez and Madison. The first attempt to reach Mirkarimi was at 3:46pm when Haynes called him twice but didn’t connect. Lopez then sent Mirkarimi a text message at 3:53pm asking “Where are you and where is the car,” but she got not reply. She texted him again at 4:18pm to say “Call me. It’s an emergency.”

Lopez made one last appeal to Madison in a 4:18pm phone conservation that lasted four minutes and 27 seconds and then she finally reached Mirkarimi by phone at 4:23pm. Mirkarimi and attorney David Waggoner say this is the first time that he became aware that Lopez had talked to neighbors and that the police had been called. Their conversation lasted a little more than five minutes.

Mirkarimi called Haynes at 5:12pm and they spoke for seven minutes. At 5:51pm, an increasingly panicked Lopez sent a text to Mirkarimi saying, “You have to call [Sheriff Michael] Hennessey and stop this before something happen. Ivory is giving the investigators everything. Use your power.” To which Mirkarimi responded 10 minutes later, “I cannot. And neither can he. You have to reject Madison’s actions. We both do. I cannot involve new people.”

NEW CHARGES

On June 1, the city released an amended list of charges against Mirkarimi that was intended to be a more specific list of accusations, as Waggoner requested during the May 29 Ethics Commission hearing. In it, the city asserts that the charter language essentially gives the city two avenues by which to remove officials, defining distinct “wrongful behavior” and “required conduct” clauses. Violation of either, they contend, is enough to remove an official.

“Official misconduct means any wrongful behavior by a public officer in relation to the duties of his or her office, willful in its character, including any failure, refusal or neglect of an officer to perform any duty enjoined on him or her by law…,” begins the charter language. This “wrongful behavior” section has long been in the charter, referring to specific actions by public officials to neglect their duties.

The second “required conduct” clause of this sentence — which was created in 1996, never vetted by the courts, and which Mirkarimi’s attorneys say is unconstitutionally vague — continues, “…or conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers and including any violation of a specific conflict of interest or governmental ethics law.”

In trying to indict Mirkarimi for actions before he was sworn in as sheriff, the city attempts to argue that his official duties really began with his election, claiming that in this interim period he “had the duty and the power in his official capacity as Sheriff-Elect to work with the Sheriff’s Department and its officials to prepare himself to assume the full duties of Sheriff.” And if that’s not enough, the city argues that he was chair of the Board of Supervisors Public Safety Committee during that same Nov. 8-Jan. 8 time period, further subjecting his actions to official misconduct scrutiny.

The “wrongful actions” charges against Mirkarimi were listed in the document as domestic violence, abuse of office, impeding a police investigation, and “crime, conviction, and sentence,” while the “breach of required conduct” charges were listed simply as his sheriff and supervisorial roles.

The document then attempts to paint an expansive portrait of the Sheriff’s official duties, going beyond the narrow construction of the charter to include the general law enforcement duties listed in state law, interactions with various government and nonprofit groups, administrative responsibilities as a city department head, and passing mentions in the California Family Code that police officers “must enforce emergency protective orders in domestic violence cases.”

Yet the promise that the rest of the document would detail Mirkarimi’s wrongful actions with greater specificity than the previous list of official charges doesn’t seem to be met by this document, which repeats the same narrative of actions that Waggoner had criticized for vagueness.

For example, on the pivotal charge that he dissuaded witnesses and impeded the police investigation, the new charges say that during the period from Dec. 31-Jan. 4, “Sheriff Mirkarimi participated in and condoned efforts to dissuade witnesses from reporting this incident to police and/or cooperating with police investigators,” without describing any specific witnesses or actions that he took.

And by the mayor’s team’s own admissions, the prosecutors don’t know what Mirkarimi did to dissuade witnesses, which they hope to learn through future testimony.

The closest the new document comes to directly tying Mirkarimi’s actions to the official misconduct language is with Mirkarimi’s plea to a misdemeanor false imprisonment charge: “False imprisonment of a spouse is a crime of domestic violence. The California Penal Code considers spousal abuse to be a ‘crime against public decency and good morals.'”

Mirkarimi disagrees with that interpretation, noting that he and his attorneys specifically considered whether pleading to false imprisonment -– a general charge with many possible meanings -– would violate the city’s official misconduct provisions, and he told the Guardian that he was assured by his attorneys it didn’t. Mirkarimi told us he would not have entered the plea and would have instead fought the charges in court if he thought it would disqualify him from serving as sheriff.

Waggoner told us that “The Mayor’s Amended Charges are further evidence that this entire ordeal is a political hatchet job reminiscent of a Soviet show trial. Far from being a careful analysis of any actual evidence, the new charges are vague, redundant, and conflate the offices of Sheriff and Supervisor.”

But ultimately, the case against Mirkarimi is a political one, not a legal case subjected to the normal standards of evidence and procedure. And whether Mirkarimi keeps his job will be a decision made by politicians based on a variety of factors, some of which have little relation to whatever happened on Dec. 31 and Jan. 4.

What’s next: the Ethics Commission will meet on June 19 to rule on more of the outstanding issues in the case and begin hearing testimony. To review the long list of documents from the case, visit www.sfethics.org.