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Judges Allow Video In Mirkarimi Abuse Trial, Lawyers Appeal Again

SAN FRANCISCO (CBS SF) - Defense attorneys for Sheriff Ross Mirkarimi Friday made a motion to have a key piece of video evidence excluded from his upcoming trial on domestic violence charges.

Defense attorney Lidia Stiglich filed a motion Friday saying the 55-second video, which reportedly shows Mirkarimi's wife Eliana Lopez crying and pointing to a bruise on her arm, should not be admissible because it violates Mirkarimi's right to cross-examine witnesses.

Mirkarimi, 50, faces charges of misdemeanor domestic violence battery, child endangerment and dissuading a witness in connection with a Dec. 31 incident in which he allegedly grabbed Lopez's arm during an argument, causing the bruise.

KCBS' Doug Sovern Reports:

While the video, which Lopez created with the help of neighbor Ivory Madison, has been admitted as a spontaneous admission, it was created as possible testimony in a criminal or family court proceeding, Stiglich said. But without testimony on the stand from Lopez, the defense can't properly respond to that testimony in the trial.

Lopez has publicly denied the allegations against Mirkarimi and refused to cooperate with prosecutors. The video and allegations against Mirkarimi came to light only because Madison chose to contact the police.

"I don't think any of us should agree that we should be tried by video," Stiglich said. "You can't cross-examine a video."

The motion is the second filed in an effort to exclude the video, which prosecutors have said is key to their case against Mirkarimi.

After Judge Garrett Wong allowed the use of the video last week, Lopez's attorneys filed an appeal of the ruling, arguing that Lopez was under the impression Madison was an attorney, and therefore the video should be excluded as the product of attorney-client privilege.

However, a three-judge panel from San Francisco Superior Court's appellate division Friday upheld Wong's ruling.

The panel sided with prosecutors, who argued that attorney-client privilege did not apply because Madison, who did attend law school, is not a licensed attorney. Prosecutors argued that Lopez never described Madison as anything other than a friend and neighbor prior to the filing of that motion.

Lopez's attorney Paula Canny appealed the ruling Friday to the state Court of Appeal, according to San Francisco Superior Court spokeswoman Ann Donlan. Canny could not be reached for comment Friday evening.

CBS 5 legal analyst and UC Hastings law professor Rory Little said the ruling is unlikely to be reversed by a higher appellate court. "It increases the pressure on Mirkarimi to try to negotiate a resolution of the case, as the evidence against him is now stronger," said Little.

Wong did not rule on Stiglich's motion Friday, or on a previous motion from the defense attorney seeking to move the trial to a different county. Stiglich has argued that extensive media coverage of the case has made it impossible for Mirkarimi to get a fair trial in San Francisco.

Wong did rule Friday that prosecutors can introduce testimony from University of California at Berkeley School of Law lecturer Nancy Lemon as an expert witness in the trial.

Lemon, who has written a standard textbook on domestic violence law, consulted on numerous legal cases and helped write state laws on the subject, will be allowed to testify on the typical behavior of domestic violence victims and abusers, Wong ruled.

In court on Friday, she testified that it was very common for victims of domestic violence to minimize or recant allegations, and that victims of abusers with prominent positions in society are even less likely to come forward. Speaking in general, rather than about the Mirkarimi case in particular, she said it was common for victims to avoid telling the police.

"In my experience, victims of abuse are more likely to tell someone who is close to them, whether that is a family member or neighbor or friend, than to tell someone in authority," Lemon said.

Mirkarimi's trial is expected to resume Monday with jury selection. A total of 144 jurors are expected to report for questioning, according to court officials.

(Copyright 2012 by CBS San Francisco and Bay City News Service. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.)

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