English
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 BEFORE THE ETHICS COMMISSION
2 CITY AND COUNTY OF SAN FRANCISCO
3 STATE OF CALIFORNIA
4
5 In the Matter of Charges Against
6 ROSS MIRKARIMI,
7 Sheriff, City and County of San Francisco
8
9
10
11 City and County of San Francisco
12 Special Meeting of the Ethics Commission
13 Tuesday, June 19, 2012 - 5:00 p.m.
14
15
16 VOLUME III
17 (Pages 387 - 572)
18
19
Reported by: Jeannette Samoulides, CSR #5254
20
21
22 BONNIE WAGNER & ASSOCIATES
Certified Shorthand Reporters
23 1819 Polk Street, Suite 446
San Francisco, California 94109
24 (415) 982-4849
25
387
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 BE IT REMEMBERED that, on Tuesday, the 19th day
2 of June, 2012, commencing at the hour of 5:00 o'clock
3 p.m. thereof, at the CITY HALL, 1 Dr. Carlton B. Goodlett
4 Place, Room 400, San Francisco, California, before me,
5 JEANNETTE SAMOULIDES, a Certified Shorthand Reporter, for
6 the State of California, the following proceedings were
7 had
8 ---oOo---
9 APPEARANCES OF COUNSEL
10 For Sheriff Ross Mirkarimi
11 LAW OFFICES OF SHEPARD S. KOPP
11355 W. Olympic Boulevard, Suite 300
12 Los Angeles, California 90064
BY: SHEPARD S. KOPP, Attorney at Law
13
- and -
14
LAW OFFICES OF DAVID P. WAGGONER
15 2251 Market Street, Suite B
San Francisco, California 94114
16 BY: DAVID P. WAGGONER, Attorney at Law
17 For the City and County of San Francisco
18 Office Of The City Attorney
1390 Market Street, Fifth Floor
19 San Francisco, California 94102
BY: PETER J. KEITH, Deputy City Attorney
20 BY: SHERRI SOKELAND KAISER, Deputy City Attorney
21 For the Ethics Commission Board
22 MOSCONE, EMBLIDGE & SATER, LLP
220 Montgomery Street, Suite 2100
23 San Francisco, California 94104
BY: G. SCOTT EMBLIDGE, Attorney at Law
24
25 ---oOo---
388
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Commissioners Present
2 Benedict Y. Hur, Commissioner Chairman
Jamienne S. Studley
3 Beverly Hayon
Dorthy S. Liu
4 Paul A. Renne
5 Staff Present
6 John St. Croix, Executive Director
Garrett Chatfield, Legal Analyst/Ethics Investigator
7 Mabel Ng, Deputy Executive Director
8
9 ---oOo---
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
389
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Sheriff Ross Mirkarimi June 19, 2012
2 ---oOo---
3 P R O C E E D I N G S
4 COMMISSIONER HUR: I'd like to call this
5 special meeting of the Ethics Commission to order.
6 Welcome to this special meeting of the Ethics
7 Commission. We'll begin by taking roll.
8 (Roll taken.)
9 COMMISSIONER HUR: All members of the
10 Commission are present.
11 We are here to conduct the evidentiary hearing
12 relating to the official misconduct charges that were
13 instituted by the mayor against the sheriff.
14 Couple things I'd like to announce before we
15 begin discussing the evidentiary objections that were
16 submitted by the parties.
17 The first is that because this is going to be
18 one continuous hearing, we will not be taking public
19 comment today. We'll be taking public comment at the end
20 of the evidentiary portion of the hearing.
21 Based on witness -- what witnesses -- which
22 witnesses are called to testify, which experts are
23 included, the evidentiary portion of the hearing could be
24 over as early as June 29th, although, again, it depends
25 in large part on how the evidence comes in and which
390
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 witnesses are actually called to testify.
2 The second issue I'd like to raise is one that
3 was raised at the last hearing. We appreciate the
4 public's attendance at this hearing. It's important that
5 the public is here and we certainly welcome the public to
6 be here.
7 That said, we are trying to conduct a hearing;
8 that is, we are required to conduct under the Charter.
9 And as a result, if we could keep comments and any noises
10 from the crowd to a minimum we'd appreciate it.
11 We have the -- we have law enforcement here to
12 help us in that regard, but I hope that it will not be an
13 issue today.
14 The first thing I'd like to address are the
15 sheriff's objections to the mayor's witness declarations.
16 The mayor submitted a number of declarations.
17 To me, I think we will -- we may be able to handle this
18 most efficiently if we actually start with the
19 declaration of Vicki Hennessy, because in my view what
20 happens with respect to Vicki Hennessy could affect how
21 much of the other declarations we actually need in this
22 case.
23 Given that the sheriff has submitted his
24 objections, I'd invite the mayor to respond to the
25 objections that were propounded with respect to Vicki
391
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Hennessy.
2 MS. KAISER: Thank you, Commissioners.
3 Sherri Kaiser appearing for the mayor.
4 (Microphone adjustment.)
5 Thank you. Is that better?
6 Sherri Kaiser appearing for the mayor.
7 Honestly, I'm a bit at a loss to address the
8 objections to the declaration of Sheriff Hennessy because
9 the declaration is that the duties and powers of the
10 sheriff, as contained in this declaration, are all
11 irrelevant, and I don't understand that objection,
12 because one of the elements that we have to prove is that
13 the misconduct occurred in relation to the duties of
14 office. And in order to do that, we need to provide
15 evidence to you of what the duties of office actually
16 consist of, and the acting sheriff certainly has a
17 foundation and a knowledge to tell you what the duties of
18 the office of sheriff are.
19 And, I believe, unless you or Sheriff Mirkarimi
20 has questions, that the declaration is fairly limited to
21 an explanation of what those duties are, how the office
22 functions, and also standards of professional conduct for
23 the sheriff as the sheriff understands them to be a duty
24 of her office.
25 COMMISSIONER HUR: Questions from the
392
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Commissioners for Miss Kaiser?
2 Mr. Kopp or Mr. Waggoner, do you have a
3 response?
4 MR. KOPP: Yes.
5 Good evening, Commissioners.
6 Our objection to the majority of the
7 declarations by Acting Sheriff Vicki Hennessy is founded
8 on the fact that we have a very different view of what
9 the duties of the sheriff are than the mayor appears to
10 have, and we take more of a literalist or strict
11 instructionist approach, and we think that the duties of
12 the sheriff are those spelled out in the Charter, and
13 that's why we didn't object to that portion of her
14 declaration.
15 And that most of the rest of what Acting
16 Sheriff Hennessy has to tell you is really going to be
17 irrelevant to your determination of whether or not what
18 he is charged with doing constitutes official misconduct
19 and is related to those specific duties enumerated under
20 the Charter.
21 Much of the rest of this is an encrustation or
22 an enlargement of those core duties. So that that's the
23 basis for our objection.
24 COMMISSIONER HUR: Any questions of Mr. Kopp
25 from the Commissioners?
393
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Thank you, Mr. Kopp.
2 MS. KAISER: May I respond?
3 COMMISSIONER HUR: No.
4 I think that -- I understand the parties have a
5 different view on whether and to what degree the actions
6 in this case have to relate to the sheriff's duties, but
7 I do think that given that there's a legal dispute about
8 that, and that the declaration of Vicki Hennessy does
9 purport to relate to the duties of the sheriff, that the
10 declaration of Vicki Hennessy should be admitted and that
11 the sheriff should be given an opportunity to
12 cross-examine if -- if he so chooses.
13 I welcome the thoughts of my fellow
14 Commissioners with respect to the Hennessy declaration.
15
Commissioner Liu.
16 COMMISSIONER LIU: I agree that the job duties
17 of the sheriff are at issue, and so it seems like both
18 parties are in agreement that that is at issue, and so
19 whether we have competing and different facts about that,
20 I think that -- that is relevant and that should come in.
21 COMMISSIONER HUR: Any dissenting view as to
22 the admissibility of Vicki Hennessy's declaration.
23 Like we did last time, I think what we should
24 do is not take a vote on every one of these, but at the
25 end we'll take a vote on all the decisions that we're
394
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 making, and I would ask either Miss Ng or Mr. Emblidge to
2 help us keep track of what specific decision's been made.
3 Okay. Next I would like to --
4 COMMISSIONER RENNE: Mr. Chairman?
5 COMMISSIONER HUR: Yes.
6 COMMISSIONER RENNE: It seems to me it probably
7 would be better if we did -- for example, I think there's
8 no objection by any members of the Commission to the
9 introduction of the Interim Sheriff Hennessy to go on
10 record at that point. Because the problem of trying
11 to -- we've got an awful lot of these we're going to have
12 tonight and some may get lost.
13 I think if -- if there isn't any objection or
14 if we agree -- if we agree with your ruling, I would
15 prefer that we indicate on the record that there's no
16 objection.
17 COMMISSIONER HUR: Any dissenting view to that?
18 Okay. I'm happy to do that.
19 Is -- is there a motion to admit the
20 declaration and exhibits of Vicki Hennessy?
21 COMMISSIONER STUDLEY: So moved.
22 COMMISSIONER HUR: Second?
23 COMMISSIONER HAYON: Second.
24 COMMISSIONER HUR: All in favor?
25 (Commissioners in unison said "aye.")
395
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: Opposed?
2 The motion passes.
3 Next I think we should address the declaration
4 of Paul Henderson.
5 Miss Kaiser or Mr. Keith would you like -- do
6 you have anything to say?
7 MS. KAISER: Yes. Thank you, Commissioner.
8 Once again, this declaration has been objected
9 to in its entirety on relevance grounds, and I suspect
10 that the issues are similar to the last declaration that
11 we just covered, but, again, there was no explanation of
12 what the relevance objection was exactly.
13 Mr. Henderson's declaration goes to city
14 operations, of which the sheriff's department is a part.
15 It goes to the city's efforts to combat
16 domestic violence, how city agencies have collaborated in
17 that effort together and with the community. And it
18 explains that the sheriff has a duty and a responsibility
19 in regard to that citywide work.
20 And it concludes with the factual observation
21 that community members, domestic violence advocates who
22 are working directly with Deputy Chief of Staff Henderson
23 and are informing him of their efforts, are no longer
24 willing to work with the sheriff's -- with the sheriff if
25 Ross Mirkarimi is at the table, because of the incidents
396
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 that are under consideration by the Commission.
2 I believe that is, once again, relevant to the
3 duties of the sheriff's office. It may be that
4 Sheriff Mirkarimi does not agree that collaborating with
5 other agencies or the community in the way that has taken
6 place so far is one of the duties of the sheriff's
7 office, but this is evidence that it is. And I think it
8 is relevant for that reason. Even if the Commission
9 finds to the contrary, this evidence is relevant.
10 As for the final three paragraphs which are
11 objected to as speculative, lacking foundation, and
12 purporting to be an opinion, they're actually not
13 speculative. They're a recitation of the facts that
14 Mr. Henderson has learned in his official capacity as the
15 Director of Public Safety, issues for the mayor's office.
16 And they also recite the conclusions from a
17 number of city reports that have been generated as
18 official city documents about the ways in which combating
19 domestic violence in San Francisco can be successful or
20 can fail.
21 COMMISSIONER HUR: Thank you, Miss Kaiser.
22 Any questions for Miss Kaiser from the
23 Commission?
24 Would -- would someone from the sheriff's team
25 like to respond?
397
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1
MR. KOPP: Yes, please.
2 COMMISSIONER HUR: Mr. Kopp.
3 MR. KOPP: Thank you.
4 To enlarge on our objection, again, this is
5 part of the mayor's effort to expand the duties of the
6 sheriff. And the reason for that is clear, because it
7 makes it easier for the mayor to prove his case.
8 But the problem that we have, particularly with
9 this declaration by Mr. Henderson, is he's telling you
10 about these fundamental responsibilities that the sheriff
11 has that are nowhere to be found in the Charter. And so
12 that's the reason why we object that there isn't a
13 foundation for this.
14 Mr. Henderson wants to tell you that the
15 sheriff has to convey to the public that domestic
16 violence is a serious matter, of public concern, that is
17 never acceptable.
18 Well, maybe he does and maybe he doesn't. I'm
19 not saying that Sheriff Mirkarimi would never say that it
20 wasn't a serious matter, but if a sheriff were to take
21 office and not come right out or at any time during his
22 tenure -- his or her tenure and say domestic violence is
23 a serious issue that has to be taken seriously, I'm
24 pretty sure that sheriff would not be subject to removal
25 from office for violation of his official duty, and
398
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 that's the problem with this declaration. That it
2 purports to add to the actual duties of the sheriff, and
3 I think in a clearly improper way.
4 And so those are the bases for our objections.
5 COMMISSIONER HUR: Any questions for Mr. Kopp?
6 Thank you, Mr. Kopp.
7 My view on Mr. Henderson's declaration is that
8 while very informative, I don't think it's relevant to
9 what we're -- the task that we have. He is not in -- in
10 a position to tell us what the duties are of a sheriff.
11 And I think to the extent we need to know those duties,
12 we can get them from the sheriff or from Vicki Hennessy.
13 So I'm -- I am inclined to sustain the
14 objection to Mr. Henderson's declaration.
15 With respect to the objections to Paragraph 16
16 through 18, I -- I agree with the relevance objection.
17 I -- I also agree with the foundational objection to
18 Paragraph 17 and 18.
19 I welcome the views of my fellow Commissioners
20 with respect to the declaration of Paul Henderson.
21 MR. RENNE: I would move that we not admit the
22 declaration of Paul Henderson.
23 COMMISSIONER HUR: Is there a second?
24 COMMISSIONER HAYON: Second.
25 COMMISSIONER HUR: All in favor?
399
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 (Commissioners in unison said "aye.")
2 COMMISSIONER HUR: Opposed?
3 There being none, the motion passes. The
4 declaration of Paul Henderson will be excluded from
5 evidence.
6 The next declaration is the declaration of
7 Wendy Still.
8 Miss Kaiser, would you like to address that?
9 MS. KAISER: Yes, please. Thank you,
10 Commissioner.
11 I would like to offer to the Commission that to
12 the extent foundational objections are being offered, one
13 way that we can address those is by having the witness
14 testify and explain to you what the foundation is, and
15 that's often the case in court, that it can be handled
16 like that. So I suggest that as an alternate strategy
17 for resolution on foundation issues.
18 In terms of the declaration of Chief Probation
19 Officer Wendy Still, she, again, has testimony of direct
20 relevance.
21 She, again, can offer testimony about
22 Sheriff Mirkarimi, and his probation in particular, which
23 is part of our showing of misconduct for a -- gosh, the
24 term is escaping me, I'm sorry. I was going to quote the
25 actual words. But in any event, she can -- she can
400
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 provide evidence of that.
2 She also provides evidence of the relationship
3 between that misconduct and the duties of the sheriff,
4 not just any sheriff, but Sheriff Mirkarimi, who will be
5 reporting to her as a probationer if he remains in
6 office, and as he already is, but he will also be sitting
7 at the table with her in terms of collaborating on
8 important fundamental policy matters, like realignment
9 and other issues that affect multiple criminal justice
10 agencies.
11 With due respect, the mayor retains the
12 position that the sheriff is not an island and does have
13 duties to cooperate and collaborate with other city
14 agencies. Adult probation is one of them. And it's
15 actually a very important collaborative role.
16 It is in the mayor's view that both the duties
17 of the sheriff and the information about probation that
18 are contained in Miss Still's declaration are relevant
19 and admissible.
20 COMMISSIONER HUR: Thank you, Miss Kaiser.
21 Any questions for Miss Kaiser from the
22 Commission?
23 Mr. Kopp or Mr. Waggoner?
24 MR. KOPP: Thank you.
25 Once again, I'm going to probably do this more
401
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 than once. I'm trying to focus the Commission's
2 attention on what we think are the real issues here.
3 And the real issues are not whether or not
4 there's going to be a difficulty presented by having a
5 sheriff on domestic violence probation, because that
6 really doesn't relate at all to the inquiry is this
7 official misconduct?
8 So again, for many of the same reasons that we
9 argued against the admission of Mr. Henderson's
10 declaration, we don't think that this sheds any light on
11 the issues that you've got to decide. And for that
12 reason, other than the portions that we agree are
13 relevant, Paragraphs 19 through 22 and the specified
14 exhibits, we don't think this should come into evidence.
15 COMMISSIONER HUR: Questions for Mr. Kopp?
16 MR. RENNE: Mr. Kopp, is it your position that
17 the fact that the sheriff would be on probation during
18 the time that he's in office is irrelevant to the
19 question of whether or not the mayor acted properly in
20 saying he couldn't carry out the duties of sheriff?
21 MR. KOPP: Well, I think I would have to answer
22 by saying that I take issue with one of the premises of
23 the question, because the inquiry is not could he fulfill
24 the duties of sheriff. I don't think that's what the
25 Commission needs to decide or should decision.
402
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 I think the inquiry is: Was what he did
2 official misconduct? I mean, you know, in politics,
3 people may get elected that don't get along with other
4 members of the city power structure, and they may work
5 well together or they may not. And I see this -- this
6 question that you pose in the same light.
7 MR. RENNE: Well, my question, though, is:
8 That even if you find somebody committed official
9 misconduct, it isn't absolutely necessary that he or she
10 is put out of office. There could be other forms of
11 punishment. We know that's happened, okay.
12 It isn't -- so you have to focus on, don't you,
13 the fact that, one, is it official misconduct? And if
14 you say, yes, it is, does the fact that he committed this
15 act in some way adverse his ability or her ability to
16 carry out the duties of the office? Isn't that an issue?
17 MR. KOPP: Well, respectfully I would answer
18 that, no, it's not.
19 COMMISSIONER HUR: Any other questions for
20 Mr. Kopp?
21 Thank you, Mr. Kopp.
22 My view on Miss Still is that the objections to
23 Paragraphs 1 through 18 should be sustained.
24 There being no objection to Paragraphs 19
25 through 22 or Exhibits 36 through 41, I think that
403
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 testimony should be admitted.
2 I am cognizant of the concern that Mr. Renne,
3 and I believe other members of the Commission have
4 voiced, about the relevance of the effect that the
5 mayor's conduct -- that the sheriff's conduct may have on
6 his ability to perform his job being relevant to the
7 inquiry of whether his acts relate to his duties.
8 I think I've expressed the view that I don't
9 think that the consequences of those acts are relevant to
10 whether or not the actions were official misconduct, but
11 given the -- given the diversion of views by the
12 Commission previously, I think it is help -- it would be
13 helpful to admit the first sentence of Paragraph 26, and
14 Paragraphs 27 -- I'm sorry, I would admit the -- starting
15 with the second paragraph -- second sentence of Paragraph
16 26, to the remainder of Paragraph 26, and Paragraph 27.
17 So to be clear, my proposal is that we sustain
18 the objection to 1 through 18 and exhibits cited therein,
19 the first sentence of Paragraph 26, and Paragraph 28.
20 I welcome the views of my fellow Commissioners.
21 Miss Kaiser, if you could please take a seat.
22 We've given you an opportunity to speak, and if any
23 Commissioner wishes to ask you a question, we will ask
24 you.
25 Any questions for the parties from the
404
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Commissioners or comments?
2 Commissioner Studley.
3 COMMISSIONER STUDLEY: I have a comment about
4 why this seems challenging to me, and it relates to the
5 last part of the definition of official misconduct, which
6 we haven't yet parsed, and I expect will be a very
7 challenging interpretation of what the voters intended.
8 But the language about conduct that falls below
9 the "standard of decency, good faith, and right action,
10 impliedly required of all public officers," is important
11 to me in determining -- in relation to some of these
12 statements, and some of the information, because while at
13 this point I am with you on not thinking about the
14 consequences of the action, I'm wondering whether there's
15 something embedded in the conduct requirement about good
16 faith and right action about the capacity to carry out
17 the job going forward that we might want to have the
18 basis for discussing later when we review this
19 interpretation.
20 So I'm hesitant to be too narrow in bringing in
21 the facts that we may need later when we talk about how
22 to interpret the conduct that falls below the standard of
23 good faith and right action required of all public
24 officers, a few words deleted.
25 COMMISSIONER HUR: So -- and in that vein, in
405
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 my attempt to be sensitive to that concern --
2 COMMISSIONER STUDLEY: Uh-huh (affirmative).
3 COMMISSIONER HUR: -- I don't think 1 through
4 18 will help us in that regard.
5 I think that those -- to me those paragraphs
6 are about what it means to be chief of a PD and I don't
7 think that's relevant to our inquiry.
8 COMMISSIONER STUDLEY: Uh-huh (affirmative).
9 COMMISSIONER HUR: So I think what we're
10 talking about are Paragraphs 25 through 28.
11 COMMISSIONER STUDLEY: Right.
12 COMMISSIONER HUR: I --
13 COMMISSIONER STUDLEY: No. 25, the end under --
14 COMMISSIONER HUR: No, 25 would not. And my
15 reasoning on 25 -- yeah, I mean, it seemed -- it seems
16 fairly conclusory in general, to me much more prejudicial
17 than probative, but it does address the issue that you
18 and Mr. Renne have identified. So I understand the
19 concern with respect to those paragraphs.
20 COMMISSIONER STUDLEY: Can you just restate
21 what you would keep?
22 COMMISSIONER HUR: I would keep beginning with
23 the second sentence of Paragraph 26, through the
24 remainder of that paragraph, and all of Paragraph 27.
25 COMMISSIONER STUDLEY: I'm fine with that.
406
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER LIU: I would be fine with that
2 too.
3 I do think -- I was struggling with Paragraph
4 25. I do think it's speculative and conclusory. So I
5 would be fine if we could keep in what you said -- the
6 portions you said, Paragraphs 26 and 27, and the
7 paragraphs that are not objected to by the sheriff.
8 COMMISSIONER HUR: Is there a motion with
9 respect to the declaration of Wendy Still?
10 COMMISSIONER STUDLEY: So moved.
11 COMMISSIONER HUR: Is there a second?
12 COMMISSIONER LIU: Second.
13 COMMISSIONER HUR: All in favor of sustaining
14 the objection to Paragraphs 1 through 18, and to the
15 first sentence of Paragraph 26, and Paragraph 28?
16 All in favor?
17 (Commissioners in unison said "aye.")
18 COMMISSIONER HUR: Opposed?
19 Hearing none, the motion passes.
20 Paragraphs 1 through 18 are excluded.
21 The first sentence of Paragraph 26 is excluded.
22 Paragraph 28 is excluded.
23 Paragraphs 19 through 22 are admitted, as well
24 as Exhibits 36 through 41, and Paragraph 26 beginning
25 with the second sentence and continuing through the end
407
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 of Paragraph 27.
2 COMMISSIONER HAYON: What about Paragraph 25?
3 COMMISSIONER HUR: Paragraph 25 is excluded.
4 COMMISSIONER HAYON: Okay.
5 COMMISSIONER HUR: The next declaration is the
6 declaration of Richard Daniele.
7 Miss Kaiser.
8 MS. KAISER: I would actually like to make an
9 objection for the record, Commissioner.
10 You have gone paragraph by paragraph through a
11 declaration based on objections in which we had no
12 notice, without any opportunity for us to comment.
13 I do have explanations for why, based on your
14 objections, some of that testimony is admissible, and I
15 would have appreciated, for my client's sake, the ability
16 to explain those to the Commission.
17 So I object to the procedure of entertain
ing
18 objections that were not raised by the sheriff without
19 giving the mayor an opportunity to speak.
20 Thank you.
21 COMMISSIONER HUR: Miss -- so you have nothing
22 with respect to Mr. Daniele?
23 MS. KAISER: No. I'm making a record of my
24 objection.
25 COMMISSIONER HUR: To Mr. Daniele?
408
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MS. KAISER: No. I'm making a record of my
2 objection to the Commission's procedure on the last
3 declaration.
4 COMMISSIONER HUR: Okay. Well, I was asking
5 for your response to objections to Richard Daniele.
6 MS. KAISER: I'll accede to my colleague,
7 Mr. Keith, for that.
8 COMMISSIONER HUR: In response -- before
9 Mr. Keith gets up then.
10 In response to your point, Miss Kaiser, we are
11 trying to provide both parties the opportunity to give
12 their views on the evidence, and I think we did that.
13 The objection that was sustained was the one
14 that was -- that was put in on the papers, which is it's
15 irrelevant.
16 I think you had adequate opportunity to respond
17 to that. We provided you with that opportunity, and I'm
18 sorry that you feel that way, and we will certainly
19 endeavor to provide both parties the opportunity they
20 feel they need to object. But we also are trying to
21 conduct these proceedings in a fair and efficient manner.
22 Mr. Keith.
23 MR. KEITH: Thank you, Commissioners.
24 So the objection to the declaration of
25 Inspector Daniele, there was an objection to Paragraphs
409
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 27 -- well, I'll take the objections to exhibits
2 separately from the objections to the testimony.
3 There were objections to Paragraphs 27 through
4 32 of that testimony.
5 That testimony relates -- I should say 27
6 through 31 relates to the handing over of the fire -- the
7 sheriff's firearms. And the -- it begins with the
8 service of an Emergency Protective Order on the sheriff
9 at the time of his arrest, an agreement made by the
10 sheriff and his attorney with the two police inspectors
11 to turn over the sheriff's weapons, and also statements
12 by the sheriff with regard to the number of weapons he
13 had, which ended up not being true.
14 The objection that's made is relevance. And
15 the reason that this information is relevant, is that it
16 is relevant to whether Sheriff Mirkarimi met the standard
17 of conduct expected by a public official, and
18 specifically by a law enforcement officer.
19 A law enforcement officer is expected to be
20 honest in all aspects related to an investigation. The
21 evidence that we've submitted regarding the code of
22 conduct in the sheriff's department, the law enforcement
23 code of conduct, as well as the declaration of
24 Chief Lansdowne, indicates that not being accurate or,
25 even worse, not being truthful about the number and
410
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 location of one's weapons in response to questions from
2 inspectors falls below the standard of conduct expected
3 of a chief law enforcement officer.
4 Moreover, the subsequent conduct by
5 Sheriff Mirkarimi of not actually turning over the weapon
6 to the San Francisco Police Department is relevant,
7 because he chose to retain those weapons within his own
8 department, thereby keeping the weapons within the
9 control of his department, which is a violation of
10 Emergency Protective Order, and also puts his
11 subordinates in the position of -- of, unbeknownst to
12 them, recovering these weapons even though that breaches
13 an agreement that the sheriff made with the police that
14 he would give them the weapons.
15 Now, the way this incident was ultimately
16 resolved was that the court issued an order to the
17 sheriff's department when it found out what happened.
18 The testimony -- excuse me, the transcript of
19 that court proceeding involving -- it was before Judge
20 Breall in Superior Court. When she found that weapons
21 were in the possession of the sheriff's department, she
22 said, no, they need to go to the police department.
23 The issue of the number of weapons was not
24 brought up to Judge Breall, but the issue of the
25 sheriff's department having weapons was brought up to
411
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 her. She transferred that -- the possession of those
2 weapons -- or she issued an order to transfer possession
3 of those weapons to the police department.
4
She recognized that this was not the correct
5 thing to do, in addition to Chief Lansdowne recognizing
6 this.
7 So for all these reasons we view this
8 information as relevant to the Commission.
9 And I note that one of the exhibits that are
10 objected to is Exhibit 7. And that's the issue -- that's
11 the order issued by the court to turn over -- to the
12 sheriff's department to turn over the weapons to the
13 police department.
14 And Exhibit 4 is, of course, the video. And I
15 think we should probably take that separately because
16 it's a different kind of objection.
17 COMMISSIONER HUR: I think that -- I agree with
18 your proposal with respect to the video, Mr. Keith.
19 Any questions for Mr. Keith with respect to
20 Mr. Daniele's?
21 Commissioner Liu.
22 COMMISSIONER LIU: Mr. Keith, so this issue
23 with weapons and turning over the firearms or not being
24 truthful about turning over the firearms, what count does
25 that go to? Which -- what is it that we have to resolve
412
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 about that and which count does that -- is that relevant
2 to in terms of your amended charge?
3 MR. KEITH: Well, it is -- it is both the duty
4 of the office to -- I'm sorry, it is both the duty of a
5 chief law enforcement officer and every law enforcement
6 officer to cooperate and be truthful in an investigation.
7 That is not spelled out in a separate charge.
8 For us, that's part of the analysis whether the conduct
9 here fell below the standard of decency that was
10 expected.
11 So it would be to the fifth and sixth charge,
12 which are standard of decency charges. One is to being a
13 member of the Board of Supervisors. The other is to
14 being a sheriff.
15 We think -- you know, in our opinion whether
16 one is a member of the Board of Supevisors or a sheriff,
17 one should not lie to police officers about the location
18 and number of one's weapons. But it certainly -- it's
19 certainly more severe for a sheriff to have done so.
20 COMMISSIONER HUR: Okay. But just to be clear,
21 there's no factual allegation in the amended charges
22 relating to this -- the turning over of the weapons?
23 MR. KEITH: There are -- there is.
24 COMMISSIONER HUR: There is?
25 MR. KEITH: Yes.
413
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: Can you point that out?
2 MR. KEITH: It's in the factual narrative. I
3 can provide those to you.
4 (Examination of documents.)
5 It is Paragraph 26.
6 And the act of dishonesty is not mentioned
7 there. It was something that was not -- that our
8 investigation had not fully -- it had not fully uncovered
9 that at that time. That came subsequent.
10 But the issue of, you know, retaining the guns
11 within the control of his own department is framed in the
12 charges.
13 COMMISSIONER HUR: Thank you, Mr. Keith.
14 Any other questions for Mr. Keith?
15 MR. KEITH: I'm sorry, I should add, this is
16 also -- one other reason this is relevant is, it is --
17 the behavior that the sheriff engaged in is relevant
18 to -- to Nancy Lemon's expert opinion regarding batterers
19 and firearms. There's a paragraph that she discusses
20 that is Paragraphs 8 --
21 (Audience interruption of proceedings.)
22 COMMISSIONER HUR: Please -- I'm sorry to
23 interrupt you, Mr. Keith.
24 Is the sheriff's office in here or the law
25 enforcement? Could we bring law enforcement in here,
414
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 please.
2 (Sheriff's Deputy entered meeting room.)
3 COMMISSIONER HUR: Sir, if you could please
4 help keep order within the hearing room here, we'd
5 appreciate your help. Thank you very much.
6 Pardon the interruption, Mr. Keith.
7 MR. KEITH: Thank you.
8 In addition -- I was saying in addition to
9 being relevant to Chief Lansdowne, the thing in which I
10 discussed earlier is relevant to Nancy Lemon's opinion
11 regarding batterers and firearms, and the relevance of
12 that is discussed in Paragraph 82 through 84 of her
13 declaration.
14 COMMISSIONER HUR: Any other questions for
15 Mr. Keith?
16 I invite Mr. Kopp or Mr. Waggoner to respond
17 with respect to Richard Daniele.
18 MR. KOPP: Thank you.
19 I admire creative lawyering as much as the next
20 guy. I'm almost at a loss to know what to say about
21 this -- almost. But I actually could probably figure out
22
something to say.
23 I would note that the original written charges
24 made no mention of any of this. So maybe, again, this is
25 a case of file first, figure out what happened later.
415
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 But I think that there is a real danger,
2 without being too flippant, of permitting this thing to
3 morph as we go along. We could wind up with a situation
4 whereby by the time we're all done, we'd get -- get
5 another amendment, another -- new facts and new issues
6 that we need to deal with.
7 In the end, I think that these paragraphs and
8 this exhibit are irrelevant. They're of such little
9 probative value that it's a waste of time to even be
10 talking about it.
11 So that's the reason for our objection. I'm
12 happy to answer any questions that anyone has.
13 COMMISSIONER HUR: So setting aside the
14 connection between Paragraph 26 and the Lemon
15 declaration, I mean, what about the argument that -- that
16 Paragraph 26 does include allegations about the sheriff's
17 alleged failure to transfer the firearms appropriately?
18 Why isn't -- why isn't --
19 MR. KOPP: Well --
20 COMMISSIONER HUR: -- Daniele's testimony
21 relevant to that?
22 MR. KOPP: I don't think that's relevant to any
23 of the charges here.
24 COMMISSIONER HUR: I mean, it's --
25 MR. KOPP: I'm not sure that I can elaborate
416
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 any further on that. I'd be willing to submit to the
2 Commissioners further questions.
3 COMMISSIONER HUR: Okay. Any other questions
4 for Mr. Kopp?
5 Here's my view on this.
6 I do not think that the alleged dishonest
7 statements have been sufficiently alleged in the charges.
8 I do think the charges do sufficiently allege
9 the failure to appropriately transfer the firearms.
10 That said, in light of what -- what I thought
11 this hearing was going to be focused on, I do think it's
12 a close call as to whether we want to open the door to
13 allegations about whether it should have gone to the
14 police department or the sheriff's department.
15 I mean, without the allegations relating to
16 dishonesty, it frankly doesn't seem like even if we were
17 to find that this happened, whether -- that it would
18 constitute official misconduct.
19 So, that is to say that I am inclined to
20 sustain the objection to Paragraphs 27 through 32.
21 I do want to reserve Exhibit 4, however.
22 Questions for Mr. Keith or comments from the
23 Commissioners?
24 Is there a motion to sustain the objection to
25 Paragraphs 23 (sic) through 32 and Exhibit 7?
417
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MR. EMBLIDGE: 27?
2 MR. KEITH: Mr. Chairman, I believe you may
3 have misspoken.
4 COMMISSIONER HUR: What did I say?
5 MR. EMBLIDGE: You said 23. 27, I believe.
6 COMMISSIONER HUR: Thank you.
7 27 through 32 and Exhibit 7.
8 MR. RENNE: I'd so move.
9 COMMISSIONER HUR: Is there a second? Is there
10 a second?
11 COMMISSIONER LIU: I'll second.
12 COMMISSIONER HUR: All in favor?
13 Aye.
14 COMMISSIONER STUDLEY: Aye.
15 COMMISSIONER LIU: Aye.
16 COMMISSIONER RENNE: Aye.
17 COMMISSIONER HUR: Opposed?
18 COMMISSIONER HAYON: Opposed.
19 COMMISSIONER HUR: Motion passes 4 to 1.
20 The Paragraphs 27 through 32 are -- the
21 objection's sustained. They will be excluded.
22 Exhibit 7 will be excluded.
23 We still have the issue of Exhibit 4, the
24 video. I would like to reserve discussion of the video
25 until we get through some of the other declarations, if
418
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 that's okay with the Commission and parties.
2 Any objection to that?
3 COMMISSIONER LIU: No.
4 COMMISSIONER HUR: Okay. The next declaration
5 is of Callie Williams.
6 Mr. Keith or Miss Kaiser?
7 MR. KEITH: Mr. Chair, if I might suggest, I
8 think a lot of the admissibility arguments regarding the
9 declaration of Callie Williams may turn on the arguments
10 about admissibility of Ivory Williams' (sic) declaration.
11 It might make -- I think the argument might be too
12 abstract on Miss Williams if we don&
#39;t -- if we don't go
13 first to Miss Madison.
14 COMMISSIONER HUR: Okay. I guess here's my
15 concern about Miss Madison. That we received that
16 declaration only recently and I don't believe that the
17 sheriff's team has had an opportunity to submit written
18 objection.
19 In discussions that we -- that -- scheduling
20 discussions that I had with parties, I did ask if the
21 sheriff's counsel could be prepared to orally discuss
22 their objection, if any, to Miss Madison.
23 Mr. Kopp or Mr. Waggoner, are you prepared to
24 do that?
25 MR. KOPP: I am.
419
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: Okay. So why don't we --
2 UNKNOWN PERSON IN AUDIENCE: What'd he say?
3 MR. KOPP: I am.
4 COMMISSIONER HUR: Thank you, Mr. Kopp.
5 UNKNOWN PERSON IN AUDIENCE: Thank you for
6 using the microphone.
7 UNKNOWN PERSON IN AUDIENCE: You're welcome.
8 UNKNOWN PERSON IN AUDIENCE: Some of us are
9 hearing impaired. Thank you.
10 COMMISSIONER HUR: Okay. Before we get to -- I
11 think it's a good suggestion, Mr. Keith.
12 Before we get to Miss Madison and
13 Miss Williams, Mr. Kopp, I have a couple questions for
14 you in light of the rulings on the other witnesses.
15 Do I understand that -- that you will not --
16 obviously you will not have any need to cross-examine
17 Paul Henderson?
18 MR. KOPP: Correct.
19 COMMISSIONER HUR: Do you have -- do you have
20 any need to cross-examine Wendy Still?
21 MR. KOPP: No.
22 COMMISSIONER HUR: Vicki Hennessy?
23 MR. KOPP: No.
24 COMMISSIONER HUR: Richard Daniele? I guess in
25 light -- I guess we're waiting on Exhibit 4.
420
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 I mean, are you going to be challenging the
2 chain of custody of the video or anything like that?
3 MR. KOPP: No.
4 COMMISSIONER HUR: Okay. So then no need to
5 cross-examine Richard Daniele?
6 MR. KOPP: Correct.
7 COMMISSIONER HUR: Okay. That's helpful.
8 Thank you.
9 MR. KOPP: I thought I put this in an e-mail,
10 but it's possible not everybody got it, but I did.
11 COMMISSIONER HUR: Oh, you did. I have missed
12 it.
13 MR. KOPP: That's fine.
14 COMMISSIONER HUR: Thank you.
15 Okay. The other thing I wanted to ask was
16 about Christina -- Christine (sic) Flores.
17 I think there was a -- potentially a loophole
18 in the order. We did not request objections to
19 testimony -- we requested objections to declarations. We
20 did not receive any objections to Flores' transcript.
21 Does that mean you're not objecting to the
22 testimony that was submitted with respect to Miss Flores?
23 MR. KOPP: No, it doesn't. We do object.
24 And I apologize if I misunderstood anything
25 that the Commission wanted. I think I made clear our
421
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 objections at the last hearing, that we would continue to
2 maintain an objection to her testimony as being not
3 relevant to the issues here, given the fact that the
4 sheriff has already submitted his declaration concerning
5 his misconduct. And the only reason that I could see
6 that Miss Flores would be -- her testimony might be
7 relevant would be if he denied that.
8 So I have not submitted anything in writing
9 yet. I don't recall the timing. My memory is
10 Miss Flores' information didn't come until after the bulk
11 of the mayor's fact witnesses.
12 COMMISSIONER HUR: I think we got them with the
13 fact witnesses, if I recall.
14 But, Mr. Keith, maybe you can elaborate. Thank
15 you.
16 MR. KEITH: There was a -- there was, I guess,
17 a -- the order only spoke to declarations. So it didn't
18 occur to us to put that in. We did put it in with our
19 objections, but it frankly didn't cross our mind --
20 COMMISSIONER HUR: Okay.
21 MR. KEITH: -- because it wasn't a declaration.
22 I think -- I certainly don't begrudge my opponent the
23 opportunity to submit a written objection. I think it
24 probably would make sense.
25 COMMISSIONER HUR: Okay. Do you have a
422
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 response to Mr. Kopp's oral objection with respect to
2 Miss Fl
ores?
3 MR. KEITH: Well -- yes. I mean, it's -- I
4 mean, again, I -- I wasn't anticipating we raise this
5 objection, but I think I can outline the issues, and if
6 the Commission would like further information, we're
7 certainly happy to provide it, and this is an important
8 issue.
9 I think in domestic violence related cases
10 Evidence Code 1101 and 1109 permit the admission of other
11 acts of domestic violence.
12 The legislature has recognized that
13 battering -- that battering conduct happens repeatedly by
14 a batterer, and they've made a special determination that
15 this type of evidence can be admitted to be considered
16 about whether a domestic violence incident actually
17 occurred.
18 This evidence is relevant -- in addition, this
19 evidence is relevant to Nancy Lemon's declaration because
20 of the similarity of the incidents between Miss Flores
21 and Miss Lopez's incident as she described it.
22 So those are -- those are the basic reasons why
23 we believe that this is admissible.
24 COMMISSIONER HUR: What about the argument that
25 the physical abuse is not being disputed in this case?
423
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MR. KEITH: I think it is. I mean, I -- I -- I
2 think when we -- when we hear from the sheriff we will --
3 I mean, we will find out perhaps -- when we do hear from
4 the sheriff, we may find out more information than the
5 sentence or two that's contained in the declaration.
6 Certainly the accounts that Ms. Lopez gave, and
7 this may be shading a bit into our arguments about the
8 Madison declaration and the video, signified an incident
9 that looked a lot more severe than an arm grab that
10 occurred at the end of an argument. And we think this is
11 certainly relevant to determining the issues in the case.
12 COMMISSIONER HUR: I think the Commission might
13 benefit -- do the Commissioners have views or questions
14 for Mr. Keith about Christine (sic) Flores?
15 MR. RENNE: Pardon me?
16 COMMISSIONER HUR: Does the Commission -- any
17 members of the Commission have views on Miss Flores or
18 questions for Mr. Keith?
19 MR. RENNE: Well, I have serious questions as
20 to whether or not it's relevant and should be admitted,
21 and I'm not convinced at this time that it is -- that it
22 is relevant to the issues that we have to decide, in
23 spite of the fact that you say maybe in a -- in a trial
24 of domestic violence, in an allegation, it might come in.
25 I'm not sure, though, in view of the fact of
424
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 what I understand will be the sheriff's testimony that it
2 doesn't -- I don't think -- I think it does -- it's more
3 prejudicial. And the testimony, as I understand it, was
4 taken in camera because the judge felt it was something
5 that should not be a public record, at least at that
6 point.
7 And I don't know -- maybe you can answer the
8 question.
9 Was it ever released to the public?
10 MR. KEITH: It was. The hearing occurred over
11 two days, and it was a 402 hearing, which is fairly
12 standard --
13 MR. RENNE: Right, right.
14 MR. KEITH: -- when this type of evidence is
15 sought to be admitted. The judge actually opened the
16 hearing on the second day. He initially had it closed.
17 He opened it on the second day.
18 And so the materials did become public. We
19 checked with Miss Flores. She was comfortable with us
20 submitting this. So there's no -- there's no issue
21 there.
22 The judge didn't necessarily -- I mean, I don't
23 -- the judge, I think, held an in-camera hearing for the
24 benefit of Miss Flores more than anyone else. It wasn't
25 that the evidence was unreliable, but more -- just the
425
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 fact that any sort of domestic violence incident has
2 potential sensitivities.
3 As to the point of the differing accounts here,
4 I mean, this really raises an issue of legal
5 interpretation. For purpose -- the issue is this, for
6 purposes of official misconduct, does it matter how
7 serious a domestic violence incident is?
8 I'm not prepared to say that it doesn't matter.
9 I mean, perhaps -- perhaps the ultimate decision by the
10 Commission will be that the seriousness of an incident
11 doesn't matter. But I think we would really be cutting
12 off, you know, that potential issue far too early if we
13 sort of say that all that matters is the fact that an
14 incident occurred and that a conviction and sentence and
15 probation came out of it.
16 So I think that --
17 COMMISSIONER HUR:
So if I understand your view
18 then, if -- if the testimony that's elicited -- if the
19 evidence comes in that the -- that the physical conduct
20 was beyond what was stated in Mr. Mirkarimi's
21 declaration, that you think that makes the Flores'
22 testimony relevant per Rule 1109?
23 MR. KEITH: Well, I think if it is relevant
24 what happened in a domestic-violence incident, then
25 Christina Flores' declaration is relevant. Because it
426
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 tells us whether this was, you know, a one-time accident
2 or whether it was a conscious use of power to cause an
3 injury.
4 COMMISSIONER HUR: But if it's conceded that it
5 wasn't an accident, then why -- in other words, if the
6 fact that you're seeking to establish is conceded, why do
7 we need Flores to help bolster that fact?
8 MR. KEITH: Well, I think Christina Flores'
9 testimony goes to -- not just to the existence of
10 domestic abuse, but a pattern of domestic abuse and abuse
11 of power within the relationship that comes with it. And
12 so, that makes her testimony relevant because it shows
13 that this is appearing -- that this is occurring within a
14 domestic violence -- I guess within, basically, a
15 batterer mentally. Because there is a batterer
16 mentality. There is a batterer way of being in
17 relations, and that makes it more likely that this
18 incident occurred and that perhaps -- and that the
19 allegations regarding abuse of power, not just within the
20 relationship, but abuse of political power are more
21 likely to be true.
22 I mean, again, these are things that are in
23 Nancy Lemon's declaration about the nature of domestic
24 violence being an exercise of power as opposed to the
25 loss -- as opposed to -- excuse me, a loss of temper.
427
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 So these -- so it would still be relevant, that
2 power issue. But, again, I want to return to the
3 original point, which is, if it matters at all how
4 serious an underlying incident is, then we don't want to
5 cut off that line of inquiry, and, again, Flores'
6 declaration goes to this -- or testimony.
7 COMMISSIONER HUR: Thank you, Mr. Keith.
8 I'm inclined to agree with Mr. Renne on this.
9 That said, there were no written objections, and I know,
10 Mr. Keith, you -- you ably orally advocated, but if you
11 would like the opportunity to submit written objections,
12 given that Miss Flores is not coming in to testify, I
13 think we could -- we could wait for written objections if
14 the Commission agrees and if the parties agree.
15 Any comments from the Commissioners on that?
16 MR. RENNE: Written objections by whom? By the
17 sheriff?
18 COMMISSIONER HUR: The sheriff would submit his
19 written objections and then the mayor would be able to
20 respond.
21 COMMISSIONER LIU: Well, I think I do want to
22 see what the briefing is, the written objections on the
23 1101 issue, but it also seems like until the sheriff
24 testifies we might not really know the extent and the
25 parameters of the facts we're looking at.
428
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 So I don't think I'd be comfortable just
2 outright excluding this at the outset before we know what
3 the scope of the facts or what the concessions are.
4 COMMISSIONER HUR: All right. I agree with
5 that.
6 So if the parties -- Mr. Kopp, if you feel
7 you'd like to add to your oral objections in writing,
8 that is fine.
9 Mr. Keith, we'd ask for a response within three
10 days of receiving the objections or three business days.
11 MR. KEITH: My suggestion would be this, that
12 we key it off of Sheriff Mirkarimi's testimony so that
13 the parties have an opportunity to raise that issue.
14 COMMISSIONER HUR: Sure. I think that's a good
15 idea.
16 Okay. Ivory Madison.
17 Mr. Kopp, it's a long declaration.
18 MR. KOPP: Very long.
19 COMMISSIONER HUR: I'm trying to think of the
20 best way to actually go about doing this. My initial
21 inclination was to go paragraph by paragraph
22 consecutively, for you identifying any paragraphs or
23 portions thereof that you object to.
24 I welcome the views from my fellow
25 Commissioners on whether there's a more efficient way to
429
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 handle that?
2 MR. RENNE: I don't know if there's a more
3 efficient way, but I will have to say -- and I'm
4 addressing this to the city attorney's office -- that I
5 was disappointed by the contents of Ivory Madison's
6 declaration. That I think a first-year lawyer would
7 recognize that much of it is inadmissible and should not
8 be presented to us.
9 And so that rather than going through it
10 paragraph by paragraph, which I think would just
11 reemphasize the prejudicial nature of much of things that
12 are contained in it, is I would be disposed to say we
13 won't admit it at all and you can bring her in as a live
14 witness to testify to those portions which legitimately
15 can be brought before us, rather than the kinds of
16 statements that are being made that go back, some of
17 them, and are clearly hearsay, clearly appear to have
18 solely the purpose of sort of poisoning the well in this
19 hearing. And I don't think that's what your
20 responsibility is.
21 Your responsibility is to present the case
22 fairly with the facts that relate to the charge, not the
23 things that may go totally extraneous, but obviously
24 being a public document, the newspapers pick it up, and
25 it gets bandied about with no opportunity to deal with
430
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 it.
2 So my proposal may be extreme, but my proposal
3 would be that we reject the declaration and to allow you
4 to bring Miss Madison in and you can question her, and we
5 would have an opportunity to -- if objections are raised,
6 to rule on that as to relevancy and as to admissibility.
7 MR. KEITH: Commissioner, may I respond?
8 COMMISSIONER HUR: Yes, Mr. Keith.
9 MR. KOPP: I was going to second that.
10 COMMISSIONER HUR: Mr. Keith, please.
11 MR. KEITH: Commissioner Renne, I fully -- I
12 fully understand the criticism. We are in the situation
13 where we have an independent witness who's represented by
14 counsel, and we don't have control over what the witness
15 submits.
16 And the way that I was -- had I been preparing
17 this declaration for my client, I may have proceeded
18 differently, and I -- I may not have included everything
19 that Miss Madison included.
20 She is an independent witness, and because of
21 the way that we're proceeding by declaration, we don't
22 have the kind of -- I mean, I think, for the reasons that
23 you -- the alternative procedure that you brought up was
24 raised at this point because we're proceeding by
25 declaration. We don't have the kind of, essentially,
431
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 decision by the presenting lawyer, when somebody is
2 represented by counsel, about what questions to ask and
3 the order in which to take things.
4 So I think the criticism is -- is well-taken
5 and we certainly didn't intend to put matters before the
6 Commission that -- that are not relevant. She's -- she's
7 not our client. We didn't have control of -- of how she
8 drafted.
9 With regard to the procedure, I may very well
10 not contest some of the objections that are being raised.
11 I have to wait to hear them to make that decision, but we
12 may agree that some of this is not admissible.
13 And so I think would -- I think it's still
14 useful to go through the declaration and hear the
15 objections, because it is going to make the procedure of
16 taking testimony shorter. So that would be my
17 suggestion, but I understand and appreciate the
18 criticism.
19 MR. RENNE: Well --
20 COMMISSIONER HUR: Thank you, Mr. Keith.
21 Commissioner Renne.
22 MR. RENNE: My concern -- when you say that you
23 didn't have control over the witness and she had her own
24 attorney, but you were the one that submitted the
25 declaration. So you had to have looked at it and said --
432
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 could have said to her attorney, you know, these
2 paragraphs are not relevant or they're prejudicial and
3 they don't relate to the issues, but I accept the
4 difficulty you have under those circumstances.
5 But, again, the problem I have with going over
6 paragraph by paragraph, is that in order to do that we
7 simply have to repeat the same things that are being said
8 and out into the mass media. The mass media can look at
9 it now. In fact, when this was filed, the next day the
10 Chronicle had portions of what was in there in their
11 story. Fortunately they didn't go into all the details,
12 but that's the very thing that -- and when I saw that, I
13 thought to myself, maybe this idea of going by
14 declaration was not necessarily the most protective of
15 the interests of everybody. Because if you had asked or
16 if the witness were live and started to ask a question
17 about something, an objection would be m
ade, and it never
18 gets into the record because you never get the answer,
19 okay?
20 MR. KEITH: That's correct.
21 MR. RENNE: And so that's the -- so I guess I
22 would be more inclined to have Mr. Kopp prepare a written
23 objection to the paragraph by paragraph, because there
24 are some paragraphs that are clearly germane and probably
25 admissible, but go paragraph by paragraph and then we can
433
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 rule on it but without going through it orally tonight,
2 which is what we would have to do without a written --
3 written statement.
4 COMMISSIONER HUR: Other views from the
5 Commissioners?
6 Commissioner Renne, I certainly appreciate your
7 concern. My concern with written objections with respect
8 to Miss Madison, is that Mr. Kopp is prepared to tell us
9 what the objections are.
10 I think there are legal issues with respect to
11 what relevant testimony can come in from this declaration
12 that I think are going to be informative about a number
13 of issues.
14 So in light of that, I would still propose that
15 we go through it. I would ask that if there is a
16 stipulation on a paragraph not -- that shouldn't be
17 admitted, that it just be stated, and that we don't have
18 a recitation of what the paragraph is about.
19 If this becomes overly prejudicial, then I
20 think we can reconsider, but I think we can get to the
21 parts of this declaration that are actually going to be
22 at issue, hopefully, quickly.
23 Is that acceptable to the Commission?
24 MR. KOPP: Yes.
25 COMMISSIONER STUDLEY: Yes.
434
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: Mr. Kopp.
2 MR. KOPP: Can I just voice a concern that I
3 have, because I had the same concern that Mr. Renne just
4 voiced, which is, I did not want to have to go through
5 and have the sentences read out as to what they all are.
6 My concern is that when Mr. Keith responds to
7 my objections, he's probably -- I would think he would
8 want to explain to you why they are relevant, and that
9 would necessitate that recitation of these facts.
10 So I'm not so sure this is going to work. I'm
11 willing to give it a try. I'm going to make my
12 objections in the most legal and general terms without
13 addressing the specifics.
14 COMMISSIONER HUR: Okay. Let's try it.
15 MR. KOPP: Okay. So we don't object to
16 Paragraphs 1, 2, 3, 4. And that's as far as I got.
17 We object to Paragraph 5 on relevance grounds.
18 COMMISSIONER HUR: Okay. Any other bases?
19 MR. KOPP: Well, the first sentence is probably
20 more prejudicial than probative, so under 352.
21 When I say relevance grounds, I don't know if
22 you want me to spell out the parts specifically that I
23 think are more prejudicial than probative? I'm happy to
24 do that.
25 MR. KEITH: I can actually short circuit this.
435
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 The second half of -- well, let me say
2 specifically Paragraph 5 --
3 MS. KAISER: Microphone.
4 MR. KEITH: I'm sorry. We'll have to share.
5 MR. KOPP: Okay.
6 MR. KEITH: Paragraph 5, Lines 9 through 10, I
7 think we would -- we would agree that the part of the
8 sentence beginning with "including" is not relevant.
9 COMMISSIONER HUR: Is that sufficient to
10 address the objection to the first sentence of Paragraph
11 5?
12 MR. KOPP: Yes.
13 COMMISSIONER HUR: Okay.
14 And then, Mr. Kopp, do you have any further
15 objection to Paragraph 5?
16 MR. KOPP: Relevance as to the rest of it.
17 COMMISSIONER HUR: The rest of it.
18 Mr. Keith.
19 MR. KEITH: We would say it would defeat -- it
20 would defeat the claim of bias that's being made against
21 Miss Madison and Mr. Mertens, the fact that they
22 supported the sheriff in his campaign and that bias
23 somehow motivated their reporting of this incident.
24 COMMISSIONER HUR: I tend to agree with that,
25 and that it is admissible to combat bias.
436
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Any objection from the Commission?
2 Okay. Paragraph 6?
3 MR. KOPP: Yes. We object on relevance grounds
4 as to its entirety.
5 In addition, we don't believe there's
6 foundati
on for the last sentence, and we believe that the
7 last -- or -- excuse me, the third sentence, we don't
8 think there's foundation -- strike that.
9 We also think that the last three, four,
10 five --
11 COMMISSIONER LIU: Mr. Kopp, can you just say
12 the line number?
13 MR. KOPP: Is that easier?
14 COMMISSIONER LIU: Yes.
15 MR. KOPP: Okay.
16 So we think that Lines 17 through 23 are
17 speculative, and, again, more prejudicial than probative.
18 COMMISSIONER HUR: Mr. Keith.
19 MR. KEITH: We think that this is -- this is
20 not offered -- well, this is offered to show the
21 relationship between Ms. Lopez and Miss Madison. That is
22 really relevant to why Ms. Madison chose to -- to make
23 the report and the kind of advice that she was giving to
24 Ms. Lopez later. And we think -- I mean, for that
25 purpose it is relevant.
437
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 I mean, I think there are a lot of details in
2 here that are probably not necessary, but it's offered
3 simply to show the course of the relationship and
4 explain, again, the motivation for reporting later on.
5 COMMISSIONER HUR: I would sustain the
6 objection of the entirety of Paragraph 6.
7 Any dissenting views from the Commission?
8 COMMISSIONER STUDLEY: No.
9 MR. KEITH: I'm sorry, if I -- if I could just
10 ask the Commission to keep the first sentence, just
11 simply that this was a -- something that they discussed
12 at this time, without reference to the content or
13 Ms. Madison's reaction to it. Again, that just goes to
14 the relationship.
15 COMMISSIONER HUR: Any objection to that,
16 Mr. Kopp?
17 MR. KOPP: I'm sorry, the first sentence is
18 okay.
19 COMMISSIONER HUR: Okay. So 6 will be stricken
20 except for the first sentence.
21 MR. EMBLIDGE: Commissioner, could I just ask
22 clarification on Paragraph 5.
23 The portion that was stricken was the clause
24 that begins with the word "including" and ends with the
25 word "salary," and the balance was omitted?
438
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: Yes.
2 MR. EMBLIDGE: Thank you.
3 COMMISSIONER HUR: Thank you, Mr. Emblidge.
4 MR. KOPP: I'm just waiting. Are you waiting
5 for me?
6 COMMISSIONER HUR: Yeah, I'm sorry. I'm
7 waiting for you, Mr. Kopp.
8 MR. KOPP: I thought everybody was reading just
9 Paragraph 7.
10 So we object to this paragraph in its entirety
11 on relevance grounds.
12 Additionally, there's no foundation for most of
13 these sentences.
14 And finally, this information is much more
15 prejudicial than probative of any issue.
16 COMMISSIONER HUR: Are you -- can you tell us
17 the next paragraph you don't object to just so that --
18 just in case there are consecutive paragraphs and we can
19 maybe deal with them?
20 MR. KOPP: If I can -- may I just have a moment
21 please?
22 COMMISSIONER HUR: Yes.
23 MR. KOPP: I think I'm going to have to go all
24 the way to Paragraph 38 before I don't have an objection.
25 That's aways down the road.
439
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: Okay.
2 MR. KOPP: There's going to be a standing
3 hearsay objection to anything Miss Madison says that
4 Miss Lopez told her at any point in time.
5 COMMISSIONER HUR: Okay.
6 MR. KOPP: And then there are going to be
7 numerous other objections.
8 COMMISSIONER HUR: Let's -- let's take it
9 paragraph by paragraph then.
10 Paragraph 7, is there a -- Mr. Keith, do you
11 object to the -- striking Paragraph 7?
12 MR. KEITH: Yes. I think I can talk about a
13 few of these paragraphs together. Paragraph 7 through
14 9 --
15 COMMISSIONER HUR: Okay.
16 MR. KEITH: -- these are paragraphs that
17 describe what Eliana Lopez was telling Miss Madison about
18 her relationship. And this is -- this is foundational or
19 this is information that's relied on by Nancy Lemon in
20 analyzing the state of the relationship that they have.
21 It's well accepted that experts -- expert opinions
22 regarding domestic-violence situations and batterer
23 relationships can and do rely on this kind of confidences
24 given to -- given to friends and other people close to --
25 close to the victim, even -- even if they are hearsay.
440
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 I mean, we're not offering this for the truth
2 of the matter. We're offering this to establish the
3 nature of the relationship so we can figure out what it
4 is that's going on.
5 To some extent -- to the extent that the
6 paragraphs also discuss Ms. Lopez's response to these
7 things that are going on in the marriage, they pertain to
8 her state of mind and help explain her conduct later on.
9 So that would be our point for 7 through 9.
10 COMMISSIONER HUR: Commissioner Studley.
11 COMMISSIONER STUDLEY: I wonder whether the
12 right question is whether Ms. Lopez's testimony is the
13 better source of any of that kind of information?
14 MR. KEITH: I --
15 COMMISSIONER HUR: Go ahead, Mr. Keith.
16 MR. KEITH: I don't doubt her testimony would
17 be helpful, but I think one reason that this kind of
18 testimony is permitted in cases involving domestic
19 violence -- again, not for the truth of the matter, but
20 for the nature of the relationship and motivation of the
21 victim and to explain the actions the victim -- it's
22 often because victims recant, which is, again, something
23 that's covered in Miss Lemon's declaration.
24 So, I mean, we may or may not need Ms. Lopez.
25 In the meantime, we have this and it's recognized under
441
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 the law that these kind of statements can come in to
2 support an expert opinion, even if they're not in for the
3 truth.
4 MR. RENNE: Well --
5 COMMISSIONER HUR: Mr. Renne.
6 MR. RENNE: You say you aren't introducing them
7 for the truth, for falsity of the statements that are
8 being made and attributed to Miss Lopez. If they're
9 untrue, they're meaningless, right?
10 So you are -- you're trying to -- you are
11 arguing that what she -- what Miss Madison says
12 Miss Lopez told her was in fact a true statement of fact.
13 Isn't that a classic hearsay?
14 MR. KEITH: It is, but it's a kind of -- except
15 insofar as it explains Ms. Lopez's course of conduct and
16 why she was doing what she was doing at a later time,
17 then it is -- it is permitted under the exception to the
18 hearsay rule. But it's not -- even if it is hearsay, and
19 for the truth of the matter as it is, it's still
20 permitted for an expert witness to rely on these types of
21 confidences given to a friend about the nature of the
22 relationship.
23 COMMISSIONER HUR: I would strike Paragraphs 7,
24 8, and 9 in their entirety.
25 I think they're more prejudicial than
442
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 probative, and I don't think -- none of the statements --
2 I mean, there can be some foundation and we've already
3 discussed that there is some foundation that they have a
4 relationship, but I don't -- I don't think this is
5 probative of what -- the allegations and charges that
6 we're seeking to adjudicate.
7 I welcome comments from the Commissioners or
8 questions for Mr. Keith.
9 Okay. Hearing no objection, we can vote at the
10 end, but I take it there's no objection to sustaining
11 objections to 7, 8, and 9 among the Commissioners?
12 MR. RENNE: No objection.
13 COMMISSIONER LIU: No.
14 COMMISSIONER STUDLEY: No.
15 COMMISSIONER HAYON: No.
16 COMMISSIONER HUR: Okay. Paragraph 10 is where
17 I think we left off.
18 Mr. Keith, you want to address it or Mr. Kopp?
19 MR. KEITH: Yeah, I think this is a little
20 different from the prior paragraphs in terms of trying to
21 assess Ms. Lopez's attitudes and state of mind.
22 Regardless of whether the -- Paragraph 10 relates to
23 various concerns she had about Theo and his welfare.
24 Whether or not any of these incidents actually
25 happened, she had that concern, and that concern is
443
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 relevant to the action that she later took.
2 So, in that sense, that is why this information
3 is offered. It's not offered to show that all of these
4 things actually occurred. It's offered to show her
5 concern for Theo, which explains her actions around the
6 time frame of the 31st through 4th.
7 COMMISSIONER HUR: Okay. Any questions for
8 Mr. Keith with respect to Paragraph 10?
9 Mr. Kopp.
10 MR. KOPP: Yes. Thank you, again.
11 We object on hearsay and relevance grounds;
12 also that, again, this information is more prejudicial
13 than it is probative.
14 And I would like to just address one comment
15 made by Mr. Keith a moment ago, which is that their
16 expert witness wants to rely on this stuff, assuming the
17 truth of it. I mean, why would you rely on it if it
18 wasn't true?
19 Their expert, Miss Lemon, can rely on whatever
20 she wants. That doesn't mean it needs to come into
21 evidence before the Commission. So I want to make that
22 comment.
23 COMMISSIONER HUR: My view is that the entirety
24 of Paragraph 10 should be stricken for the reasons stated
25 by counsel, and I think it's similar in nature to
444
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Paragraphs 7 through 9.
2 Any dissenting view from the Commissioners?
3 Okay. Hearing none.
4 Paragraph 11, I do think may have some -- we
5 may finally get to some potentially relevant evidence.
6 Let me hear the objections to 11, so --
7 MR. KOPP: The objection here --
8 COMMISSIONER HUR: -- we can figure out what we
9 need from this.
10 MR. KOPP: -- is primarily going to be hearsay.
11 I would agree that there's more probative value
12 -- more probative information in this paragraph than any
13 of the previous ones we've objected to.
14 Some of it contains information that is
15 prejudicial, but our primary objection here is hearsay.
16 COMMISSIONER HUR: Mr. Keith.
17 Unless there are questions from the
18 Commissioners for Mr. Kopp?
19 MR. KEITH: I think this is where we start to
20 get into the issues that we submitted a brief on -- on
21 why this is subject to hearsay exceptions, most notably
22 the excited utterance rule, but also exceptions to show
23 the state of mind and to explain the conduct of what
24 happened and how Ms. Lopez ended up making this video.
25 So, again, I mean, I think the issue of the
445
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 excited utterance, we have ample evidence from
2 Ms. Lopez's description -- I'm sorry, from Ms. Madison's
3 description of Ms. Lopez's demeanor, that she burst into
4 tears. She was distraught. She burst into tears again.
5 She was emotional. And that likewise -- that emotional
6 demeanor is likewise reflected on the video. It's
7 evident to see it, and from Ms. Lopez's manner of speech
8 on the video, and her bursting into tears on the video.
9 So we think that this, as well as some of the
10 other paragraphs that we're likely to discuss or going
11 to, should come in under the -- under those hearsay
12 exceptions. So for the reasons we briefed.
13 COMMISSIONER HUR: Questions for Mr. Keith with
14 respect to Paragraph 11?
15 In light of the state court's decision with
16 respect to the testimony of Miss Madison, and the case
17 law cited therein about what an excited utterance can
18 mean under -- under California law, it does seem to me
19 that statements made by Miss Lopez on January 1st should
20 come in.
21 Now, I don't think, as we sit here today, we
22 have to decide whether they come in for the truth -- I'm
23 sorry, whether they come in as admissible -- non-hearsay
24 evidence, but I do think that statements made to
25 Miss Lopez -- made by Miss Lopez to Miss Madison on
446
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 January 1st should be considered by the Commission.
2 MR. KOPP: May I? I'm sorry.
3 COMMISSIONER HUR: Mr. Kopp.
4 MR. KOPP: Yeah. I'd just like to respond
5 briefly. And I'm cognizant of the rulings that were made
6 by the Superior Court on this issue.
7 I would say that that determination does not
8 bind you. There's no collateral estoppel effect, because
9 there's no privy between the parties. And I would like
10 to just point out that an excited utterance or
11 spontaneous statement exception typically does not apply
12 when the statement's made a day after whatever the
13 incident was that caused the excitement.
14 There -- caution is urged when it is a
15 statement made in anticipation of litigation, and -- some
16 of this explicitly states that Miss Lopez was considering
17 divorce proceedings.
18 And moreover, in this particular paragraph,
19 there are numerous references to questions being asked by
20 Miss Madison of Miss Lopez. So it's more in the nature
21 of an interviewing process rather than a torrent of words
22 that just came out of Miss Lopez because she couldn't
23 control herself. And that's really what the hearsay
24 exception is aimed at.
25 So I'd like to have those --
447
BONNIE WAGNER &
; ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: You know, Mr. Kopp, one
2 thing that comes to mind as we discuss this issue, I
3 think we asked if you would -- if you would be prepared
4 today to tell us whether Miss Lopez is going to submit a
5 declaration.
6 Do you have that information?
7 MR. KOPP: I do. And what I can tell you is --
8 because I do not speak directly with Miss Lopez. I talk
9 to her lawyer. I am informed that she is willing to
10 submit a declaration. I don't have a firm grasp on what
11 the timing of that would be, but I hope that it would be
12 within the next week or so. Part of it is because it's
13 responsive to these declarations that were just filed
14 over the weekend or Friday, and then, I guess, again on
15 Sunday.
16 No decision has been made as to whether or not
17 she is willing to either appear for live testimony or
18 cross-examination or appear remotely. That's all I can
19 tell you at this point.
20 COMMISSIONER LIU: When will you know? Will
21 you get an answer?
22 MR. KOPP: I expect that within a week I'm
23 going to know. I should be able to get a declaration --
24 I hope to be able to get one, and I should have an answer
25 as to whether or not she's willing to submit to
448
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 cross-examination.
2 Again, this is one of those -- this is a
3 situation where she's not a witness under our control.
4 COMMISSIONER HUR: Who is representing her?
5 MR. KOPP: Her lawyer is Paula Canny.
6 COMMISSIONER HUR: Mr. Emblidge, I recommend
7 that we put this on our list of individuals we may want
8 to subpoena to appear before us at the next session.
9 I think hearing from Miss Canny directly may
10 help us figure out what -- what evidence, if any, from
11 Miss Lopez may come in.
12 MR. KOPP: I don't think you'll need to
13 subpoena Miss Canny. I think she'll probably --
14 COMMISSIONER HUR: Okay. Well, we don't really
15 have an easy mechanism of ensuring her clients beyond
16 that.
17 MR. KOPP: Okay.
18 COMMISSIONER HUR: Unless you're telling me --
19 MR. KOPP: I'm pretty sure.
20 COMMISSIONER HUR: Can I hold you responsible
21 for getting her here then?
22 MR. KOPP: Well, she doesn't really listen to
23 me, but I can certainly request -- I can relay the fact
24 that you requested that she be here. And unless there's
25 some conflict in her schedule, I'm sure she'll come.
449
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: Okay. I think we should put
2 her on the list for a subpoena and we can discuss with
3 the rest of the Commission --
4 MR. KOPP: If we have a break in the
5 proceedings this evening, I can try to make a phone call
6 and give you an answer.
7 COMMISSIONER HUR: Okay.
8 Mr. Keith, did you have anything in response?
9 MR. KEITH: Yes. I think -- I mean, just
10 briefly dwelling on the merits of when this exception
11 applies and when it doesn't, the key issue is the mental
12 state of the speaker. And the question isn't so much
13 when did the incident -- the question isn't so much how
14 much time has elapsed between when the incident occurred
15 and when the utterance is made, it's how -- it's what was
16 the mental state of the speaker, and the cases we cite to
17 that effect. And there are many instances in which
18 statements that come, you know, a day later, even two
19 days later still come in as excited utterances.
20 And I think -- I think the issue is less
21 whether it comes in for non-hearsay purposes or for -- or
22 for the truth of the matter than the weight that it's
23 given. I think at this point we're not really arguing
24 weight. We're just arguing admissibility.
25 So I don't think -- so I think if there's a
450
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 ruling that it's an excited utterance, it comes in, then
2 the Commission can weigh that against -- against what
3 other -- what other evidence there might be about what
4 occurred.
5 COMMISSIONER HUR: I'm inclined to agree that
6 it should come in. I think we've -- we've discussed
7 previously that the way to get to hearsay evidence would
8 be less than the way we get to non-hearsay evidence.
9 I don't -- like I said before, I don't think we
10 need to decide right now whether it's coming in as
11 non-hearsay evidence. But I -- in light of how up in the
12 air the testimony of Miss Lopez is, I would be hesitant
13 at this
point to exclude these conversations from
14 evidence.
15 Any objection from the Commission?
16 Mr. Kopp, you had mentioned that you had some
17 352 objections to Paragraph 11.
18 Is there any -- you heard what our view is on
19 the admissibility of conversations.
20 Is there anything very specific within here
21 that you're objecting to on 352 grounds?
22 MR. KOPP: If I can just have a moment,
23 Commissioner, I'll let you know.
24 (Examination of documents.)
25 Well, yes. Lines 22 through 23, the last
451
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 clause of that sentence I find more prejudicial than
2 probative.
3 COMMISSIONER HUR: Beginning on Line 23?
4 MR. KOPP: Beginning on Line 22 after "often
5 comma."
6 COMMISSIONER HUR: Okay.
7 MR. KOPP: That second clause -- or, I guess,
8 it's a third clause, I'm sorry.
9 MR. KEITH: I'm sorry?
10 MR. KOPP: Right here (indicating).
11 MR. EMBLIDGE: From the word "and" through the
12 word "abusive"?
13 MR. KOPP: Yes. Thank you, Mr. Emblidge.
14 And --
15 (Discussion off the record.)
16 MR. KEITH: Okay. So the objection goes from
17 "and" until the end of the sentence?
18 MR. KOPP: Correct.
19 MR. KEITH: We don't -- I mean, we won't waste
20 your time. That's fine with us.
21 COMMISSIONER HUR: Okay.
22 So the objection to 22 beginning with "and,"
23 and ending at the end of that sentence on Line 23 is
24 sustained, I believe. Not admitted.
25 MR. KOPP: Yes. And then the very next
452
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 sentence on Line 24, the last part of that, beginning
2 with the word "because," I don't believe there's
3 foundation for that. That's speculation.
4 COMMISSIONER HUR: Mr. Keith?
5 MR. KEITH: Our response would be that this
6 explains her mental state and motivation and why she's so
7 emotional about this incident. So it is relevant for
8 that purpose. And we're not offering it for whether the
9 child actually understood what was being said, but rather
10 for Ms. Lopez's belief that he did and that being the
11 reason for her concern.
12 COMMISSIONER HUR: I'm inclined to allow the --
13 that fragment of sentence.
14 Any objection?
15 COMMISSIONER STUDLEY: No.
16 COMMISSIONER LIU: No.
17 COMMISSIONER HUR: Okay.
18 MR. KOPP: And then the last sentence on Page
19 5, beginning on Line 26, with the word "as," all the way
20 to the end of the sentence. We think there's no
21 foundation. That's speculative and prejudicial.
22 MR. RENNE: Well, that purports to be a quote.
23 COMMISSIONER STUDLEY: How could be it
24 speculative?
25 MR. RENNE: That purports to be a quote.
453
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MR. KOPP: That's what it looks like.
2 MR. RENNE: So when you say "no foundation,"
3 but it's what -- she's saying this is what Eliana said to
4 her.
5 MR. KOPP: Right.
6 MR. RENNE: Whether it's true or not is another
7 question. But it's not being offered for that purpose at
8 all. It's being offered saying this is what she said,
9 the words she spoke.
10 MR. KOPP: Well, I was a little unclear as to
11 the reason why it was being offered.
12 COMMISSIONER HUR: I would be inclined to
13 overrule that objection.
14 Any dissenting views from the Commission?
15 Okay. Paragraph 12?
16 MR. KOPP: Yes. Again, we have the standing
17 hearsay objection as to the paragraph in its entirety.
18 COMMISSIONER HUR: Uh-huh (affirmative).
19 MR. KOPP: As to sentence No. 2, on Line 2,
20 beginning with the words "from her description," that's
21 speculation.
22 COMMISSIONER HUR: Mr. Keith?
23 MR. KEITH: Ms. Madison is just stating her
24 interpretation of what Ms. Madison (sic) said. I just
25 think -- sometimes we can have a conversation and get an
454
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 impression, and she's repeating the impression she had
2 based on what was said. I mean, obviously she wasn't
3 there. But she is certainly able to give her
4 interpretation of what somebody else said and the gist of
5 what was being conveyed.
6 I mean, that's -- you know, that's standard,
7 you know, conversation and communication.
8 COMMISSIONER HUR: I would be inclined to
9 overrule that objection.
10 Any dissenting views from the Commission?
11 COMMISSIONER STUDLEY: No.
12 COMMISSIONER HUR: Mr. Kopp?
13 MR. KOPP: Then on Line 7 to Line 8 the
14 sentence beginning with "I" and finishing with the word
15 "and," more prejudicial than probative, irrelevant.
16 COMMISSIONER HUR: Mr. Keith?
17 MR. KEITH: Well, I actually don't have a
18 problem with striking the last clause of the sentence.
19 Let me bring this over to the microphone.
20 The part that says "and I still am," I agree
21 that that's not relevant.
22 What I do believe is relevant here, is that it
23 explains why Ms. Madison took the actions that she did,
24 the concern that she had, and that this prompted her to
25 take the actions that she took.
455
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: I would be inclined to
2 sustain the objection, the last part of Line 7 through
3 the sentence that ends with "am" on Line 8.
4 Any dissenting views from the Commission?
5 Okay.
6 MR. KEITH: Just to clarify, what was -- was
7 the ruling the whole sentence goes --
8 COMMISSIONER HUR: The whole sentence.
9 MR. KEITH: -- or just the last clause?
10 COMMISSIONER HUR: So it begins with "I" at the
11 end of Line 7 and ends with "am" in the middle of Line 8.
12 MR. KOPP: Nothing additional on that --
13 MR. KEITH: Okay.
14 MR. KOPP: -- paragraph.
15 COMMISSIONER HUR: Paragraph 13, Mr. Kopp?
16 MR. KOPP: Yes. Again, hearsay to the whole
17 thing.
18 But Lines 18 through 20, the sentence --
19 sentences that begin "I asked," and then the next
20 sentence begins "she said," relevance, no foundation,
21 speculation, prejudicial.
22 COMMISSIONER HUR: Mr. Keith?
23 MR. KEITH: I think that -- I think that -- I
24 actually don't agree with most of the objections, but
25 it's probably -- it's probably not relevant within the
456
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 stream of what's being conveyed, so I think that -- that
2 we wouldn't oppose that.
3 COMMISSIONER HUR: Okay. So that is -- the
4 objection is sustained by stipulation as to the sentence
5 that begins "I asked" on Line 18 and ends with the word
6 "career" on Line 20?
7 Do I have that correct?
8 MR. KEITH: Yes.
9 COMMISSIONER HUR: Thank you.
10 Paragraph 14?
11 MR. KOPP: Yes. Hearsay as to the whole thing.
12 And then the very last line, which is on Page
13 7, Lines 2 to 3, the very last sentence in that,
14 beginning with the word "my," finishing with the word
15 "do," there's no foundation -- I'm sorry, was I going too
16 fast?
17 COMMISSIONER HUR: No.
18 MR. KOPP: No foundation for that and
19 speculation.
20 COMMISSIONER HUR: Mr. Keith?
21 MR. KEITH: I think that this is actually
22 relevant to show Ms. Lopez's state of mind and to explain
23 her hesitancy to call the police in the course of the
24 conversation.
25 Again, we're trying to ascertain why and how
457
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 this investigation started. So it's relevant for that
2 purpose.
3 MR. RENNE: Are we talking about Lines 2 and 3
4 on Page 7?
5 MR. KEITH: Yes.
6 MR. RENNE: Well, that's not -- that's not
7 Miss -- that's, as I understand it, Miss Madison
8 speculating as to why she -- she said, "It's my
9 impression."
10 How is her impression -- how is that factual
11 evidence?
12 MR. KEITH: I think it's her interpretation of
13 what Ms. Lopez was saying. I think there is an argument
14 that she is just -- she may -- she may be sharing her
15 thoughts on that. It's not clear from the -- from the
16 declaration.
17 So I think -- I mean, in light of the fact we
18 can't ask her for clarification at this point, I'm not
19 quite sure how to proceed on that.
20 COMMISSIONER HUR: I'd be inclined to sustain
21 the objection.
22 Any dissenting views by the Commission?
23 He
aring none, Paragraph 15?
24 MR. KOPP: Yes. Again, hearsay as to the
25 entire paragraph.
458
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 On Lines 10 through 13, the entire sentence,
2 beginning with "she," ending with "argument," that's
3 irrelevant and more prejudicial than probative.
4 COMMISSIONER HUR: Line 10 beginning with "she"
5 and ending with "argument."
6 Okay. Mr. Keith?
7 MR. KEITH: Just a moment.
8 COMMISSIONER HUR: Sure.
9 MR. KEITH: Thank you.
10 (Examination of documents.)
11 So this is actually -- so this is relevant for
12 this reason: Sheriff Mirkarimi has claimed in his public
13 statements that he's referred to the custody laws as
14 being powerful. That he never called himself a very
15 powerful man.
16 The fact that this exchange happened and that
17 Ms. Lopez was communicating that she had asked -- that
18 she had brought up with her husband how this was a
19 problem in the past, that he had made the statement that
20 he was a powerful man and could use it to get custody of
21 Theo, the fact that he has -- that there has been a
22 previous discussion of this issue, and her understanding
23 of what he said, tends to defeat Sheriff Mirkarimi's
24 claim that there was some kind of a misunderstanding,
25 that he was really referring to the custody laws. If
459
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 there were, that misunderstanding would have been cured
2 by this conversation.
3 So the fact that she's saying we talked
4 about -- that this prompted a conversation before and she
5 still had the same impression that he was threatening to
6 use his power to take away Theo, shows that it's not --
7 that it wasn't a statement that the sheriff made that the
8 custody laws were powerful.
9 COMMISSIONER HUR: Questions for Mr. Keith?
10 Comments from the Commissioners?
11 You know, this paragraph to me starts to get to
12 statements that occurred on January 1st, but were
13 reflecting -- it's getting closer to hearsay -- clear
14 hearsay to me.
15 MR. KEITH: But we're not offering it for what
16 he said in that conversation or what she said in that
17 conversation. We're offering it for the fact that there
18 was a conversation about these comments in the past.
19 If there was a conversation about these
20 comments in the past, then it's likely that any
21 misunderstanding about what the sheriff meant would have
22 been clarified at that point.
23 So, again, it's not about what was said in
24 these past conversations. It's that a conversation
25 happened that is relevant.
460
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: I welcome the views of my
2 fellow Commissioners on this objection.
3 COMMISSIONER LIU: I mean, I would agree that I
4 think we're getting a little farther afield from the
5 excited utterance exception that you've been relying on,
6 Mr. Keith. Do you --
7 MR. KEITH: Right. Well, the excited utterance
8 exception would be if this were going to be admitted for
9 the truth of what was said in these other conversations
10 that had happened in the past. If we wanted to admit it
11 for that purpose, but we don't.
12 We only want to admit it for the purpose of
13 showing that this issue about what he meant or what he --
14 what he said, he was a very powerful man, or the fact
15 that he had said it had come up in the past. And that is
16 a non-hearsay purpose, just to show that there was a
17 conversation. Because if there was a conversation -- the
18 reason that this is relevant, if there was a
19 conversation, that would have cured any misunderstanding.
20 I mean, the claim here is that there was an
21 accident or misunderstanding of what the sheriff said.
22 COMMISSIONER HUR: Right. But -- so I would
23 understand the -- that it's not for the truth if we were
24 trying to evaluate whether or not he was a powerful man
25 who could take Theo away -- who could take the child
461
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 away. But the statement of itself, whether or not it was
2 made, is what is relevant to our inquiry as to whether it
3 relates to official misconduct. So I do think it's still
4 hearsay purpose.
5 MR. KEITH: But this is about prior discussions
6 where -- that were prompted by similar statements. And
7 our argument is, well, if she misunderstood him, surely
8 those prior discussions would have clarified it. And
9 so --
10 COMMISSIONER HUR: I would be inclined to
11 overrule the objection on Paragraph 15.
12 You know, and I would caution both parties
13 again, that when it comes to hearsay, we're going to need
14 non-hearsay evidence. That hearsay might be used to
15 bolster, but -- but if your -- if the evidence is only
16 hearsay, I think, you know, the Commission is going to
17 weigh it less.
18 Is there any objection to the overruling of the
19 objection to Paragraph 15?
20 COMMISSIONER LIU: No.
21 MR. RENNE: No objection.
22 COMMISSIONER HUR: 16?
23 MR. KOPP: Actually, I'm sorry. I wasn't quite
24 through.
25 COMMISSIONER HUR: Oh, I'm sorry. You have
462
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 more objections to Paragraph 16 (sic)?
2 MR. KOPP: I wish I had less.
3 MR. KEITH: 15.
4 COMMISSIONER HUR: 15, sorry.
5 MR. KOPP: The last sentence in Paragraph 15,
6 beginning on Line 14 and concluding on Line 16, starting
7 with the word "she," I believe that's speculation.
8 There's no foundation.
9 It looks to me like this is Miss Madison giving
10 her impression, again, as to the reason why Miss Lopez
11 brought this issue up during this conversation.
12 COMMISSIONER HUR: Mr. Keith?
13 MR. KEITH: I agree.
14 COMMISSIONER HUR: Okay. That is stricken, the
15 sentence beginning with "she" on Line 14 and ending with
16 "threat" on Line 16.
17 Paragraph 16?
18 MR. KOPP: Yes.
19 The -- let's see, fourth sentence beginning on
20 Line 20, ending on Line 21, beginning with the word "I,"
21 ending with the word "that."
22 The meaning of this sentence isn't clear to me.
23 So I suppose the proper objection is unintelligible. And
24 maybe I'm just dense on this, but I can't tell what that
25 sentence says -- or means.
463
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: Okay. Mr. Keith?
2 MR. KEITH: Well, the sentence -- what I think
3 it means is that she didn't ask and he didn't know why
4 Ms. Lopez kept saying in 2011.
5 COMMISSIONER HUR: Uh-huh (affirmative).
6 MR. KEITH: And, I mean, I think that's the
7 meaning of the sentence. It could have been conveyed in
8 fewer words.
9 But I think, you know, she's basically -- she's
10 honestly reporting I didn't ask about this, but she kept
11 saying in 2011. And I think that, you know, as cryptic
12 as this is, the meaning is clear that she didn't know why
13 she kept saying 2011. It wasn't clear.
14 COMMISSIONER HUR: I'd be inclined to strike
15 the sentence that begins "I" on Line 20 and ends with
16 "that" on Line 21. I think that's speculation.
17 Any objections?
18 COMMISSIONER LIU: No.
19 COMMISSIONER HUR: Any dissenting view from the
20 Commission?
21 Mr. Kopp, anything else in Paragraph 16?
22 MR. KOPP: Yes. The next sentence now sounds
23 like another level of hearsay. That is, what this person
24 in Venezuela said to Miss Lopez. And, again, it's not
25 relevant.
464
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Then the very next sentence beginning on Line
2 23, I don't believe there's any foundation. That looks
3 like speculation, and it's not relevant.
4 MR. KEITH: This is offered to show Ms. Lopez's
5 state of mind and, you know, perhaps, you know, indicate
6 why -- what spurred her to action here.
7 We're certainly not offering it up as to the
8 truth of the conversation she had with somebody in
9 Venezuela, as to explain why Ms. Lopez was feeling the
10 way she was feeling and the fact that she was feeling the
11 way she was feeling.
12 I think that a person can certainly interpret a
13 look that they're given, a look of, well, that didn't
14 work out so well. And I think that again explains
15 Ms. Lopez's state of mind and explains why she chose to
16 do what she did, which was to confide in a friend and
17 make a video.
18 COMMISSIONER HUR: I would be inclined to
19 sustain the objection to the sentence beginning "she" and
20 ending with "advice" on Line 21 and ending on Line 24.
21 COMMISSIONER STUDLEY: Two sentences.
22 COMMISSIONER HUR: I'm sorry, thank you. Two
23 sentences.
24 Is there a dissenting view by the
25 Commissioners?
465
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Okay. Paragraph 17?
2 MR. KOPP: Yes. This entire paragraph is
3 irrelevant, and I don't know how it could be more
4 prejudicial than probative. I mean, the probative value
5 here, in my opinion, is nil. The prejudicial value is
6 extreme.
7 COMMISSIONER HUR: Mr. Keith?
8 MR. KEITH: One moment.
9 (Examination of documents.)
10 So this is -- this is, again, explaining why
11 Ms. Lopez felt that she had to make the video.
12 I mean, we're not offering this for the truth
13 of the matter. It explains her motivation for making the
14 video, her concern in making the video, and her state of
15 mind with regard to making the video, and why she chose
16 to make it.
17 So, again, I mean, we're not offering this
18 for -- you know, for the truth of what's said. Again,
19 it's to show why somebody did what they did, which is a
20 proper non-hearsay purpose.
21 COMMISSIONER HUR: I would -- I would sustain
22 the objection to Paragraph 17 in its entirety. I think
23 it's irrelevant and I think it, to me, constitutes 352.
24 Is there a dissenting view among the
25 Commissioners?
466
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MR. RENNE: I agree.
2 COMMISSIONER HUR: Paragraph 18?
3 MR. KOPP: The first sentence of Paragraph 18,
4 the second clause "comma but as she knew comma," there's
5 no foundation for that, and it's speculation.
6 I don't have any objection to the remainder of
7 the sentence.
8 My second objection is kind of along those
9 lines, that the very next sentence on Line 12 to Line 13,
10 beginning with the word "since" and ending with
11 "attorney," that's speculation. There's no foundation.
12 You want to take that up first and then I can
13 continue or should I just lay them all out?
14 COMMISSIONER HUR: Mr. Keith, any objection to
15 those two?
16 MR. KEITH: Yes. I think that Ms. Madison
17 certainly has foundation to discuss what a friend knows
18 about her, because she has a relationship with that
19 friend and has given her friend that information in the
20 course of their relationship. And certainly a person is
21 capable of saying that -- somebody they've known for a
22 long time, oh, they know that I'm not -- you know, that I
23 am this or that I'm not this. I mean, it just comes with
24 knowing somebody. So this is actually something that's
25 within Ms. Madison's personal knowledge.
467
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: I'm not -- that very well
2 may be true, but I don't see anything in here that
3 establishes that foundation. Had she said, "I had told
4 her, we had discussed it," but there's no foundation for
5 why -- why she knew.
6 You can point me to somewhere else were there
7 is that foundation.
8 MR. KEITH: Okay. Let me check for a moment.
9 (Examination of documents.)
10 No, there is -- there is some foundation for
11 that. I mean, in addition to the fact that the earlier
12 paragraphs establish the existence of their relationship.
13 On Page 21, Lines 6 through 8, there's
14 references to sort of past -- past details of what she
15 had told her friend.
16 COMMISSIONER HUR: Okay. I would -- I would
17 sustain the objections, the two objections.
18 I think if those statements on Page 21 come in,
19 if there are -- we could find those come in separately,
20 if we get to them, but I would sustain the objections and
21 strike the phrase "but," ending with "attorney" on Line
22 12, "since" being on 12 and ending with "attorney" on 13.
23 Any dissenting views from the Commissioners?
24 MR. EMBLIDGE: Point of clarification, I
25 thought the first objection was to the clause "but as she
468
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 knew," as opposed to --
2 COMMISSIONER HUR: Ahh. That actually would
3 be -- yes. My mistake.
4 Miss Madison is probably qualified to say that
5 she was a practicing attorney -- she was never a
6 practicing attorney.
7 MR. KEITH: "As she knew" should probably be
8 taken out.
9 COMMISSIONER HUR: Thank you for the
10 clarification.
11 Mr. Emblidge, on the second one was that -- did
12 I get that right?
13 Okay. Let's get through Paragraph 18. I think
14 I'm going to have to propose a different mechanism f
or
15 resolving these objections.
16 Any further objections to 18?
17 MR. KOPP: Yes. I don't -- irrelevant as to
18 the rest of it. And moreover, I think this buttresses
19 the point that I made earlier about the fact that none of
20 this was a spontaneous statement because it was made in
21 anticipation of litigation, specifically child custody
22 and/or divorce.
23 But in any event, the rest of the paragraph is
24 not relevant.
25 COMMISSIONER HUR: Mr. Keith?
469
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MR. KEITH: Yeah, I agree at this point it may
2 not be relevant.
3 COMMISSIONER HUR: Okay. So can you give me
4 the line numbers again, Mr. Kopp? I didn't mark it.
5 MR. KOPP: Yes. It would be Line 13 to the end
6 of that paragraph, which is on Line 22.
7 COMMISSIONER HUR: So beginning with "I" on
8 Line 13 --
9 MR. KOPP: And ending with "okay."
10 COMMISSIONER HUR: -- ending with "okay" on
11 Line 22?
12 MR. KOPP: Yes.
13 COMMISSIONER HUR: Okay. That objection is
14 sustained.
15 Okay. I mean --
16 MR. KEITH: I'm sorry, I would like to keep the
17 last sentence just as it said, it's the course of the
18 communication. I'm sorry, I spoke to --
19 COMMISSIONER HUR: Okay.
20 MR. KEITH: I spoke quicker than I should have.
21 I apologize.
22 COMMISSIONER HUR: No problem.
23 You're talking about the sentence --
24 MR. KEITH: "I asked her to let me know." I
25 would keep that. It just describes the course of what
470
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 happened next in the conversation.
2 COMMISSIONER HUR: Any objection to that,
3 Mr. Kopp?
4 MR. KOPP: Yes. I don't think it's relevant.
5 COMMISSIONER HUR: I'd be inclined to overrule
6 that objection.
7 Any dissenting view from the Commission?
8 Okay. We'll literally be here all night if we
9 do this, and we have other declarations. So I welcome
10 views from the parties on how to handle this and from my
11 fellow Commissioners?
12 MR. KEITH: I would propose that we do written
13 objections back and forth, and we may -- there may be --
14 very well be many that we agree on and don't contest, and
15 that could speed things along. And plus, you know, we
16 won't have to do this on our feet, so we'll be able to go
17 much more quickly.
18 COMMISSIONER HUR: Mr. Kopp, what do you think
19 of that?
20 MR. KOPP: We're willing to do that. Our
21 objections would probably be similar to what we've done
22 already, which is to not -- to state the legal objection
23 and not really expand upon that.
24 You know, if you are going to want us to speak
25 further on it, I'm not sure that it actually will speed
471
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 things up, but we can certainly try it.
2 COMMISSIONER HUR: Commissioners, views on
3 handling this?
4 COMMISSIONER HAYON: I --
5 COMMISSIONER HUR: Commissioner Hayon.
6 COMMISSIONER HAYON: I would just go back to
7 what Commissioner Renne originally proposed, perhaps we
8 could apply that to the second half of this declaration
9 that we haven't gone through yet.
10 COMMISSIONER HUR: That's -- I think we should
11 discuss that proposal. And I think relevant to that
12 discussion, Mr. Kopp, would be whether you intend to
13 cross-examine Miss Madison based on what you've learned
14 so far today with respect to the objections?
15 MR. KOPP: Well, my intent was that if the
16 portions of the declaration that I thought should be
17 excluded were excluded, that I did not intend to require
18 her to appear for cross.
19 COMMISSIONER HUR: Okay. There are a number of
20 areas where we sustained your objections, but for -- with
21 respect to the statements that were made to Miss Madison
22 by Miss Lopez, we -- we have overruled a number of those.
23 So you -- but based on what you've heard now,
24 if we sustained every other objection you had, you would
25 not want to cross-examine Miss Madison, is that what
472
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 you're saying?
2 MR. KOPP: Yes.
3 COMMISSIONER HUR: Okay. The proposal to
4 simply permit Miss Madison to testify and handle
5 objections consistent with the Commission's views on her
6 declaration, I would welcome the thoughts of my fellow
7 Commissioners on that? I think we know Mr. Renne's and
8 Commissioner Hayon's view.
9 COMMISSIONER LIU: I would be fine with that.
10 Yeah, that would be a fine way to proceed.
11 MR. KEITH: If Mr. Kopp -- if Mr. Kopp, in
12 fact, doesn't want to cross-examine Miss Madison at this
13 point, given, you know, what is in and what's out, we may
14 not need to cross-examine -- we may not need her to come
15 in at all. So I tend to think --
16 COMMISSIONER HUR: That's kind of what I was
17 thinking, Mr. Keith.
18 MR. KEITH: I'm willing to take a good run at
19 trying to do this on the papers, and hopefully, if we
20 come back, we can go through the rest a lot more quickly.
21 COMMISSIONER HUR: Mr. Emblidge.
22 MR. EMBLIDGE: I should relate to the
23 Commissioners that I -- about a half an hour before
24 tonight's hearing I received a call from an attorney who
25 identified themself as Ms. Madison's attorney, and for
473
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 what it's worth to the Commission, he expressed a concern
2 by Miss Madison about her continued public involvement in
3 this proceeding and wanted to minimize that.
4 UNKNOWN PERSON IN AUDIENCE: That's
5 interesting.
6 COMMISSIONER HUR: Okay. Here are my competing
7 concerns with this issue.
8 I am cognizant that objections to the rest of
9 this declaration may be so general that they may not
10 really help us actually decide the issues. That said, I
11 also don't want to inconvenience a witness.
12 Finally, I'm reluctant to push off testimony,
13 if we need it from Miss Madison, further than the days we
14 have allocated in June. And it seems to me that written
15 objections would virtually necessitate that, because --
16 although maybe not.
17 Now that I'm thinking about this out loud,
18 perhaps we could subpoena Miss Madison to appear. We'll
19 take the written objections. If they're helpful and we
20 can resolve the issues with the declaration, Miss Madison
21 could appear. If Mr. Kopp doesn't want to cross her,
22 we'd excuse her.
23 If we determine that the written objections are
24 not helpful and that it would be more efficient to simply
25 proceed with direct, we'd ask, Mr. Keith, you be prepared
474
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 to direct examine her, and then Mr. Kopp can decide after
2 that if he wanted to conduct cross-examination.
3 MR. KEITH: That's a possibility.
4 As I reported in our -- when we had a
5 conference call regarding scheduling, my understanding
6 from Ms. Madison's counsel is that -- is that he is
7 unavailable through the 30th and very much wants to have
8 the opportunity to prepare his client to testify, if she
9 is going to testify. There may be other
10 witness-availability issues with the witness Miss Haynes
11 as well.
12 So it may or may not be possible to finish by
13 the 29th, as fast as we want to go. But I know that
14 taking a witness out of the equation gets us there
15 faster.
16 And so I would -- I would like to take a good
17 run at trading objections, and then meeting and
18 conferring, and really just trying to bring back to the
19 Commission those objections that may be in bundles so
20 that we can say these objections -- you know, this is all
21 this type of testimony, so we can get some quick rulings
22 on the 28th.
23 COMMISSIONER HUR: Okay. Here's what I
24 propose. I propose that you do submit objections,
25 Mr. Kopp.
475
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Mr. Keith, that you respond to them.
2 Mr. Kopp, when can you submit objections to
3 Madison and Mertens?
4 MR. KOPP: To be safe, I would say not before
5 Monday. I can -- I can try to get them in before then.
6 It's Tuesday.
7 COMMISSIONER HUR: How about Friday?
8 MR. KOPP: I don't want to promise something
9 that I can't deliver. If I can, I am happy to get those
10 objections to the parties. I much prefer Monday, even if
11 it was Monday early, so that I could have the weekend.
12 COMMISSIONER HUR: And are you comfortable,
13 then, with -- if Mr. Mertens or Miss Madison testify that
14 it occur in July? I mean, you've been pushing for the
15 schedule. So I just want to be clear that you're fine
16 with testimony occurring later?
17 MR. KOPP: I think we're probably going to have
18 to agree to that unfortunately. And, you know, it does
19 turn out that according to Miss Peralta Haynes' attorney
20
she can't be available before July 9th. And I don't know
21 if that's because she just had a baby or there are
22 scheduling reasons. I don't have that information, so.
23 Unfortunately, it sounds like there's going to
24 be one date in July where there may be witness testimony.
25 COMMISSIONER HUR: Okay. That being the case,
476
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 I have no objection the Monday the --
2 MR. KEITH: That's the 25th.
3 COMMISSIONER HUR: -- 25th, thank you.
4 Mr. Keith, when can you respond?
5 MR. KEITH: Well, I'm trying to build in time
6 for us to meet and confer and bundle the objections so we
7 can just bring, hopefully, you know, five or six to the
8 Commission to rule on instead of 20.
9 COMMISSIONER HUR: We would greatly appreciate
10 that.
11 MR. KEITH: It'll be hard if I don't get them
12 until the 25th, but I understand we all have other cases.
13 So -- yeah, if I get the objections by the
14 25th, I can probably respond to them by the 2 -- if the
15 Commission is going to decide these on the 28th, I think
16 I need to get them on the 22nd, because then I would
17 respond on the 25th, we'd meet and confer, and then we'd
18 have something to present to the Commission maybe on the
19 27th. You know, so -- you know, basically say, "Here's
20 the package of objections."
21 So I think we need to move the schedule back a
22 bit.
23 COMMISSIONER HUR: What if you got them at 9:00
24 a.m. on the 25th, could you get them to us by close of
25 business on the 27th?
477
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MR. KEITH: You mean, sort of objection,
2 response?
3 COMMISSIONER HUR: Yes. We want your response
4 and objection, and hopefully the narrowing that you've
5 suggested.
6 MR. KEITH: Yes, that will work.
7 COMMISSIONER HUR: Okay.
8 Mr. Renne.
9 MR. RENNE: I'm going to ask a question of
10 Mr. Kopp.
11 Why isn't it that you can't sit down tomorrow
12 with the declaration in front of you, cross out all the
13 lines that you don't want in?
14 I mean, I've practiced law a lot longer than
15 you, and my sense would be that you could do that in the
16 space of an hour. I really believe you could do it in
17 the space of an hour if you crossed out everything that
18 you thought should not be in, give that to Mr. Keith, and
19 Mr. Keith can either say he agrees or he disagrees, and I
20 don't see any reason why it takes weeks to do something
21 on a piece of paper you got -- we're Page 8 now -- 9 now.
22 You've got 13 pages left. And I appreciate that you've
23 got other cases, but I'm sure that your client believes
24 that his case is number one, and --
25 MR. KOPP: They all do.
478
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MR. RENNE: -- I believe the mayor believes
2 that his case is number one, and he wants to get it done.
3 MR. KOPP: Well, I should start off by saying,
4 I appreciate your confidence in me. However, if I were
5 to say, yes, I can have this done by close of business
6 tomorrow or even early Thursday, and I'm unable to do
7 that, I don't want to commit to a schedule that I really
8 think I might not be able to meet.
9 I -- I'll tell you -- can I commit to Friday?
10 Would that make everyone happy?
11 COMMISSIONER HUR: It will make us happier.
12 MR. RENNE: It might make some, but it wouldn't
13 make me happy.
14 MR. KOPP: But it sounds to me like, if I can
15 get it to Mr. Keith by sometime on Friday, hopefully
16 sooner rather than later, that would solve the timing
17 problems, would it not?
18 COMMISSIONER HUR: That would help.
19 And so, Mr. Keith, in light of that, when would
20 you be able to get us the -- your response?
21 MR. KEITH: If Mr. Kopp is available to meet
22 and confer on Monday afternoon, we could try and get your
23 response on Tuesday night, say the 27th -- I'm sorry,
24 Tuesday, the 26th.
25 COMMISSIONER HUR: That would be appreciated.
479
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Okay. So --
2 MR. KEITH: Are you -- okay.
3 COMMISSIONER HUR: -- Mr. Kopp's will be in by
4 5 p.m. on the 22nd -- do we have a midnight deadline in
5 this case for things? Does that make a difference to
6 you, Mr. Keith?
7 MR. KEITH: Oh, I won't
-- I won't be looking
8 at it Friday night.
9 COMMISSIONER HUR: Yeah, okay.
10 MR. KOPP: So midnight?
11 COMMISSIONER HUR: Okay. So same midnight
12 deadline applies, 22nd and 26th. And that's for both
13 Madison and Mertens.
14 MR. KOPP: Yes, understood.
15 MR. KEITH: Yes.
16 COMMISSIONER HUR: Okay. Does that cover all
17 of the -- sorry, Mr. Emblidge.
18 MR. EMBLIDGE: I'm not clear whether you would
19 like me to prepare a subpoena for Miss Madison and
20 Mr. Mertens to appear next week in light of what you just
21 heard?
22 COMMISSIONER HUR: I understand that Mr. --
23 Miss Madison and Mr. Mertens are represented by the same
24 party, is that -- the same lawyer?
25 MR. KEITH: I've been working with the same
480
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 lawyer for both of them.
2 COMMISSIONER HUR: Okay. And he is with a
3 firm, correct?
4 MR. KEITH: Yes.
5 COMMISSIONER HUR: So, I mean, I think we can
6 handle this one of two ways. I think the Commission can
7 subpoena these witnesses. I think -- you know, I
8 appreciate the attorney's desire to be there, but if he
9 has partners at the firm, I would have -- I don't have
10 qualms with requesting the appearance of the witnesses
11 with the other attorney.
12 That said, if we're going to have additional
13 testimony in July, I don't want to unnecessarily
14 inconvenience -- inconvenience the witness.
15 So I think we can handle this one of two ways.
16 We could subpoena her for the 29th, rule on the
17 objections on the 28th, and if it -- if it turns out that
18 we don't need her on the 29th, we can release her.
19 Or we can rule on the objections on the 28th,
20 and then make a decision as to whether to subpoena her
21 for additional -- a different date in July.
22 And I welcome the views of the parties on those
23 two proposals.
24 MR. KEITH: Commissioner, we prefer the latter
25 only out of courtesy to the independent witnesses, both
481
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 these witnesses and Ms. Peralta Haynes and their counsel.
2 We just think that if we're going to have to have a
3 hearing in July anyway, we might as well wait 'til July
4 to see if it's necessary.
5 COMMISSIONER HUR: Mr. Kopp?
6 MR. KOPP: Well, it might force some of these
7 issues by subpoenaing these witnesses for the next
8 hearing. I don't necessarily have a strong view, but --
9 I don't -- I don't know how to interpret what
10 Mr. Emblidge said, but it certainly makes me wonder
11 whether or not if this witness, if subpoenaed, will
12 appear and the sooner we know that the better.
13 MR. KEITH: From my communications with
14 Mr. Roberts, I don't have any indication that she doesn't
15 plan to appear, but I'm -- I'm just relating what I know.
16 MR. EMBLIDGE: I did not get any indication to
17 that also.
18 COMMISSIONER HUR: Commissioners' views on
19 whether we should subpoena Mr. Mertens and Miss Madison
20 on the 29th or whether we should await resolution of the
21 objections prior to doing so?
22 MR. RENNE: And the information we have is that
23 the attorney for those two witnesses is not available
24 until sometime in July?
25 MR. EMBLIDGE: He did not express that -- no,
482
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 I'm sorry. He did express that to me. That he is not
2 available the last week in June and the first week in
3 July.
4 MR. KEITH: Which -- I think that mirrors
5 Ms. Haynes' unavailability as well or her counsel.
6 COMMISSIONER HAYON: That sort of determines
7 our going into July, don't you think?
8 COMMISSIONER HUR: Yeah, probably.
9 Okay. In light of that, I think we should --
10 we should withhold issuing the subpoena for Miss Madison
11 and Mr. Mertens as of now. But -- unless there are
12 dissenting views, I'm -- I don't feel particularly
13 strongly about it.
14 Does that address all the objections to the
15 mayor's fact witness list?
16 No, I'm sorry, we didn't address Miss Williams.
17 MR. KEITH: Right.
18 COMMISSIONER HUR: I think with Miss Williams,
19 because the issues are similar -- it is a shorter
20 declaration. We could go through it if the parties
21 wanted to, or if you think it would be helpful to meet
22 and confer so that you could reach whatever stipulations
23 that you may be able to reach with Miss Williams that
24 result from your discussion with the other two witnesses,
25 we might -- I'll be happy to hear that too.
483
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MR. KOPP: Well, I could offer that I'd be
2 willing to prepare my objections and submit them at the
3 same time as the other objections to the Mertens and
4 Madison declarations.
5 COMMISSIONER HUR: I mean, you submitted
6 objections to Williams already.
7 MR. KOPP: That's -- thank you for reminding
8 me. I mean, if they needed to be expanded upon, if we
9 needed to meet and confer, I'd be willing to do that.
10 Otherwise --
11 COMMISSIONER LIU: I think it may be helpful to
12 do what you were planning to do with Ivory Madison's --
13 your objections to Ivory Madison's declaration, the same
14 way with Callie Williams, rather than just general
15 objections to all -- mostly all the paragraphs.
16 MR. KOPP: So you -- I'm sorry,
17 Commissioner Liu, you're saying if I could detail the
18 objections with more specificity as to particular
19 sentences within the paragraphs?
20 COMMISSIONER LIU: Correct. As
21 Commissioner Renne has suggested, to strike out the
22 sentences just like you would any other evidentiary
23 objection.
24 MR. KEITH: I suspect there are going to be
25 fewer issues with Ms. Williams' declaration than there
484
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 with Ms. Madison's declaration. I think -- I think it
2 may actually -- we may be able to get through it pretty
3 quickly.
4 COMMISSIONER HUR: If we dealt -- if we dealt
5 with it tonight?
6 MR. KEITH: I would suggest going through it
7 right now.
8 COMMISSIONER HUR: Okay. We can give that a
9 shot. I think we need to take a quick break. The court
10 reporter certainly needs to take a break.
11 So let's take 10 minutes. We will then resume.
12 We'll start with Miss Williams and see how that goes, and
13 then we'll try to address the objections of the other
14 parties.
15 MR. KEITH: Yes.
16 (Short recess.)
17 COMMISSIONER HUR: Excuse me, we are back in
18 session. I would ask the audience to please allow us to
19 proceed. Thanks very much.
20 During the break I met with the parties to
21 discuss some scheduling issues, as per the authority that
22 was granted to me by the full commission. We will
23 address those toward the end of the proceedings, but we
24 did have some discussion about scheduling. I just want
25 to make that clear on the record.
485
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Before we took our break, we were going to
2 address the objections to Callie Williams.
3 MR. KEITH: Commissioner, if I might -- if I
4 might interrupt to make sure that we don't forget
5 something that we left off earlier.
6 Exhibit 4, to Inspector Daniele's declaration,
7 is the video. We were deferring ruling on that. Now
8 that we've discussed some of the -- some of the similar
9 issues about excited utterances, I just want to make sure
10 we get a ruling on that record regarding the video.
11 COMMISSIONER HUR: I have the video on my list,
12 and I do intend to get to it.
13 MR. KEITH: Okay, thank you.
14 COMMISSIONER HUR: Okay. Callie Williams, we
15 received objections from the sheriff.
16 Do you care to respond to those, Mr. Keith?
17 MR. KEITH: Yes. I mean, the objections are
18 primarily hearsay. The argument being this is what
19 Ms. Lopez -- Ms. Lopez is basically giving an account of
20 what happened on the 31st, but now it's the 4th. And so
21 we're not arguing that the excited utterance applies
22 anymore on the 4th, that Miss Lopez's demeanor on the 4th
23 was not -- it wasn't distraught. It wasn't to the same
24 extreme that it was before Ms. Madison. So we're not
25 arguing that these are admissible for the truth of the
486
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 matter.
2 But we do think that it is admissible for
3 legitimate limited purposes. So I'd like to argue those.
4 COMMISSIONER HUR: Okay. What are those?
5 MR. KEITH: So as we outlined in our -- in our
6 brief, this conversation with Ms. Madison happened around
7 1 p.m., and Ms. Lopez both related the incident and told
8 Ms. Madison some of her intentions that she had coming
9 out of the incident, that she -- that she was thinking
10 about reporting it, about going to her doctor.
11 So it's relevant to where Ms. Lopez's state of
12 mind was on the 4th,
what her plan was. Because as
13 we're -- as we laid out in the brief, Ms. Lopez underwent
14 a big change in her state of mind on the 4th. From being
15 ready to report this incident in the morning, to around
16 noon still wanting to report it but being iffy about
17 repeating it to law enforcement, and then later in the
18 day, essentially rejecting, recanting, trying to stop
19 anybody from reporting it.
20 And so our argument is that on the 4th there
21 were intervening communications with Miss Haynes and the
22 sheriff which are relevant to our charges. And what's
23 very relevant is how that may have changed Ms. Lopez's
24 mind about what she was going to do about this incident
25 that happened on the 31st.
487
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: So who's going to create
2 that link for you? In other words, who's going to
3 testify that -- and I understand -- I'm following your
4 argument with respect to you want to set up what the
5 state of mind was and what the activities were before,
6 but who is going -- who should I expect will testify that
7 there was such coercion by the sheriff to Miss Lopez?
8 MR. KEITH: Well, we expect -- we have -- we do
9 have phone records which show a series of telephone
10 calls, including long telephone calls with Ms. Haynes on
11 the 4th, beginning earlier in the day and continuing to
12 the afternoon.
13 And we also have text messages between the
14 sheriff and Ms. Haynes that day that would tend to show
15 what role Ms. Haynes was taking that day.
16 Essentially, our argument, you know, is to
17 offer proof more or less that she was intending to
18 protect the sheriff based on what was coming out of this
19 December 30th incident.
20 COMMISSIONER HUR: And you have conversations
21 or documents suggesting that the sheriff had talked to
22 Miss Haynes about -- about providing this pressure?
23 MR. KEITH: We expect to get -- we expect to
24 get something about this out -- from the testimony of
25 Miss Haynes and the sheriff.
488
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: Okay.
2 MR. KEITH: At least about contacts regarding
3 this incident and also their relationship and Ms. Haynes'
4 statement of her purpose on the 4th.
5 So, Callie Williams' statement is first offered
6 to show Ms. Lopez's state of mind with regard to
7 reporting this incident, less so what exactly happened on
8 the 31st.
9 The second reason why the statement to
10 Ms. Williams is relevant for a non-hearsay purpose, is
11 that there is substantial similarities between the
12 accounts that Ms. Lopez gives to Ms. Williams and gives
13 to -- gave to Ms. Madison back on the 1st.
14 That tends to defeat the claim and it adds --
15 it tends to defeat a claim of fabrication on the part of
16 either of these witnesses or a claim of inaccuracy on the
17 part of these witnesses, and essentially gives greater
18 weight to their testimony in that they're being -- they
19 independently say that Ms. Lopez was relating to them the
20 same basic facts about what happened. So it tends to
21 corroborate the credibility of these witnesses.
22 And the third reason why we think it's
23 admissible is, well, we already have evidence that there
24 was an incident on the 31st. We have -- we have other
25 admissible evidence about what happened in that incident
489
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 in the form of the -- of the statements to Ms. Madison on
2 the 1st, and this is basically under the administrative
3 hearsay exception. It's hearsay that's allowed to be
4 considered. There's no fact it's exclusively based on
5 it, but it can still be considered by the Commission in
6 terms of adding greater weight to the evidence that is
7 admissible.
8 So as to the hearsay objection, those are
9 our -- those are our major arguments.
10 COMMISSIONER HUR: Okay. Although this may not
11 make me popular, I think that -- I think we do need to go
12 through this paragraph by paragraph, particularly with
13 respect to 4 through 18.
14 There was an objection lodged to Paragraph 4.
15 The objection was relevance.
16 Mr. Keith, do you object -- do you -- what is
17 your view with respect to Paragraph 4?
18 MR. KEITH: So Paragraph 4, it's basically just
19 reporting the past relationship. It's establishing the
20 relationship and also the existence of -- of -- of loud
21 arguments, which, again, is about what's going on in the
22 background of this relationship leading to this DV
23 incident on the 31st.
24 COMMISSIONER HUR: I think Paragraph 4 is
25 irrelevant.
490
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 I welcome the views of my fellow Commissioners.
2 I don't see why we need to get into what the
3 person could or could not hear prior to December 31st,
4 2011, particularly when the statement is that he never
5 personally had seen Ross acting physically abusive
6 towards Eliana.
7 Any dissent from the Commissioners?
8 MR. RENNE: No.
9 COMMISSIONER HUR: Paragraph 4, objection
10 sustained, and the paragraph portion shall be excluded.
11 Paragraph 5. Mr. Kopp has objected to
12 Paragraph 5 through 18 on hearsay grounds. I've heard
13 the objection based on hearsay.
14 Do you have a view as to the need for Paragraph
15 5?
16 MR. KEITH: Well, 5 -- there's no hearsay
17 problem. She's just saying I wasn't home during this
18 incident so I have nothing to say about it. I mean, to
19 me that's relevant. It's just saying what the witness is
20 -- knows about.
21 MR. KOPP: You know, I'll withdraw my objection
22 to that paragraph.
23 COMMISSIONER HUR: Okay.
24 Paragraph 6. There was an objection based on
25 hearsay.
491
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Mr. Kopp, could you address that objection
2 specifically?
3 MR. KOPP: Well, properly and only -- the
4 hearsay objection's only as to the statements that she's
5 relating that Eliana -- Eliana Lopez told her.
6 So it would be starting on Line 10, finishing
7 on Line 12, beginning with the word "she" and ending with
8 the word "then." And, actually, the middle sentence
9 there isn't her, so it's really not --
10 MR. KEITH: I'm sorry?
11 COMMISSIONER HUR: So I'm sorry, starting with
12 the word "she" on Line 10?
13 MR. KOPP: 10.
14 COMMISSIONER HUR: 10, and ending with "then"
15 on Line 12?
16 MR. KOPP: Yes. So those are the portions of
17 the objection.
18 COMMISSIONER HUR: I would be inclined to
19 overrule that objection. I think it's -- again,
20 cautioning that it's been conceded that it's hearsay. We
21 could consider it to bolster other evidence, but we
22 likely would not rely on it as sole evidence to establish
23 a fact.
24 Is there dissent from the Commission with
25 respect to the objection to Lines 10 through 12?
492
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Okay. That objection is overruled.
2 Paragraph 7. Specific objections, Mr. Kopp?
3 MR. KOPP: Yes. Hearsay as to the entire
4 paragraph. Also -- withdrawn. Just hearsay.
5 COMMISSIONER HUR: Mr. Keith?
6 MR. KEITH: As I stated before, this is offered
7 as administrative hearsay and also to bolster the
8 reliability of the other statement of the witness, not
9 for the truth of the matter.
10 COMMISSIONER HUR: I would be inclined to
11 overrule the objection with the same caveat with respect
12 to how hearsay should be handled and the weight it would
13 be given.
14 Any dissent from the Commissioners?
15 COMMISSIONER RENNE: No.
16 COMMISSIONER HUR: Paragraph 8.
17 MR. KOPP: I'm sorry. Chairperson Hur, I'm not
18 sure if you want me to -- because I have already lodged
19 these objections. And I could probably tell you that --
20 if you'd just give me a moment, I could tell you whether
21 or not there are any additional objections, besides
22 hearsay, as to the remainder of these paragraphs through
23 18.
24 COMMISSIONER HUR: Okay. Sure. I'll give you
25 a moment to do that.
493
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MR. KOPP: (Examination of documents.)
2 Yes. I'm sorry, I do have some additional
3 objections.
4 COMMISSIONER HUR: Okay. Let's talk about
5 Paragraph 8. Your objection's hearsay.
6 Mr. Keith, anything beyond the arguments you
7 made with respect to how to handle hearsay?
8 MR. KEITH: Not for Paragraph 8, no. There are
9 some additional ones for 9 and 11.
10 COMMISSIONER HUR: I'd be inclined to overrule
11 the objection to Paragraph 8, same caveat with respect to
12 hearsay.
13 Any dissenting views from the Commission?
14 Paragraph 9.
15 Mr. Kopp, maybe I'll first give you the
16 opportunity, if there are other objections besides
17 hearsay, and then Mr. Keith can address --
18 MR. KOPP: Thank you. I apologize if they were
19 not all put down in writing.
20 But in Paragraph 9, beginning on Line 5,
21 starting with "Eliana," through the end of that paragraph
22 on Line 11, irrelevant. Doesn't deal with the December
23 31st incident.
24 MR. RENNE: That's in addition to your hearsay
25 argument?
494
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MR. KOPP: Yes, sir.
2 COMMISSIONER HUR: Mr. Keith?
3 MR. KEITH: Okay. This is a new objection, but
4 I'm happy to explain why it's relevant.
5 Well, first of all let me -- let me -- okay.
6 I'll deal with the relevance issue first.
7 So this is basically describing Ms. Lopez's
8 state of mind and where she was on the 4th, and where
9 Miss Lopez was on the 4th in terms of her intentions --
10 was influenced by what had gone on in the relationship
11 before.
12 This kind of information tends to show that she
13 had a reason for having the feeling that she said she was
14 having at the time to Ms. Williams, and that's the second
15 reason why this is in addition to being administrative
16 hearsay. And that it's more evidence of stuff that's
17 already -- that's already in, is that it -- it shows that
18 she was thinking about divorce at the time.
19 So this is her state of mind. It's -- it's
20 that she's thinking about divorce and leaving her husband
21 at this time as opposed to essentially retreating later
22 from the accusation of abuse and no longer thinking about
23 divorce.
24 So, again, this shows where Miss Lopez's state
25 of mind was. And, again -- yeah, that's the issue.
495
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: Are you -- is it relevant to
2 your allegations whether the physical conduct that
3 allegedly occurred on December 31st was the first or
4 second time it had occurred?
5 MR. KEITH: What is relevant about the
6 earlier --
7 COMMISSIONER HUR: Or is it used for -- I'm
8 sorry, I should let you finish.
9 MR. KEITH: What is relevant for us about the
10 earlier incident, is that it makes it more likely that
11 the account that Ms. Lopez gave about that incident on
12 the 31st is accurate, the account that she gave to
13 Ms. Madison and then to Ms. Williams. It makes it more
14 likely that it is true. So in that aspect, yes.
15 COMMISSIONER HUR: Mr. Kopp, do you have a
16 response to that -- on that point?
17 MR. KOPP: Yes, on that point it's pure
18 character evidence, which should not be allowed.
19 There was reference to Penal Code Section 1109
20 allowing this to be -- prior conduct to be used in
21 criminal prosecutions to prove conduct on a particular
22 date by showing past instances, but that's not where we
23 are. This is not a criminal proceeding, as I've been
24 told.
25 So I don't think -- I mean, this should not be
496
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 relevant to the inquiry. And I think all of these
2 references, anything that happened before December 31st,
3 are not admissible.
4 COMMISSIONER HUR: What authority do you have
5 that 1109 only relates to criminal proceedings?
6 MR. KOPP: I have that --
7 MR. KEITH: Commissioner, it actually says
8 that.
9 COMMISSIONER HUR: Oh, okay.
10 MR. KEITH: So I don't dispute what 1109 says.
11 COMMISSIONER HUR: Okay. It's not disputed.
12 MR. KEITH: But we think it should,
13 nevertheless, apply here, because in an administrative
14 proceeding the idea is to use reliable evidence. If
15 something is reliable enough to use in a criminal
16 prosecution, it's certainly reliable enough to use in an
17 administrative proceeding, particularly when the subject
18 matter that we're dealing with is so similar; that is,
19 what happened in this domestic violence incident of the
20 31st.
21 So, though, we fully concede that this is what
22 the statute says, we think it's very appropriate to be
23 using those rules in this proceeding regarding
24 admissibility. Again, if it's reliable enough for a
25 criminal conviction, it should be reliable enough for an
497
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 administrative hearing. That's what administrative
2 hearings turn on is reliable evidence.
3 COMMISSIONER HUR: But why, then, the
4 limitation in the code that it relate to criminal
5 proceedings?
6 MR. KEITH: You don't really have many civil
7 proceedings about domestic violence. That would be my
8 only response. And, you know, I don't know the
9 legislature -- I don't know what the legislature did.
10 I just think that -- it's unusual to think
11 about it coming up in a civil proceeding, but here we
12 are.
13 COMMISSIONER HUR: Commissioners have views on
14 this particular objection?
15 MR. RENNE: This is Lines --
16 COMMISSIONER HUR: 7 through --
17 MR. RENNE: "Eliana" starting on 7 through Line
18 11?
19 COMMISSIONER HUR: Correct.
20 MR. RENNE: I would be inclined to sustain the
21 objection.
22 COMMISSIONER HUR: I also am inclined to
23 sustain the objection.
24 Are there dissenting views from the Commission?
25 MR. KEITH: I would just ask that it really be
498
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 limited to the extent that it's offered for the truth of
2 the matter as opposed to administrative hearsay purposes
3 or to show state --
4 MR. RENNE: I guess I don't understand the
5 distinction you're drawing there.
6 COMMISSIONER HUR: Yeah.
7 COMMISSIONER RENNE: If we exclude it, we
8 exclude it.
9 MR. KEITH: Well, though, if there's other
10 evidence in the record that tends to support this, then
11 it can come in. Though, the fact that it's hearsay
12 affects how much weight it's given.
13 COMMISSIONER HUR: Well, I think we're
14 admitting evidence even if it's hearsay, but telling you,
15 the parties, that it won't be -- it may not receive any
16 weight even though it's been admitted.
17 So, I think our exclusion means that we're not
18 going to consider it for any purpose.
19 Now, if you bring it in for -- in some other
20 way, for example -- I don't want -- I don't want to
21 speculate as to how else you may try to bring it in,
22 but --
23 MR. KEITH: Well --
24 COMMISSIONER HUR: I would just leave it at
25 that, unless there's some clarification that you feel we
499
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 need.
2 MR. KEITH: Well, it is in the video, and it's
3 also in the statement to Ivory Madison.
4 COMMISSIONER HUR: Okay. Well, I haven't seen
5 the video.
6 MR. KEITH: Yeah.
7 COMMISSIONER HUR: It's -- whether it's in the
8 statement to Ivory Madison, though, I think is different
9 than whether it should be admitted for Callie Williams.
10 So I'm going to sustain the objection unless
11 there's dissent from the Commission.
12 Okay. Paragraph -- the rest of it -- the
13 hearsay objection is overruled, same caution with respect
14 to hearsay.
15 Paragraph 10.
16 MR. KEITH: Is it Paragraph 9, Line 5,
17 beginning with "Eliana described"?
18 COMMISSIONER HUR: I thought it was Line 7,
19 beginning with "Eliana told me."
20 MR. KEITH: Yes.
21 MR. KOPP: I had objected, I thought, to
22 beginning on Line 5 with "Eliana described." So --
23 COMMISSIONER HUR: Line 5, beginning with
24 "Eliana described."
25 MR. KOPP: That's what my objection was to.
500
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: I think the same rationale
2 would apply there.
3 Dissenting views from the Commissioners?
4 MR. RENNE: I agree.
5 COMMISSIONER LIU: (Shakes head.)
6 COMMISSIONER HUR: Paragraphs 5 through 11 will
7 be excluded.
8 Paragraph 10?
9 MR. KOPP: Yes, in addition to the hearsay,
10 this entire paragraph appears to be speculation without
11 an adequate foundation, and specifically Lines 21 to 22,
12 that sentence that begins with "Eliana" and ends with
13 "Ross," I think that's irrelevant and it's more
14 prejudicial than probative.
15 COMMISSIONER HUR: Okay. I want to hear -- I
16 understand your hearsay objection.
17 I want to hear every objection you have of this
18 paragraph that's not related to hearsay, because I'm --
19 for efficiency purposes.
20 MR. KOPP: Sure. No foundation.
21 COMMISSIONER HUR: With what parts?
22 MR. KOPP: Well, the way I understand the
23 entire paragraph is, this is the witness' interpretation
24 of the things that were said to her by Eliana Lopez.
25 COMMISSIONER HUR: Well, some of them were
501
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 statements that were made by Eliana.
2 So what do you mean when you say the witness'
3 impressions?
4 MR. KOPP: Well, for example, on Line 13 when
5 she says "as Eliana described it," that seems to me this
6 is her interpretation of what this comment means. And so
7 that's why I think it's speculative.
8 COMMISSIONER HUR: I would be inclined to
9 overrule that objection. I think that's something that
10 you could cross-examine a witness on if you wanted to.
11 I think it's -- again, it's hearsay and we
12 would give it the weight that we are saying we'd
13 otherwise would, but I'd be inclined to permit it.
14 Are there dissenting views?
15 COMMISSIONER HAYON: As would I.
16 MR. RENNE: I have some difficulty with the --
17 starting at -- the word "that" in Line 17, which appears
18 to be her comment on what she had read or heard in the
19 press about what Mr. Mirkarimi was saying. And I think
20 that's probably improper, one witness commenting on
21 another as to whether or not they think their statement
22 is consistent.
23 COMMISSIONER HUR: Mr. Renne, I apologize for
24 my lack of clarity. I was referring to the objection to
25 Line 13 through the end of Line 15. That -- that was my
502
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 fault. I was not clear.
2 MR. RENNE: Well, I also -- I mean, the next
3 sentence, Line 15, I think shows the uncertainty in her
4 own mind as to what the comment was directed to. I have
5 trouble with that paragraph.
6 COMMISSIONER HUR: Okay. So you would sustain
7 the objection as to Lines -- Lines 13 through 15?
8 MR. RENNE: Yes.
9 COMMISSIONER HUR: Other views of the
10 Commissioners? We certainly can take a vote.
11 MR. EMBLIDGE: For clarification, we're talking
12 about Line 13 beginning with "as Eliana," to the very end
13 of Line 15?
14 COMMISSIONER HUR: Correct.
15 MR. EMBLIDGE: Thank you.
16 COMMISSIONER STUDLEY: I would find Line --
17 that sentence, Lines 13 to 15, acceptable and keep it in,
18 although the phrasing is a little different from other
19 things she was reporting on, what she was told by
20 Ms. Lopez, and as you said it could be successfully
21 cross-examined.
22 COMMISSIONER HUR: And, at least I am not
23 making any statement as to how probative I think it is,
24 but I do think it passes muster to be admitted.
25 COMMISSIONER STUDLEY: I agree.
503
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: Is there a motion to --
2 given the dissent, I think we should make a motion.
3 Is there a motion to sustain the objection --
4 I'm sorry.
5 COMMISSIONER STUDLEY: Overrule.
6 COMMISSIONER HUR: -- to overrule the
7 objection, thank you, with respect to Lines 13 to 15 of
8 Paragraph 10?
9 COMMISSIONER HAYON: So moved.
10 COMMISSIONER HUR: Is there a second?
11 COMMISSIONER STUDLEY: Second.
12 COMMISSIONER HUR: All in favor?
13 (Commissioners in unison said "aye.")
14 COMMISSIONER HUR: Opposed?
15 COMMISSIONER RENNE: Aye.
16 COMMISSIONER HUR: Motion passes.
17 Okay. Mr. Kopp, continuing with Lines --
18 anything between Lines 16 and 23?
19 MR. KOPP: No. I'd just like to reiterate Line
20 21, 22, I -- irrelevant and more prejudicial than
21 probative, that sentence beginning with "Eliana" and
22 ending with "Ross."
23 COMMISSIONER HUR: Mr. Keith, what does that go
24 to?
25 MR. KEITH: It tends -- it tends to show that
504
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Ms. Lopez accurately -- or that Ms. Lopez certainly had
2 the impression from what Sheriff Mirkarimi told her that
3 he was trying to intimidate her with his personal power.
4 So, I don't think that it's -- I mean, it may
5 be prejudicial, but it's not unduly prejudicial. It's
6 not good for the sheriff's case, but that doesn't mean
7 that it's inadmissible.
8 COMMISSIONER HUR: I would be inclined to
9 overrule the objection. I think we're getting pretty
10 close to the line here, but I think it could -- I think
11 it should be admitted for its limited purpose.
12 Any dissenting view from the Commissioners?
13 Hearing none, the objection is overruled.
14
Paragraph 11?
15 MR. KOPP: Yes. I made the written objection
16 that this entire paragraph was irrelevant, and on further
17 review I find it also to be prejudicial -- more
18 prejudicial than probative. Move to exclude it on those
19 grounds.
20 COMMISSIONER HUR: Mr. Keith?
21 MR. KEITH: Well, evidence of other incidents
22 is admissible to show intent or absence of mistake.
23 Again, Sheriff Mirkarimi's public statements
24 have been that when he -- his very powerful comment was
25 referring to child custody laws, not his political power.
505
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 This is an instance in which Sheriff Mirkarimi -- well,
2 what was said in the paragraph speaks for itself,
3 threatened to have DBI shut down the building because he
4 was angry with Ms. Williams.
5 That, again, tends to show the presence of
6 intent or the absence of Ms. Lopez's allegedly mistaken
7 interpretation.
8 COMMISSIONER HUR: I would be inclined to
9 sustain the objection to Paragraph 11. I think it's -- I
10 think it's irrelevant. The stated purpose, I think,
11 is -- it wouldn't go to providing us that additional
12 assistance.
13 Any dissent from the Commissioners?
14 COMMISSIONER LIU: No, I agree that it's
15 irrelevant. I don't think it's what we're tasked to do
16 here.
17 COMMISSIONER HUR: Hearing no objection, no
18 dissent, the objection is sustained with respect to
19 Paragraph 11.
20 Paragraph 12?
21 MR. KOPP: That's just a hearsay objection.
22 COMMISSIONER HUR: Okay. Given that we've
23 heard from Mr. Keith on hearsay, I would be inclined to
24 overrule that objection, with the same caution with
25 respect to hearsay.
506
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Is there a dissenting view with respect to
2 Paragraph 12?
3 Hearing none, the objection is overruled.
4 Paragraph 13?
5 MR. KOPP: Besides hearsay, it's irrelevant in
6 its entirety.
7 COMMISSIONER HUR: Mr. Keith?
8 MR. KEITH: It's -- it's relating a fact about
9 the -- about the nature of the relationship that
10 Ms. Lopez had with the sheriff, which, again, goes to --
11 (Telephonic interruption.)
12 MR. KEITH: -- which goes to the -- the nature
13 of the relationship, which, again, goes to whether this
14 is a domestic violence incident.
15 COMMISSIONER HUR: I'd be inclined to sustain
16 the objection to Paragraph 13. I think it's far afield
17 from what we're trying to accomplish.
18 Is there a dissent to that proposal?
19 Hearing none, the objection to Paragraph 13 is
20 sustained.
21 Paragraph 14?
22 MR. KOPP: Just hearsay on this.
23 COMMISSIONER HUR: In light of the arguments
24 from Mr. Keith previously, I think the objection should
25 be overruled, with the same caution for hearsay.
507
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Any dissenting view?
2 MR. KEITH: If I might be heard, Commissioner,
3 there is -- it does actually describe her observation of
4 the bruise on that date, Paragraph 14.
5 COMMISSIONER STUDLEY: You overruled the
6 objection.
7 He's keeping it.
8 COMMISSIONER HUR: Yeah.
9 MR. KEITH: Oh, I'm sorry.
10 COMMISSIONER HUR: I think -- I think Mr. --
11 MR. KEITH: Oh, I'm sorry. I guess, the caveat
12 is, I don't want it to be limited because it does
13 describe a personal observation.
14 Again, I don't know how these rulings are going
15 to be reflected, sort of, you know, admitted light
16 versus really admitted. I think that we need to consider
17 those statements really admitted.
18 COMMISSIONER HUR: Okay. So the objection to
19 14 is overruled.
20 Again, if we admit something, it's admitted.
21 MR. KEITH: Yes.
22 COMMISSIONER HUR: What weight we give the
23 evidence is going to depend -- may depend on whether it's
24 hearsay or non-hearsay evidence --
25 MR. KEITH: Thank you.
508
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: -- and what it comes in for.
2 So if it's sustained -- or if it's overruled, Mr. Keith,
3 then you've won that objection.
4 COMMISSIONER STUDLEY: I apologize, Mr. Keith
5 had a more subtle
question than I --
6 COMMISSIONER HUR: Okay. 14 was overruled.
7 15?
8 MR. KOPP: Besides the hearsay objection, Line
9 27, the portion of that sentence that is in quotes,
10 beginning with the word "see" and ending with the word
11 "talk," there is no foundation and that is speculation.
12 Not just on the part of Miss Williams, but on Miss Lopez.
13 COMMISSIONER HUR: Okay. I will say, and I'll
14 give Mr. Keith an opportunity after I say this, that I
15 think that's right that it's -- that it couldn't come in
16 to prove that the sheriff was actually scared. I
17 think -- but it could come in to say that -- to show that
18 Miss Lopez said that.
19 Is that --
20 MR. KEITH: Yes. And in addition, it's -- it's
21 also talking about the fact that, well, there -- there
22 the sheriff was at that time on that day, which is not
23 hearsay.
24 COMMISSIONER HUR: I would be inclined to
25 overrule that objection. Same caveats with respect to
509
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 hearsay and -- and such.
2 Any dissenting view?
3 MR. RENNE: I agree.
4 COMMISSIONER HUR: Okay. That objection's
5 overruled.
6 Mr. Kopp?
7 MR. KOPP: Yes. On Paragraph 16, besides
8 hearsay, this is irrelevant, and if I could just expand a
9 little on that?
10 COMMISSIONER HUR: Okay.
11 MR. KOPP: You have heard several times this
12 allegation that the sheriff persuaded either his wife or
13 Ms. Peralta Haynes to try to dissuade witnesses from
14 talking to the police. The problem is there isn't going
15 to be any evidence before you now or at any point in the
16 future that he ever did so.
17 So whatever these communications were between
18 Ms. Lopez and Miss Williams, unless -- unless that could
19 be linked to something Sheriff Mirkarimi did that was
20 inappropriate, they're irrelevant.
21 MR. RENNE: Well, Mr. Kopp, you agree that
22 there may not be direct evidence, but we can certainly
23 consider circumstantial evidence, can't we?
24 MR. KOPP: I believe that you can consider
25 circumstantial evidence, but before you could draw -- you
510
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 know, there would have to be some kind of a link before
2 you could draw the conclusion that Sheriff Mirkarimi
3 engaged in any of these allegations of witness
4 dissuasion. And I don't believe that there's going to be
5 any evidence upon which you could draw such a link.
6 COMMISSIONER HUR: Mr. Keith?
7 MR. KEITH: Well, I'm not sure where to begin.
8 Let me clarify what the witness -- what the
9 witness dissuasion theory is. It's not just that the
10 sheriff, you know, tried to get Ms. Madison to not go to
11 the police and wasn't successful. It's that the sheriff
12 did dissuade Ms. Lopez and was successful. I mean, that
13 is -- that is a witness dissuasion claim in this case.
14 And the other claim is that -- is that there
15 were attempts to dissuade Ms. Madison, which were
16 unsuccessful. So I hope that clarifies the relevancy
17 arguments.
18 With regard to the hearsay objections, the fact
19 that Ms. Lopez is sending an -- sending e-mails at this
20 time, basically saying don't talk to anybody, shows her
21 state of mind, and shows -- shows where -- how different
22 her position was earlier in the day from when she was
23 telling Ms. Williams that she was thinking of going to
24 her doctor, and Ms. Williams said, "Wow, that's really
25 brave. I'm glad you're telling people."
511
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 So this shows where Ms. Lopez's state of mind
2 is at that time with regard to reporting this incident or
3 acting on it, which has changed. So that's -- that's why
4 this is relevant.
5 COMMISSIONER HUR: My view is that this
6 objection should be overruled. I think that it could be
7 relevant depending on what other evidence is elicited
8 about what, if any, conduct that the sheriff engaged in
9 with respect to these witness intimidation allegations.
10 I mean, so I think at this point it would be
11 difficult to -- to rule that these should be out.
12 Is there a dissent to that view?
13 Hearing none, the objection to Paragraph 16 is
14 overruled.
15 MR. KOPP: And as to the remaining paragraphs,
16 there are hearsay objections, and as to 18, 19, and 20
17 there are relevance objections.
18 COMMISSIONER HUR: Okay. So 18 was hearsay.
19 Did you say relevance for 18 too? I just
20 wanted to make sure I understood.
21 MR. K
OPP: 17 was hearsay -- hearsay as to all
22 of them, but then relevance as to 18, 19, and 20.
23 COMMISSIONER HUR: My inclination with
24 Paragraph 17 is to overrule the objection.
25 Is there a dissenting view from the
512
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Commissioners?
2 Hearing none, the objection is overruled.
3 18, a relevance objection was added.
4 Mr. Keith, do you have --
5 MR. KEITH: I think for 18, 19, and 20, this
6 really goes to the witness', I guess, lack of bias in the
7 sense that what she did she did out of concern for
8 Ms. Lopez, even for a time didn't talk to the police, and
9 then finally did.
10 I think it goes to the credibility of her
11 statement. That's why it's relevant. It's not offered
12 for the truth for -- the truth for anything. It's all
13 about bias, or the lack thereof, which is always
14 relevant.
15 COMMISSIONER HUR: I would be inclined to
16 overrule the objections, the relevance objections of 18
17 through 20.
18 Dissenting views from the Commissioners?
19 MR. RENNE: As to Paragraph 18, I would be
20 inclined to delete everything starting on Line 19, with
21 "I," through Line 24, as being irrelevant, and as to it
22 being -- showing that the witness doesn't have bias.
23 I'm not sure there's, at this point in the
24 hearing, any indication that Miss Williams is being
25 attacked for being biased.
513
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 So until such time as her credibility is being
2 attacked, I would be inclined to say it's irrelevant.
3 COMMISSIONER HUR: Mr. Renne, I think you are
4 correct with respect to when bias becomes relevant. But
5 in my mind, given the way we have decided to handle
6 evidence, and in -- in the event we may not see a
7 witness, I don't see the harm in having testimony
8 regarding bias in a declaration -- in an affirmative
9 declaration, because to the extent there's further
10 examination on it, we would have it, and I -- I guess I
11 don't see the harm in it.
12 I welcome the views of you, Mr. Renne, or other
13 Commissioners on that.
14 And, I guess, further to the extent that we --
15 we're evaluating witnesses only on paper, I think it does
16 help with -- with credibility.
17 COMMISSIONER STUDLEY: I'm willing to let it in
18 as well.
19 COMMISSIONER HUR: Is there a -- given that
20 there is -- there are different view points on this, is
21 there a motion to overrule the objection to Paragraph 18?
22 COMMISSIONER HAYON: So moved.
23 COMMISSIONER HUR: Is there a second?
24 COMMISSIONER STUDLEY: Second.
25 COMMISSIONER HUR: All in favor?
514
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Aye.
2 COMMISSIONER STUDLEY: Aye.
3 COMMISSIONER HAYON: Aye.
4 COMMISSIONER LIU: Aye.
5 COMMISSIONER HUR: Opposed?
6 MR. RENNE: Opposed.
7 COMMISSIONER HUR: The objection is overruled.
8 Any -- any dissent from the Commission with
9 respect to overruling the objections to 19 and 20?
10 MR. RENNE: Again, I would ask the question:
11 What is -- what's the relevance of 19? What's contained
12 in 19?
13 COMMISSIONER HUR: Mr. Keith.
14 MR. KEITH: It's just to show the relationship
15 between the witnesses, and also to show that they have
16 not spoken with each other about the substance of what
17 occurred.
18 COMMISSIONER HUR: That they have not spoken
19 to each other?
20 MR. KEITH: That they have not spoken to each
21 other about the substance of what Miss Lopez told them.
22 COMMISSIONER HUR: How does it go to show that?
23 MR. KEITH: Because that's what it says.
24 COMMISSIONER STUDLEY: Page 6, top of 6.
25 MR. KEITH: On Page --
515
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER STUDLEY: Line 1 and 2 on 6.
2 MR. KEITH: -- 6, Line 1 on 6. I'm sorry, I
3 didn't mean to have a sharp response.
4 COMMISSIONER HUR: No, no. That's fine. I was
5 focusing on the other portion.
6 But what about with respect to the other
7 portions of Paragraph 19?
8 MR. KEITH: So, I think -- I guess part of me
9 just wanted to include everything that might be brought
10 up on cross-examination, including this idea that, "You
11 know, gee, have you spoken with other witnesses? What's
12 been your communication with other witnesses?"
13 So that's why it's included, because those
14 issues can tend to bear on bias one way or the other.
15 So, essentially, it's there for a complete picture to
16 evaluate the credibility of the witness, any potential
17 bias.
18 COMMISSIONER HUR: Mr. Renne, on
19 reconsideration I'm sharing your concern with respect to
20 Paragraph 19, Lines 25 through the end of the sentence on
21 Line 1. I do think the last sentence on Paragraph 20
22 should be included.
23 MR. RENNE: I agree.
24 COMMISSIONER HUR: Is there dissent from the
25 Commission to sustain the objection with respect to
516
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Paragraph 19, Lines 25 through the end of the sentence on
2 Page 6, Line 1?
3 MR. EMBLIDGE: And that would include a
4 standing objection to Exhibit 2?
5 COMMISSIONER HUR: Yes.
6 Hearing none, the objection is actually
7 sustained.
8 Paragraph 20.
9 My recommendation was to overrule the
10 objection.
11 Does anyone have a dissenting view to that?
12 MR. RENNE: No.
13 COMMISSIONER HUR: Okay. Hearing none, the
14 objection to Paragraph 20 is overruled.
15 Okay. I think the last issue we have with
16 respect to the sheriff's objections -- I'm sorry, the
17 sheriff's objections to the mayor's evidence is the
18 video.
19 Do I have that right?
20 MR. KOPP: I think that's right.
21 MR. KEITH: I think that's right.
22 COMMISSIONER HUR: We have -- we received a
23 brief very recently from the mayor on the issue.
24 Mr. Kopp, have you had an opportunity to review
25 it?
517
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MR. KOPP: Honestly, I have not. I don't
2 recall if it came in yesterday or late the night before,
3 but I just haven't had a chance to review it and respond.
4 COMMISSIONER HUR: Okay.
5 MR. KOPP: With respect to that, I would like
6 the opportunity, if not to give you something in writing,
7 then at least analyze the issue.
8 COMMISSIONER HUR: Mr. Keith, do you have any
9 objection to that?
10 MR. KEITH: I do. These objections were
11 supposed to have been made, and the basis for the
12 objection is hearsay. It's the same issues with excited
13 utterances. I don't see how the issues are any
14 different.
15 One could look at the video and make that
16 evaluation, and I think the arguments are the same that
17 we've been making this evening about excited utterances,
18 so I don't see a need for further briefing.
19 COMMISSIONER HUR: Would you stipulate to us
20 excluding your brief then --
21 MR. KEITH: Well, no.
22 COMMISSIONER HUR: -- in consideration?
23 Because we didn't authorize a brief either.
24 MR. KEITH: Well, that's true, but I don't see
25 how counsel is handicapped in any way by not having the
518
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 opportunity to brief -- to brief this issue, because it's
2 the same thing that we've been discussing with regard to
3 the excited utterances.
4 So if -- I mean, if the Commission wishes to
5 give him that opportunity, that's fine. But I don't see
6 how the legal issues would be different.
7 COMMISSIONER HUR: Okay. I would be inclined
8 to provide the sheriff with an opportunity to brief the
9 issue, if he would like to, in light of when the brief
10 came in -- the mayor's brief came in.
11 Is there a dissenting view from the
12 Commissioners?
13 MR. RENNE: May I ask a question of Mr. Kopp?
14 Hasn't this issue been briefed in -- both in
15 the criminal aspect and in the civil motion that was
16 filed, whether or not the video was to be admissible?
17 MR. KOPP: Well, I am not sure if it was
18 briefed in the criminal case. I know it was litigated.
19 I don't know if there were written points and
20 authorities. I believe there were. But, not by me.
21 No. 2, with respect to the civil motion, I'm --
22 I'm unclear as to what you're referring.
23 MR. RENNE: Wasn't there a motion brought by
24 somebody, maybe it was brought by Miss Lopez, to have
25 the -- to have her privacy rights protected and not allow
519
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERI
FF ROSS MIRKARIMI
1 the video to be released and not allowed to be made part
2 of the record?
3 MR. KOPP: I think that's correct, but I also
4 think that's a different inquiry to its admissibility
5 here.
6 And so if your question is focused on the issue
7 of have these issues been decided already such that you
8 don't need to decide them anew, I would respectfully
9 answer that in the negative.
10 MR. RENNE: Well, I'm not suggesting we don't
11 have to decide it anew. But if in whatever brief you
12 file, I'm suggesting that you tell us why we ought not to
13 follow whatever rulings have been made, why this
14 circumstance is different than was true in the previous
15 hearings where there were attempts made to exclude this
16 video. That's all I'm saying is that -- that if in fact
17 it wasn't going to be excluded in the criminal case,
18 which has much a higher standards' requirement for
19 admissibility than a proceeding such as this, I would
20 like to see what reason there should be why we should
21 take a position that says even though some other court
22 has said it's admissible, we shouldn't admit it?
23 MR. KOPP: Well, to be candid, I'd probably be
24 telling you that that issue was incorrectly decided.
25 But, I do feel -- I understand this issue. The
520
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 only reason why I ask for more time is if you were going
2 to consider this brief that was filed by the mayor, that
3 was not pursuant to your directive, I just wanted a
4 chance to look at what they're saying. I haven't had
5 that yet. If you want to strike that, I'll argue it
6 right now.
7 MR. RENNE: No, I'm -- I'm perfectly happy to
8 let you file, and I appreciate that.
9 I'm just simply saying, when you do it, address
10 that question.
11 MR. KOPP: Understood.
12 MR. RENNE: Thank you.
13 COMMISSIONER HUR: And in light of the fact
14 that it's video evidence, we're not talking about a -- at
15 least with respect to that piece of evidence, a person
16 having to come in, and that could be shown at any of our
17 hearings if it were admitted, I think that the initial
18 time is not a problem. I would like to give the sheriff
19 an opportunity to brief it if he so chooses.
20 MR. KOPP: Well, thank you.
21 You know, one thing comes to mind, I don't know
22 how many of the Commission members may have seen it, but
23 the chairperson has not seen the video. I think he'd be
24 hard-pressed to make a ruling as to its admissibility at
25 this point in time.
521
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MR. KEITH: To that point, we brought a way to
2 play the video, but I agree you need to see the video to
3 determine whether to admit it, whether you want to review
4 it at your leisure or here. But I do think that it's an
5 important part of the admissibility ruling to observe the
6 demeanor of the witness and the manner in which she
7 speaks.
8 COMMISSIONER HUR: Okay. When can -- when can
9 we see the responsive brief?
10 MR. KOPP: How long before the next hearing --
11 would a day or two be sufficient, if we got it to you a
12 day or two before the next hearing?
13 COMMISSIONER HUR: I think that would suffice.
14 Any objection from the Commissioners?
15 COMMISSIONER LIU: No.
16 MR. RENNE: I'm going to be easy on this one.
17 That's fine.
18 COMMISSIONER HUR: So that would be the 26th?
19 MR. KOPP: Sorry. I'm just trying -- my
20 calendar is on the wrong month.
21 Yes, that's fine.
22 COMMISSIONER HUR: Okay.
23 MR. KOPP: And just so we're clear -- well,
24 I'll file something.
25 COMMISSIONER HUR: Okay. If your filing says I
522
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 don't need to brief it, then we'll deal with it then.
2 In addition, it sounds like the parties would
3 like the Commissioners to review the video.
4 My suggestion is that the Commissioners do so
5 on their own time. I don't think we need to set up
6 whatever audiovisual we need to show it for us to
7 evaluate whether it should be admissible.
8 If that's acceptable to the parties and the
9 Commissioners?
10 MR. KEITH: That's fine with the mayor.
11 MR. KOPP: Yes.
12 COMMISSIONER HUR: And how will we get a copy
13 of this video?
14 MR. KEITH: I've sent seven copies to
15 Mr. St. Croix --
16 COMMISSIONER HUR: You have.
17 MR. KEITH:
-- or they delivered them the other
18 morning.
19 MR. RENNE: We have them.
20 COMMISSIONER STUDLEY: They were delivered to
21 us.
22 COMMISSIONER HAYON: These were delivered.
23 COMMISSIONER HUR: To our office? To our
24 office?
25 COMMISSIONER STUDLEY: They were on our
523
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 website.
2 COMMISSIONER HUR: Okay. It sounds like I'll
3 have -- I'll be able to figure out a way to review the
4 video.
5 Okay. Next we should address the mayor's
6 objections to the declarations submitted by the sheriff.
7 Mr. Keith, I understand that you have no
8 objection to Mr. Tekin?
9 MR. KEITH: That's right.
10 COMMISSIONER HUR: And that's still the case?
11 MR. KEITH: Yes.
12 COMMISSIONER HUR: What about Lenilyn De Leon?
13 MR. KEITH: I have three objections. I think I
14 can make them all orally.
15 COMMISSIONER HUR: Okay.
16 MR. KEITH: Okay. So -- I can share my copy.
17 MR. KOPP: That's okay.
18 MR. KEITH: So if you look in the -- at the
19 fifth paragraph of the declaration of Lenilyn De Leon,
20 the paragraph beginning "I never suspected," the sentence
21 five lines down beginning with the word "usually." We
22 would move to exclude that for lack of foundation and
23 that it's getting toward an expert opinion.
24 MR. RENNE: Which paragraph is this you're
25 referring?
524
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MR. KEITH: It's the paragraph beginning "I
2 never suspected." Five lines down you see the word
3 "usually." It's that sentence.
4 COMMISSIONER HUR: "Usually, it's because"?
5 MR. KEITH: That's right.
6 COMMISSIONER HUR: And then ending with "no."
7 MR. RENNE: I guess I'm still lost.
8 COMMISSIONER HUR: So it begins with the
9 paragraph, "I never suspected anything going." This is
10 Mr. De Leon.
11 COMMISSIONER STUDLEY: De Leon.
12 MR. RENNE: Oh, I thought you were talking
13 about Linnette.
14 COMMISSIONER STUDLEY: No.
15 MR. RENNE: Oh, I'm sorry.
16 COMMISSIONER HUR: Anything else you wanted to
17 say about that, Mr. Keith?
18 MR. KEITH: I stated my objection on that.
19 COMMISSIONER HUR: Mr. Kopp, do you have a
20 response?
21 MR. KOPP: Only that the foundation appears to
22 have been laid previously when she describes her
23 experience in caring for children.
24 COMMISSIONER HUR: Any questions for Mr. Kopp
25 or Mr. Keith on this?
525
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER LIU: Mr. Kopp, when you say she
2 describes her experience in caring for children, are you
3 talking about just the first sentence?
4 MR. KOPP: Where she says she's a child care
5 provider and not -- it's implied that it's not just for
6 Sheriff Mirkarimi and Miss Lopez's son. And she talks
7 about having provided child care to him as well.
8 COMMISSIONER HUR: I'd be inclined to sustain
9 the objection. I think it's -- I do think it lacks
10 foundation, and this would be more appropriate for expert
11 testimony if it were relevant.
12 Is there a dissenting view with respect to that
13 objection?
14 MR. RENNE: What are the lines that you're --
15 what page? The whole paragraph?
16 COMMISSIONER HUR: No, the line that begins,
17 "Usually, it's because children have"
18 COMMISSIONER RENNE: Okay.
19 COMMISSIONER HUR: And ends with that sentence.
20 MR. RENNE: Okay. I understand.
21 COMMISSIONER HUR: Hearing no dissent, the
22 objection is sustained.
23 You said you had two others, Mr. Keith?
24 MR. KEITH: Yes, relevance objections. The
25 next full paragraph after that, beginning "when they were
526
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 separated," we object to that on relevance grounds. It's
2 basically a lot of statements about the observations of
3 the child's behavior after -- after the sheriff was
4 arrested and stay away order served on January 13th.
5 COMMISSIONER HUR: Mr. Kopp?
6 MR. KOPP: I'll just submit on that.
7 COMMISSIONER HUR: Okay.
I would be inclined
8 to sustain the objection. I don't see how it's relevant
9 to the task we have.
10 Other dissenting views among the Commissioners?
11 COMMISSIONER LIU: (Shakes head.)
12 COMMISSIONER HUR: Hearing none, the objection
13 is sustained.
14 What is the last objection to this, Mr. Keith?
15 MR. KEITH: On the second page, the paragraph
16 beginning, "Theo began," that paragraph to the end of the
17 declaration we would object to on relevance grounds for
18 the same reasons. That concerns the child's behavior
19 after the sheriff received the stay away order, as well
20 as the witness' own feelings and thoughts and
21 observations about the family, which don't seem to be
22 relevant.
23 COMMISSIONER HUR: Mr. Kopp?
24 MR. KOPP: I'll submit on that.
25 COMMISSIONER HUR: I would be inclined to
527
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 sustain the objection on relevance grounds.
2 Is there a dissenting view?
3 Okay. The objection is sustained.
4 The remainder of Mr. De Leon's testimony will
5 be admitted.
6 Okay. Miss Haynes.
7 You submitted written objections, Mr. Keith.
8 We'll deal with those.
9 And are there any others that we need to deal
10 with?
11 MR. KEITH: No.
12 COMMISSIONER HUR: So why don't we hear from
13 Mr. Kopp, then, since your objections are stated.
14 MR. KOPP: As to the first objection dealing
15 with the statement in the second paragraph, I would argue
16 that the foundation wasn't shown for this statement, if
17 indeed it is a lay opinion by the previous sentence in
18 which she states she has training regarding domestic
19 violence. But, moreover, I don't believe that this is
20 really an expert opinion. It appears to communicate to
21 Miss Peralta Haynes' belief that she didn't have to do
22 anything affirmative, that for herself she was satisfied
23 that Miss Lopez was not in any danger.
24 I don't think she's trying to say by this that
25 this is an empirical fact. Miss Lopez was not in danger.
528
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 This is just her own perception.
2 COMMISSIONER HUR: Mr. Keith, do you have any
3 response to that?
4 MR. KEITH: If this is only offered to show
5 why -- you know, Ms. Lopez's state of mind and why she
6 decided to do whatever she did next, then we don't have
7 an objection to it being offered for that purpose.
8 We do have an objection to it being offered to,
9 you know, essentially the assessment of a professional
10 about whether she was actually in danger.
11 COMMISSIONER HUR: I would be inclined to
12 overrule this objection. I don't think this is being
13 offered as an expert. I think it's being offered as just
14 her opinion. What probative value that has, I think
15 there's some, but --
16 MR. KEITH: I would add, we're not given any of
17 the facts on which she relied. All we're given is that
18 she spoke to her. But we didn't get none of the
19 information on which she's relied and, of course,
20 whatever she relied on would be hearsay, so...
21 COMMISSIONER HUR: Well, she has her own
22 experience. She's not -- she's not stating she's an
23 expert. I would be inclined to -- to allow it.
24 Dissenting views from the Commissioners or
25 questions for Mr. Keith and Mr. Kopp?
529
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Okay. The objection is overruled.
2 Mr. Kopp, do you want to address the second
3 objection?
4 MR. KOPP: Yes. In the third paragraph, I
5 believe that the portion that's being objected to is the
6 italicized portion. The woman responded no, and I would
7 agree that that could not come in for a hearsay purpose;
8 that is, to show that this woman on the phone had not
9 contacted any domestic violence agencies or tried to
10 connect Eliana with them. But it could come in for the
11 non-hearsay purpose of, first of all, contextualizing the
12 entire conversation between that woman and Miss Haynes.
13 And second of all, explaining why Miss Haynes said what
14 she said thereafter.
15 COMMISSIONER HUR: Mr. Keith?
16 MR. KEITH: Well, I think the main basis for
17 the objection, the other side concedes this can't be
18 shown for the truth of the matter. I have my doubts
19 about what -- what kind of context it gives, because the
20 next speaker there was Ms. Madison, not Ms. Haynes.
21 So I don't think it really serves any -- even a
22 non-hearsay purpose.
23 COMMISSIONER HUR: I'd be
inclined to overrule
24 this objection. Same caveat as with all of these with
25 respect to the actual value of hearsay.
530
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 But this is a conversation that is going to be,
2 I think -- that is clearly at issue between Miss Haynes
3 and Miss Madison, and I think I'd be inclined to allow
4 it.
5 Any dissenting view from the Commissioners?
6 That objection is overruled.
7 The third objection, Mr. Kopp?
8 MR. KOPP: Yes. And I -- again, I concede that
9 this cannot come in for the hearsay purpose of showing
10 that Miss Lopez had not been able to contact the sheriff
11 up to that point in time, but I think when the sentence
12 is read in its entirety, the only fair import is that it
13 explains why Miss Peralta Haynes called Ross Mirkarimi.
14 She says I called him because and then it goes on with
15 the portion that they're objecting to.
16 So we don't seek to admit it for that hearsay
17 purpose.
18 MR. KEITH: For our part, we don't object to
19 the statement that Miss Lopez urged her to make the call,
20 because that in fact explains why she made the call.
21 What we do object to is this additional
22 information from Ms. Lopez about what she had been doing.
23 That's -- that's hearsay and inadmissible.
24 I don't think there's any other evidence in the
25 record, at least not at this point, that would be a hook
531
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 for that to come in under administrative hearsay.
2 COMMISSIONER HUR: I solicit the views of my
3 fellow Commissioners on this objection.
4 COMMISSIONER LIU: Well, I think that we've --
5 we've allowed the other, you know, hearsay evidence to
6 come in. Under the same caveat, we should allow this as
7 well from the sheriff's side.
8 COMMISSIONER HUR: I'd be inclined to overrule
9 the objection then.
10 Any dissent from the Commissioners?
11 That objection is overruled.
12 Okay. Sheriff's declaration.
13 Give us a moment here.
14 MR. RENNE: Before we leave Miss Haynes, I take
15 it she's going to -- the subpoena's been issued for her?
16 COMMISSIONER HUR: A subpoena has been issued
17 for her. It sounds like she is saying she is not
18 available until July. We can talk about that.
19 I think we should discuss scheduling as well,
20 as soon as we're done with this. We should address when
21 she's going to be able to testify.
22 Okay. The objections to the sheriff's
23 declaration. I think we have -- we have the objections.
24 Anything else we need to consider, Mr. Keith?
25 MR. KEITH: No.
532
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: Okay. Mr. Kopp, will you be
2 addressing this?
3 MR. KOPP: Perhaps I misunderstood or missed
4 something, but I didn't see objections to his specific
5 statements in the declaration. I thought they merely
6 intended to cross-examine him.
7 MR. KEITH: The sheriff had filed his
8 declaration late and so we -- we filed our objections.
9 MR. KOPP: If I could just have a moment,
10 please.
11 (Discussion off the record.)
12 MR. KOPP: Okay. I'm ready.
13 COMMISSIONER HUR: Okay. The first objection.
14 MR. KOPP: Well, I don't think this is an
15 opinion. It's a statement of fact, and he was there when
16 they were dropped. So, yeah, I think he can offer this
17 testimony.
18 COMMISSIONER HUR: Mr. Keith, is this really
19 disputed, though?
20 MR. KEITH: The charges were dismissed under
21 Section 1385 as part of a global plea bargain. In my
22 mind that's different from charges being dropped. I
23 think there's a distinction, but --
24 COMMISSIONER HUR: Okay.
25 MR. KEITH: I don't think -- I mean, I think
533
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 the records of the conviction and what happened at the
2 sentencing speak for themselves, and this interjects
3 unneeded ambiguity as to what occurred.
4 COMMISSIONER HUR: My inclination would be to
5 overrule the objection and allow Mr. Keith to handle it
6 during cross-examination.
7 Any dissenting view?
8 Okay. That objection's overruled.
9 Second objection?
10 MR. KOPP: Yes. In terms of the mayor not ever
11 telling Sheriff Mirkarimi why he s
uspended him, we think
12 it is relevant. If there wasn't a legally-valid reason
13 for the suspension, but rather it was an improper reason
14 for the suspension, that could go to the mayor's bias.
15 COMMISSIONER HUR: Mr. Keith?
16 MR. KEITH: This is -- this is not -- our
17 objection on this was relevance. And, I mean, there's
18 not -- there's not a due-process claim before the
19 Commission about whether there's a property interest to
20 getting paid or anything like that. So this simply isn't
21 relevant.
22 To the extent of the communications with the
23 mayor and the nature of the communications, even if it
24 may go to the mayor's bias, you know, does the sheriff
25 think the mayor was unfair? Well, plainly he does. But
534
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 I don't think it undermines or weighs one way or the
2 other regarding the validity of the charges. The charges
3 rise and fall on the facts. They don't rise on what was
4 going on in the mayor's head.
5 COMMISSIONER HUR: Could I ask you, Mr. Keith,
6 then, what was -- what is the purpose of Mr. -- the
7 mayor's declaration?
8 (Audience interruption of proceedings.)
9 COMMISSIONER HUR: Please.
10 I mean, you submitted a declaration and the
11 mayor basically said why he issued the charges, and it
12 talks about his decision. So it does seem to me that
13 there is potentially some relevance to what -- I mean,
14 you put at issue the basis of the decision, and I, for
15 one, think that the sheriff should be permitted to
16 examine the sheriff -- the mayor on whether that really
17 was the bases. And not being told what the charges are,
18 I think is potentially relevant to that state of mind.
19 MR. KEITH: Well, No. 1, we dispute -- we do
20 dispute the facts of what happened in the conversation
21 between the mayor and the sheriff.
22 But putting that aside for a moment, we
23 submitted a declaration from the mayor because we were
24 requested to by the Commission, and we thought the
25 Commission wanted -- wanted to know what the mayor's
535
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 reasons were for bringing the charges.
2 Strictly speaking, his reasons aren't
3 important, but he does have some personal knowledge of
4 what is expected of a public official and the standards
5 that they have to hold to. So his declaration is
6 relevant to that extent. You know, why -- the particular
7 things that motivated him, I don't think those are
8 relevant.
9 COMMISSIONER HUR: Well, first of all, and
10 you -- I've been wrong before, but my understanding was
11 that this was -- he was on your witness list.
12 We thought that based on the statements that
13 were provided for what the witnesses would say, that he
14 would be relevant. So --
15 MR. KEITH: We put him on our witness list
16 after the Commission indicated they wanted to hear
17 from -- from him. I may be wrong too. But
18 certainly that was our -- I mean, our feeling was the
19 Commission indicated they wanted to hear from the mayor,
20 we're going to put him on our list. It was as simple as
21 that.
22 I mean, this issue of -- I think -- I mean,
23 this issue of whether the mayor told the sheriff why, I
24 still don't see how that even gets to the issue -- to the
25 issue of bias.
536
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: Well, I mean, in Paragraph 4
2 of the mayor's declaration, it says, "I decided, based on
3 Sheriff Mirkarimi's conduct, crime, conviction, and
4 sentence, that he had committed official misconduct and
5 was not fit to hold the office," and then in Paragraph 6
6 that he decided that immediate action was necessary.
7 I mean, he seems to have put at issue his
8 reasoning for why he issued charges.
9 MR. KEITH: I don't think the mayor submitting
10 a declaration about why -- about the exact reasons that
11 motivated him to file the charges puts at issue the
12 mayor's motivation on the issue of what happened with
13 regard to official misconduct.
14 What I do think it does is -- it says this is
15 the judgment of the mayor about why this conduct is
16 serious. But, again, I think that there's a difference
17 here. What's motivating the mayor versus his judgment
18 that the conduct is serious, I think is a different
19 issue.
20 And, again, we were trying to provide the
21 Commission with what it wanted and this is what the mayor
22 has to give on this issue of what he did and why he did
23 it. I mean, sort of putting aside for the moment what
24 the ultimate relevance issues are.
25 MR. RENNE: Have I missed something? Aren't we
537
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 on Line -- Paragraph 19 of the declaration?
2 COMMISSIONER HUR: Yes.
3 MR. RENNE: And that is -- if somebody asked
4 the question of the mayor or of the sheriff, one or the
5 other, did the mayor tell you why he was -- he was
6 suspending you, there'd be no objection to that question.
7 The answer would be "yes" or "no." There's nothing
8 objectionable about it.
9 So I don't understand. I guess I don't
10 understand why we're spending any time on it. It's
11 clearly a statement of fact which a live witness could be
12 asked about in any court of law and there'd be no
13 objection.
14 MR. KEITH: Certainly the mayor has personal
15 knowledge. I mean, he's got foundation. But just on the
16 issue of relevance, on this issue of what happened in
17 terms of the back and forth between the two of them
18 before the sheriff was actually suspended, that -- our
19 argument is that that specifically isn't irrelevant.
20 MR. RENNE: Well, there may be a lot of
21 irrelevancies, but it's not an objectionable statement.
22 COMMISSIONER HUR: Well, I mean -- Mr. Renne, I
23 think we have been excluding things based on relevance.
24 COMMISSIONER RENNE: We have those, but those
25 are things that had -- that go to sort of the substance.
538
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 But clearly, if the witness were here, and
2 the -- and the attorney asked him the question: "Did the
3 mayor tell you why he was suspending you?" And somebody
4 objected. I'd shake my head and say, "He can answer 'yes
5 or 'no'." Nothing to do with relevance, but --
6 MR. KEITH: I think I understand.
7 COMMISSIONER HUR: Okay. I think I know where
8 Mr. Renne falls on this objection.
9 I actually, too, think it should be overruled,
10 as I probably indicated through my questioning as well.
11 Is there a dissenting view from the Commission
12 as to whether that line should be permitted?
13 COMMISSIONER LIU: No. I mean, I think at the
14 very least it could come in as background foundational
15 evidence. I don't see any problem with it coming in.
16 COMMISSIONER HUR: That objection is overruled.
17 Line 20 -- Paragraph 20, Line 1.
18 MR. KOPP: This is also relevant to that same
19 issue whether or not the mayor had some kind of bias in
20 his decision, but it is also relevant to the issue of
21 whether or not there was an adequate investigation done
22 here by the mayor before the charges of official
23 misconduct were filed. And as I believe has been made
24 clear throughout the course of these proceedings, the
25 investigation was not only not concluded, it wasn't even
539
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 really begun at the time the charges were filed.
2 So for those reasons, we believe the mayor's
3 failure to talk to the sheriff or his wife about what
4 happened is highly relevant.
5 COMMISSIONER HUR: Mr. Keith?
6 MR. KEITH: I think -- I hate to retread ground
7 we've been on, but the mayor made this decision when he
8 found out that the sheriff is a convict and he's on
9 probation for three years of his term.
10 (Audience interruption of proceedings.)
11 MR. KEITH: That's when the mayor made his
12 decision.
13 UNKNOWN PERSON IN AUDIENCE: Please.
14 MR. KEITH: The idea that the mayor needs to
15 conduct a further investigation after that point, before
16 he can file charges, is not a defense to whether or not
17 somebody submitted official misconduct.
18 (Audience interruption of proceedings.)
19 COMMISSIONER HUR: Okay. Please. We
20 are nearing the end of this proceeding, and the public
21 has been very respectful thus far, and we'd really like
22 to continue. Please, none of the extracurricular
23 conversation.
24 Thank you.
25 MR. KEITH: Having made this -- made that
540
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 point, I see where -- that the arguments that we just
2 made regarding the last objection, where they're going to
3 lead, so I'll just assume the Commission has already
4 heard those and let the Commission make its ruling.
5 COMMISSIONER HUR: My view is that whether or
6 not the mayor told the sheriff's wife is not relevant or
7 probative of anything. I can't -- I don't see a
8 situation in which that would be -- that would -- in any
9 event, I don't see the relevance or the probative val
ue
10 of that.
11 So I would strike "for my wife" and permit the
12 remaining.
13 Is there a dissenting view to that?
14 Hearing none, the objection is sustained as to
15 "for my wife," and overrule the remainder of the
16 Paragraph 20.
17 Paragraph 21?
18 MR. KOPP: Well, I don't see this as the
19 sheriff's opinion that he has present ability to -- I
20 mean, it's really just a phrase that is uttered
21 routinely. So I don't see this as his expert opinion
22 that he has the ability to serve as a chief law
23 enforcement officer, but I don't think I have any further
24 comment besides that.
25 MR. KEITH: If that's a limitation, we'll
541
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 stipulate to that limitation.
2 COMMISSIONER HUR: Sounds like there's a
3 stipulation. The objection is overruled, unless there's
4 dissenting views from the Commission?
5 Okay. Have we now handled all of the witness
6 declarations from the sheriff?
7 MR. KOPP: I believe so.
8 MR. KEITH: Yes.
9 COMMISSIONER HUR: Okay. Let's talk about the
10 schedule.
11 We currently have available to us the 28th of
12 June, in the evening, and the 29th of June.
13 Based on my conversations with counsel during
14 the break, it sounds like counsel agree that live
15 testimony should begin not today, but on the 28th.
16 Do I have that correct?
17 MR. KOPP: Yes.
18 MR. KEITH: Yes.
19 MR. KOPP: So on the 28th we will hear -- I
20 believe the mayor said he is going to call the sheriff.
21 Do I have that right?
22 MR. KEITH: We will definitely have a witness
23 on the 28th. I don't know whether it's going to be the
24 sheriff, because I want to make sure that if -- you know,
25 I'm sorry. I don't know whether it's going to be the
542
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 sheriff, because I want to make sure that -- that we
2 don't have a witness who can only come on the 28th. And
3 I don't know about that. We will certainly have a
4 witness. It would be the sheriff, if no one else.
5 COMMISSIONER HUR: Okay. You know what, before
6 we begin -- get to there, let's identify, so that we all
7 are clear, on which witnesses we currently know we will
8 see live.
9 So that would be the sheriff -- percipient
10 witnesses. The sheriff, the mayor, and Miss Haynes.
11 Is there anybody else that I've missed who we
12 have -- we know with certainty right now that we will
13 hear live?
14 MR. KOPP: I don't think so.
15 MR. KEITH: I don't think so.
16 COMMISSIONER HUR: Okay. So then what
17 percipient witness would -- other than the sheriff,
18 would -- are you saying the mayor --
19 MR. KEITH: Now, looking at this list, both of
20 our experts are available on the 29th. And if we're
21 going to have to have rulings on experts on the 28th --
22 COMMISSIONER HUR: Okay.
23 MR. KEITH: -- I think it makes sense to have
24 the sheriff on the 28th.
25 COMMISSIONER HUR: Okay.
543
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 And is that acceptable to defense counsel?
2 MR. KOPP: Well, I had thought so, but an issue
3 just came up. If I can just have a moment. I just need
4 a moment, please.
5 (Discussion off the record.)
6 MR. KOPP: Yes. So that's fine. Although, I
7 should state our objection to the sheriff testifying
8 before the mayor's witnesses, which probably would be the
9 mayor.
10 COMMISSIONER HUR: My understanding is that the
11 mayor intends to call the sheriff in its case.
12 MR. KOPP: I understand that, but I just --
13 COMMISSIONER HUR: You want to make an
14 objection to that?
15 MR. KOPP: Yes. But -- but he should be ready
16 and available on the 28th.
17 COMMISSIONER HUR: Okay. Great.
18 And I understand the mayor, based on our
19 previous scheduling conversations, is available on the
20 29th?
21 MR. KEITH: That's correct.
22 COMMISSIONER HUR: So in addition, on the 29th,
23 we had discussed, as a scheduling matter, the possibility
24 of experts testifying out of order, meaning having
25 experts testify on the 29th and then having other
544
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 percipient witnesses testify thereafter. It sounds like
2 the parties agree that would be okay with them.
3 Do I have that correct?
4 MR. KEITH: That's right. Though, there may be
5 no need to take them out of order if it's the mayor and
6 the mayor's two expert witnesses. That may take up the
7 bulk of the 29th.
8 COMMISSIONER HUR: You still want Haynes,
9 right?
10 MR. KEITH: Yes, but then I don't know about
11 the availability of the expert witnesses, nor do I even
12 know whether we want to cross-examine. We're still
13 deciding that.
14 COMMISSIONER HUR: Oh, I see. I see.
15 MR. KEITH: I don't know about the availability
16 of their expert witness.
17 MR. KOPP: I don't have an answer -- on
18 Sheriff Hennessey, I don't know if he's available the
19 28th or 29th. I was waiting -- I mean -- so I need an
20 indication as to whether or not they intend to
21 cross-examine him and want him to appear.
22 MR. KEITH: And we agreed to exchange those
23 indications on Thursday.
24 COMMISSIONER HUR: Okay. I would -- I think we
25 do need to hear from any experts that we -- that we have
545
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 on the 29th. And so I thought that we -- that's what we
2 had discussed, and I -- I thought we were also going to
3 get an indication that all the experts were available on
4 the 29th.
5 MR. KEITH: Ours are.
6 COMMISSIONER HUR: Ours are?
7 MR. KEITH: Yeah.
8 COMMISSIONER HUR: Okay.
9 MR. KOPP: I can -- well, I can find out in
10 short order about Sheriff Hennessey.
11 COMMISSIONER HUR: Okay.
12 MR. KOPP: And, again, depending -- I still
13 haven't had a chance to fully digest or read even in its
14 entirety the two expert witness declarations submitted by
15 the mayor.
16 But depending on if we have objections, if
17 they're sustained or not, we may not require them to
18 appear for cross.
19 COMMISSIONER HUR: Understood.
20 Okay. So then my understanding is that on the
21 28th we will deal with objections to any experts,
22 objections -- further objections to Miss Madison,
23 further -- objections to Mr. Mertens, and potentially the
24 testimony of the sheriff on the 28th.
25 MR. EMBLIDGE: And Exhibit 4.
546
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: And Exhibit 4, the video.
2 I assume it's no problem for the -- for the
3 sheriff to testify on the 29th if for some reason we run
4 out of time?
5 MR. KOPP: He will be available.
6 MR. KEITH: So, Commissioner, just from a
7 logistical standpoint, getting our experts up here on the
8 29th without knowing whether or not they have to be up
9 here is difficult.
10 COMMISSIONER HUR: Okay.
11 MR. KEITH: I guess we'll know on the 22nd
12 whether -- whether the sheriff wants to cross-examine the
13 experts, but then we would need to know whether the
14 Commission wants to hear from them, because I know that
15 they start to have availability problems in July, the
16 experts do.
17 COMMISSIONER HUR: Well, why don't we plan to
18 have them here.
19 MR. KEITH: Okay.
20 COMMISSIONER HUR: And then -- that's really
21 what I thought was going to happen --
22 MR. KEITH: Yeah.
23 COMMISSIONER HUR: -- that the experts were
24 going to be available, and if you didn't want to cross
25 them, then they wouldn't need to appear. Or if the
547
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Commission wanted to question them, then they would be
2 here for those questions, but that otherwise we'd have --
3 we'd be able to make that decision on the 28th when we
4 see all the papers.
5 MR. KEITH: Okay. So I guess -- one of them --
6 Chief Lansdowne has to travel from San Diego. So we'll
7 just make the travel plans as if he's going to be here.
8 I mean, he'll have to come on the 28th for that.
9 COMMISSIONER HUR: Mr. Lansdowne is not
10 available on the 29th? He's only available the 28th?
11 MR. KEITH: I'm sorry, he's not available on
12 the 28th, but he has to travel on the 28th.
13 MS. KAISER: My concern is twofold for
14 Chief Lansdowne.
15 First of all, he's a chief of police and so
16 getting away from his position for two days, if he's not
17 actually going to be asked to testify, is burdensome for
18 him. And it's also the case that it's burdensome for the
19 city to pay for that travel i
f his testimony isn't going
20 to be needed.
21 I was wondering if, perhaps, there would be a
22 way in advance of the 28th to know whether -- we know
23 that Sheriff Mirkarimi will indicate whether he has
24 interest in cross-examining, but I'm wondering if there
25 is any procedure whereby any of the Commissioners could
548
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 indicate their interest. So that if there is no need for
2 him appear, we won't have to bring him up here for the
3 reasons of the burden to him and the burden to the city.
4 COMMISSIONER HUR: I am not aware of a
5 procedure by which we can accomplish that if it required
6 polling all the Commissioners.
7 One thing -- I mean, one thing that comes to
8 mind is we can designate a Commissioner to make that
9 decision.
10 But beyond that, unless we had a meeting just
11 to address that issue, I can't think of a way to -- to
12 make that happen consistent with our obligations under
13 the Sunshine and Brown Act.
14 I welcome --
15 MR. RENNE: And -- isn't it that each of us
16 could look at the declarations and then make a decision,
17 and I could call Mr. Emblidge or I could call you and
18 say, "I don't -- I don't care to cross-examine him,"
19 and -- individually. We're not conferring with each
20 other. We're just simply saying what our desire is.
21 Can't we do that?
22 MR. EMBLIDGE: If the -- if the indication to
23 counsel would be that any one Commissioner expresses a
24 desire for Mr. Lansdowne to testify, then I would be open
25 to receiving calls from any Commissioner who has that
549
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 inclination and I could communicate that by the 22nd to
2 counsel. The Commissioners should not confer among
3 themselves, though.
4 MR. RENNE: Right.
5 COMMISSIONER HUR: Mr. St. Croix, do you have
6 any --
7 MR. ST. CROIX: That would be fine. You can't
8 discuss this amongst yourselves.
9 You can poll the Commission, so that each
10 Commissioner can relate to Mr. Emblidge "yes" or "no,"
11 and then you can decide if any of you want it, then
12 you're going to do it. Or if the majority of you want
13 it, then you're going to do it.
14 COMMISSIONER STUDLEY: Just solely for my
15 purposes, if this is related to both of the expert
16 witnesses, and you didn't raise it about the second one,
17 I'd be able to do it by the night of the 22nd, but not
18 sooner.
19 MS. KAISER: It would, of course, be helpful,
20 I'm sure, for both of our expert witnesses to know if
21 they need to appear and testify. The travel is not an
22 issue for Ms. Lemon. She actually lives in the Bay Area.
23 COMMISSIONER HUR: Okay. Well, why don't we --
24 COMMISSIONER STUDLEY: It might be for planning
25 purposes.
550
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MS. KAISER: But it would be very helpful, I'm
2 sure, if she had some advance notice.
3 COMMISSIONER HUR: Well, why don't we let you
4 know -- we'll -- okay. So we are -- we're all in
5 agreement that that is consistent with our Sunshine and
6 Brown Act obligations.
7 MR. EMBLIDGE: I do have a problem with polling
8 the Commission. But, again, I think the procedure by --
9 whereby commissioners expressing interest to me, and we
10 agree that if a Commissioner wants that testimony, I can
11 pass that on to counsel for both sides. I think that --
12 COMMISSIONER HUR: Okay. So then the procedure
13 would be that if any one Commissioner wanted to hear from
14 an expert, that expert would be asked to appear. Okay.
15 And if we let you know that by -- I mean, the
16 22nd is a Friday. By the 25th, is that sufficient?
17 I mean, because by the 22nd we will -- you all
18 know whether you all -- you all will be bringing them
19 anyway, right? So I don't think it makes sense to hear
20 from the Commission before then.
21 MS. KAISER: I'm sure that my witnesses would
22 tell you the sooner the better.
23 COMMISSIONER HUR: Okay.
24 MS. KAISER: But, you know, please do it as you
25 see fit.
551
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: Okay.
2 MS. KAISER: And I'm also wondering -- I'm also
3 wondering maybe we should also do it this way for former
4 Sheriff Hennessey just so all the experts are on notice
5 of what's going to happen, just a suggestion.
6 COMMISSIONER STUDLEY: As a --
7 COMMISSIONER HUR: So -- yes, I think that's
8 right. All the experts -- we should weigh in on all the
9 experts.
10 I'm sorry, Commissioner Studley.
11 COMMISSIONER STUDLEY: I was just going to add,
12 for Mr. Emblidge's purposes, once he has one, does it
13 matter when the others respond? He can just advise us
14 that expert will appear.
15 MR. EMBLIDGE: That's fine.
16 COMMISSIONER STUDLEY: Right? That way --
17 COMMISSIONER HUR: Right.
18 COMMISSIONER STUDLEY: -- we wouldn't have to
19 rush to review -- to review the material if the weekend
20 was better or something like that.
21 COMMISSIONER HUR: Okay. Well, why don't we
22 put a deadline, though, so that --
23 COMMISSIONER STUDLEY: Yes.
24 COMMISSIONER HUR: -- Commissioners need to
25 respond by 5:00 o'clock on the 25th.
552
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MS. KAISER: 22nd? 25th?
2 COMMISSIONER HUR: The 22nd is when you all
3 will tell each other when --
4 MS. KAISER: I thought we could also hear from
5 the Commission by then. Just for the -- again, I'm just
6 advocating for the convenience of my witnesses.
7 COMMISSIONER STUDLEY: No, I can do it by --
8 COMMISSIONER HUR: By that time --
9 COMMISSIONER STUDLEY: End of the plane flight
10 on Friday I can do it.
11 COMMISSIONER HUR: Okay. So 5 p.m. on the 22nd
12 the Commissioners will tell Mr. Emblidge whether they
13 want to hear from an expert.
14 MS. KAISER: Thank you very much.
15 MR. RENNE: By the way, the police chief coming
16 from San Diego doesn't need to come the night before. He
17 can come in the morning. San Diego is not a tough --
18 tough place. People do it every day.
19 MS. KAISER: I understand, but I know you're a
20 practicing lawyer as well, and you probably prepare
21 witnesses before they testify. So we're going to need
22 just a little time to consult with the chief.
23 MR. RENNE: All right.
24 COMMISSIONER HUR: Okay. On the -- so on the
25 28th we may hear from the sheriff. We'll certainly hear
553
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 from him by the 29th.
2 The 29th, we'll hear from the mayor and from
3 any other experts.
4 We then need a date to hear testimony from
5 Miss Haynes, and I think we should -- and whatever that
6 date is, we would hope that we can get Mr. Mertens and
7 Miss Madison to the extent they need to be
8 cross-examined.
9 Mr. Kopp?
10 MR. KOPP: Well, I was just going to say, based
11 on some conflicts among lawyers, I think the earliest
12 we'd be able to do that would be July 16th.
13 Is that --
14 MS. KAISER: That's fine, thank you.
15 COMMISSIONER HUR: And, I'm sorry, the
16 Commissioners have just got this schedule.
17 Is July 16th available for all of the
18 Commissioners?
19 COMMISSIONER STUDLEY: Is that a Monday?
20 COMMISSIONER HUR: Monday, July 16th.
21 COMMISSIONER STUDLEY: It is not.
22 COMMISSIONER HUR: Okay. I guess this is a
23 question of the Commission staff.
24 Sorry.
25 COMMISSIONER STUDLEY: That's okay.
554
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: I think -- this is a
2 question for the Commission staff.
3 There are no rooms available from the 17th to
4 the 20th?
5 MR. ST. CROIX: It's possible that this room is
6 available in the evening, but we have to double check the
7 schedules of who's meeting during the day, and also with
8 SGTV to see if they have broadcast slots available.
9 But for those evenings, if you wish to meet on
10 those, we can schedule them tentatively and hopefully
11 they stay together. I would -- I would recommend doing
12 that.
13 COMMISSIONER HUR: Right.
14 Mr. Kopp, it looked like you wanted to say
15 something?
16 MR. KOPP: Well, I just wanted to ask, are
17 weekends out?
18 MR. ST. CROIX: Unfortunately, the building --
19 the building is closed on weekends.
20 MR. KOPP: Because in Mazzola they were there
21 on Sunday.
22 COMMISSIONER STUDLEY: Probably wasn't July.
23 MR. ST. CROIX: And then we also have
24 reservations on the 20th, 23rd, 24th, and 27th through
25 30th.
555
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: Okay. The 20th will not
2 work after all.
3 It does not look like the 23rd is going to
4 work.
5 So here's what I propose. I propose, and I
6 want this to be clear on the record, that counsel and --
7 counsel reserve the 17th through the 19th -- wait. We
8 need to make sure, actually, the Commissioners can make
9 that.
10 Between the 17th and 19th are Commissioners
11 available on any of those dates, 17th, 18th, or 19th?
12 COMMISSIONER STUDLEY: I'll need to check the
13 17th. The 18th or 19th are okay.
14 COMMISSIONER HUR: The 18th and 19th are okay.
15 So why don't we have everyone, for the moment,
16 block out on their calendars the 18th and the 19th as
17 potential days.
18 Does that work for counsel?
19 MR. KOPP: Yes.
20 MR. KEITH: Yes.
21 COMMISSIONER LIU: I'm sorry, excuse me.
22 You're talking during the day or in the evening?
23 MR. ST. CROIX: Evening.
24 COMMISSIONER HUR: Evening.
25 MR. RENNE: There isn't any time that we can do
556
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 a full day and hopefully get it done in one sitting?
2 MR. ST. CROIX: Not on those dates.
3 COMMISSIONER STUDLEY: And you're releasing the
4 20th?
5 COMMISSIONER HUR: I am releasing the 20th.
6 23rd I think is unavailable because of other --
7 unavailable.
8 Looks like we have the 24th of July as a
9 possibility for an all-day.
10 MR. ST. CROIX: That's available all day.
11 COMMISSIONER HUR: Counsel, July 24th is that
12 --
13 MR. KOPP: I'm supposed to start a trial the
14 day before. It could easily resolve. You know, I can
15 try to continue that case so we can get this done.
16 I'm assuming that this is if the 18th and 19th
17 are not available?
18 COMMISSIONER HUR: Is there a conflict with the
19 evening of the 18th and 19th among Commissioners?
20 MR. RENNE: No.
21 COMMISSIONER HAYON: No.
22 COMMISSIONER LIU: I can move what I have.
23 COMMISSIONER HUR: Apologies for the
24 difficulty.
25 MR. EMBLIDGE: Commissioner, if I'm the only
557
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 problem on the 23rd, I can -- I can adjust that.
2 COMMISSIONER HUR: Okay. Thank you,
3 Mr. Emblidge. That's -- I appreciate that.
4 Is the 23rd available for -- no.
5 MR. KOPP: That's when I'm supposed to start --
6 COMMISSIONER HUR: That's when your trial is
7 starting.
8 MR. KOPP: -- this trial. And even if it does
9 get resolved, I'm going to have to be there to resolve
10 it. So that's why if we have to go past the 18th and
11 19th, the 24th will be better, I'll just have to file a
12 motion to continue the case.
13 COMMISSIONER HUR: Okay. I think we should
14 leave open the evening of the 18th and 19th. It's
15 possible on that day we'll have one witness. It's
16 possible we'll have up to three. But I can't -- I don't
17 see a situation where we have more than three witnesses.
18 Is that fair?
19 MR. KOPP: Yes.
20 MR. KEITH: Yes.
21 COMMISSIONER HUR: I don't think we need both
22 those days. I think we would -- we could get it done in
23 one evening, would be my expectation. It's just cross.
24 I guess with Madison and Mertens, there's a
25 possibility there's some direct, but, again -- you look
558
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 skeptical.
2 MR. KOPP: I'm not skeptical.
3 MR. KEITH: I think we may be able to resolve
4 the objections and we'll see.
5 COMMISSIONER HUR: Okay.
6 So if people could block out the evening of the
7 18th and the 19th, we will hopefully need only one,
8 hopefully be able to finish the testimony by that time.
9 COMMISSIONER LIU: But not the 17th?
10 MR. KEITH: The 17th, sounds like there's some
11 Commissioner potential unavailability, so --
12 COMMISSIONER STUDLEY: I should be able to let
13 you know by tomorrow.
14 COMMISSIONER HUR: Okay. And perhaps we should
15 do another scheduling call shortly to actually nail down
16 these dates.
17 Okay. Any objections to the July 17th to
18 19th -- I'm sorry, 18th or 19th as another hearing date,
19 assuming we can get Miss Haynes here one of those days?
20 MR. KEITH: No.
21 MR. KOPP: No.
22 COMMISSIONER HUR: Okay. Another thing --
23 MR. ST. CROIX: Mr. Chairman?
24 COMMISSIONER HUR: Yes.
25 MR. ST. CROIX: Sorry.
559
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Shouldn't we, just in case, lock down the 24th
2 if we can?
3 COMMISSIONER HUR: The 24th Mr. Kopp may be in
4 trial. So I'm reluctant to -- reluctant to schedule it
5 if he is going to be in -- you know, certainly if -- if
6 your case resolves shortly, it might be helpful to have
7 that available. But as of now I don't think we should --
8 MR. KOPP: I'll see if I can --
9 COMMISSIONER HUR: -- schedule it for then.
10 MR. KOPP: I'll see if I can figure that out
11 and report back to counsel and Mr. Emblidge.
12 COMMISSIONER HUR: Okay. I'm sorry, exhibit
13 lists.
14 So did you all exchange exhibit lists today?
15 MR. KEITH: We prepared it, but we had some
16 technical difficulties filing, so it will still be filed
17 today.
18 COMMISSIONER HUR: Okay. So you all will get
19 copies of your respective exhibit lists. We made rulings
20 today that effects probably a number of the exhibits.
21 Do you want to resubmit the exhibit lists
22 tomorrow in light of our rulings today?
23 MR. KEITH: I think maybe just a notation --
24 just the same exhibit list with a notation of what the
25 ruling was would make sense --
560
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: Okay.
2 MR. KEITH: -- a record of what we have.
3 COMMISSIONER HUR: Okay. Mr. Waggoner, what
4 are your views on that?
5 MR. WAGGONER: We would like to have until
6 Wednesday. We're in the process of compiling the exhibit
7 list based in part in response to receipt of the
8 declarations of Mr. Mertens and Miss Madison.
9 COMMISSIONER HUR: Okay. Who would be the
10 sponsoring witness of these exhibits?
11 MR. WAGGONER: Well, they're voluminous, so I
12 can't tell you off the top of my head.
13 COMMISSIONER HUR: Okay. What -- can you
14 describe the nature of these exhibits? What are they?
15 MR. WAGGONER: Some of them are transcripts of
16 interviews with Miss Madison and -- Miss Madison and
17 Mr. Mertens, police interviews with those individuals.
18 There's also a transcript of an interview with
19 Miss Williams.
20 There are also other documents that we would
21 like to submit relevant to the sheriff's declaration.
22 There are documents we would like to submit
23 relevant to nearly all of the declarations, but I don't
24 have them -- there's many of them. I don't have them all
25 memorized and ready to go immediately, but I think I can
561
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 have them by Wednesday.
2 COMMISSIONER HUR: I thought that you all were
3 exchanging exhibit lists today. You know, I'll give you
4 'til the close of business tomorrow to exchange them,
5 whatever notations you want. But, I mean, I think the --
6 I think the parties need to exchange so that the -- so
7 that you all can submit whatever objections you may have
8 to documents and get them to us so that we can -- we can
9 see them by the 28th.
10 I expected, and I think the Commission -- I
11 think the Commission agrees with me, that we expected to
12 see all documents that you intended to produce in your
13 case-in-chief with your declaration.
14 If you're talking about rebuttal exhibits or
15 exhibits that you would use to impeach a witness, to me,
16 at least, I don't think those need to be on the exhibit
17 list.
18 I welcome the views of my fellow Commissioners,
19 but -- it sounds like that may be the type of evidence
20 you're talking about Mr. Waggoner?
21 MR. WAGGONER: To some extent that's true.
22 There may be some exhibits that we would wish to submit
23 for impeachment purposes, without necessarily calling the
24 witness to cross-examine the witness.
25 COMMISSIONER HUR: You want to produce an
562
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 exhibit to impeach a witness who's not here to testify to
2 be cross-examined? Did I --
3 MR. WAGGONER: I'm not saying we definitely
4 want to do that. I'm holding that out as a possibility.
5 Given that the strict rules of evidence do not apply and
6 you've admitted a great deal of hearsay, for example,
7 this evening --
8 COMMISSIONER HUR: Uh-huh (affirmative).
9 MR. WAGGONER: -- we would also have exhibits
10 in mind that we would like to submit, and in the interest
11 of time it may not make sense to cross-examine the
12 witness per se. On the other hand, there may be
13 exhibits, for example, transcripts of interviews, that
14 may be probative for your deliberations.
15 And at that point, you can give them -- just as
16 the other exhibits and testimony that you admitted in
17 evidence or will admit, give them the weight that you
18 think they deserve.
19 COMMISSIONER HUR: That's not what I had in
20 mind for how the exhibits would work.
21 I mean, I welcome -- I know we have a number of
22 litigators on this and we all have our views, I think.
23 So I welcome the thoughts of my fellow Commissioners.
24 MR. RENNE: Well, I guess what I had
25 anticipated is that each side would supply the other with
563
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 a list of the exhibits they intend to put in. And if
2 there are any foundation objections, those should be
3 lodged, but hopefully there won't be or there will be
4 very few.
5 And then the question is whether or not the
6 document is admissible without -- without any testimony.
7 And, again, you may have agreement on that, but -- and if
8 you don't, then those witness -- those documents can be
9 identified and presented to us and we can rule on them
10 whenever you want to put them in. But you can alert us
11 at the beginning of those where there's no foundation, no
12 challenge to the foundation of the document, and the only
13 challenge goes to whether or not they're admissible for
14 whatever reasons there might be an objection.
15 And if those are all going to be used in
16 connection with the presentation of a witness, that's one
17 way to do it. The other way is to do it just simply by
18 saying these are -- offering them in your case-in-chief.
19 MR. WAGGONER: That's my understanding. Thank
20 you, Commissioner.
21 COMMISSIONER HUR: Any other views with respect
22 to the admission of documentary evidence?
23 COMMISSIONER LIU: I mean, I did expect -- I
24 know the rules of evidence are -- we're being very
25 relaxed here, but I didn't expect a sponsoring witness
564
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 with exhibits unless there was a stipulation of some
2 sort, so.
3 When you say you have "transcripts of
4 interviews," what are you referring to?
5 MR. WAGGONER: Mr. Mad -- excuse me,
6 Miss Madison and Mr. Mertens and Miss Williams were all
7 interviewed by the police. There's transcripts of those
8 interviews. Just similarly to the transcripts of the --
9 well, it's not similar at all, but it's -- you know, you
10 earlier admitted the court transcripts from Miss Flores'
11 testimony.
12 COMMISSIONER LIU: Well, I think we had
13 reserved on that, but that's sworn testimony, correct?
14 MR. WAGGONER: Yes. I mean, you don't have to
15 admit the -- you know, similar to, you know, what
16 Commissioner Renne said or precisely what
17 Commissioner Renne said, you don't have to admit them, I
18 mean, but we do intend to submit them. And then you can
19 make a decision whether or not you want to admit them as
20 admissible.
21 COMMISSIONER STUDLEY: Would we -- under your
22 scenario, would we get them in time to allow us to have
23 the witness in person to reconcile the documentary offer
24 or the previous interview transcript with live testimony
25 and cross about it?
565
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 If it came in late in the process that might be
2 difficult, but if we knew that that was coming early on,
3 it might signal that we in fact wanted certain witnesses
4 available. Or we might feel that it didn't trigger that
5 and it was reconcilable without it.
6 MR. WAGGONER: I'm not sure the question that
7 you asked, Commissioner, but I can say that I will get
8 the opposing party and the Commission our exhibit list by
9 the close of business tomorrow.
10 COMMISSIONER HUR: That would be -- that would
11 be great. And if we could have objections by the end of
12 Friday.
13 Is that possible?
14 MS. KAISER: I'm -- I'm a little confused, and
15 I'm just seeking clarification.
16 In the scheduling conversations we had had with
17 Mr. Emblidge and Commissioner Hur, we had discussed
18 altogether submitting exhibits, and we had talked about a
19 procedure whereby by today both sides would submit the
20 exhibits that did not come in through a declaration.
21 So that's what we've been prepared to submit
22 today. And we only have four submissions. We've given
23 you our evidence with our declarations.
24 So it's unclear to me now if there's a whole
25 new process where we're starting with objections to
566
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 everybody's documents as if we hadn't been already doing
2 this? I mean, are we just talking about the subset of
3 documents that we had all agreed to or is the door wide
4 open again? I don't understand.
5 COMMISSIONER HUR: So my understanding was that
6 any document -- any documentary evidence that was not
7 submitted with a declaration, that you intended to use,
8 would be included on this exhibit list that would be
9 exchanged today.
10 I'm extending -- I'm proposing that we extend
11 the deadline until tomorrow because it sounds like there
12 was some technical difficulties on your end, and it
13 sounds like Mr. Waggoner had some difficulties on his
14 end.
15 You had mentioned some telephone records that
16 needed redacting. Maybe -- perhaps that could all be
17 done and we could have these lists in a complete form by
18 the end of the day tomorrow. That is my point.
19 And then by Friday, we would -- I would like to
20 see -- or Monday, if that's too soon, but the process
21 that we were discussing -- I thought we were discussing,
22 was that you would meet and confer. You would stipulate
23 to those documents to which there was no objection, and
24 if there were objections that they would then be
25 submitted so that we would be able to rule on them by the
567
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 28th.
2 MS. KAISER: Is the Commission going to
3 entertain objections to documents that are attached to
4 declarations that you've already reviewed or is that
5 topic closed now?
6 COMMISSIONER HUR: Okay. So if we have -- so,
7 for example, if we have sustained an objection to a
8 paragraph that includes an exhibit, that document is out.
9 MS. KAISER: And will there be a second chance
10 to object to other exhibits in the same declaration
11 that's already been considered?
12 COMMISSIONER HUR: I was not anticipating that,
13 no.
14 MS. KAISER: Thank you.
15 COMMISSIONER HUR: I think we're all talking
16 about the same thing.
17 MS. KAISER: I just -- I just want to be clear.
18 Thank you.
19 I'm not in any way criticizing. It's just
20 difficult to get clarity later if I don't have it today.
21 COMMISSIONER HUR: That's fine.
22 And what we will do, like we did last time, is
23 endeavor to issue a press release that summarizes all our
24 decisions today.
25 MR. KEITH: Commissioner, there is one
568
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 documentary submission which we gave notice of in the
2 list that we're submitting. And that is, that we will
3 ultimately be submitting some of Sheriff Mirkarimi's
4 public statements under the party -- party admission
5 rule, but I want to wait until Sheriff Mirkarimi
6 testifies because our submission after he testifies will
7 be a lot smaller than it would be if it were before he
8 testifies. That is, if he's going to testify here to the
9 facts, I don't want -- there is no need to submit public
10 statements that reflect those facts. So -- but what I
11 would like to do on our part is wait until after he's
12 testified to submit those admissions.
13 COMMISSIONER HUR: I'm -- why don't I allow
14 Mr. Kopp and Mr. Waggoner to address that.
15 MR. KOPP: That's fine.
16 COMMISSIONER HUR: Okay. That being the case,
17 that's fine by submission.
18 Mr. Renne.
19 MR. RENNE: I just want a question of
20 clarification.
21 As I understand it, the sheriff is going to be
22 called by you in your case-in-chief. Is it agreeable,
23 Mr. Kopp, that you will -- you or whoever counsel is
24 handling it will then put on whatever direct you want
25 with him or are you going to wait and put him on when you
569
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 bring your case on?
2 MR. KOPP: No, we'll do it at the same time.
3 MR. RENNE: Okay, good.
4 COMMISSIONER HUR: And in that -- in that case,
5 we would allow the redirect. We'd probably allow some
6 leeway on redirect.
7 MR. EMBLIDGE: The objections to the exhibits
8 will be submit
ted by the end of the day tomorrow?
9 COMMISSIONER HUR: The objections to those, I
10 think, should be due by Monday, the 25th.
11 And, again, the point is to give you guys a
12 chance to stipulate where stipulation is appropriate so
13 that we don't have to deal with an objection to every
14 single exhibit.
15 Is that acceptable with the Commission?
16 Anything else that we need to deal with?
17 MR. KOPP: Not -- not on our part, thank you.
18 MR. KEITH: No, not for us.
19 COMMISSIONER HUR: Mr. Emblidge, anything?
20 MR. EMBLIDGE: I don't think so.
21 COMMISSIONER HUR: Commissioners?
22 MR. RENNE: No.
23 COMMISSIONER HUR: Do we need a motion to adopt
24 the interim decisions that we made throughout the
25 evening?
570
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MR. ST. CROIX: That's your custom. You don't
2 need it, but you usually do it.
3 COMMISSIONER HUR: Okay. Is there a motion to
4 adopt the evidentiary and scheduling decisions that the
5 Commission has made throughout the course of the evening?
6 COMMISSIONER LIU: So moved.
7 COMMISSIONER HUR: Is there a second?
8 COMMISSIONER HAYON: Second.
9 COMMISSIONER HUR: All in favor?
10 (Commissioners in unison said "aye.")
11 COMMISSIONER HUR: Opposed?
12 There being none, the meeting is adjourned.
13 (Whereupon the meeting recessed at
14 9:35 o'clock p.m. to be reconvened,
15 Thursday, June 28, 2012, at 5:30 o'clock p.m.)
16 ---oOo---
17
18
19
20
21
22
23
24
25
571
BONNIE WAGNER & ASSOCIATES (415) 982-4849
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 I, the undersigned, a Certified Shorthand
2 Reporter in the State of California, hereby certify that
3 said proceeding was taken at the time and place therein
4 stated; that the proceedings and comments by the public
5 were reported by me to the best of my ability, a
6 disinterested person, and was thereafter transcribed
7 under my direction into typewriting; that the foregoing
8 is a full, complete, and true record of the said
9 proceeding.
10 I further certify that I am not of counsel or
11 attorney for either or any of the parties in the
12 foregoing proceedings, or in any way interested in the
13 outcome of the cause named in said caption.
14
15 Date: June 26, 2012
16
17
18
19
20 JEANNETTE SAMOULIDES, CSR #5254
21
22
23
24
25
572
BONNIE WAGNER & ASSOCIATES (415) 982-4849