Former SF Mayor Art Agnos: Mirkarimi Prosecution is Political; Legal Analyst: Gascon Had No Choice

The trial of Sheriff Ross Mirkarimi on three misdemeanor charges related to an alleged incident of domestic violence against his wife, Eliana Lopez, is plodding along. A jury has not yet been seated, with a couple of hundred people already weeded out based on their answers to a nine-page questionnaire.

Legal motions from the defendant have to be sorted out as well. Today a video recorded by Lopez's neighbor, reportedly showing a bruise on Lopez's arm allegedly caused by Mirkarimi, as well as Lopez herself stating "this is the second time this is happening," was ruled admissible as evidence by a three-judge appellate panel from San Francisco Superior Court.

A motion for a venue change filed by Mirkarimi's lead attorney, Lidia Stiglich, has yet to be ruled on. That motion, reports Reuters, claims that "the case is intertwined with local politics and political ambitions. The political overtones that have encompassed this case from the beginning have created a significant contributing prejudice."

One Mirkarimi supporter who agrees with that charge is former San Francisco Mayor Art Agnos. The two are close personally and have supported each other politically, with then-Supervisor Mirkarimi being Agnos' main proponent during the debate over who would be interim mayor when Gavin Newsom left for the lieutenant governorship.

Other observers, however, do not believe that is true. The California Report's Scott Shafer this week interviewed both Agnos and Hastings law professor Rory Little about the case. Agnos believes bad blood between San Francisco D.A. George Gascon and Mirkarimi is helping to drive the prosecution. But Professor Little says that given the evidence against the sheriff, Gascon had no choice but to prosecute.

Read edited transcripts of both interviews below:

Scott Shafer's interview with former Mayor Art Agnos

SCOTT SHAFER: What do you think of the case so far? They had a huge jury pool.

AGNOS: It’s really remarkable. These people are filling out these long questionnaires that were arrived at by both the D.A. and the feds. And these people are revealing a level of attitude that automatically disqualifies them.

SHAFER: What do you think that says?

AGNOS: It means that this has been a subject of extraordinary coverage by the media. The Chronicle alone had a news story or a blog item in print 55 times in the month of January alone. By the end of this week, they’ll be at 100. And this is less than two-months old.

They have covered this story, which is three misdemeanors, more than the president, governor, mayor combined. And I think the result of this excessive coverage by the  media has resulted in this city being oversaturated with information about this that really comes from one side, which is the prosecution’s side, which leads to some very severe questions as to whether Ross can get a fair trial in this city.

SHAFER: Although some have suggested that he can get a fairer trial here than he could, say, in Shasta County or Humboldt County, where you might get a more conservative, pro-prosecution jury pool...

AGNOS: I don’t know. Right now, what the concern seems to be is whether people have an open mind, because the presumption is that he’s innocent until proven guilty. And yet, in politics it’s often the reverse. A politician is guilty until proven innocent, and the coverage has certainly reinforced that notion.

SHAFER: You have been a friend and a political supporter and ally of Mirkarimi's. What should people know about Ross Mirkarimi that they may not know from the media coverage?

AGNOS: Well I haven’t known Ross that long. I first met him in the Matt Gonzalez-for-mayor campaign, then supported him when he ran for supervisor the first time.

But I have found him to be a very honest, sincere, passionate person about public service. And I think that has cost him in this process, because his passionate, committed approach has led to misunderstandings regarding why he’s doing something. When he is driving hard on an issue for poor people, for the underdog, he can be very passionate, and sometimes that’s misunderstood as someone who is being overbearing. And I think that may have caused people to get a different impression of him than he really deserves.

SHAFER: Because you know him in a personal way, you probably know something about this situation you can’t talk about. But based on what you know, is he the kind of person who could commit domestic violence?

AGNOS: Ross is not a violent person. He is not someone who would do this. He was raised by a mother who struggled throughout his childhood. He was raised by a very loving and caring grandmother. In fact, as he says, he was raised by a group of doting women who were very strong. His mother was a leader in civil rights in her day.

So Ross Mirkarimi is really a feminist who is terribly humiliated by this experience, because he and his wife have not had a chance to give their side. They’ve been obviously advised by attorneys that they have to make their case in front of a jury who will make that decision. It has been very difficult for him to read the kinds of things that have been said and written about him without having the opportunity to respond.

His wife says that no violent act occurred. Did they have a disagreement? Yes. Was it a serious one between a husband and wife? Yes. But there was no violence according to his wife and according to him, and I believe and trust in that statement.

I think when the trial unfolds we will find out some facts that involve a lot of issues in this city, and around politics, that will surprise people.

SHAFER: In terms of how this came to be and the way it’s being prosecuted?

AGNOS: It’s no secret that Ross has had a bad relationship or a difficult political relationship with the current DA and then-police chief Gascon. They disagreed over community policing in his district and in the city when he was a supervisor. They disagreed over Gascon's insulting comments when he was police chief around attacks or threats against the Hall of Justice by, quote, Middle Easterners, something he had to apologize for. They’ve also had a number of issues around the cost of safety for protection for the mayor.

So there is a history there. And there are a number of apparent conflicts within the D.A.'s office, as pointed out in the Wall Street Journal. There are a lot of entanglements that raise questions as to whether this district attorney can really be the appropriate prosecuting agent for this case.

SHAFER: As mayor you experienced what it’s like for someone who is not part of the political establishment to come to city hall. What do you think this case says about the political dynamics in the city?

AGNOS: For all of it’s cosmopolitan image, San Francisco is a city of insiders and outsiders even within the political world, so that if you come into this city as a person who grew up somewhere else, didn’t go to the traditional schools in this city and don’t belong to the traditional clubs, it can be a difficult political climb up the ladder.

Ross, like me, has made that climb. I think that in this particular case Ross won a big victory over a traditional San Francisco insider, and that’s the former president of the police union, Chris Cunnie. He came in third in the election and I think there are people today who would like to see a vacancy in the sheriff’s department so that Chris Cunnie could snatch victory from the jaws of defeat.

SHAFER: You in the legislature and as mayor have been a big advocate of women’s rights and laws protecting women. Are you critical or disappointed at all in the way that Ross responded to the initial allegations? He called it a private matter, which is anathema to advocates.

AGNOS: There’s no question that domestic violence is a serious issue. However, in this case his wife says that the disagreement between them was not domestic violence, was not a matter for the district attorney to prosecute. When they made the statement that this was a private matter, they were referring to the specific issue that led to the argument, not the fact that they were being accused of domestic violence.

So the private matter was whether how long his wife and young son should leave the country for a vacation in Venezuela. Ross as a newly elected sheriff was understandably worried, not only about the length of time they might leave but also the threat of kidnapping. Just last fall a major league baseball player for the Washington Nationals was kidnapped in Venezuela and held for a high ransom. Certainly a television star,  the wife of the sheriff of San Francisco was a bigger target than a major league baseball player. So that's what led to the matter that broke out.

SHAFER: Shortly after this happened a number of women’s advocates called on him to step aside until this is resolved. Do you think they're part of the political persecution, if you will, that you described earlier, or do you think they’re sincere and just doing what they do as advocates?

AGNOS: I think some of them clearly believe very strongly in this issue, and I think others are maybe using this for political advantage, because it’s clear some of those who have been in the press, calling for him to step down, were strong supporters and advocates, and contributors to Chris Cunnie, his major opponent last fall.

SHAFER: We don’t know how this is going to end up, but what impact is it likely to have you think?

AGNOS: Well there’s no question that this has had an enormous impact on Ross, on his wife and his family. I know from being close to him during this crisis that it has been a humiliating, embarrassing, and very depressing experience.

Because of the stay-away order, what Ross has to do every day is stand 100 yards away from his house while someone brings his child to him, on a corner somewhere. And then he’s got two hours with that two-year old, and then he brings him back to the corner so that another person can take him back to his house. That’s the way he’s been living for the last two or three weeks and for the foreseeable future. I don’t think that helps strengthen a family. I think it hurts it.

Now here's Scott Shafer's interview with Rory Little, Professor of Law at Hastings

SCOTT SHAFER: What do you think of the case against Mirkarimi?

RORY LITTLE: If the tape is ruled admissible evidence, the government's case looks very strong. If there isn't any of that evidence, then really what do you have? Almost nothing.

What's unusual here is that normally in these domestic violence cases, you have a first-time offender, no serious physical injury -- many of these are resolved with a simple consent order for anger management or mediation. It's one day's publicity and you move on. We allow the first offender to resolve it in kind of a trust-me way, often because the spouse does decide she doesn't want to tear up their entire life, and with mediation and some court supervision you can prevent a serious incident.

But it's been blown out of proportion, in a sense, because the sheriff has decided to fight as hard as he can. He's going for an all or nothing result.

It's a high-risk legal strategy, and it's not one you see very often. Most defendants will play a less risky strategy. But I think he believes his career depends on this moment. It may be at this point he regrets having gone down this path, but it's pretty hard to go back.

SCOTT SHAFER: How much of that is because of the way the defense is handling this and how much because of the way the prosecutor is handling this?

RORY LITTLE: I don’t' think it has anything to do with how the DA's handling it. The DA was given a videotape of a victim in tears saying here's the bruise and I'm frightened. If you're a prosecutor in a domestic violence unit and you are given that kind of evidence, this is not a close case.

In fact you would have seen some heavy criticism of the government had they not charged this case, particularly since Mirkarimi is a high-ranking government official and a law-enforcement official.

So I think the government actually believed, "well we have to charge this," and they probably thought "this evidence is strong, we'll get a quick resolution." What they didn’t anticipate was that the sheriff would in a sense stake his political career on this matter. But they can't let it go at this point.

And what you have now is the phenonenon you see in these cases sometimes, which is former romantic partners coming forward saying "me too." We never know if the me-toos are true or false, because the incidents they cite are old, and why didn't they report it before, etc. But the more me-toos come out, the more he's damaged in the eyes of the community.

SCOTT SHAFER: What about the desire to change the venue? What are the pros and cons?

RORY LITTLE: You almost never see venue-change motions in misdemeanor cases, and you don’t see them granted even in big felony cases. Only in a big homicide case do you see them granted.

But the venue-change motion here is not a crazy thing. As they've examined these potential jurors, what they've learned is that almost everybody has read about this and has a general ideas as to what they think happened. Often that's a reason to change venue.

On the other hand, do you want to leave the San Francisco jury pool? You're likely to go to a county that has a more conservative jury pool. Normally conservative communities have a sympathy for law enforcement agents, but at the same time there's a real dislike for law enforcement agents who may be domestic batterers.

It seems to me to be sort of an amazing gamble. It seems like a lawyer's strategy to make a motion that if denied becomes a basis for appeal a year later.

SCOTT SHAFER: what do you make of the fact that the three charges filed are misdemeanors?

RORY LITTLE: Gascon is well aware of the political ramifications here. I'm relatively certain that he gave it to his domestic violence unit and told them to treat this like every other case.

I think this case was charged as a standard domestic violence case, one they couldn't avoid because they thought they had strong evidence. The case wouldn't normally be charged as a felony. And the witness-tampering charge is the sort of natural human interaction you have in these cases.

I think the DA is trying to avoid the appearance of going too hard as well as going too soft. Right down the middle.

SCOTT SHAFER: There are charges by Mirkarimi supporters that this is political, that the defendant and D.A. have previously crossed paths and disagreed. What do you make of that?

RORY LITTLE: It's hard to look at this case and think it's being too aggressively prosecuted. If Gascon has been intelligent about his own political future, he has handed this off to somebody in his office and said you handle it the way you normally do.

The only part of this that looked aggressive was the stay-away order, which stayed in place a couple of weeks, with a young child and wife who didn’t want the order. But the judge who heard that part of the case was experienced with domestic violence and said this is normally the way we do it, and you have to prove to me that I should lift it. The stay-away order is automatically imposed whenever the child is in sight of the incident. That seems a little harsh, but it's an automatic thing. It happens in every case.

But that's a problem with our domestic violence system; the pendulum has swung very far now in favor of aggressive enforcement. Because for a long time these laws weren't aggressively enforced at all.