Perspective and proportion

As the Ethics Commission finishes taking testimony in Mirkarimi inquiry, the evidence on most charges seems increasingly thin

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Ross Mirkarimi’s wife, Eliana Lopez, took the focus as the Ethics Commission wrapped up evidence-gathering in his trial.
MIKE KOOZIN/SF NEWSPAPER CO.

steve@sfbg.com

In the eyes of his critics, suspended Sheriff Ross Mirkarimi may never be able to recover from the portrayal by prosecutors and Mayor Ed Lee that he abused his wife, intimidated her with threats to use his power to take custody of their young son if they divorced, and used her and his campaign manager to try to dissuade witnesses and thwart a police investigation.

The tearful video of his wife, Venezuelan actress Eliana Lopez, displaying the bruise on her arm, and the fact that Mirkarimi pleaded guilty to a misdemeanor false-imprisonment charge in connection with the incident are all these critics need to condemn him. Indeed, it was all that Lee relied on when he suspended Mirkarimi without pay and launched unprecedented official misconduct proceedings to remove him from office.

But now that the Ethics Commission has gotten through the substance of its inquiry — and past the tedious work of creating from scratch systems and standards for gathering evidence and evaluating whether it warrants an elected official's removal by the mayor — the testimony has told a very different story of what really happened.

Accusations of witness dissuasion (which had been one of three original criminal charges Mirkarimi faced before agreeing to a lesser plea deal) and abusing his official position haven't been supported by any direct evidence or testimony, and as the hearings wore on, Deputy City Attorneys Peter Keith and Sherri Kaiser were looking increasingly vindictive as they fruitlessly pursued those angles with witnesses who seemed credible.

There is also no direct evidence that the abuse was anything more than a moment of frustration and bad judgment at noontime on Dec. 31, when Mirkarimi grabbed Lopez's arm as she tried to walk away from their heated argument about divorce child custody, and she yanked it away, eight days before his swearing in as sheriff.

Whether that incident and its aftermath meets the City Charter's broad and untested definition of official misconduct — including "conduct that falls below the standard of decency, good faith and right action impliedly required of all public officials" — will be up to the interpretation of the Ethics Commission, which has now accepted all the evidence that it has deemed relevant and credible. All that remains is the fight over its "finding of fact" at an Aug. 16 hearing and its subsequent recommendation to the Board of Supervisors, which could begin considering the matter in September.

There won't be an inquiry into whether Mayor Lee committed perjury on June 29, as outside witnesses said he did on two separate issues. The commission July 19 rejected the argument by Mirkarimi's attorneys that Lee's alleged lies under oath would cast doubt over his reasons for launching these unprecedented proceedings and the discretionary judgment he exercised. Commissioners decided that was a tangential issue.

In the final hour of the commission's laborious work in whittling down the voluminous evidence that the city has presented in this case — which both sides and the commission openly acknowledge will likely be considered by the courts as well as the board — it also made deep cuts into the written testimony of attorney Nancy Lemon, a domestic violence expert who drew damning conclusions about Mirkarimi based on how "batterers" typically behave.

That's been a big part of the city's case, reducing Mirkarimi down to a two-dimensional batterer whose every action can be predicted by that distinction, from the manner in which he relinquished his weapons to police to the reasons why Lopez has resisted cooperating with efforts to charge her husband with crimes and remove him from office.

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