The Mirkarimi case: Did the city want to settle?

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Photo by Luke Thomas/Fog City Journal

The real news in the Ross Mirkarimi case isn’t the sheriff attempting to get the city to pay his legal fees; that’s just something he had to try but it was a long shot at best. The story that’s come out in bits and pieces since we broke it is far more interesting:

City Attorney Dennis Herrera, with or without the knowledge of his client the mayor, offered to begin discussions with Mirkarimi around settling the case -- and the conflicting accounts of what went on show haw harsh this legal proceding has become.

Whatever you think about Mirkarimi’s actions on New Year’s Eve -- and I’ve said many times that what he did was unacceptable -- the intensity of the prosecution, particularly in the removal proceding, is unprecedented.

Some of the political fallout is clearly Mirkarimi’s fault. He bruised his wife, got bad advice early on, said the wrong things, and didn’t do enough to repair the damage. But now Mirkarimi’s lawyer is charging that the city attorney used a nasty legal gambit to try to convince the embattled sheriff to resign.

David Waggoner, in a TV interview with KGO’s Dan Noyes, and later in discussions with me, said that City Attorney Dennis Herrera offered to look for a way to keep the video of Mirkarimi’s wife out of the public eye -- if Mirkarimi would take a financial settlement and resign from his elected position.

Mirkarimi told me the offer he heard from his lawyer put him in a terrible bind: Franky, the video contains nothing that hasn’t already been out, and won’t be the defining issue in the official misconduct case now before the Ethics Commission. But his wife, Eliana Lopez, was adamant that she didn’t want the 45-second clip on the Internet, where she -- and more important, their three-year-old son -- will have to live with it forever.

“They were using the needs of my family to pressure me,” Mirkarimi said.

Waggoner was pretty specific about his recollection of the settlement discussions. He said that after Herrera contacted him to say that he was willing to discuss settling the case, Waggoner made it clear that keeping the video sealed had to be part of any deal.

“We hung up, and then he called me back five minutes later to say that his government team was working on it, and he thought they could keep the video under seal,” Waggoner said. “The mayor and the city attorney were using the video as leverage.”

Hererra confirmed that he reached out to Waggoner to see if Mirkarimi’s legal team was interested in settlement discussions. But told me that Waggoner’s story was “absolutely, categorically untrue.” He insisted that he had no choice but to release the video, since several media outlets had requested it under the San Francisco Sunshine Ordinance.

In a statement issued June 8, Hererra attacked not only Mirkarimi but his attorneys:

"Everyone involved in this case was well aware of the City's legal obligations under the Sunshine Ordinance (which Ross Mirkarimi himself had a hand in drafting).  The City invoked the maximum allowable two-week extension after receiving Sunshine requests for the video, to allow other parties to seek a protective order.  But opposing counsel dropped the ball.  They didn't get a protective order.  They didn't seek Supreme Court review.  They didn't raise the issue at the Ethics Commission hearing.  And as far as I know, [Lopez’s counsel Paula] Canny didn't even bother to show up at the hearing.  So, I think it's a little absurd now to be playing martyr.  These are lawyers representing a former lawmaker.  They have no excuse for not knowing the law."

Wow. Sounds like the usually level-headed Herrera is one pissed-off attorney.

Interestingly, Mayor Lee told Noyes that he didn’t know anything about any settlement discussions. Either that’s false (the mayor could have been instructed by Herrera not to say anything) or Herrera was going ahead without the mayor’s knowledge or permission.

So let’s set aside for the moment the back-and-forth about who’s telling the truth and what was really involved in the negotiations. Here’s what’s not in any serious dispute:

Herrera, representing the mayor, was sufficiently motivated to settle the case before it got to the Ethics Commission that he personally called Mirkarimi’s attorney to see if there was any possibility of finding a way out. Again: Attorneys in the most bitter lawsuits are advised to seek settlement. But this isn’t in court, and no judge mandated a settlement conference.

Which suggests that the city attorney and possibly the mayor would be a lot happier if this case just went away. Maybe Lee doesn’t like the drama. Maybe Herrera thinks it would be best for Mirkarimi and the city to put this in the past and move on.

Or maybe they aren’t sure this case is such a slam-dunk winner.

There’s another interesting twist, too: Mirkarimi told me that he asked the Probation Department for permission to fly to Venezuala to see his son. There were no conditions on his guilty plea barring him from travelling outside of the country (what -- they think he won’t come back? That he has run through all of his money and put himself heavily in debt to fight a case that he’s now going to run away from?) But when he made a formal request, it was denied.
That’s right -- probation officials refused to let him go visit his son. Forget Mirkarimi -- that’s not fair to the three-year-old kid who did nothing wrong at all and is suffering for it.

Comments

for settling, and it makes perfect sense to offer Mirk a way out - resign as Sheriff and we'll hush the damning video. That would also save Ross a bunch of legal costs he can't afford, spare his family further embarassment, and give the people (remember them?) the worry about having a sheriff reinstated whom 3/4 poll as not wanting.

Ross has already had one "get out of jail free" card and now he gets a second. The man probably needs every card in the pack at this point. We're not giving him enough rope to hang himself as he's already done that all by himself. We're giving him a way out of his self-made mess and to save face and protect his family. He should take it before he's buried.

Posted by Guest on Jun. 11, 2012 @ 1:09 pm

@Guest you say: "it makes perfect sense to offer Mirk a way out - resign as Sheriff and we'll hush the damning video."

That's called Blackmail guest. Thanks.

Posted by jccourt on Jun. 12, 2012 @ 12:48 pm

After everything Mirkarimi and his team have said, they are no longer credible. I tend to believe Hererra when he says “absolutely, categorically untrue.”

Posted by chris pratt on Jun. 11, 2012 @ 1:24 pm

Tim Redmond is no longer credible. These articles are so pathetically one-sided. Take exact same facts with a politician of a different stripe, and the stories would be diametrically opposite.

Posted by Doug on Jun. 11, 2012 @ 4:48 pm

people and voters of SF. While denying any bias, and of course "condemning" acts of DV, both Tim and Steven never miss an opportunity to distort the simple truth - that Ross is unfit for office, which 76% of SF voters already know.

Posted by Guest on Jun. 11, 2012 @ 5:09 pm

A tightly-controlled bubble of Bernal Heights lesbians, fellow progressives at the SFBG and various trips in between to Rainbow Grocery and local eateries. With that worldview - do you blame him for being out of touch?

Posted by Troll II on Jun. 11, 2012 @ 5:35 pm

Yet you continue to post here...fascinating!

Posted by marcos on Jun. 12, 2012 @ 9:46 am

marcos, you seem to be implying that only comments that agree with Tim Redmond are welcome here.

Posted by Guest on Jun. 14, 2012 @ 6:22 am

Not at all, there are reasons why I do not post on freerepublic.com or similar conservative sites, clearly reasons that are not operative with the troll set that has set up residence at here at the sfbg.com site.

Like I've been telling the Christians for 40 years, I've heard your "good news," I hear the "good news" every day and am quite familiar with it. We are all quite aware of the conservative, libertarian and trickle down supply side version of politics and economics, thanks, because that message is powered by money and rammed home through myriad media venues daily.

Can't there be some place where libertarians respect our right to live free from coercion and intrusion to have our own conversations? Many progressives view anyone who makes more than they do as rich and deny them political legitimacy and that is a prescription for failure in SF politics.

That is different from telling right wing ideologues with too much time on their hands to quit being assholes and dominating a conversation that is grounded on different political values. It is okay to have different values, respect that and allow us the autonomy to have our conversations free from efforts at right wing ideological dominance. We can get that everywhere else.

What we've got here is right wing conservative capitalism a totalizing ideology similar to Christianity that evangelizes and seeks to convert under threat of all sorts of penalties. Similar to Christianity, there is no substance under the ideological ornaments, just a cult that perpetuates itself via repetition and dominance.

Posted by Guest on Jun. 14, 2012 @ 6:49 am

Stereotyping a vast, popular political movement as christian actually shows that, despite your claims to the contrary, you don't understand conservative politics, and so you should welcome any education you receive.

The left has a long history of trying to suppress criticism, most obviously in communist countries. Your job should be to welcome dissent, not seek to censor it.

Posted by Guest on Jun. 14, 2012 @ 6:59 am

You are an idiot because you cannot comprehend a comparison, that conservative politics and economics are LIKE Christianity ideologically.

How you could derive the assertion that conservatives are Christians from the previous post is testament (new, that is) to your imbecility and goes lengths to explain why your political and economic analysis is so very wrong.

Posted by marcos on Jun. 14, 2012 @ 7:22 am

focusing on one group among them that oppose abortion and gay marriage, as if that is the central core of conservatism.

If a valid accusation of ideological excess can be made at any political group, it is surely at the left who endlessly like to debate whether they are socialists or communists or marxists or maoists or leninists or stalinst.

Posted by Guest on Jun. 14, 2012 @ 7:56 am

&> /dev/null &

Posted by marcos on Jun. 14, 2012 @ 8:37 am

argument. That's really healthy and positive.

Posted by Guest on Jun. 14, 2012 @ 9:11 am

You clearly are not suited for a future in tech-saavy San Francisco. Might I suggest Oakland or Houston as more your speed?

Posted by marcos on Jun. 14, 2012 @ 9:43 am
Posted by Guest on Jun. 14, 2012 @ 9:52 am

It is true conservatives r not all religious, but, they all PIMP religion! Ed lee began his campaign on aLIE & has not stopped lying since! He is running kangaroo court! He should start sunshining himself as he is trying to blanket sunshine & the sole reason he's trying to get mirakarimi out! lee needs to step up & question the 85% of fraudelent foreclosures by wells fargo & b of a in SF alone! The juiced PD needs to be sunshined & stop killing our children! Shame on herrera for participating in the sham! lee needs to get off 8 washington & deal with the very real crisis in SF! He took credit for the swords to plowshares wonderful housing proposition for our vets! Sleaze abounds w/sf mayor! vitriol

Posted by Guest:vitriol on Jun. 16, 2012 @ 2:43 pm

outside SF would regard him as right wing.

He has my support, and I'm comfortable with his policies and decisions.

Posted by Guest on Jun. 16, 2012 @ 3:23 pm

Marcos, I AM a progressive. I supported Mirkarimi's campaign, but I think he should resign immediately.

Posted by Guest on Jun. 17, 2012 @ 11:00 am

Yes, you're a progressive and you're so proud of it you own your politics without anonymity.

Posted by Guest on Jun. 17, 2012 @ 2:16 pm
Posted by Guest on Jun. 17, 2012 @ 4:06 pm
LOL

LOL

Posted by Guest on Jun. 17, 2012 @ 8:37 pm

athiest.

Just another raddled trick out of the right wingers grab bag of tricks.

Progressives have more integrity than pull these rhetorical gimcracks out of their own hind quarters and/or know better than to ask someone to resign who has been suspended from office; what you mean, troll, is for Mirkarimi to abandon his case contesting against his suspension.

Posted by lillipublicans on Jul. 08, 2012 @ 11:29 am

courage and dignity to resign when found guilty of crimes of sex or violence of moral turpitude. The same arrogance that led Ross to beat his wife also leads him to fight a futile fight here.

Posted by Guest on Jul. 08, 2012 @ 12:49 pm

Yet you continue to post here...fascinating!

Posted by marcos on Jun. 12, 2012 @ 9:45 am

some readers might actually believe Tim here.

Posted by Guest on Jun. 12, 2012 @ 10:12 am

Why even bother if 72% of voters want Ross beheaded in Civic Center Plaza?

Probably for the same reason why they're going to the Ethics Commission, because they're too damn cheap to roll the dice and pay for a recall because they know they'll lose.

Posted by marcos on Jun. 12, 2012 @ 10:45 am

that Mirk didn't win by that big a margin even before RossGate.

Posted by Guest on Jun. 12, 2012 @ 11:08 am

True. "Let Mirkirimi go to Venezuela to see his son"? Why doesn't his son come here? The city/state is not punishing Mirkirimi by not letting him go, whoever took his son to Venezuela is.

Posted by Guest on Jul. 06, 2012 @ 9:31 am

So, isn't the son returning to San Francisco soon?

Or is Lopez not coming back?

Posted by Guest on Jun. 11, 2012 @ 1:44 pm

that she can't come back to SF. IF she comes back and testifies....Ross is forced to leave the family home once again..Do you think the mother wants to do even more harm to their child? really?

Posted by GuestChristine Craft on Jun. 11, 2012 @ 2:34 pm

That is a fucking HILARIOUS argument!

Posted by Guest on Jun. 11, 2012 @ 3:48 pm
Posted by Guest on Jun. 11, 2012 @ 4:56 pm

Sunday...June 17 at 1pm?

Posted by GuestChristine Craft on Jun. 11, 2012 @ 5:32 pm

A pile of brown sludge?

Posted by Guest on Jun. 11, 2012 @ 6:47 pm

a hamster. A guinea pig yes, but no hamsters.

Posted by Guest dootise on Jun. 11, 2012 @ 8:15 pm

I'm guessing not Ivory Madison or Callie Williams.

Posted by Guest on Jun. 14, 2012 @ 6:23 am

A cat has Ms. Madison's tongue. The avowed feminist avenger only lets her hubby do the talking for her. Perhaps she fears legal consequences for her claims of legal expertise.

Miss Williams attests that she once heard Mr. Mirkarimi use the "f" word. One imagines her with ear pressed to wall in anticipation of that hideous offense to human dignity.

Posted by GuestChristine Craft on Jun. 14, 2012 @ 9:25 am

continue to advance. And moreover she's been attacked by various people for nothing more than helping an abused woman.

I suspect we'll hear her full story in time and, meanwhile, she's probably the only party to this mess that emerges with integrity intact.

Posted by Guest on Jun. 14, 2012 @ 9:33 am
Posted by Guest on Jun. 17, 2012 @ 8:36 pm

Or maybe she understands that this case isn't and never has been about her.

Posted by Guest on Jun. 17, 2012 @ 8:36 pm

I was first in San Francisco and Carmel in 1949 . I lived in San Francisco when I worked at KPIX in 1974-76 and when I was a correspondent for CBS Sports in NYC in 1977-78. I've been doing radio at KGO for the last eighteen years, driving to and from Sacramento thousands of times to do those shows and events live and in person. I have anchored many "This Week in Northern California" shows at KQED in Belva Davis's absence . I have written several op-ed pieces commissed by the Chronicle. You may think I don't have the savvy or the experience to comment on a political lynching in this city, but that would be your mistake.

Posted by GuestChristine Craft on Jun. 11, 2012 @ 5:46 pm

You don't vote here so why is this any of your business?

FYI - a lynching happens to someone who is innocent. Ross plead guilty and by his own admission he crossed boundaries with his wife. He's responsible for this mess.

Posted by Troll II on Jun. 11, 2012 @ 6:21 pm

even remotely impressed with her self-absorbed resume.

Posted by Guest on Jun. 11, 2012 @ 6:47 pm

It was stated that I couldn't comment because I don't live in the city anymore. I do not live in the city anymore but have strong connection historically to it. That was the reason for the bona fides..not to impress. By the twisted logic that you must live in the city to have opinions about a city matter, I guess no cops who live outside SF, but who work here can express opinions. Individuals like Phil Bronstein, for example, who don't live in the city can't comment either. For that matter, by extension of the logic, none of us can comment about Trayvon Martin, or Jerry Sandusky, or Israel threatening to drag us into total economic collapse by attacking Iran. See how silly it gets?

Posted by GuestChristine Craft on Jun. 12, 2012 @ 9:01 am
Posted by GuestChristine Craft on Jun. 12, 2012 @ 4:37 pm

The ethics commission has not commissioned a public vote, nor has the BOS.

Posted by GuestChristine Craft on Jun. 12, 2012 @ 9:03 am

But the polls are damning for Ross.

Posted by Guest on Jun. 12, 2012 @ 10:13 am

how so?

Posted by GuestChristine Craft on Jun. 11, 2012 @ 5:50 pm

And why would she? She has all the leverage right now, with the child safe from his abusive father and Ross hemorrhaging cash in a futile rearguard action to defend his "powerful" job rather than using that money to support his "family".

The elegant irony about that is that it was precisely over Eliana's "right" to visit her parents that caused Ross to assault her in the first place.

Irony, thy name is payback, and it's a bitch.

Posted by Guest on Jun. 11, 2012 @ 2:35 pm