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

that Ms. Lopez had just returned from visiting Venezuela(her home country) with their son, when she decided she wanted to take the child out of this country yet again, for several months.
Dad objected. It wasn't as if he didn't "let " her go to Venezuela..She had just returned. He wanted his child to be here for a while. Do you begrudge him that? why?
BTW, Mr. M was right about "powerful laws". One parent has to have consent of the other to take a child out of the country. Mr. M. had agreed to the prior months long visit...but was not delighted about the second.
Put yourself in his shoes.

Posted by GuestChristine Craft on Jun. 14, 2012 @ 9:34 am

prefer it if she was here. What he wasn't entitled to do was try and force her to stay, either by bruising, entrapping her in his car, claiming he was a "powerful man" who could take their son, and all the rest of the sad story that everyone now knows.

When I "put myself in his shoes", I don't assault her.

Posted by Guest on Jun. 14, 2012 @ 9:50 am

that's hearsay. He says he told her there were "powerful laws" about needing the consent of both parents to take a child out of the country. She speaks broken english. Everything that Ivory catwoman madison says about any abuse...is also hearsay. She is not a direct witness...but a hearsay witness with plenty of reasons to want to tell the story in a certain way to avoid her own legal land mines. IF she gave advice to Ms. Lopez to make a tape for future legal reasons, then attorney/client privilege may reasonably attach. Ms. Madison represents herself as highly legally trained and experienced, a non-practicing lawyer currently.. Did she give legal advice? Did she promise confidentiality? Why does she say in her declaration that Eliana asked her to ask Phil Bronstein for three phone numbers that Eliana already had? Why did Bronstein's wife, the Borders Books heiress send out texts on this matter which she now says were "downright offensive" due to her "thick thumbs" Why does ivory madison who runs a book clearinghouse have a special relationship with the Borders lass and a goofy bunch of rich, politically connected women called "A band of wives"///(PERFECT for Bravo TV)? Did Mr Bronstein massage and direct the unbalanced coverage conducted by the Chronicle? Did Bronstein confer with his old girlfriend Kamala Harris, the current AG and big supporter of Chris Cunnie and Willie Brown, in oh so many ways? Do you think some of these studly fellows, known for their numerous conquests, resent the fact that Mirkarimi has always had such beautiful girlfriends?? and finally..Do Mr. and Mrs. Borders-Bronstein have a financial interest in Ivory Madison's company??

Posted by GuestChristine Craft on Jun. 18, 2012 @ 1:53 pm

more than the fact that you wish that he hadn't said that and she hadn't said that.

Calling Madison "Catwoman" really doesn't give you much credibility. It's abuse.

Posted by Guest on Jun. 18, 2012 @ 2:27 pm

I think it was pretty decent of Lee/Herrera to try to short circuit the issue short of a BOS hearing. That would be a messy use of city resources and would have put the progressive supervisors in a really difficult spot.

Also, while Tim naturally questions the Mayor's integrity because he said that he was unaware of any deal discussions it is entirely plausible that the city's chief legal officer had enough leeway to sound out the other side on a deal before discussing it with Lee (who could have then rejected the idea if he didn't like it with no harm done).

But reading this story just confirms my intuition that Lee is a really good solid guy and I am so happy that I voted for him and against Mirkarimi.

And while I too have compassion for the 3 year old I also thought it was wrong that his parents would have a knock down drag out fight right in front of him while he was strapped into the car seat. Tim hasn't found a way to blame the vast right wing conspiracy for that yet.

Posted by Troll on Jun. 11, 2012 @ 1:48 pm

Troll, my pal, there is no vast right-wing conspiracy, and I've never suggested that there was one. But I think that the courts ought to be a little more sensitive to the fact that the kid needs to see his dad. Even violent prisoners are allowed visits with their kids.

Posted by tim on Jun. 11, 2012 @ 2:09 pm

your sidekick Steven certainly has, in calling the ethics commission inquiry into RossGate a "Circus".

Get your stories straight, you guys.

Posted by Guest on Jun. 11, 2012 @ 2:31 pm

I remember on day one the police were criticized for leaking the matter to the press. Then Gascon acted improperly. Then the judge. Then Lee. Then Ethics adopted rules that worked against Mirkarimi. Now Hererra.

Nope, no conspiracy. Just everyone involved doing their job in a way that worked against Mirkarimi.

Posted by Troll on Jun. 11, 2012 @ 4:33 pm

instead of putting the city and his family through this disgusting charade. However he's shown he has absolutely no decency left so his decision to drag this out, enabled by the amen chorus at The Guardian, is quite unsurprising.

Posted by Troll II on Jun. 11, 2012 @ 1:55 pm

Herrera would be removed from office for official misconduct.

I'm not holding my breath for Herrera to have the decency to resign.

Posted by Greg on Jun. 11, 2012 @ 6:16 pm

The people and voters thijnk differently, not that that bothers you.

Posted by Guest on Jun. 12, 2012 @ 7:21 am

@Guest you say: "The people and voters thijnk differently"

Things change from time to time guest, this case is showing a side to the city attorney that the public did not know. What he did to Eliana Lopez is a disgrace to himself and this city. Thanks.

Posted by jccourt on Jun. 12, 2012 @ 1:53 pm

"What he did to Eliana Lopez..." by offering to suppress a video that she herself made in order to settle this nightmare? Horrors!

Posted by Guest on Jun. 14, 2012 @ 6:24 am

They fight to suppress something that will do them harm.

Luckily for openness and sunshine, the video was amde public, and the truth is now out there.

Posted by Guest on Jun. 14, 2012 @ 6:53 am

saying her arm was bruised..that she was making video for use in a potential custody fight..not to prove any contemporary "abuse".
Mr. Mirkarimi has acknowledged grabbing her arm, so I'm not sure what
stunning revelation comes from Ms. Madison's cinematography.
It only makes it more difficult for this family to heal their wounds and care for their child.
...If I were Eliana, I would be terrified that some "official" committee would try to take my child from me if I returned to the US. They've done everything else, haven't they?

Posted by GuestChristine Craft on Jun. 14, 2012 @ 9:29 am

the look of obvious terror and grief on her fact. I'd say we elarned a lot about Ross there and none of it was flattering.

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

This account doesn't make a whole lot of sense. Mirkarimi's lawyer Waggoner engages in settlement talks and "Waggoner made it clear that keeping the video sealed had to be part of any deal." The City Attorney says they'll consider it, and then Waggoner accuses the City Attorney of using the video as leverage? Sounds like Mirkarimi's side was the one who threw the sealing issue into the mix of settlement discussions.

Posted by The Commish on Jun. 11, 2012 @ 2:03 pm

I think what really happened is that Wagoner said that we really don't want the video released. Hererra went back and apparently decided that if the case was settled that he could somehow claim that the tape was no longer subject to Sunshine.

Here's the thing...Hererra has been around for awhile. Has a decent reputation. I believe that the SFBG made him one of their 3 choices for Mayor. It doesn't quite follow that he's suddenly become such a low level nasty guy to use the tape as a weapon.

Now, Mirkarimi has been around for awhile also. His reputation, as characterized by his first lawyer, is one of a tyrant. The claims against him, I think, are very believable.

Posted by Troll on Jun. 11, 2012 @ 3:51 pm

Troll, it makes sense if you start, as the Bay Guardian always has, that whatever Mirkarimi did, he is the Great "Progressive" Hope and anything that threatens to remove him is per se an unjust conspiracy. Everything else flows from that assumption.

Posted by Guest on Jun. 14, 2012 @ 6:26 am

Would you come back to San Francisco..which would force your husband to leave the family home...because the courts have done all they can to make sure this family and this man are both destroyed?

Posted by GuestChristine Craft on Jun. 11, 2012 @ 2:32 pm

As one of Ross' biggest defenders and apologists you'd claim he only hits you because he cares.

Posted by Troll II on Jun. 11, 2012 @ 3:19 pm

the truth, but only cares about furthering the cause of political extremism.

Posted by Guest on Jun. 11, 2012 @ 4:55 pm

"progressive". Ross Mirkarimi and I met for the first time when he did my program. I know a lynching when I see one.

Posted by GuestChristine Craft on Jun. 11, 2012 @ 5:54 pm

You're a freaking joke, CC.

Posted by Guest on Jun. 11, 2012 @ 6:48 pm

least. There is no allegation of beating, breaking, smashing, bloodying, or hitting in this case. One arm bruise does not an abuser make. I"m betting that if your wife had just returned from having your young child out of the country for two months and had decided to do it again, whether you wanted her to or not...I'm betting you might have a serious and intense argument which might include an arm grab. You want to infantilize Eliana as if she's some timid little latina house mouse. Well, she isn't. She wanted to manipulate a potential custody issue in advance of a divorce. She hasn't been abused by anyone except folk like you and the domestic violence harpies who think a woman can't know her own mind.
You think a father shouldn't be allowed to see his child again if mama wants to take the child permanently out of the country. I think that's nuts.
Please join us Sunday June 17th at 1pm on KGO radio.

Posted by GuestChristine Craft on Jun. 11, 2012 @ 5:40 pm

speak on your "show"?

Let me guess.

None.

Posted by Guest on Jun. 12, 2012 @ 7:27 am

is call in...it's a talk show..all are invited and always are. Should I look forward to your call?

Posted by GuestChristine Craft on Jun. 12, 2012 @ 9:04 am
Posted by Guest on Jun. 12, 2012 @ 10:11 am

We are hired because we have opinions and biases. Journalism and opinion are two different critters. I've done both extensively. In terms of callers to talk shows..those opposed to a host's bias always go to the top of the list. Are you afraid someone would recognize your voice? then..just put a sock on it and disguise your voice..I"ll gladly take your call. anytime.

Posted by GuestChristine Craft on Jun. 12, 2012 @ 1:55 pm

when my girl and I argue, it never gets physical, and that's the difference between me and RM, and that's why he's in the position he is in now.
blame the judges, blame the CA, blame Lee, blame the Ethics Commission, but Ross put this whole thing into motion by not being able to keep his hands to himself. I think it is sad that you don't find a bigger, stronger man bruising his wife to be abusive.

Posted by DanO on Jun. 12, 2012 @ 8:34 am

ever take your child out of the country for several months, return, and then make plans to take your child out of the country again for several months without your consent? One arm grab does not an abuser make.

Posted by GuestChristine Craft on Jun. 12, 2012 @ 4:43 pm

tells us on the video that he's done that before.

All violence starts with a single bruise. This got stopped before it could go any further, which is exactly what DV laws are designed to achieve.

Posted by Guest on Jun. 14, 2012 @ 6:56 am

Which is the only reason she wants Ross to get his job back.
Every element of her plan has worked except the part where she did not realsie he's lose his paycheck i.e. her meal ticker. I guess her soap opera roles didn't cover that plot twist.

Posted by Guest on Jun. 11, 2012 @ 4:53 pm

I'd have reasonable fear that if I returned to San Francisco, they might take my child from me.

Posted by GuestChristine Craft on Jun. 12, 2012 @ 5:34 pm

I just watched the ABC video. Tim is being misleading with the characterization that 'Mayor Lee told Noyes that he didn't know anything about any settlement discussions'. It is at 3:51 of the tape. Noyes speaks to Lee after some type of public event:

Noyes: Did the City Attorney tell you what he was offering?
Lee: No, No. As far as I know I'm not aware of any 'offerings'...

Lee then goes on to indicate that he is indeed aware of the discussions. He sounded like a lawyer who desperately wanted to say as little as possible to a reporter.

So watch it for yourself; it is another instance of Redmond's "journalism".

Posted by Troll on Jun. 11, 2012 @ 3:43 pm

Herrera said that opposing councel dropped the ball and didn't seek a protective. Then he goes on to slam Lopez's attorney Paula Canny. The fact of the matter is, Canny field a brief with the ethics commission on May 29, stating that the tape would be extremely prejudicial to her client and her 3-year-old son. But before the commission could rule on the request, Herrera released the video anyway. David Waggoner is absolutely right. Herrera is a total sleezeball.

Posted by Guest on Jun. 11, 2012 @ 4:28 pm

whether a criminal should get his job back.

Posted by Guest on Jun. 11, 2012 @ 4:54 pm

The people had NO business seeing that video detrimental to Eliana Lopez.

An arm grab is nothing compare to the long term effect of the release of that video.

What the city attorney Herrera has done is despicable. Thanks.

Posted by jccourt on Jun. 12, 2012 @ 1:00 pm

It showed the suffering she was clearly undergoing, and that was sympathetic not critical.

It may have been harmful to Ross's criminal defense of his various criminal counts, but he can hardly blame that on the video or it's public release or his neighbor or his wife.

Posted by Guest on Jun. 14, 2012 @ 8:00 am

If my marriage was falling apart, and my husband was bruising me, and now hw is rapidly going broke paying compounded legal bills....I would stay out of the country and never come back, too.

Elena es muy intelligente por una estrella telenovelina.

Posted by Troll the XIV on Jun. 11, 2012 @ 5:34 pm

True, and she's the family breadwinner now.

After saying all those nice things about Hugo Chavez on Venezuelan TV (about how the right-wingers are persecuting Ross just like they do to Hugo at home), maybe she can get a nice sinecure from one of the many TV stations that have been taken over by the government

Posted by Guest on Jun. 11, 2012 @ 6:12 pm

Who would blame Eliana Lopez if she does not return.

After what this city did to her, by releasing that video, and by destroying her family against her wishes. Thanks.

Posted by jccourt on Jun. 12, 2012 @ 1:03 pm

Little did she realise at the time that it would lead to the gravy boat being split.

Posted by Guest on Jun. 12, 2012 @ 1:26 pm

It is no Eliana that started this guest, but the neighbor. Thanks.

Posted by jccourt on Jun. 12, 2012 @ 1:59 pm

for the second time. Fool me once . . .

Posted by Guest on Jun. 12, 2012 @ 6:32 pm

The level of anger and disrespect in the comments is uncivilized.
Preserve us from becoming what we deplore!

Posted by Guest on Jun. 11, 2012 @ 5:40 pm

often are not civil to wife-beaters.

Problem?

Posted by Guest on Jun. 11, 2012 @ 6:49 pm

Even your beloved Mayor Lee seeks civility in public discourse. We can have this discussion without attacking each other.

Or is that too much to ask from trolls who seem to lurk here just to call me a jerk?

Posted by tim on Jun. 11, 2012 @ 8:21 pm

ignored, and if you can persuade Steven not to call an ethics commision inquiry a "circus", then you'd find more civility and agreement here.

The people of this city are genuinely angry and disgusted at Ross's behaviour and what he is now putting us and his family through, all because he intimidating and abused his wife.

Why can't you see that? Sometimes your guy is wrong and should go, you know?

Posted by Guest on Jun. 12, 2012 @ 7:24 am

@Guest you say: "The people of this city are genuinely angry and disgusted at Ross"

Thanks to the Chronicle for that. Just yesterday Nevius was at it again.

You say: "what he is now putting us and his family through"

It is the current Mayor and the city attorney who are abusing Eliana Lopez. Thanks.

Posted by jccourt on Jun. 12, 2012 @ 2:10 pm