02/23/2012 05:01 pm ET

Ross Mirkarimi Wants Domestic Abuse Video Tossed From Trial

In the latest development in the ongoing legal saga of San Francisco Sheriff Ross Mirkarimi, Mirkarimi's lawyers moved to have a crucial video depicting Mirkarimi's wife, former Venezulean soap opera star Eliana Lopez sporting a fresh bruise on her arm from where Mirkarimi allegedly grabbed her during an altercation on New Year's Eve, ruled inadmissible as evidence in his domestic abuse trial.

During a pre-trial hearing on Wednesday, Mirkarimi's lawyer Lidia Stiglich argued that Lopez had neighbor Ivory Madison take the video of her injuries to later be used as evidence in case she and Mirkarimi were ever involved in a protracted child custody battle over their two-year old son Theo.

The video, taken on New Year's Day, is a key piece of evidence in the case against Mirkarimi, who has plead not guilty to misdemeanor charges of domestic violence battery, child endangerment and dissuading a witness.

It shows a very upset Lopez crying and telling Madison about the previous evening's incident. The San Jose Mercury News reported:

In the video, Lopez pointed to her arm and said, "This happened yesterday, um, the end of 2011, and this is the second time this is happening. And I tell Ross I want to work on the marriage, we need help, I have been telling him we need help, and I am going to use this just in case he wants to take Theo away from me. Because he did, he said that, that he's very powerful, and he can, he can do it," according to the filing.
"I really thought that we would never have to use this video, uh, unless, (Mirkarimi) got nasty in the divorce proceedings," Madison said, according to the filing.

Lopez herself has subsequently denied that any domestic violence ever took place.

In an interview on Venezulean radio earlier this year, Lopez accused shadowy political forces of being behind the allegations against her husband and cast doubt on the reasons for Madison--who had previously hosted fundraisers for Mirkarimi--to release the video. "We're suspicious of her motives in calling the police four days after I talked to her about having a discussion with my husband," said Lopez, "which wasn't even a fight, nothing like that, it was a discussion like all couples have."

The San Francisco Chronicle reports that Stiglich went on to argue that, in addition to the video, the accounts of Madison and neighbor Callie Williams, who Lopez also told about the incident, should similarly be ruled inadmissible:

The neighbors' statements are hearsay, Stiglich argued. Lopez herself has denounced the case against her husband and has not cooperated with prosecutors.

A witness' recounting of a victim's spontaneous statement is often admissible in court, but Lopez's comments to her neighbors came 20 hours after the incident, Stiglich noted

Lopez's lawyer, Paula Canny, similarly asked to have the video ruled inadmissible because Lopez believed her conversions with Madison, who is a lawyer by training and once interned at the California Supreme Court, were subject to attorney-client privilege, even though Maidson is no longer a practicing attorney.

"Anybody who speaks to a trained attorney about a matter that might involve litigation would be under the impression that communication was confidential and privileged," Canny told ABC-7 News.

Both Mirkarimi and Lopez are expected to testify in the trial, but Lopez has stated she will only do so if granted immunity from prosecution.

The official trial date is set for this Friday; however, the actual proceedings aren't set to begin until next week. If convicted on all charges, Mirkarimi could face up to a year in jail and three years probation.