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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 BEFORE THE ETHICS COMMISSION
2 CITY AND COUNTY OF SAN FRANCISCO
3 STATE OF CALIFORNIA
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5 In the Matter of Charges Against
6 ROSS MIRKARIMI,
7 Sheriff, City and County of San Francisco
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11 City and County of San Francisco
12 Special Meeting of the Ethics Commission
13 Thursday, June 28, 2012 - 5:30 p.m.
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16 VOLUME IV
17 (Pages 573 - 719)
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Reported by: Jeannette Samoulides, CSR #5254
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22 BONNIE WAGNER & ASSOCIATES
Certified Shorthand Reporters
23 1819 Polk Street, Suite 446
San Francisco, California 94109
24 (415) 982-4849
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2 I N D E X
3 Page No.
4 SHERIFF'S WITNESS: Sheriff Ross Mirkarimi
5 CROSS-EXAMINATION BY MR. KEITH 673
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1 BE IT REMEMBERED that, on Tuesday, the 28th day
2 of June, 2012, commencing at the hour of 5:30 o'clock
3 p.m. thereof, at the CITY HALL, 1 Dr. Carlton B. Goodlett
4 Place, Room 263, San Francisco, California, before me,
5 JEANNETTE SAMOULIDES, a Certified Shorthand Reporter, for
6 the State of California, the following proceedings were
7 had
8 ---oOo---
9 APPEARANCES OF COUNSEL
10 For Sheriff Ross Mirkarimi
11 LAW OFFICES OF SHEPARD S. KOPP
11355 W. Olympic Boulevard, Suite 300
12 Los Angeles, California 90064
BY: SHEPARD S. KOPP, Attorney at Law
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- and -
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LAW OFFICES OF DAVID P. WAGGONER
15 2251 Market Street, Suite B
San Francisco, California 94114
16 BY: DAVID P. WAGGONER, Attorney at Law
17 For the City and County of San Francisco
18 Office Of The City Attorney
1390 Market Street, Fifth Floor
19 San Francisco, California 94102
BY: PETER J. KEITH, Deputy City Attorney
20 BY: SHERRI SOKELAND KAISER, Deputy City Attorney
21 For the Ethics Commission Board
22 MOSCONE, EMBLIDGE & SATER, LLP
220 Montgomery Street, Suite 2100
23 San Francisco, California 94104
BY: G. SCOTT EMBLIDGE, Attorney at Law
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25 ---oOo---
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1 Commissioners Present
2 Benedict Y. Hur, Commissioner Chairman
Jamienne S. Studley
3 Beverly Hayon
Dorthy S. Liu
4 Paul A. Renne
5 Staff Present
6 John St. Croix, Executive Director
Catherine Argumedo, Legal Analyst/Ethics Investigator
7 Mabel Ng, Deputy Executive Director
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1 Sheriff Ross Mirkarimi June 28, 2012
2 ---oOo---
3 P R O C E E D I N G S
4 COMMISSIONER HUR: Good evening and welcome to
5 this continuation of the special meeting of the
6
San Francisco Ethics Commission. We are here in the
7 matter of the official misconduct charges against
8 Sheriff Mirkarimi.
9 We'll begin by taking the roll.
10 (Roll taken.)
11 COMMISSIONER HUR: All Commission members being
12 present, we will begin.
13 We have a lot to cover today. So I think we
14 should jump right into it.
15 I understand that Paula Canny, counsel for
16 Eliana Lopez, is here today.
17 And, Miss Canny, I have a few questions for
18 you.
19 MS. CANNY: Yes. Do you want me to come to the
20 podium?
21 COMMISSIONER HUR: Please come up to the
22 podium.
23 I understand that Miss Lopez has submitted a
24 declaration, that the sheriff has submitted it, and
25 that -- is she willing to come to San Francisco to
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1 testify?
2 MS. CANNY: Yes.
3 COMMISSIONER HUR: When can she be available?
4 MS. CANNY: When the Commission needs her to be
5 available. There's a matter of how she's going to get
6 here.
7 COMMISSIONER HUR: What is the matter of how
8 she's going to get here?
9 MS. CANNY: Well, it costs money. I mean, I'm
10 not trying to be flip.
11 COMMISSIONER HUR: Please don't be.
12 MS. CANNY: It's really about who's going to
13 pay the -- the airplane ticket.
14 COMMISSIONER HUR: So you would like the city
15 to pay for her --
16 MS. CANNY: I would.
17 COMMISSIONER HUR: What do the costs of this
18 entail? This is one -- what is this, a one-way trip to
19 San Francisco or round trip? What are we talking about?
20 MS. CANNY: A round trip.
21 I don't -- I don't know, do I address you as
22 "Your Honor"? Or how do I -- just "sir"?
23 "Commissioner"?
24 COMMISSIONER HUR: Commissioner is good.
25 MS. CANNY: Okay. That'll do.
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1 So thank you, sorry.
2 So, Commissioner, I've made some calls. If
3 there could be a little bit of advance notice, then the
4 airplane ticket is obviously going to be a little bit
5 cheaper. So with a couple -- like two weeks' advance
6 notice, a regular coach ticket, round trip from Caracas
7 to here, you're looking at roughly $1500. It's an
8 approximate figure.
9 And so what my request would be, is that if she
10 would come and testify -- say if you said a Tuesday
11 evening or a Thursday evening, you know, she'd fly in
12 Wednesday. She'd testify that day and then return home
13 after her testimony.
14 COMMISSIONER HUR: So the sum total of the cost
15 is the airfare from here and back?
16 MS. CANNY: I think so.
17 COMMISSIONER HUR: Can I hear from Mr. Keith or
18 Miss Kaiser on this?
19 MR. KEITH: Yes, Commissioner.
20 COMMISSIONER HUR: Does the mayor have a
21 position on the -- the cost of bringing Miss Lopez to
22 San Francisco?
23 MR. KEITH: Well, she is a defense witness, and
24 normally we would expect a defense witness to pay for it,
25 but we can consider the request. I can take it to the
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1 mayor. This is the first that I've heard of it from
2 Miss Canny. I'm happy to take it to the mayor.
3 COMMISSIONER HUR: Okay. Miss Canny -- I'm
4 sorry.
5 MS. CANNY: Yes, sorry, Commissioner.
6 COMMISSIONER HUR: That's fine.
7 If there is not an agreement for Miss Lopez to
8 appear live, is she willing to appear by video testimony?
9 MS. CANNY: It's interesting. I've thought
10 about it. I don't think Skype will work. I think my
11 preference is that she -- that she come here to testify
12 for you.
13 I mean, I've never seen the precedent of Skype
14 testimony. I have a difficult time -- in my experience
15 of Skyping, it drops. It sometimes works; sometimes it
16 doesn't.
17 And my other understanding is I thought that
18 Ms. Lopez was also listed by the mayor's office as a
19 witness.
20 COMMISSIONER HUR: Well, the sheriff has
21 submitted the declaration in support of his defense. She
22 is here to be cross-examined by -- by the mayor. But
23 what we've laid out at the beginning is, any witness who
24 does not appear for testimony, the declaration is going
25 to receive little to no weight.
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1 So given the status of her declaration -- her
2 testimony whether live or by Skype, is likely something
3 that will give the declaration she submitted more weight
4 in front of the Commission, because she will have been
5 subject to cross-examination.
6 MS. CANNY: Well, what I'm trying to get across
7 to the Commission is that I believe that my client is
8 credible, telling the truth. I want the Commission --
9 COMMISSIONER HUR: Okay. That's fine.
10 MS. CANNY: And so that's why I'm saying I want
11 her to get to be here.
12 COMMISSIONER HUR: So are you saying you will
13 not make her available via Skype?
14 MS. CANNY: I'm saying that I want to use all
15 my efforts, Commissioner, to get her personally here so
16 that you can view her -- you know, you can see how
17 credible she is. So that you can watch her demeanor as
18 she testifies.
19 So I'm saying my wish, Commissioner, is that we
20 get her here. That I figure out some way that she can be
21 present. And in a fallback position, I suppose, yes,
22 perhaps -- I'm reluctant to say, yes, that she's willing
23 to Skype by doing it, and then that seems to me that then
24 maybe that would almost forfeit the effort to try and get
25 her to be here.
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1 So do you see what I'm saying? My preference
2 is, and my Miss Lopez's preference is, is that she appear
3 before you to give testimony.
4 And so I'm asking that -- my client doesn't
5 have resources. Her husband doesn't have, you know, a
6 job. The person who has the best pockets -- I know this
7 is an unusual situation, and that's why I'm asking --
8 COMMISSIONER HUR: Miss Canny, I do not -- she
9 is outside of the subpoena power --
10 MS. CANNY: Right.
11 COMMISSIONER HUR: -- of this body.
12 MS. CANNY: I know.
13 COMMISSIONER HUR: And I am not aware of any
14 authority that the Commission has to compel the mayor or
15 any other city agency to pay for this trip.
16 MS. CANNY: I agree.
17 COMMISSIONER HUR: So if they don't do it
18 voluntarily, then our options are video or no live
19 testimony.
20 MS. CANNY: And I appreciate that,
21 Commissioner.
22 I'm saying to you that I'm hoping that the
23 mayor's office will pay approximately $1500 so that she
24 can be brought here for them to cross-examine her and you
25 can see her testimony.
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1 If they announce that they're unwilling to do
2 it, then my -- my -- I will try and figure out some other
3 way. I mean, maybe I'll have a raffle. Maybe I'll have
4 a collection.
5 And if that doesn't work, Your Honor --
6 Commissioner, then the fallback position would be Skype.
7 But I'm saying -- what I'm trying to get across -- I'm
8 repeating it -- is I'm trying to have it be that
9 Ms. Lopez gets to personally appear before you.
10 COMMISSIONER HUR: I appreciate that. And,
11 frankly, I agree that her --
12 MS. CANNY: Okay.
13 COMMISSIONER HUR: -- being live would be
14 preferable.
15 MS. CANNY: Yeah.
16 COMMISSIONER HUR: I think it would allow us to
17 evaluate the testimony better than Skype. I have done
18 Skype examinations and it's --
19 MS. CANNY: Challenging.
20 COMMISSIONER HUR: -- it's better than nothing.
21 MS. CANNY: Yeah.
22 COMMISSIONER HUR: But it can work if you work
23 out the details in advance.
24 MS. CANNY: Well, maybe I can speak with the
25 mayor's representatives and maybe at the break or
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1 something we can figure something out. But I think that
2 that's what they would want as well.
3 COMMISSIONER HUR: Can I -- thank you,
4 Miss Canny.
5 I'm sorry, before we -- before we let you go,
6 there may be some other questions from the --
7 MS. CANNY: Okay.
8 COMMISSIONER HUR: -- Commissioners for you.
9 So are you telling me that she could be
10 available on July 18th or 19th, either live or by Skype
11 if we get to that?
12 MS. CANNY: Yes, Commissioner.
13 COMMISSIONER HUR: Okay. Great, thank you.
14 Any other questions for Miss Canny while we
15 have her?
16 If you wouldn't mind sticking around for just a
17 few mor
e minutes.
18 MS. CANNY: Oh no, absolutely. Yeah,
19 absolutely.
20 COMMISSIONER HUR: Thank you.
21 MS. CANNY: Thank you.
22 COMMISSIONER HUR: Mr. Kopp or Mr. Waggoner?
23 MR. KOPP: Good afternoon.
24 COMMISSIONER HUR: Good afternoon.
25 This is a witness who you have a declaration --
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1 from whom you submitted a declaration on the sheriff's
2 behalf.
3 Is there any ability for the sheriff's or --
4 for the sheriff somehow to or his or you -- I don't know
5 how this exactly would work -- to share in the cost of
6 this ticket to bring Miss Lopez here?
7 MR. KOPP: Not at the present moment. If the
8 mayor were to reinstate his pay, pending the outcome of
9 these proceedings, we would be able to get that done.
10 COMMISSIONER HUR: So there's no willingness on
11 your part to -- on your client's part to pay for half of
12 this?
13 MR. KOPP: There's a willingness. There's just
14 not the resources.
15 COMMISSIONER HUR: Okay. I understand.
16 Any questions for Mr. Kopp regarding this
17 issue?
18 Mr. Keith, when do you think you will have an
19 answer on this issue?
20 MR. KEITH: I can talk to the mayor tomorrow.
21 I may not have an answer at the time of tomorrow's
22 hearing, but certainly sometime shortly after I could
23 probably have an answer.
24 COMMISSIONER HUR: Much appreciated. Thank
25 you, sir.
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1 We also should deal with the declaration that
2 Miss Lopez submitted and whether or not the mayor has
3 objections to that declaration. I'm not going to require
4 that you make them orally or that we address them now,
5 given that she wouldn't be testifying until the middle of
6 July, but when can you have -- do you have objections to
7 her declaration?
8 MR. KEITH: We do, Commissioner.
9 In terms of when we could have them put
10 together, I expect in the second week of July. I'm not
11 going to have much time next week to do it. But in the
12 second week of July I'll be able to put them together.
13 There is one -- one basic objection that I
14 wanted to call to the attention of counsel, which is that
15 the attestation at the end of the declaration is not
16 valid because it doesn't state that it's sworn under
17 penalty of perjury under the laws of the State of
18 California, which is something that is required for any
19 declaration that's executed outside of the State of
20 California to make it a valid oath.
21 And so that would just be something that
22 they -- if they could cure it, I wanted to give them
23 notice of that right away.
24 COMMISSIONER HUR: Okay.
25 Why don't we have the objections to the Lopez
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1 declaration by July 9th.
2 Is that doable? It's not particularly long.
3 MR. KEITH: I could do it by the 10th.
4 COMMISSIONER HUR: By July 10th.
5 If the sheriff would like to submit a response
6 to that, we'll give you the opportunity to do that by --
7 why don't we say a week, July 17th.
8 MR. KOPP: That's fine. You know, as I think
9 I've said before, I'm not a huge fan of papering you
10 folks or anybody else. If we decide not to file a
11 written response, I presume I'll be able to come and make
12 my arguments orally?
13 COMMISSIONER HUR: You will to objections. You
14 will, yes.
15 MR. KOPP: Thank you.
16 COMMISSIONER HUR: Okay. So we have those
17 dates down. July 10th for any objections to the Lopez
18 declaration; July 17th for any response.
19 Okay. The next issue as it relates to
20 Miss Lopez is the video.
21 And I understand that, Mr. Kopp, you did not
22 submit a brief in response to the mayor's brief?
23 MR. KOPP: Correct.
24 COMMISSIONER HUR: What is your position with
25 respect to the video?
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1 MR. KOPP: I'd stand on the objections that, I
2 believe, we made previously. That it's hearsay, not
3 subject to any exception.
4 And I know that Commissioner Renne was
5 interested in why you folks might be required or asked to
6 decide this issue differently than the Superior Court
7 did, and I would
just reiterate what I told you last
8 time. Which is, that I don't think the Superior Court's
9 ruling on this issue provides any sort of collateral
10 estoppel.
11 I think there is no privity between parties. I
12 think you folks are a completely different body and you
13 can decide this issue for yourselves. We believe that
14 the Superior Court wrongly decided the issue and I'd
15 submit.
16 COMMISSIONER HUR: Having reviewed the brief
17 and having reviewed the video, I think the video is
18 admissible. I think that under the case law it does
19 qualify as an excited utterance.
20 I think it also could be admissible to indicate
21 physical injury and describe it.
22 I welcome the views of my fellow Commissioners
23 on the admissibility of the Lopez video.
24 Commissioner Liu.
25 COMMISSIONER LIU: So I do agree that
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1 collateral estoppel doesn't apply. We're not bound by
2 the Superior Court.
3 But I also agree with Chairperson Hur that
4 reviewing the video, reviewing the case authority that's
5 cited in the brief, that it does meet the criteria for
6 the hearsay exception under Evidence Code 1240.
7 She was tearful and emotional and halting in
8 her speech, and I don't think that it's very different
9 from what was described in the case cited by the mayor's
10 office.
11 COMMISSIONER HUR: Okay.
12 Commissioner Hayon.
13 COMMISSIONER HAYON: Just from the perspective
14 of a lay person, I would say we wouldn't be here. We
15 wouldn't be going through any of this if it weren't for
16 that video.
17 So I think that we certainly should admit it
18 and take a look at it as a whole, as a Commission. I
19 think it's absolutely relevant and important for us to
20 see it.
21 MS. CANNY: Can I just speak to the Commission
22 about this --
23 COMMISSIONER HUR: No.
24 MS. CANNY: I just want to say that my client
25 continues to assert that that video was a privileged
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1 video made in the course of an attorney-client
2 relationship. I know that's been consistently shot down,
3 but, for the record, had my client's attorney not
4 betrayed the confidence, we wouldn't be here.
5 COMMISSIONER HUR: Hearing no objection from
6 the Commission on this, I think we should preliminarily
7 admit the video and that should come into evidence.
8 The other declarations -- unless the Commission
9 thinks that there is something else we should discuss
10 with respect to Miss Lopez?
11 You know what, there is one thing.
12 Mr. Keith and Mr. Kopp, do either of you have
13 an objection to Miss Lopez appearing by Skype if the
14 payment of her plane ticket cannot be worked out?
15 MR. KOPP: No.
16 MR. KEITH: Commissioner, I don't know if we
17 have an objection, and the reason is this.
18 We -- when this issue was raised by the other
19 side, we did some research into the validity of oaths and
20 testimony given from abroad, and it's not -- it's not
21 clear to us that under the various treaties that govern
22 these that the oath would be valid.
23 I don't have any other problem with the
24 testimony being by Skype, but we're not convinced -- the
25 oath -- we're not convinced that the oath itself would be
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1 valid, and I'm not sure that's a risk that we want to
2 take regarding the validity of the oath.
3 COMMISSIONER HUR: Okay. So let's say that we
4 take the testimony. We get the transcript. We send the
5 transcript with Miss Canny to Miss Lopez, and she signs
6 the transcript under penalty of perjury of the laws of
7 the State of California, does that obviate your concern?
8 MR. KEITH: I think that would.
9 COMMISSIONER HUR: Great. Thank you.
10 Miss Canny, I apologize --
11 MS. CANNY: No, no.
12 COMMISSIONER HUR: -- this is the third time
13 I've asked you to come up and I appreciate your
14 willingness --
15 MS. CANNY: No, it's fine. I'm totally fit.
16 COMMISSIONER HUR: Indeed.
17 Do you have any objection to bringing the
18 transcript -- if this occurs by Skype, we have a
19 transcript that's transcribed here in San Francisco of
20 the testimony that would occur in Caracas --
21 MS. CANNY: Uh-huh (affirmative).
22 COMMISSIONER HUR: -- have Miss Lopez review
23 the transcript and sign it under penalty of perjury of
24 the State of California.
25 MS. CANNY: I'm sorry --
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1 COMMISSIONER HUR: Any problem with that?
2 MS. CANNY: Yes, I have no problem. I
3 apologize. I should have figured that out that it should
4 have said under penalty of perjury under the laws of the
5 State of California. Sorry.
6 COMMISSIONER HUR: No problem.
7 Can you -- although I know this may sound
8 mechanical, but is there -- is there a way for you to
9 resubmit the declaration that currently was submitted?
10 MS. CANNY: I'm going to, absolutely.
11 COMMISSIONER HUR: Great. Thank you.
12 MS. CANNY: Tonight I'm going to go and fix it.
13 It may not get resubmitted 'til Monday, but I'll have an
14 appropriate signature page.
15 COMMISSIONER HUR: Perfect. And it should be
16 then re-signed by Miss Lopez.
17 MS. CANNY: Yes, I will. Re-sign all, proper.
18 Thanks.
19 COMMISSIONER HUR: Great.
20 MS. CANNY: Sorry about that.
21 COMMISSIONER HUR: Thank you.
22 Okay. Other declarations.
23 I want to commend both sides for the helpful
24 work you did on the Madison objections. I think that
25 while we can disagree with, you know, certain positions
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1 you may have taken, I appreciate both of you working to
2 come to a resolution on things and, you know, having us
3 focus on what is likely the more important portions of
4 these. So thanks to you both.
5 MR. KOPP: Thank you.
6 Could I just let Commissioner Renne know that
7 it did take more than an hour, though.
8 COMMISSIONER RENNE: I will join in the
9 Chairman's observation. I did find it very helpful the
10 way in which it was done. I wonder whether or not you
11 ought to do the objections and comments to it in that
12 same form, which made it very easy for me to follow.
13 COMMISSIONER HUR: Agreed. That was my
14 intention.
15 I was going to use this document, "Summary of
16 Stipulations and Remaining Disputes Regarding Madison and
17 Mertens Declarations," and, essentially, walk through it
18 and have the Commission weigh in.
19 Mr. Kopp, this was submitted by the mayor's
20 office, but did he -- did the mayor's office accurately
21 reflect the stipulations and disputes?
22 MR. KOPP: Yes. Mr. Keith sent it to me for my
23 review and amendment, if any, before it was submitted,
24 and I agreed with it.
25 So from our perspective, it fairly sets forth
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1 the disputes. And I don't know that either of us need to
2 say anything more to you folks other than what's already
3 on paper.
4 COMMISSIONER HUR: My view on this is that we
5 go through them. I don't -- I think you're right. I
6 don't think we need to hear from you necessarily unless
7 the Commissioners have any questions. So, agreed.
8 Okay. It appears that the first dispute is
9 Paragraph 21 --
10 MR. KEITH: Commissioner Hur, I might point out
11 that there's an initial dispute about the general hearsay
12 objection, as to all the paragraphs, that's first. I
13 just want to make sure we don't miss that one.
14 COMMISSIONER HUR: Right. To the extent -- to
15 the extent that the objection is hearsay and it relates
16 to comments that the -- that Miss Lopez made to
17 Miss Madison consistent with our prior rulings, I would
18 be inclined to admit those statements so long as -- as
19 they are relevant to -- as we previously discussed.
20 The mayor -- the mayor has stated that he is
21 not introducing them for a hearsay purpose, and that they
22 are going to show Miss Lopez's state of mind.
23 Mr. Keith, so does that mean that if we
24 disagree with your non-hearsay purpose, you do not want
25 us to admit it? Because we are -- we are allowing
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1 hearsay into the record. We're giving it, you know,
2 potentially reduced weight, but is it your position that
3 if we found your non-hearsay purpose is invalid, that you
4 don't want it in for hearsay purposes?
5 MR. KEITH: Well, I think -- I mean, the
6 testimony for this time period, the January 1st to 4th
7 time period, it mostly is relevant for state-of-mind
8 issues. It does cover a variety of topics.
9 So it's hard to say that I wouldn't want any of
10 it admitted for administrative hearsay purposes. So I
11 would offe
r it for that. Though, again, it is covering a
12 lot of different topics. Hard to say which of those have
13 been covered by other evidence.
14 COMMISSIONER HUR: So there are some -- so
15 you're saying that there's -- if we find it's -- it
16 doesn't go to a non-hearsay purpose, there is some
17 evidence you would not want to come into the record that
18 you otherwise want to come into the record?
19 MR. KEITH: Oh no. I'm just -- I'm just trying
20 to be frank with the Commission about where we have other
21 evidence that the hearsay evidence might supplement. And
22 since we are covering a lot of different topics here --
23 COMMISSIONER HUR: Uh-huh (affirmative).
24 MR. KEITH: -- it may not exist everywhere.
25 Certainly we would offer it as administrative hearsay
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1 generally.
2 COMMISSIONER HUR: Okay. That was my question.
3 MR. KEITH: I think, as far as the truth of the
4 matters, I mean, I think the state of mind is probably
5 the most significant.
6 COMMISSIONER HUR: Okay. My view, then, is
7 that we -- we admit the hearsay testimony and we decide
8 later, when we're actually evaluating the bases or the
9 findings of fact, whether it should go to a non-hearsay
10 purpose or should just be administrative hearsay.
11 I welcome the views of my fellow Commissioners
12 on that.
13 COMMISSIONER RENNE: I have one question which
14 may be a little bit off target here, but as I think about
15 it, some of the testimony which we may exclude on a
16 hearsay basis or relevance basis, if a witness comes in
17 and testifies to the contrary, has that opened the door
18 to now letting this testimony come in on a credibility
19 question?
20 It's something that's troubled me as I've
21 thought about -- about the declarations and the
22 cross-examination that undoubtedly will occur where we
23 may have excluded something. But if the witness
24 testifies that "X" didn't happen, and it's now a
25 credibility issue when somebody else in their declaration
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1 said it did happen, I'd just like a little education on
2 that?
3 MR. KEITH: I think that that's a very -- I
4 think that's a correct observation. I think it's become
5 even more correct in light of the fact that we did this
6 stipulation before Ms. Lopez's declaration came in and
7 arguably put some -- once sworn and once it's in, will
8 put some of these issues into dispute.
9 And so I think even some of the rules we had
10 last time around, we may need to revisit them. I'm not
11 sure exactly how we would do that, other than to, you
12 know, maybe set out a time to do it after all the
13 testimony is in and say, well, since this witness
14 testified this way about the issue, this statement by
15 another witness might come in as a prior inconsistent
16 statement or on credibility issues.
17 COMMISSIONER HUR: I guess I'm not sure I
18 follow.
19 It we exclude -- it was a rare instance when we
20 excluded testimony solely on the basis of hearsay.
21 Typically our exclusions were relevance based.
22 So if they -- so on the relevance objection, if
23 a witness testifies about an issue that is -- that is
24 irrelevant, presumably that testimony will be excluded
25 when it's live as well, as subject to objection.
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1 If it -- if it comes in -- if there's a
2 statement that contradicts a hearsay statement, I'm not
3 sure the hearsay statement actually goes to --
4 necessarily goes to the credibility.
5 I don't know, Mr. Kopp, do you have anything to
6 say?
7 MR. KOPP: Yeah. I would just be concerned. I
8 don't want to be in a position where people are trying to
9 set up impeachment on some collateral issue or really
10 some irrelevant issue that the Commission's already
11 determined is irrelevant.
12 So that's my comment on Commissioner Renne's
13 question.
14 COMMISSIONER HUR: I'm also -- while I
15 certainly want to get this record right, we spent a lot
16 of time on this, and I'm hesitant to open the door to
17 revisiting rulings we've made. And the notion of going
18 back through all the declarations at the end of testimony
19 is not something that I was for.
20 So if -- if there are -- Mr. Renne, I don't
21 know if you had anything particular in mind about things
22 we've excluded, but --
23 COMMISSIONER RENNE: I didn't necessarily have
24 anything in particular. But -- and you used the magic
25 phrase that all trial lawyers worry about, and that is
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1 "opens the door," and -- and when I read some of the
2 statements that were made in Miss Lopez's declaration, it
3 does raise the question in my mind. They are putting
4 that document in and we have ruled earlier on some of the
5 subject matter that's being discussed that it was
6 irrelevant.
7 But if counsel for the sheriff puts it in their
8 document, you know, the classic argument is that's opened
9 the door to an area where we may have precluded it in the
10 mayor's case, but the sheriff -- and I'm not -- I have
11 nothing specific in mind, but I think it's something
12 that -- that both sides should be aware of.
13 COMMISSIONER HUR: I think -- I see the point.
14 I suspect that the mayor is going to hold us to
15 our previous decisions with respect to other declarations
16 and will object to portions of Lopez that we deemed are
17 irrelevant. That would be my expectation.
18 So I think we should wait and see what the
19 Lopez declaration looks like once we get the objection,
20 but I understand the concern.
21 Okay. Paragraph 21.
22 The objection is to Page 9, Lines 21 through
23 22.
24 I would overrule that objection. I think that
25 it does go to state of mind.
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1 Does the Commission have any comment with
2 respect to the objections to Paragraph 21?
3 Okay. Hearing none.
4 Paragraph 23, Page 10, Lines 4 through 6.
5 I would sustain this objection -- sorry, that
6 was already stipulated. The dispute is the next one.
7 Page 10, Lines 6 through 7.
8 I would sustain that objection. I think per
9 Rule 352 it's more highly prejudicial than probative.
10 COMMISSIONER LIU: I completely agree. I think
11 it's very prejudicial.
12 COMMISSIONER HUR: Any other comments from the
13 Commissioners with respect to the objection, No. 2 --
14 B-2? Maybe I'll refer to it that way so we're all clear
15 where we are.
16 Okay. B-3. That is a stipulation.
17 B-4, Page 10, Lines 17 through 18. I would
18 overrule that objection. I think -- I think it should be
19 admitted for a non-hearsay purpose.
20 Any comments from the Commissioners with
21 respect to B-4 being overruled?
22 Okay. We're now to Section II, A.
23 There is a similar general hearsay objection.
24 I would overrule that objection for the reasons we
25 previously discussed, except for 34 -- Paragraph 34,
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1 Lines 23 where it starts with "he asked," to Line 25 "in
2 law enforcement."
3 MR. KEITH: I'm sorry, Commissioner, what were
4 those lines?
5 COMMISSIONER HUR: Page 13, Line 23 through 25.
6 I'm sorry, it starts with Line 23 with the last word.
7 MR. KOPP: You know, I'm sorry,
8 Commissioner Hur, but I just noticed that in fact we also
9 had a relevance objection to this Paragraph 33 and 34
10 that was not accurately reflected in the document that
11 was prepared. So that was an oversight.
12 COMMISSIONER HUR: Not accurately reflected or
13 you didn't include it?
14 MR. KOPP: No, it's right there. I made the
15 objection when I transmitted all my objections to
16 Mr. Keith. So we must have both missed it.
17 COMMISSIONER HUR: Okay.
18 And this relevance objection is to 33 and 34?
19 MR. KOPP: And 34.
20 Actually, to be specific, it's from -- on Page
21 13, Line 2, the sentence beginning with "we," all the way
22 to the end of that paragraph, and then the entirety of
23 34.
24 COMMISSIONER HUR: Mr. Keith, do you have a
25 response?
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1 MR. KEITH: I think these paragraphs go to
2 Ms. Lopez's state of mind and her -- you know, on the one
3 hand thinking about reporting this to the police and on
4 the other hand having concerns.
5 So I think that it's relevant for the same
6 non-hearsay purpose as the other paragraphs. That's
7 really the explanation for Paragraph 33.
8 If -- I can go on to Paragraph 34, if you'd
9 like?
10 COMMISSIONER HUR: Please.
11 MR. KEITH: For Paragraph 34, this is really
12 offered just to -- under the same hearsay exception, to
13 explain why the person did what they did next, and it's
14 really it's just
narrating a conversation that was had
15 between Ms. Madison and the police inspector who answered
16 the phone.
17 So, again, it's not offered for the truth of
18 what anybody said, just for, you know, here's how it
19 happened, here's how the investigation started, which is
20 a valid non-hearsay purpose.
21 COMMISSIONER HUR: Okay. The objection's
22 relevance, though, on 34 -- on 34 as well, I understand.
23 MR. KEITH: Oh. Well, the relevance would be
24 to why Ms. Madison is reporting this incident. She's
25 reporting it to the -- why Ms. Madison called the police
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1 in the first place, which is to find out how they handle
2 these reports. And out of that came this investigation.
3 It kind of tells you how everything got started rolling.
4 Which, I mean, it's hard to understand the
5 sequence of events if you cut out parts of it.
6 COMMISSIONER HUR: I would be inclined to
7 overrule the relevance objection to Paragraphs 33 and 34.
8 Any dissenting view from Commissioners?
9 COMMISSIONER LIU: (Shakes head.)
10 COMMISSIONER HUR: With respect to the hearsay
11 objection, I mean, you're introducing -- whose state of
12 mind are you -- are you concerned about?
13 MR. KEITH: In Paragraph 33 it's Miss Lopez.
14 COMMISSIONER HUR: Paragraph 34.
15 MR. KEITH: In Paragraph 34 it's -- it's more
16 to show that Ms. Madison's purpose was finding out about
17 the police, for them to call -- about what the police do
18 when they get a domestic violence call. But then that
19 call turned into an investigation.
20 I mean, 34 is really offered more just to show
21 how this information came to the police and the
22 investigation started. It's just part of the chronology
23 of what occurred. It's not offered so much for state of
24 mind.
25 COMMISSIONER HUR: Based on that explanation, I
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1 would be inclined to overrule the objection, hearsay
2 objection to 34.
3 Any dissenting views from my fellow
4 Commissioners?
5 COMMISSIONER LIU: No.
6 COMMISSIONER HUR: Okay. I think the next
7 disputed portion is Paragraph 37, that's B-3, Page 15,
8 Lines 22 through 24.
9 You know, I actually don't think that this is
10 admissible for the purpose that the mayor identified, but
11 it is hearsay that I think could be admitted for other
12 purposes, and I think it is potentially -- it is
13 relevant. So I would overrule the objection to B-3.
14 Any dissenting view from my fellow
15 Commissioners?
16 The next disputed paragraph is under III, Roman
17 Numeral III, A-2.
18 The sheriff objects to Page 18, Line 19,
19 through Page 19, Line 1. I would sustain the objection.
20 I welcome any views from my fellow
21 Commissioners?
22 MR. KEITH: Commissioners, I request an
23 opportunity to be heard on this particular objection.
24 COMMISSIONER HUR: Okay. Please.
25 MR. KEITH: So this is a paragraph that -- that
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1 discusses the effects of the -- this criminal
2 investigation on a reporting witness.
3 One of the matters that Chief Lansdowne has
4 testified to in his declaration are the responsibilities
5 and standards that a chief law enforcement officer is
6 supposed to uphold, that includes promoting witnesses
7 reporting incidents and protecting them from retribution,
8 and specifically -- specifically the chilling effect that
9 -- that bad treatment of a witness in a particular case
10 can have on reporting, particularly as to domestic
11 violence. So that's why this is being -- that's why this
12 is being offered.
13 COMMISSIONER HUR: How is that relevant to
14 whether the sheriff committed official misconduct?
15 MR. KEITH: That would be relevant to the
16 decency clause. It's part of its -- one would expect
17 that a public official would not engage in conduct or
18 condone conduct that would be so inimical to their
19 office.
20 The office is law enforcement, and law
21 enforcement needs witnesses to prosecute crimes. And if
22 witnesses aren't willing to come forward, they can't
23 prosecute crimes.
24 When witnesses -- when people out there see how
25 this witness was treated, that affects the ability of law
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1 enforcement to prosecute crime.
2 And furthermore, our argument is this is an
3 incident in which the sheriff in fact committed a crime.
4 He admitted to it. He admitted to hurting his wife, and
5 let these attacks go on, on this witness, and attempts to
6 discredit her go on, when he knew that he had done a
7 wrong, which we would argue falls below the standard of
8 decency.
9 And I think -- I mean, another issue for us is
10 that relevance -- I mean, relevance is a baseline
11 standard. And to say that something is irrelevant and to
12 exclude it on that basis cuts off any consideration of
13 that issue later on.
14 And so I would encourage the Commission not to
15 keep itself from considering an issue and making a
16 recommendation to the Board of Supervisors on an issue
17 where there is testimony about what chief law enforcement
18 officers are supposed to do with regard to promoting
19 witnesses reporting crimes.
20 COMMISSIONER HUR: Here's -- I appreciate that
21 concern, but one thing -- one other concern when it comes
22 to what the Board has to do, is the Board has to sift
23 through what is going to be an incredibly large record,
24 and I don't think we serve the Board by admitting
25 evidence that we don't think is relevant because we are
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1 afraid or worried that we may exclude something that in
2 our good judgment should not be part of the record.
3 So I think -- I appreciate the concern. And I
4 think we've all been making efforts to ensure that the
5 record is complete, and I think in close calls we have
6 admitted evidence for that very reason. But at the same
7 time, I don't want to take that admission as license to
8 just admit everything.
9 I, frankly, do not see how the sheriff's
10 alleged failure to prevent some public outcry towards --
11 towards Miss Madison is relevant to what we've been asked
12 to do. It's not -- I don't see anything in your charges
13 that relate to that conduct.
14 MR. KEITH: It's plight -- it's plight of the
15 course of conduct that go to the decency provision.
16 COMMISSIONER HUR: But where are the
17 allegations that he should have prevented the alleged
18 press abuse to Miss Madison?
19 MR. KEITH: Well, again, the argument isn't
20 that the press abused her. It's that the abuse was
21 happening, and we would argue at the behest of those
22 working on behalf of the sheriff --
23 COMMISSIONER HUR: Where is that?
24 MR. KEITH: -- and the sheriff didn't speak out
25 against it.
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1 That specific -- that level of specificity is
2 not in the charges. But if I can take a moment, I will
3 locate in the charges where this issue is addressed.
4 COMMISSIONER HUR: Okay.
5 MR. KEITH: I mean, in a more general sense.
6 (Examination of documents.)
7 So the answer to the question, Commissioner, is
8 that while this particular aspect of the conduct is not
9 spelled out separately, it is embraced in our witness
10 dissuasion charge.
11 Certainly what happens to a witness after they
12 report a crime is something that is relevant to the idea
13 that a sheriff should be protecting witnesses and
14 safeguarding them. But more significantly, by count five
15 of our charge -- charges rather. That these are acts of
16 wrongful conduct that are going to be proven in
17 conformity with proof at trial and that they go to the
18 standard of conduct, and that's the standard of conduct
19 that we've outlined through Chief Lansdowne.
20 I mean, I -- I was under the impression that we
21 were supposed -- that this pleading document, I think --
22 we were under the impression that this pleading document
23 didn't have to be, you know, encyclopedic. And so that's
24 -- I think that's one of the difficulties that we're
25 facing now.
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1 COMMISSIONER HUR: Well, look. I mean, this --
2 this is not your typical civil proceeding where you can
3 provide notice pleading, there's no consequence to the
4 defendant until you prove your case.
5 I mean, this is a case where you brought
6 official charges that led to the immediate suspension
7 without pay of the sheriff. And so I -- I, at least, and
8 I think we've all discussed this, expect a higher level
9 of detail and full notice of what these charges really
10 are so that we can adjudicate them.
11 This is not -- this is not a -- I don't view
12 this as a situation where based on discovery you should
13 be able to, you know, significantly supplement the
14 charges.
15 Commissioner Studley.
16 COMMISSIONER STUDLEY: You'r
e not going to like
17 this.
18 COMMISSIONER HUR: Okay.
19 COMMISSIONER STUDLEY: But I am less certain,
20 because this is a relatively untested initiative by the
21 people, what the pleading expectations are or whether we
22 have more -- closer to either a notice pleading or a
23 denovo ability to determine what we think, and to what
24 degree is the mayor's charge limiting or controlling
25 more -- exactly the issue that you're raising.
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1 I'm just not sure what the -- we haven't
2 discussed what that line is. And it may not be
3 appropriate to do so here, but it does have consequences,
4 because the issue that we're talking about that this
5 testimony goes to was one that I was interested in
6 inquiring about with exactly the witness Mr. Keith
7 referred to.
8 COMMISSIONER HUR: With the witness that --
9 MR. KEITH: Chief Lansdowne.
10 COMMISSIONER STUDLEY: Chief Lansdowne.
11 COMMISSIONER HUR: Chief Lansdowne.
12 COMMISSIONER STUDLEY: But it led me to have
13 that very same question about whether we are -- how
14 closely we must hue to the -- we'll call it a charging
15 document or the statement of concerns if we -- at it's
16 extreme, if we found a -- that there had been behavior
17 that we felt fit within the initiative definition, but
18 hadn't been -- the definition in the initiative but not
19 in the charging document, whether we would be precluded
20 from considering it. That's a hypothetical --
21 COMMISSIONER HUR: Yeah.
22 COMMISSIONER STUDLEY: -- that we don't have to
23 address right now, but we're on that line --
24 COMMISSIONER HUR: Sure.
25 COMMISSIONER STUDLEY: -- of how closely or how
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1 specifically these issues need to have been identified.
2 Or put another way, what room and responsibility we have
3 to determine whether there was behavior that fit those --
4 the definition or behavior that fit the definition and
5 was raised by the mayor's charge.
6 COMMISSIONER HUR: I think that's a fair point.
7 The charges are -- this is the bill of particulars. So
8 this is actually more detailed than the charging
9 document. And we provided the mayor with the opportunity
10 to amend the charges, to add --
11 COMMISSIONER STUDLEY: Uh-huh (affirmative).
12 COMMISSIONER HUR: -- more sensitive
13 allegations, so...
14 But I -- but I certainly understand, we don't
15 have a lot of precedent here with respect to the level of
16 detail for these -- for these charges. I think the
17 caution is a good one.
18 With respect to -- I'm sorry, we were on III
19 A-2. Let's take it a little more specifically, perhaps,
20 because I think --
21 COMMISSIONER LIU: May I ask a question?
22 COMMISSIONER HUR: Sure.
23 COMMISSIONER LIU: Mr. Keith, you were talking
24 about Paragraph 46, right? Is that -- when you were
25 talking about the standard of conduct and the decency,
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1 were you addressing Paragraph 46 or Paragraph 45?
2 MR. KEITH: I'm sorry, are we back in the
3 charges or are we in the declaration?
4 COMMISSIONER LIU: I'm sorry, in the
5 declaration.
6 MR. KEITH: Okay. Let me --
7 COMMISSIONER LIU: Because I think you may have
8 been addressing Paragraph 46.
9 MR. KEITH: Oh. I'm sorry, I was. Yes.
10 COMMISSIONER LIU: Yes. And so --
11 MR. KEITH: I miscounted paragraphs.
12 COMMISSIONER LIU: -- my concern since we were
13 on that line of thought, my concern with Paragraph 46, I
14 understand your dissuasion of witness count and the
15 theory behind that, but my concern with Paragraph 46 is
16 that it doesn't seem to me to make the connection between
17 any alleged act by the sheriff and the public outcry
18 against Ms. Madison or the press -- the treatment by the
19 press of Ms. Madison.
20 So that's where I see a relevance issue on
21 Paragraph 46.
22 MR. KEITH: If I might respond. I think
23 Ms. Madison knows the effect of what happened. She
24 doesn't necessarily -- she doesn't necessarily know that
25 -- what started the chain in motion or where it could
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1 have stopped. She only knows the impact.
2 We would -- we would say that, I mean -- we
3 would say that we believe that we can present e
vidence
4 that this was the strategy, but significantly one of our
5 charges is that -- one of our -- the statements made by
6 Chief Lansdowne in his declaration is it's -- it's not --
7 it's not even the -- whether he caused this.
8 Certainly if he caused this, that would not
9 meet the standard. But even seeing it happen and not
10 doing something about it, when he knew that he had
11 committed a crime, is a problem, and is -- and falls
12 below the law enforcement standard.
13 So just the fact that he's not stopping it
14 falls below the standard. And the Commissioners -- the
15 Commissioners may or may not find that view persuasive,
16 but it's a view that Chief Lansdowne is qualified to give
17 and to testify to and he could be cross-examined on. So
18 I would offer that.
19 I mean, as to -- as to the notice issues that
20 we were discussing a moment ago, you know, we
21 certainly -- we certainly want the sheriff to have notice
22 of all of our arguments. And now that he has our
23 declarations, he has notice of all of them.
24 We've tried to work flexibly with the other
25 side, and, you know, try and deal with deadlines
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1 cooperatively and witnesses cooperatively. I mean,
2 Ms. Lopez just submitted a declaration and she's the
3 sheriff's witness. It's late, but we're not going to
4 argue that it shouldn't come in. This is an
5 administrative body. We're all moving as quickly as we
6 can.
7 So I would say that having the declaration
8 cures -- you know, that's -- that's our position. What's
9 stated in Chief Lansdowne's declaration is our position.
10 And if Sheriff Hennessey wants to answer that as their
11 expert, then he can answer that and be subject to cross
12 on that as well.
13 So, again, I mean, we're not trying to hide the
14 ball here. We're just trying to provide an effective
15 charging document that gives sufficient notice.
16 COMMISSIONER HUR: Okay. We actually ended up
17 jumping, I think, as Commissioner Liu pointed out, to III
18 B-2. What -- we were originally on, III A-2, which has
19 to do with Paragraph 45, not 46.
20 MR. KEITH: Okay.
21 COMMISSIONER HUR: Given that we just discussed
22 46, I think we should -- we should address this
23 objection, because my -- my views with respect to 46 are
24 different than 45.
25 Okay. So what is at issue in 46, Lines 13
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1 through 15? Do I have that right? 3 through --
2 COMMISSIONER RENNE: 3 through 15.
3 COMMISSIONER HUR: I think given the concerns
4 that have been expressed by my fellow Commissioners,
5 perhaps we should permit the statements starting on Line
6 9 with "but" and ending with "him" in 14.
7 MR. KEITH: Just for the Commission's
8 information, we've stipulated to an objection beginning
9 on Line 15.
10 COMMISSIONER HUR: Right. You stipulated that
11 15 through 28 was out.
12 MR. KEITH: Yes, beginning with "Ross has
13 repeatedly."
14 COMMISSIONER HUR: Right.
15 I would strike the remainder except for the
16 portion that I just mentioned.
17 I welcome the views of my fellow Commissioners.
18 COMMISSIONER STUDLEY: So 3 through 9 would
19 come out and the part you identified from "but" on Line 9
20 through "him" on Line 14 would come in?
21 COMMISSIONER HUR: Come in. And then the
22 following sentence would go out.
23 COMMISSIONER STUDLEY: Right.
24 COMMISSIONER HUR: Any objections from my
25 fellow Commissioners?
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1 Okay. So that disposes of III B-2.
2 Do we feel like we have that clearly?
3 Okay. Let's go back to Paragraph 45.
4 This paragraph -- my problem with this
5 paragraph has, actually, little to do with the charging
6 document.
7 My concern here is this paragraph is about what
8 didn't happen or what was never told to Miss Madison.
9 I'm not sure -- I'm not sure why we need that.
10 MR. KEITH: Commissioners, this is -- you know,
11 this is, again, one of those things where -- when the
12 testimony is coming in by declaration you don't know
13 quite what's going to come in.
14 COMMISSIONER HUR: Uh-huh (affirmative).
15 MR. KEITH: So what's happening here is the
16 witness is responding to some of the media -- some of the
17 accounts that the sheriff has given in media interviews
18 about what has occurred, and simply -- basically stated
19 what her response w
ould be to questions as, you know, did
20 that happen? Did Miss Lopez tell you this or tell you
21 that?
22 It's really just trying to anticipate a
23 potential conflict that's coming from the other side. I
24 think it's, again, kind of a function of our way of doing
25 this by -- by declaration.
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1 COMMISSIONER HUR: I see your point.
2 Mr. Kopp, do you have any view on this?
3 MR. KOPP: Well, certainly there's no
4 foundation for the very last sentence there. But -- and
5 some of this I would agree with your concerns about it
6 not being relevant because it talks about things that
7 didn't happen. But it does appear to repeat some the
8 things that have been previously admitted earlier in the
9 declaration.
10 So, other than that, I don't think I have any
11 further comment. We maintain our objection to the entire
12 paragraph.
13 COMMISSIONER HUR: Commissioner Renne.
14 COMMISSIONER RENNE: I'm not certain where we
15 are on that with your last statement.
16 COMMISSIONER HUR: Yeah.
17 MR. KOPP: I'm sorry.
18 COMMISSIONER HUR: I thought you were going to
19 withdraw the objection after you just --
20 MR. KOPP: No, no, no. We think it is
21 cumulative, argumentative, and prejudicial, the entire
22 thing.
23 COMMISSIONER HUR: Why is it prejudicial if you
24 said it just contains everything that was said before?
25 MR. KOPP: Well, for example, the last
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1 sentence, Miss Madison's opinion about whether or not
2 statements that were made in the press are consistent
3 with things that happened.
4 MR. KEITH: We stipulated to that objection --
5 MR. KOPP: Oh, I'm sorry.
6 MR. KEITH: -- that last sentence.
7 MR. KOPP: It certainly appears to me to be a
8 very partisan paragraph. Let's put it that way.
9 COMMISSIONER HUR: This is a partisan process.
10 You -- you are on opposing sides here.
11 MR. KOPP: Yes. I'll submit to the Commission
12 on this.
13 COMMISSIONER HUR: Commissioners, any -- any
14 views?
15 COMMISSIONER RENNE: We're talking about Lines
16 19 through --
17 COMMISSIONER HUR: We're talking about
18 Paragraph 45.
19 COMMISSIONER RENNE: 45, Line 19 through 25 to
20 the word "custody"? Is that the section?
21 COMMISSIONER HUR: It's Line 19 through Line 1
22 that ends with "video," I believe.
23 I would be inclined to sustain the objection.
24 I don't think it's at issue now. If there comes a time
25 when this testimony is relevant because it's rebuttal,
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1 maybe that's something we could revisit, but to me it's
2 not relevant.
3 COMMISSIONER LIU: I agree.
4 COMMISSIONER HAYON: (Nods head.)
5 COMMISSIONER HUR: Okay. Let's go to D-2.
6 I know that Miss Lopez has submitted a
7 declaration where she has made statements about the
8 allegations about the relationship that she had with
9 Miss Madison and this attorney-client issue.
10 But what does -- I mean, we're not here to
11 adjudicate whether there's an attorney-client privilege.
12 And, frankly, given the public disclosure, it seems
13 like -- I mean, there's really -- that ship has passed
14 and it was adjudicated before we were involved.
15 So I'm not really sure what Paragraph 49, Line
16 20, through Page 21, Line 8 go to.
17 MR. KEITH: This goes to a specific instance of
18 potentially harassing a witness who reported a crime.
19 That the sheriff knew what happened.
20 This is just one instance of that harassment,
21 is that Ms. Lopez's attorney sent her these threatening
22 letters.
23 COMMISSIONER HUR: I think you just said
24 Ms. Lopez's --
25 MR. KEITH: I'm sorry.
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1 COMMISSIONER HUR: -- attorney.
2 MR. KEITH: That's correct, I did.
3 COMMISSIONER HUR: So where -- I'm sorry if I
4 missed it.
5 But what is -- how does that relate to the
6 sheriff's official misconduct?
7 MR. KEITH: Because the sheriff did nothing to
8 stop it, and the sheriff -- the sheriff funded
9 Ms. Lopez's attorney.
10 MS. CANNY: Oh, that's --
11 COMMISSIONER HUR: Please. We cannot have
12 comments from --
13 MS. CANNY: Sorry, sorry, sorry, sorry, sorry.
14 COMMISSIONER HUR: Okay. You know, again, to
15 me that is not relevant.
16 I would sustain the objection, but welcome the
17 views of my fellow Commissioners.
18 Okay. Hearing no objection.
19 Okay. Mr. Mertens.
20 First objection is to Paragraph 6 through 9.
21 I had a hard time seeing the relevance here. I
22 would -- I would sustain the objection.
23 I welcome the views of my fellow Commissioners.
24 And, Mr. Keith, if there are any where you'd
25 like to be heard, we'll certainly give you that
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1 opportunity.
2 MR. KEITH: Thank you.
3 Commissioners, I want to say this. I recognize
4 that the things that are discussed in these paragraphs,
5 they're not flattering, but we take the facts as they
6 come. And from our standpoint, information like this
7 about the past relationship between -- between Ms. Lopez
8 and the sheriff are relevant to our theory that domestic
9 violence occurred, and argue the facts that domestic
10 violence occurred.
11 I mean, the sheriff's declaration unfortunately
12 is extremely terse. A couple of sentences about his
13 account of what happened on the 31st. I -- I don't know
14 if he's going to expand on that. Certainly --
15 COMMISSIONER HUR: You'll be able to ask him.
16 MR. KEITH: Yes.
17 COMMISSIONER HUR: I mean, you're calling him
18 as your witness. You couldn't get a declaration from
19 him, so you're not limited by his declaration, as long as
20 the --
21 MR. KEITH: Right.
22 COMMISSIONER HUR: -- topics are relevant.
23 MR. KEITH: Right.
24 COMMISSIONER HUR: So --
25 MR. KEITH: Yeah. So we know from the public
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1 statements that the sheriff has made -- I can't say that
2 we know, but we suspect from the public statements the
3 sheriff has made what his story is going to be, which is
4 a short, innocuous incident, which -- which is contrary
5 to the statement that Ms. Lopez gave to Miss Madison on
6 the 1st about how this incident occurred.
7 COMMISSIONER HUR: Okay. But these aren't
8 about statements on the 1st.
9 MR. KEITH: That's correct. These are not
10 about statements on the 1st. But as Ms. Lemon --
11 Ms. Lemon's testimony shows, and it's generally accepted
12 in California, testimony from -- testimony about the
13 existence of a battering or abusive relationship is
14 relevant to assessing the credibility of a witness who
15 later recants, and this goes to the existence of that
16 relationship. And with the declaration that we just
17 received from Ms. Lopez, we have an issue of a victim
18 recanting, which is not unusual in domestic violence
19 situations.
20 So we have a statement that was given right
21 after the incident, that the credibility of which is
22 going to have to be tested against whatever the sheriff
23 says now and whatever Ms. Lopez says now. And it's
24 accepted that the kind of relationship that exists --
25 that preexists and predates the violent incident is
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1 relevant to making that determination.
2 COMMISSIONER HUR: Please, Mr. Renne.
3 COMMISSIONER RENNE: Mr. Keith, isn't it your
4 position that the mayor -- that the sheriff having pled
5 guilty to false imprisonment, that that was pleading to
6 domestic violence?
7 MR. KEITH: Yes.
8 COMMISSIONER RENNE: That's your position,
9 isn't it?
10 MR. KEITH: It is.
11 COMMISSIONER RENNE: All right. Why do you
12 need anything about conversations or incidents that
13 happened back in October if it's your position that the
14 official misconduct is proven by the mere fact of
15 entering a guilty plea?
16 MR. KEITH: Well, Commissioner, it's the
17 mayor's position that the conviction alone, when we put
18 it together with the sentence and the probation
19 conditions, et cetera, that's official misconduct.
20 COMMISSIONER RENNE: Right.
21 MR. KEITH: But we -- but there's also an
22 argument to be made, and we expect the other side to make
23 it, that it is not official misconduct. At which point
24 we then have to start getting into questions of degree,
25 where we might look at the facts and circumstances of the
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1 conduct that led to the conviction.
2 And my concern, again, is I -- you know, I
3 think we would argue for a categorical rule, that
4 whenever a top law enforcement officer is convicted of
5 any kind of offense involving domestic violence, they
6 have to go.
7 I don't know if the Commission is going to
8 accept that rule or if the Commission is going to say, we
9 have to look at the facts and circumstances. So
10 that's -- that's why, I think, we're focusing on some of
11 these factual disputes, because it may not be enough.
12 COMMISSIONER RENNE: How do Paragraphs 6
13 through 9 advance a position of saying that what took
14 place on January -- or December 31st was an act of
15 domestic violence?
16 MR. KEITH: It puts the -- it puts -- it says,
17 here is the relationship that predated the incident. And
18 the California Supreme Court says that when you're
19 talking about domestic violence type incidents, that
20 relationship is important.
21 I mean, my colleague, Ms. Kaiser, has submitted
22 a brief on the Lemon declaration, which the other side
23 has objected to in its entirety, that discusses these
24 issues in great detail. That's the --
25 COMMISSIONER RENNE: But it's all hearsay.
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1 MR. KEITH: It is.
2 COMMISSIONER RENNE: You've got to assume that
3 what statements are being made there are true.
4 So in addition to the question of potential
5 relevance or how your expert witness may tie it in,
6 you've got to make the assumption that everything that
7 witness is saying is true, and how -- and how do you get
8 -- how do you get by that hurdle?
9 MR. KEITH: Well, I acknowledge the hurdle and
10 it's there, but I think the Evidence Code 801 gets us
11 over the hurdle, which is to say it's the kind of hearsay
12 that experts rely on. It's statements by the victim
13 about the relationship. And in the context of these
14 types of experts and this type of testimony, that is
15 hearsay that the experts rely on.
16 I can see that much of this is hearsay and
17 there is some non-hearsay purpose for it. I guess I'm
18 really addressing the relevance clause here. And -- but
19 there's not a problem with an expert relying on hearsay,
20 particularly this kind of hearsay for this kind of
21 expert.
22 COMMISSIONER LIU: Mr. Keith, we don't have to
23 determine whether these past acts were -- whether they
24 had domestic violence connotations. We just have to
25 determine whether the incident on New Year's Eve
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1 constituted domestic violence, correct?
2 So you don't really have to go into the facts,
3 you know, that's being portrayed in Paragraphs 6 to 9.
4 MR. KEITH: I think you do not have to make
5 findings about that. I think, though, like with any
6 expert opinion, you want to look at what the expert is
7 relying on. And if you doubt that that's true, you might
8 doubt the opinion. If you believe it is true, you might
9 believe the opinion. And so, it's only relevant in that
10 sense.
11 I mean, the expert opinion helps us understand
12 how this victim has recanted, and helps us understand why
13 she was telling the account that she told to Ms. Madison
14 on the 1st and to Ms. Williams on the 4th about what
15 happened, and helps explain why those are more credible
16 than the subsequent statements.
17 So it does go to what happened on the 31st.
18 That is what the Commission has to decide with regard to
19 the facts and circumstances that led to this conviction.
20 COMMISSIONER HUR: I really think we're far
21 afield here. I would -- I would sustain the objections
22 to Paragraph 6 through 9.
23 Any dissenting views?
24 COMMISSIONER LIU: (Shakes head.)
25 COMMISSIONER HUR: Okay. Paragraph 13,
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1 stipulation.
2 Paragraph 20, stipulation.
3 Okay. The objection in Roman IV is that these
4 paragraphs contain testimony about the harassment that
5 Mr. Mertens and Miss Madison experienced.
6 We did permit some allegations or some
7 statements from Miss Madison's declaration that relate
8 to -- specifically to statements about the sheriff's
9 alleged harassment of Miss Madison.
10 Are there -- and, you know, there's a lot to
11 read. I've read it, but I admit I have not marked out
12 the portions of 21 through 28 that go to whether or not
13 the sheriff hara
ssed Mr. Mertens.
14 Given that it's your objection, Mr. Kopp, can
15 you point us to those portions?
16 MR. KOPP: You'd like to see the portions here
17 that -- in which Mr. Mertens alleges that the sheriff
18 said something that was deemed to be harassment?
19 COMMISSIONER HUR: Actually, yes, but I
20 probably should put it to Mr. Keith, because I want to
21 know -- because we allowed it for Miss Madison to some
22 extent, I would like to be cautious about striking it
23 from Mr. Mertens' there.
24 MR. KEITH: So there's basically three -- three
25 different things or categories of harassment that
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1 Mr. Mertens is discussing in this portion of the
2 declaration.
3 You have in Paragraph 21 that he's getting
4 phone calls from journalists who are basically telling
5 him things that he knows to be untrue, and that are
6 offensive, and that, you know -- that essentially he's
7 being pursued with these story ideas from journalists
8 that are getting them from somewhere. So that's --
9 that's what's in Paragraph 21.
10 And, also, just a general view of here's all
11 the things that are being said about me and my wife and
12 how it's affecting us.
13 Paragraph 22 is about a subpoena received in
14 the criminal action by their business.
15 And Paragraph 23 is about the cease and desist
16 letter that we already discussed earlier with regard to
17 Miss Madison.
18 So those are the three -- those are the three
19 main acts that are discussed there.
20 And then with the remaining paragraphs, much of
21 those we've stipulated to take out. But looking at
22 Paragraph 28, it basically talked -- it would get back to
23 sort of the impact on the witness.
24 And some of the intervening paragraphs have to
25 do with the existence of this attorney-client
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1 relationship issue. Which, I mean, if the Commission
2 isn't going to consider that, then those paragraphs won't
3 be relevant.
4 COMMISSIONER HUR: Uh-huh (affirmative).
5 I, frankly -- yeah, I don't even see
6 allegations in here, admissible statements about
7 harassment from the sheriff.
8 Are there -- are there any statements that -- I
9 mean, even hearsay where he says someone told me that the
10 sheriff told me not to come forward or intimidated me, or
11 something, where are those allegations?
12 MR. KEITH: Well, the allegations would be that
13 they're getting these calls from journalists with these
14 story ideas that they know to be completely false.
15 It's a reasonable inference to draw that these
16 story ideas are being planted by the criminal defense.
17 That's the inference to draw. Certainly, you know, when
18 the reporter says on the phone, oh, you know, Ross says
19 whomever told me this. You know, that -- that is
20 hearsay.
21 But just the fact that they're getting the
22 calls, one can infer that they're being -- that these
23 story ideas are being put out there by the sheriff. I
24 mean, there's no other reason for these calls to be
25 coming to these witnesses.
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1 COMMISSIONER HUR: I do not think that's
2 relevant, but I welcome the views of my fellow
3 Commissioners.
4 And, really, if there -- even if there are
5 hearsay -- even if there is something you can point me to
6 where it says someone told me that the sheriff, you
7 know --
8 MR. KEITH: Oh, it is there in Paragraph 21,
9 that the people who called told him that. And I
10 recognize technically that's hearsay, but, nevertheless,
11 one can infer from the fact that he's getting the calls
12 with these story ideas that he considers to be outlandish
13 and false, that they're being prompted by something.
14 We actually have evidence elsewhere in the
15 record that -- that shows an intent on the part of the
16 sheriff to paint this as a political witch-hunt. And so,
17 again, it's connected to these particular calls.
18 I mean, it's like trying to get evidence of a
19 conspiracy. You have to infer. You have to infer from
20 the fact that you have things that nobody would ever
21 testify to.
22 COMMISSIONER HUR: I open it up to my fellow
23 Commissioners.
24 I mean, I appreciate the argument, Mr. Keith,
25 but, to me, I do not see how this is relevant. And, I
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1 mean, I see that there is some hearsay, but it's so
2 general that I'm not even sure I would give it any -- any
3 weight.
4 But I know there's -- there's a lot here. So I
5 welcome views from my fellow Commissioners.
6 COMMISSIONER LIU: When I was going through
7 this, I read this a couple different times, and I still
8 don't really see the connection. So I would -- I would
9 vote to exclude it on relevance grounds.
10 I mean, I understand your witness dissuasion
11 theory. But I just -- I still just don't see the
12 connection here with the journalists and the press
13 coverage.
14 COMMISSIONER HUR: Any other dissenting views
15 from other Commissioners?
16 COMMISSIONER HAYON: (Shakes head.)
17 COMMISSIONER HUR: Okay. Hearing none, I think
18 we should move on.
19 MR. EMBLIDGE: We need to know what
20 specifically to sustain the objections on?
21 COMMISSIONER HUR: I think the whole --
22 MR. EMBLIDGE: 21 through 28?
23 COMMISSIONER HUR: -- 21 through 28.
24 Mr. Keith, why don't I do this. Why don't I
25 give you a chance to tell me -- if there's anything
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1 different in the -- I think it all relates to the same
2 issue. Unless there's something different in there that
3 we've overlooked that needs to come in.
4 MR. KEITH: Well, I just -- the fact is that
5 these witnesses experienced harassment. It seems -- it
6 seems that how witnesses are treated in a criminal action
7 when they're getting calls like this -- which, again, I
8 mean, I don't think the complaint here is about the press
9 coverage. Press coverage is inevitable in a case where
10 you have as well known a defendant.
11 But they're getting the kinds of calls that
12 suggest a campaign against Ms. Madison, and that's -- it
13 just seems to me, that taking all that evidence out, it
14 just simply takes -- it seems to me to be too much.
15 I can understand taking out the cease and
16 desist letter and, you know, the theory that it comes
17 from another attorney. I think it's too much to take out
18 all of it. That would be my -- that be my argument.
19 COMMISSIONER HUR: Commissioner Renne.
20 COMMISSIONER RENNE: When you go to Paragraph
21 22, though, in connection with the argument that
22 Mr. Keith is making, is -- it was the sheriff's attorney
23 who sent a subpoena for -- which they described as being
24 an intrusive, overbroad, and harassing subpoena to this
25 Red Room Omnimedia Corporation. That's certainly if --
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1 unless that's some justification, one could say that is
2 clearly done in retaliation to Miss Madison's
3 involvement. Which, I think, if one accepts the mayor's
4 argument, that it is evidence of some kind of
5 intimidation and conduct by the sheriff that's
6 inconsistent with his duties as a law enforcement
7 officer.
8 So I -- but I don't know what that subpoena
9 was. It may well have been very relevant to the criminal
10 proceeding, but the way it's characterized here as being
11 "intrusive, overbroad, and harassing," and that they
12 apparently went into court or did something --
13 MR. KEITH: There was -- they hired an
14 attorney. They went into court and they -- there was
15 meeting and conferring, and they finally narrowed it
16 down, and then produced some documents. I mean, that's
17 what I understand to have occurred in the criminal case.
18 MR. KOPP: If I could just interject?
19 COMMISSIONER HUR: Mr. Kopp, please.
20 MR. KOPP: Which is exactly what has happened
21 here with a lot of the mayor's subpoenas. There were
22 objections because they were overbroad, intrusive, et
23 cetera. And those objections were sustained. And
24 finally when they were narrowed down, documents were
25 produced.
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1 COMMISSIONER HUR: Was the subpoena issued
2 through the sheriff's office or was this by his attorney
3 in the criminal action?
4 MR. KOPP: His criminal attorney.
5 COMMISSIONER HUR: So it wasn't the sheriff's
6 subpoena authority? It was the subpoena authority as a
7 defendant in a criminal action?
8 MR. KOPP: Correct.
9 COMMISSIONER HUR: You know, I think it's -- to
10 me, I mean, it's not uncommon. If -- if this was a
11 subpoena that was issued in the course of criminal
12 proceedings, again, I think that is probably subject to
13 some litigation exclusions, and it's part of zealous
14 advocacy.
15 I mean, if it had been the she
riff himself
16 using his subpoena power, if he has any, to harass the
17 witness, I totally agree with Mr. Renne. I would -- I
18 would find that highly relevant.
19 But if -- if he was a criminal defendant and
20 he's seeking discovery, I'm not sure I see the relevance.
21 I don't know if, Mr. Renne, you have any
22 further thoughts on the issue?
23 Does any member of the Commission propose to
24 not exclude Paragraph 22?
25 COMMISSIONER STUDLEY: I have no problem with
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1 excluding it.
2 COMMISSIONER HUR: Okay. So then, unless
3 there's dissent from the Commission, it sounds like 21
4 through 28 will be excluded.
5 Okay. Let's go to Mr. Hennessey.
6 Okay. The first objection is to the full
7 paragraph on Page 2 -- I'm sorry, the second full
8 paragraph on Page 2.
9 By the way, Mr. Kopp, if we ever have to do any
10 more declarations, could you please include paragraph
11 numbers. This is extremely painful.
12 MR. KOPP: Yes.
13 COMMISSIONER HUR: Thank you.
14 First full paragraph on Page 2, of
15 Mr. Hennessey's declaration, beginning with "I am aware"
16 and ending with "the elected county sheriff."
17 The mayor's argument is that this relates to
18 separate incidents under different law, and that it would
19 be -- that it's irrelevant and a waste of time.
20 I agree with that. I would sustain the
21 objection to that paragraph.
22 I welcome the views of my fellow Commissioners.
23 COMMISSIONER LIU: I completely agree. I think
24 that we definitely don't want to get into a situation
25 where we're doing little mini trials on different
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1 instances that happened in the '70s and '80s. I think
2 it's totally not pertinent. It was -- they were
3 situations that occurred under different provisions,
4 different language of the Charter, different standards.
5 COMMISSIONER HUR: And just to be clear, this
6 is the first full paragraph. I may have said the second.
7 Okay. The next objection is to the second full
8 paragraph of Page 2.
9 The objection is based on the statements that
10 Mr. Hennessey is really talking about how he would be
11 viewed. I don't see how that's relevant here either.
12 I would sustain the objection to the second
13 full paragraph, Page 2.
14 Any dissenting views from the Commission?
15 COMMISSIONER LIU: (Shakes head.)
16 COMMISSIONER HAYON: (Shakes head.)
17 COMMISSIONER HUR: Okay. That objection will
18 be sustained.
19 The third objection is to the third full
20 paragraph.
21 Here he's an expert. I think he's qualified to
22 testify about this. It is a little general. So I -- I
23 certainly understand the objection. But this one I would
24 overrule.
25 We have testimony from Vicki Hennessy and we
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1 will have Chief Lansdowne as well. I would -- I would
2 permit this. I would overrule the objection.
3 Any dissent from my fellow Commissioners?
4 Okay. So that paragraph should be admitted.
5 There are no objections to Mr. Lansdowne.
6 Nancy Lemon. Nancy Lemon's declaration -- I'm
7 sorry.
8 Was there something about Lansdowne?
9 MR. KEITH: No, about Sheriff -- about Michael
10 Hennessey. We're trying to work out a scheduling issue,
11 and so --
12 COMMISSIONER HUR: Well, while we're on it,
13 that is on my list.
14 What is his status? When is he going to be
15 able to be here?
16 MR. KOPP: Well, as I discussed when we had a
17 conference call, Sheriff Hennessey is more than willing
18 to submit to cross-examination remotely. However, he
19 will not appear in person for a couple of reasons.
20 Primarily, that he has a family member for which he is --
21 severely disabled for which he is responsible, and he is
22 currently living three and a half hours away.
23 So we have offered repeatedly to make him
24 available for remote testimony and that's where we stand.
25 COMMISSIONER HUR: Is he available on July 18th
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1 and 19th?
2 MR. KOPP: Yes.
3 COMMISSIONER HUR: Mr. Keith, what is your view
4 on this?
5 MR. KEITH: I -- I don't know what the
6 availability of caregivers are for this particular issue.
7 I mean, to me -- I mean, experts are a little different
8 than regular witnesses. The party hires them and retains
9 them. And one of the jobs of an expert is to show up.
10 So for me, I don't think it's -- it's right or
11 fair for him not to show up. I think it's very difficult
12 to conduct a cross-examination, particularly of an expert
13 where you're going to be using a lot of exhibits, when
14 they're on the television. From our standpoint we would
15 really like to see him here.
16 COMMISSIONER HUR: I agree with you, Mr. Keith.
17 I mean, this is not a percipient witness. This
18 is -- if you can't get an expert -- I mean, you should be
19 able -- you should figure this out when you hire someone
20 that they'll actually show up if asked to cross-examine.
21 MR. KOPP: Well, let me respond to that
22 concern.
23 And the fact of the matter is,
24 ex-Sheriff Hennessey is not retained in the usual sense
25 of an expert. He's not being paid. He was asked to
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1 serve as an expert and provide a declaration. The reason
2 for that being is, we don't think there is any better
3 expert witness in the state or anywhere in the country
4 about the qualifications and the conduct expected of the
5 San Francisco sheriff than the man who held the office
6 for 32 years.
7 Now, he's retired. He's moved away, and he
8 cares for a family member.
9 You know, we -- we sought out the expert that
10 we thought was best, and I think that this is more than
11 reasonable that he offer to submit to remote
12 cross-examination. I don't know that -- you know, maybe
13 some of these concerns are valid, but I think that they
14 could be overcome.
15 COMMISSIONER HUR: Is he -- is he within our --
16 what is the scope of our subpoena authority?
17 MR. EMBLIDGE: I would assume it's 75 miles,
18 just like court. Sounds like he's beyond that.
19 COMMISSIONER HUR: I am inclined to take a
20 harder line on an expert, Mr. Kopp. I mean, if you've
21 retained an expert, I think whether you're paying him or
22 not, it's incumbent upon you to ensure that he's going to
23 be available for cross-examination.
24 We made it clear at the beginning of this
25 process that any witness who does not subject himself to
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1 cross-examination, if he's subject to control of a party,
2 is going to have his declaration severely diminished.
3 And I -- the notion of doing a Skype or a
4 remote depo for Miss Lopez is a totally different issue.
5 I know that she's not -- you know, she's not your client.
6 She's outside the country. And I think it's a different
7 issue.
8 Here -- it's not -- it's not particularly easy
9 to take a depo over Skype. I'm -- I welcome the views of
10 my fellow Commissioners, but I would be inclined to
11 require him to show up if you want to rely on him.
12 Any dissenting view from my fellow
13 Commissioners?
14 COMMISSIONER STUDLEY: Could you just explain
15 to us what the consequences are if he doesn't testify and
16 then just amplify your phrase about reliance?
17 COMMISSIONER HUR: So what we had discussed
18 before was that any witness who submits a declaration but
19 doesn't submit to cross-examination, we would give it
20 whatever weight we thought it deserved.
21 I think I've gone on record and said that
22 weight to me would be almost nothing. Because to me if a
23 party wants to cross-examine a witness, they should have
24 that opportunity. To me it would be dangerous to rely on
25 the declaration of someone who the other party didn't, at
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1 least, have the opportunity to cross-examine in person.
2 COMMISSIONER STUDLEY: So the party -- it
3 remains in, but it's up to us what weight to give it and
4 it may be very little?
5 COMMISSIONER HUR: Yes.
6 Okay. I don't know if that changes or could
7 change your view of whether he's going to show up or not.
8 Is it possible that changes your view?
9 MR. KOPP: It doesn't change my view, because
10 Mr. Hennessey has been consistent throughout. And this
11 is no surprise to the mayor. So -- but if something
12 changes, I'll certainly let you know.
13 COMMISSIONER HUR: Meaning if he'll show up in
14 person?
15 MR. KOPP: If he decides that he does want to
16 come down here and can find care for his family member,
17 then I certainly will let everyone know. But up to this
18 point his position has been consistent.
19 COMMISSIONER HUR: Are you saying that he's the
20 primary care given?
21 MR. KOPP: Yes.
22 COMMISSIONER HUR: And there's no secondary
23 caregiver?
24 MR. KOPP: From what I'm informed, that is
25 correct, yes.
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1 COMMISSIONER HUR: Who are you informed by? He
2 told you that?
3 MR. KOPP: Yes.
4 COMMISSIONER HUR: He's the primary caregiver.
5 There is no secondary caregiver?
6 MR. KOPP: Correct.
7 COMMISSIONER HUR: Okay. I mean, I think we
8 gave you notice what we were going to do at the
9 beginning. I would stand by it.
10 Okay. Miss -- Miss Lemon.
11 Miss Lemon's declaration is extensive. I have
12 read the declaration. I've also read People vs. Brown.
13 People vs. Brown, my understanding of that
14 case, and I'm happy to have my fellow Commissioners or
15 counsel tell me -- tell me that I'm wrong, it appears
16 that that case allows in a domestic violence action the
17 expert testimony of a domestic violence expert to explain
18 why a witness may change her testimony, if she testifies,
19 if a certain amount of time passes.
20 The opinion appears to permit that pursuant to
21 Evidence Code 801, as well as one that relates
22 specifically to domestic violence, and interestingly does
23 not appear to require that there be more than one
24 allegation of abuse.
25 So, Mr. Kopp, I guess my question is for you:
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1 Why doesn't People vs. Brown require us to allow
2 Dr. Lemon to testify at least for that limited purpose?
3 MR. KOPP: Well, I think it might if her expert
4 opinion was relevant to one of the real issues in the
5 case, and our position is that that opinion does not
6 relate to the issues in the case.
7 We don't believe that all the materials she's
8 relied on, and all the facts that she's set forth in her
9 opinion really affect -- I mean, I noted specifically the
10 six bullet points that she hits there. They don't
11 really -- they're not going to enlighten you on any
12 particular issue in the case.
13 So whether or not, you know, the -- the -- I
14 think you probably hit the nail on the head when you said
15 with respect to a domestic violence prosecution that's
16 what the Brown case stands for. That's not what this is
17 here. So that's the reason why we don't think it's
18 relevant.
19 COMMISSIONER HUR: Miss Kaiser?
20 MS. KAISER: Actually, Brown makes very clear
21 that this testimony is admissible under the regular
22 Evidence Code section, Section 801, not just the special
23 section for criminal prosecutions.
24 1107 is geared toward criminal prosecutions,
25 and it's a separate Evidence Code section that says this
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1 very testimony is admissible for this very purpose.
2 We're not here in a criminal proceeding, that's
3 clear. But the Brown case, by the Supreme Court, said we
4 would come to the same conclusion. And in fact in this
5 case we do come to the same conclusion under Section 801,
6 which is the section for regular expert testimony in
7 cases -- in civil cases and administrative cases and,
8 frankly, also the criminal cases. It's just that there's
9 now also a special duplicative rule in criminal cases in
10 case a criminal court was about to get that wrong.
11 Legislature is making a very strong policy statement, in
12 criminal cases the courts need to consider it.
13 But the ruling in Brown is explicitly we do not
14 need to reach and resolve a particular conflict for 1107,
15 because this all comes in for the very reasons that
16 Commissioner Hur stated under 801.
17 And I think that it's also relevant for
18 additional reasons. I don't think that the only reason
19 in Brown is the only reason for which such testimony is
20 admissible.
21 And I'm happy to address that if there are
22 specific sections of the declaration that raise that
23 question.
24 COMMISSIONER HUR: Okay. I think we should
25 take it one topic at a time, but I'll certainly give you
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1 the opportunity.
2 It does -- I mean, Brown does seem to say,
3 Mr. Kopp, that if a -- particularly when a vic -- when an
4 alleged victim comes forward and testifies months after
5
the fact, that an expert's testimony as to whether -- why
6 a story has changed is relevant to a determination of --
7 that witness' credibility.
8 So unless -- unless I have the wrong read of
9 Brown, and you can point me to why I'm wrong, I think
10 that Lemon should come in at least for that -- at least
11 for that purpose --
12 MR. KOPP: Well --
13 COMMISSIONER HUR: -- parts of it at least for
14 that purpose.
15 MR. KOPP: I would just reiterate that in the
16 two sections -- the two Evidence Code sections that we've
17 been talking about, 1109 at our previous hearing and 1107
18 tonight, by their own terms specifically say they only
19 relate to criminal proceedings.
20 COMMISSIONER HUR: We're talking about 801.
21 MR. KOPP: Okay. So that's -- that's where the
22 only recourse is.
23 COMMISSIONER HUR: And that's -- that's the one
24 that's relied on in Brown.
25 MR. KOPP: Well, I'd submit on the objections
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1 that we've made thus far.
2 COMMISSIONER HUR: I welcome questions or views
3 of my fellow Commissioners.
4 COMMISSIONER RENNE: Well, Mr. Kopp, you said
5 that it isn't relevant to any issue that has to be
6 decided in this case.
7 What do you deem to be the issues that this
8 Commission has to decide in making its recommendation?
9 MR. KOPP: Whether the sheriff's conduct on
10 December 31st or thereafter, up to the end date of the
11 written charges, which I believe is the date that he
12 entered his plea, constitute official misconduct.
13 So -- and I'm not sure if I can break it down
14 any further for you, but I -- see, I just think that this
15 is -- we're going far afield when we start admitting this
16 type of expert witness testimony.
17 COMMISSIONER RENNE: When you say whether the
18 sheriff's conduct on New Year's Eve constituted official
19 misconduct, does it make a difference whether or not that
20 conduct constituted domestic violence or was merely just
21 a -- something that happened between a husband and a
22 wife?
23 MR. KOPP: Well, I mean, fundamentally we think
24 that no matter what happened on that date cannot
25 constitute official misconduct because it's before he
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1 became sheriff, but --
2 COMMISSIONER RENNE: Well, I understand that.
3 MR. KOPP: -- assuming you want to consider the
4 mayor's argument --
5 COMMISSIONER RENNE: Right.
6 MR. KOPP: -- that it can predate his taking
7 the oath of office, you know, I think the phrase
8 "domestic violence" is susceptible to a lot of different
9 interpretations.
10 And I notice that in one part of the
11 declaration Miss Lemon opines that the charge upon which
12 the sheriff was convicted, 236 of the Penal Code, false
13 imprisonment, is domestic violence because he's subject
14 to some of the terms and conditions that somebody, for
15 example, convicted of a spousal battery would be subject
16 to.
17 But I think that you all are more than capable
18 of making that determination yourself without having this
19 expert opinion. I think you can decide that for
20 yourself, and I think it's totally unnecessary and a
21 waste of time and resources.
22 COMMISSIONER LIU: But, Mr. Kopp, doesn't the
23 amended charge, charge the sheriff with an act of
24 domestic violence? It's not just us trying to figure out
25 whether certain things happened on a certain day, but
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1 he's been charged with an act of domestic violence. So
2 why wouldn't a domestic violence expert help us in
3 sorting through the issues of what conduct constitutes an
4 act of domestic violence?
5 MR. KOPP: Well, I suppose my response is that
6 the label you put on it is really immaterial. It's what
7 happened. Whether it was him grabbing his wife's arm in
8 the middle of a heated argument or something more, as the
9 mayor wants you to believe, you can decide for yourselves
10 was that conduct official misconduct without putting that
11 label on it.
12 I'm sorry, maybe I didn't answer the question
13 for you, but --
14 COMMISSIONER LIU: So you think it's just a
15 matter of labelling?
16 MR. KOPP: Yes. I mean, the Charter doesn't
17 say domestic violence is one of the things for which a
18 public official can be removed. The Charter is vague.
19 It says an official can be removed for official
20 misconduct, and then it attempts to define what that
21 means.
22
In my opinion, that's the task of the
23 Commission is to decide whether what occurred constitutes
24 official misconduct, not whether what occurred
25 constitutes domestic violence.
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1 COMMISSIONER LIU: Okay. Well, why don't I ask
2 you a different question.
3 Do you think that the crime of false
4 imprisonment that the sheriff pleaded guilty to is a
5 crime of domestic violence?
6 MR. KOPP: I don't think that I can answer that
7 question because it depends on how you're going to define
8 the term.
9 If you want to define it by how -- you know,
10 what are the terms and conditions of probation when
11 you're convicted of that crime, and are they some of the
12 terms and conditions that you'd get if you were convicted
13 of a battery on your spouse or significant other,
14 possibly. But -- but I don't think that the term is
15 sufficiently definite for me to give a response to that
16 question.
17 COMMISSIONER LIU: So if the term is not
18 sufficiently definite for you, wouldn't an expert in that
19 field help us figure that out?
20 MR. KOPP: Maybe so. But that -- that assumes
21 the foundation -- foundational question, which is, is
22 that important to your determination? Our position is,
23 it isn't. That's just a label.
24 COMMISSIONER LIU: I see.
25 COMMISSIONER HUR: Commissioner Studley.
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1 COMMISSIONER STUDLEY: She was first.
2 COMMISSIONER HUR: Commissioner Hayon.
3 COMMISSIONER HAYON: Well, from my point of
4 view, we have at least two declarations, Miss Madison's
5 and Miss Lopez's declarations, which are fundamentally
6 two completely different stories of the same event, and
7 for me I'm -- I feel that I need some help in trying to
8 figure out why there is such a wide discrepancy in
9 these -- in these two declarations, in these two
10 witnesses, in terms of how they describe the events that
11 took place.
12 So I think that an expert like -- like
13 Miss Lemon would possibly be helpful on that, perhaps
14 not. Perhaps once we hear what she has to say, we'll
15 feel, well, this really doesn't apply to -- to the
16 witnesses that we have, but perhaps it will be helpful,
17 and will be relevant in helping us to decide which of
18 these stories -- you know, she said/she said, which has
19 more credibility, you know, other than, of course,
20 cross-examination of the witnesses themselves.
21 So I certainly could see the need to have
22 Miss Lemon testify.
23 COMMISSIONER HUR: That's the purpose that I
24 would want it for.
25 Other than that, we can go through it, but
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1 it's -- I think a lot of it probably does need to be
2 stricken, because it's not related to that. But to the
3 extent it relates to that, I think -- I think we need it.
4 COMMISSIONER HAYON: I mean, I don't think that
5 we need a seminar on domestic violence. You know, with
6 that I agree with you Mr. Kopp, that's not really what
7 we're deciding. But we have to consider the testimony of
8 these individuals, and so given such wide disparity, I
9 think that we need -- we could use a little help in
10 making those decisions.
11 COMMISSIONER HUR: Commissioner Studley, do you
12 have something?
13 COMMISSIONER STUDLEY: And I think
14 Commissioner Hayon made good points. There's also the
15 testimony over time that it appears we may get from
16 Miss Lopez or the behavior -- the actions that others
17 assert that she took and her own testimony, and I think
18 Dr. Lemon -- Ms. Lemon's testimony could be helpful in
19 that regard.
20 I don't feel that we need the conclusions of
21 law that she offers us. I think that's our
22 responsibility.
23 COMMISSIONER HUR: I agree with that. I don't
24 think we need the conclusions of law. And I don't think
25 we need her to tell us how his actions relate to his
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1 duties. I mean --
2 COMMISSIONER STUDLEY: Exactly.
3 COMMISSIONER LIU: Right. I agree.
4 COMMISSIONER HUR: Any dissenting views on
5 that?
6 MS. KAISER: May I speak to the issue?
7 COMMISSIONER HUR: Yes.
8 MS. KAISER: Thank you.
9 I think the question is not whether Ms. Lemon's
10 declaration is cumulative.
Maybe you have other people
11 who will speak to that, unless it's -- it's unreasonably
12 burdensome.
13 I think the real question in terms of whether
14 or not Ms. Lemon is able to offer you helpful testimony,
15 both about the ultimate facts that you're to decide and
16 the ultimate issues and about the relationship between a
17 sheriff who's committed an act of violence and the duties
18 of a sheriff, I think those are things for which there is
19 authority.
20 In terms of the ultimate issue opinions,
21 there's a difference in criminal law and in civil law.
22 In civil law there's an explicit Evidence Code
23 section that says it is admissible and permissible for
24 an -- for an expert to offer you their opinion on the
25 ultimate issue. That doesn't bind you to the expert's
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1 opinion, but it's not an inappropriate opinion to make,
2 and it certainly is admissible under the Evidence Code.
3 Under criminal law, that's different. You
4 can't give an opinion about the ultimate issue of fact or
5 the defendant's guilt.
6 But in this -- in this setting it is
7 appropriate, and it's not -- it's at least not something
8 that you need to exclude from the record as inadmissible.
9 There is an explicit code section that makes it
10 admissible.
11 COMMISSIONER HUR: Okay. I guess my response
12 to that, unless others would like to respond first?
13 My response to that, Miss Kaiser, is that it's
14 not so much -- to me, at least, it's not the ultimate
15 issue -- problem. It's that -- I just don't think it's
16 -- I don't think she's uniquely qualified to help us with
17 determining whether the acts relate to the sheriff's
18 duties or the legal question of whether the acts
19 constitute, as a legal matter, official misconduct, even
20 domestic violence.
21 I mean, maybe I'm wrong, but to me there should
22 be a legal answer to that question, and so it -- it's not
23 the ultimate issue. It's that I think -- I don't think
24 she is uniquely qualified on those parts. I think she is
25 uniquely qualified on other parts, but not for those.
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1 MS. KAISER: Okay. I'd like to then address
2 those foundational concerns.
3 I -- well, first of all, Miss Lemon is actually
4 here. So I am happy to cross-examine her on whether or
5 not -- or the basis for her expertise to talk about the
6 duties of a sheriff in regard to domestic violence.
7 She has been training law enforcement and
8 working with all aspects of the criminal justice about
9 domestic violence for more than 35 -- well, 32 years, I
10 think. I don't want to prematurely age Miss Lemon, who
11 looks quite young, by the way.
12 And I do think that that constant contact with
13 the profession and the topic as an expert trainer does
14 give her a substantial foundation to have direct
15 knowledge, as an expert, about what it is that sheriffs
16 do in regard to domestic violence.
17 So I don't think that she's an interloper or,
18 you know, a journalist making a statement about what a
19 sheriff does. She's a very established expert and
20 trainer on that very topic, who's worked for years with
21 law enforcement, including sheriff's departments.
22 So that's -- you know, and I'm happy to bring
23 her up and ask her to give you more specifics to the
24 extent you would think that would be helpful. So that's
25 her foundation on that part.
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1 In terms of whether or not the acting question
2 was an act of domestic violence, you mentioned that you
3 think that's a legal question, and I agree that there is
4 a legal answer to that question. That there are certain
5 offenses or characteristics of offenses that under
6 various different sources of law are or are not defined
7 as domestic violence.
8 But there is also -- I don't know how to
9 characterize it -- I guess, more of a specialized lay
10 opinion about this thing, that a syndrome of people
11 trying to exert power and control over their partners or
12 other family members, that whether or not it's ever
13 charged or tried or convicted under a particular statute,
14 is considered to be and treated as and understood to be
15 domestic violence. And that is something that is
16 distinct, by the way, from just an arm grab.
17 The sheriff has been saying, not only in the
18 media but also in his declaration to you -- the extent of
19 the sheriff's description of the action -- that you need
20 to determine, by the way, the nature and the severity of
21 if you're going to determine if it's official misconduct,
22 right
-- everything that the sheriff has said so far is,
23 "On December 31st, 2012" -- 11 that must be, sorry -- "I
24 had an argument with my wife, Eliana Lopez. At the end
25 of the argument, I grabbed her arm. This resulted in a
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1 bruise. It was wrong of me to grab Eliana's arm. I pled
2 guilty to a misdemeanor violation of Penal Code Section
3 236."
4 This entire description skirts the facts,
5 skirts the circumstances, skirts the nature and the
6 severity of the acts that is the basis of the mayor's
7 charge.
8 The mayor reviewed the criminal records to see
9 what the facts were. He didn't just -- and he testifies
10 to that in his declaration. His charge is based not
11 simply on the existence of a bruise, but on something
12 that is commonly understood by experts to be domestic
13 violence, and not just by judges.
14 COMMISSIONER HUR: Miss Lemon -- we have a lot
15 of courts, and if we're going to follow -- if we're going
16 to talk about California law have lots of discretion with
17 respect to experts. And I think for all the reasons
18 we've talked about, I would -- I don't think we need it
19 for that purpose.
20 I also think -- if you want to find out from
21 the sheriff more details, we're going to give you leeway
22 to do that. Certainly you're not going to be limited to
23 the statements in the declaration. You're calling him
24 and you'll have the opportunity to examine him.
25 Other comments from the Commissioners or
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1 questions for Miss Kaiser?
2 COMMISSIONER RENNE: What is the proposal to do
3 with Miss Lemon's declaration? Are you saying exclude it
4 in its entirety?
5 COMMISSIONER HUR: No. So here is my proposal.
6 Because you all did such a nice job when you
7 had some guidance from us on Miss Madison, I'm hoping we
8 can get that again. And I understand that you all have
9 your objections, but I think you now understand what
10 parts of it we think are relevant and what parts are not.
11 So you're not going -- you're not going to
12 waive your objections by coming to stipulations, and you
13 can expressly reserve that in whatever document, but what
14 I would ask is, based on the interim decision we made
15 here, could you please identify the parts that we
16 think -- that we've indicated will be relevant, and then
17 tell us the parts that are not relevant based on the
18 discussion you've heard here.
19 Does that make sense?
20 MS. KAISER: With all due respect,
21 Commissioner, I'm not sure you have made an interim
22 decision.
23 I heard two Commissioners discuss something,
24 but I didn't hear the polling portion where other
25 Commissioners were also invited to express their views
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1 about whether there may also be other topics that might
2 be relevant.
3 And I mean you no disrespect, but this is a
4 very significant issue in this case in my opinion, and I
5 don't want to be hasty about retreating from it.
6 COMMISSIONER HUR: It's a fair point, and I
7 apologize if I was hasty.
8 If there are -- again, just to be clear, is
9 there any disagreement that we will permit Miss Lemon for
10 the purpose of helping us evaluate the credibility of,
11 particularly, Miss Lopez in light of the conflicting
12 story, but not admit it for purposes of telling us why
13 his conduct doesn't -- why his conduct relates to his
14 duties as sheriff, and we will not allow it to answer the
15 legal question of what domestic violence -- what
16 constitutes domestic violence?
17 Is there any dissent from that?
18 COMMISSIONER STUDLEY: No.
19 Could I just clarify?
20 COMMISSIONER HUR: Sure.
21 COMMISSIONER STUDLEY: In the first part of
22 that, you would expect that you would -- that this
23 process would keep the information about the nature of
24 domestic violence and the background of how to interpret
25 specific elements or actions within it? Sort of the
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1 syndrome of domestic violence might be a way to -- a
2 phrase I would pick up on.
3 COMMISSIONER HAYON: Yeah.
4 COMMISSIONER HUR: Yeah, I would agree with
5 that. I think some of that background is necessary to
6 tell us -- to form our opinions about why a witness may
7 not be reliable later on.
8 COMMISSIONER STUDLEY: Exactly. Thank you.
9 COMMISSIONER LIU: And I do agree not for the
10 ultimate conclusion, but for the facts in how the
11 behaviors may affect the domestic violence or why a
12 witness would recant. I agree with that.
13 COMMISSIONER HUR: Any dissenting view to that?
14 COMMISSIONER RENNE: Not necessarily a
15 dissenting view.
16 One of the concerns I have is that much of what
17 Miss Lemon relies on in coming to her conclusions are
18 alleged facts which we have sort of excised from the
19 record, said that they are not relevant or they're not
20 going to come in. Ordinarily, an expert can only rely on
21 what's in the record or even whether it's hearsay or not
22 they can rely on it, but here are events that we have
23 said we're not going to consider. But her entire opinion
24 is based upon what she says are prior acts and -- which
25 color the conclusion she reaches.
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1 And so, it may be for the limited purpose that
2 you're talking about, that is credibility of the witness
3 and why things could happen, but that's not an
4 important -- important issue.
5 But if we are going to consider it at all for
6 whether or not the acts that took place on December 31st
7 fit the definition of domestic violence as she describes
8 it, then -- so I would -- so I would tend to agree with
9 you that we keep it in, but recognizing that we're using
10 it for a very limited purpose.
11 And I'm not sure that it's necessary to go
12 through it paragraph by paragraph. We can make the
13 judgment as to whether we want to pay any attention to 90
14 percent of it.
15 MS. KAISER: May I speak? I'm not sure if
16 you're speaking or not.
17 COMMISSIONER HUR: I'm thinking.
18 MS. KAISER: I'm sorry.
19 You know, I -- that was one of the objections
20 that the sheriff raised, and so I looked very carefully
21 at that question.
22 You're absolutely right that -- on pretty much
23 every count you're right, that an expert may rely on
24 otherwise inadmissible evidence. The law is very clear
25 about that, but only if it is of the type that other
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1 experts in that field would normally rely on.
2 And in this case, that is very much that type.
3 If anyone doubts that, I'll spend more energy on it, but
4 it's essentially because -- you know, particularly when
5 you have a recanting person who has made an allegation of
6 abuse and then later takes it back, hearsay statements
7 are very important because otherwise you can't evaluate
8 half of what happened. So that is typical.
9 It is also fine under the established law to
10 put that otherwise inadmissible evidence into the expert
11 declaration to explain the basis for the expert's
12 opinion. That doesn't mean, as you point out, that
13 that -- that that evidence kind of circumvents the
14 initial ruling and comes in for the truth of the matter.
15 It comes in for the purpose of explaining the expert's
16 opinion. And if you reject that as the basis of the
17 expert's opinion or you're not convinced, you know,
18 you're free to make that judgment.
19 And normally when there's a jury trial and
20 jurors are more likely to be confused, then there's a
21 limiting instruction about that. And in this case that
22 shouldn't be necessary because you're the decision
23 makers.
24 COMMISSIONER HUR: You know, I hear that, and
25 I -- and I think that Miss Kaiser is correct on the law
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1 about relying on excluded evidence, but I still think it
2 would be helpful for you all to get together and see if
3 there is -- there are portions of this that are not
4 relevant based on what we've discussed.
5 And, Miss Kaiser, you can tell me if you're
6 unsatisfied about the view of the Commission on this.
7 But because -- again, when you tell us down the
8 road what the bases are for certain findings of fact,
9 it's going to be helpful for us if we are clear about
10 what's -- what's in the record and what's not. And I do
11 worry that if we let it all in on the grounds that we can
12 figure it out, that we're not -- I -- I'm very tempted by
13 it because it's such a long declaration and very time
14 consuming, and some of the things do bleed over, but I
15 still think we should make the effort to cut it down.
16 So given that, I think, Mr. Kopp has told me --
17 has told us that he's not going to cross-examine her
18 regardless of the result of the objection.
19 Is that true?
20 MR. KOPP: That's true.
21 COMMISSIONER HUR: You know, I would like to
22 give you the opportunity to meet and confer, bring us
23 back something that looks like what you did for Madison,
24 and we can evaluate it later since we're not -- she's not
25 going to testify anyway.
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1 Does that sound acceptable to my fellow
2 Commissioners?
3 COMMISSIONER LIU: (Nods head.)
4 COMMISSIONER HAYON: (Nods head.)
5 MS. KAISER: I'm happy to do that.
6 Just so you understand and don't get mad at me
7 next time, I hear a range of viewpoints. I do not hear a
8 single unified voice
9 COMMISSIONER HUR: I am not mad. I am not mad.
10 MS. KAISER: So I -- you know, I will do my
11 best to accommodate those instructions, but I may not
12 come back and match every single Commissioner's view of
13 what I should have done. I'll do my best.
14 COMMISSIONER LIU: Can I bring up one example?
15 This is where I see one of the dividing lines in her
16 declaration.
17 She had -- there are a lot of paragraphs that
18 go to explaining why -- what the characteristics are of
19 domestic violence and other relationships and so on and
20 so forth. Then there's also a series of paragraphs or
21 many paragraphs that go towards her opinion of
22 characteristics of an unreformed batterer, quote/unquote,
23 "unreformed batterer." So to me I don't think that that
24 line of paragraphs would be helpful to me in evaluating
25 the credibility of the overall evidence. And that's
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1 where I see a distinction.
2 That there were a lot of paragraphs going
3 towards the sheriff's conduct and whether -- you know,
4 whether in her opinion that is consistent with the
5 characteristics of an unreformed batterer. So those
6 paragraphs I did not see as very helpful.
7 So I don't know if anybody else has views on
8 that.
9 COMMISSIONER HUR: I agree.
10 COMMISSIONER HAYON: (Nods head.)
11 MS. KAISER: Thank you. That is helpful.
12 COMMISSIONER HUR: Okay. Should we pick some
13 dates? And I know there have been lots of dates and I
14 apologize.
15 My latest thought is to try to make the dates
16 mostly the same so that you don't have to keep
17 remembering different deadlines.
18 Can we stick with July 10th and July 17th for
19 getting us -- I suppose you all can pick whatever dates
20 you want for negotiating the -- your stipulations, but if
21 we're going to meet on the 18th, it would be great if we
22 could have it at least the day before.
23 Is that possible?
24 MR. KOPP: You mean to produce something? Get
25 it to the Commission, similar to the Madison and Mertens'
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1 declarations, by July 17th?
2 COMMISSIONER HUR: Right.
3 MR. KOPP: And then let us just deal with our
4 schedule between us?
5 COMMISSIONER HUR: Right.
6 MR. KOPP: That would be preferable. I just
7 have a -- I'll be gone for four or five days.
8 COMMISSIONER HUR: And I know Miss Kaiser's out
9 for part of that too.
10 MR. KOPP: Right.
11 COMMISSIONER HUR: But that -- that's a couple
12 weeks. Hopefully -- I'm hoping that can be addressed.
13 MS. KAISER: We can -- yes. I mean, assuming
14 we can start very shortly before that time frame in the
15 third week of July, then that's doable.
16 MR. KOPP: Okay.
17 MS. KAISER: And, you know, we'll make it work
18 to get it to the Commission.
19 COMMISSIONER HUR: Thank you very much. I
20 appreciate that.
21 Let's take a break.
22 (Short recess.)
23 COMMISSIONER HUR: Okay. We're back in
24 session.
25 I wanted to update everyone who is watching and
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1 the parties. My plan for the rest of the evening is as
2 follows: Because I think these issues relate to --
3 potentially relate to the sheriff's testimony, I think we
4 need to address the motion to reconsider the four
5 paragraphs of Daniele.
6 And then I want to talk, hopefully briefly,
7 about the exhibits that -- the additional exhibits the
8 parties submitted, and make sure we're all on the same
9 page with them coming in.
10 I then intend for the sheriff to begin his
11 testimony.
12
Are the parties comfortable with that schedule?
13 MR. KOPP: Yes.
14 MR. KEITH: Yes.
15 COMMISSIONER HUR: As far as timing, I'm
16 willing to be flexible on when we stop. You know, I
17 don't anticipate this to be a night where we go on
18 forever, because I think the sheriff will, obviously, be
19 here and we'll be able to continue tomorrow if necessary.
20 MR. KOPP: We anticipated that we'd be stopping
21 at 9:00 based on our scheduling conference call.
22 Is that no longer operative?
23 COMMISSIONER HUR: I think -- I think what I
24 said is we -- that would sort of be the goal, but that we
25 would be flexible based on what the parties wanted and
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1 what the Commission felt they could do.
2 Is that -- do you -- do you all have a strong
3 feeling about stopping at 9:00?
4 MR. KOPP: We'd prefer to, but --
5 MR. KEITH: I think we'd prefer to stop at
6 9:00. I mean, I think if we all start to run out of
7 steam, it may make --
8 COMMISSIONER HUR: Fair enough.
9 MR. KEITH: -- sense to get back together
10 tomorrow --
11 COMMISSIONER HUR: Fair enough.
12 MR. KEITH: -- given it looks like we only have
13 three witnesses tomorrow.
14 COMMISSIONER HUR: Right.
15 MR. KEITH: I mean, well, counting the sheriff,
16 because I'm not going to finish with him tonight.
17 COMMISSIONER HUR: Okay.
18 Okay. Richard Daniele, the mayor has made a
19 request to reconsider this -- our exclusion of Paragraphs
20 27 through 31 on the grounds of relevance.
21 Can -- I want to ask a preliminary question
22 here about this, and it's actually for Mr. Kopp or
23 Mr. Waggoner.
24 Is there a dispute about Paragraph 26? Are
25 there any disputed facts there?
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1 MR. KOPP: You're speaking of the Daniele --
2 COMMISSIONER HUR: No, I'm sorry, of the
3 charges.
4 MR. KOPP: Oh.
5 MS. KAISER: Oh.
6 COMMISSIONER HUR: Poorly-phrased question.
7 MS. KAISER: There are a lot of paragraphs.
8 MR. KOPP: The original charges or the amended
9 charges?
10 COMMISSIONER HUR: The amended charges.
11 MR. KOPP: Okay.
12 (Examination of documents.)
13 There is a dispute as to one sentence there.
14 So you're asking is there a factual dispute?
15 COMMISSIONER HUR: Uh-huh (affirmative), yes.
16 Okay. You know, that being the case, I would
17 be inclined to grant the motion for reconsideration.
18 There is that paragraph. It's -- you know, again, this
19 is -- this is pretty ancillary, I think, to the charges,
20 but for the reasons stated in the request and in the
21 interest of being cautious with respect to our record, I
22 think I would allow it.
23 Now, I also want to say that I am not in favor,
24 in general, of requests to reconsider. I mean, I
25 certainly don't want, by suggesting we do this, to invite
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1 motion after motion for reconsideration. So that -- that
2 I also want to say.
3 I open it up to my fellow Commissioners on this
4 issue. Do you have any questions for the parties or
5 comments?
6 COMMISSIONER LIU: No, I'm fine with that --
7 for that limited purpose.
8 COMMISSIONER HAYON: You're talking about
9 Daniele?
10 COMMISSIONER HUR: Daniele, Paragraphs 27
11 through 31.
12 COMMISSIONER HAYON: Yeah, I'm -- I'm glad to
13 reconsider that. I think that we should, absolutely.
14 COMMISSIONER HUR: Any dissenting view?
15 Okay. That is back in. Make note of that.
16 Okay. Finally, before we get to testimony, I
17 want to talk about exhibits. And the reason I want to
18 talk about exhibits is because I'm guessing some of them
19 may -- may try to use them now.
20 I haven't seen any objections to these
21 additional exhibits from the sheriff.
22 Do I have an understanding that 50, 78, 79, and
23 80 through 83 are stipulated?
24 MR. KOPP: Correct.
25 COMMISSIONER HUR: Okay. Great.
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1 There is an objection to the case. I tend
2 to -- I tend to agree with the mayor here. I think if
3 you want to cite a case, you can cite it in a brief.
4 We excluded the testimony about sort of what's
5 happened -- what happened in the past with others, and so
6 I would recommend that we sustain the objection to the
7 sheriff's additional exhibit, which is -- which is the
8 case Hallinan vs. Committee of Bar Examiners, at
9 65 Cal. 2d 447.
10 Mr. Kopp, if you would like to speak to that?
11 MR. KOPP: I would like to speak to that, and I
12 didn't jump in when you excluded that portion of the
13 Hennessey declaration dealing with former
14 Sheriff Hongisto.
15 The reason that we believe that situation, as
16 well as former District Attorney Hallinan's prior
17 criminal record, is highly relevant is because we think
18 that it can form your decision of what official
19 misconduct here in San Francisco means and has meant over
20 the years.
21 And so that's the purpose of offering that
22 exhibit. Because it is clear from the history of
23 San Francisco that a sheriff has willfully defied a court
24 order and not been sanctioned, that the D.A. has been
25 elected and served well and honorably, as far as I can
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1 tell, who had prior criminal convictions.
2 So we think that is highly relevant and
3 probative to official misconduct in the City of
4 San Francisco.
5 COMMISSIONER HUR: Any questions for Mr. Kopp
6 or comments about the admissibility of this?
7 COMMISSIONER LIU: Well, Mr. Kopp, wasn't --
8 aren't those cases under a different standard, not the
9 standard that we're dealing with here?
10 MR. KOPP: Well, yes. However, it's our
11 contention that the amended language of the official
12 misconduct portion of the Charter is unconstitutionally
13 vague, the decency, right action expected of all public
14 officers.
15 So our -- our contention is that official
16 misconduct remains where it has always been in
17 San Francisco, as it's been defined in case law.
18 And I'll -- you know, I'll revert to the
19 Mazzola case, which did a pretty good job of canvassing
20 what that means in California, and particularly in
21 San Francisco.
22 COMMISSIONER LIU: Under a different standard
23 of the City Charter though, right?
24 MR. KOPP: Well, not exactly. The Charter --
25 the original language of official misconduct remains, and
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1 then this extra part was just grafted onto the 1995
2 amendment.
3 COMMISSIONER LIU: So the extra part that was
4 grafted wasn't in play at the time of the Mazzola case;
5 is that correct?
6 MR. KOPP: That's correct.
7 And our position is that extra part that was
8 then grafted onto the Charter is not constitutional and
9 should not be considered.
10 So you may not agree with me, but if we're
11 right, then official misconduct today means what it
12 always has meant.
13 COMMISSIONER HUR: And I think you can put that
14 in -- in a brief.
15 MR. KOPP: Okay.
16 COMMISSIONER HUR: Any -- any dissent to that
17 view?
18 COMMISSIONER LIU: (Shakes head.)
19 COMMISSIONER HUR: So that additional exhibit
20 from the sheriff is excluded.
21 Okay. The next item is the testimony of the
22 sheriff.
23 Before he comes up, Mr. Keith, can you give us
24 a time estimate for how long you think you will have him
25 -- you will examine him?
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1 MR. KEITH: I'm sorry?
2 COMMISSIONER HUR: A time estimate for how long
3 you will be examining him.
4 MR. KEITH: In total, it's hard to say without
5 knowing how the first part of the exam goes and how
6 quickly it proceeds.
7 I mean, I don't think I'm going to finish
8 tonight. I can say that much.
9 COMMISSIONER HUR: Okay. Will the sheriff
10 please come and sit in the chair closest to the
11 Commission.
12 Thank you, sir. And I believe we'll have the
13 court reporter swear you.
14 ---oOo---
15 SHERIFF ROSS MIRKARIMI,
16 having been first duly sworn by the court reporter
17 testified as follows:
18 ---oOo---
19 CROSS-EXAMINATION BY MR. KEITH
20 MR. KEITH: Q. The sheriff is a chief of a
21 law enforcement agency, correct?
22 A. Correct.
23 Q. The sheriff oversees 890 sworn deputies?
24 A. Correct.
2
5 Q. The sheriff oversees 130 civilians?
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1 A. Correct.
2 Q. The budget of the sheriff's department this
3 coming fiscal year is more than $175 million?
4 A. I believe so.
5 Q. The sheriff's department maintains security in
6 the courts?
7 A. Correct.
8 MR. WAGGONER: Objection as to this line of
9 questioning as to relevance.
10 What -- how's this relevant?
11 COMMISSIONER HUR: I'm inclined to overrule the
12 objection. I think it's foundational. But -- but
13 we're -- I assume it's not going consume an inordinate
14 amount of time, but for now I'll overrule that objection.
15 MR. KEITH: Q. And the sheriff provides
16 security at Commission hearings like this?
17 A. Yes.
18 Q. The sheriff oversees the jails?
19 A. Yes.
20 Q. At any given time there's approximately 1500
21 prisoners in the San Francisco County Jail?
22 A. Even more, yes.
23 Q. And the sheriff is responsible for the safety
24 and security of those prisoners 24 hours a day?
25 A. And the staff who works in the jails as well
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1 too.
2 Q. It's the sheriff's responsibility to ensure
3 that all prisoners have been imprisoned according the
4 requirements of the law?
5 A. Yes.
6 Q. And if a prisoner in San Francisco County Jail
7 is not in prison according to the requirements of law,
8 then a false imprisonment has occurred, correct?
9 A. Could you rephrase, please?
10 Q. If the sheriff has imprisoned a prisoner in
11 violation of legal requirements, then that's a false
12 imprisonment, correct?
13 MR. WAGGONER: Objection. That's calling for a
14 legal conclusion; it's argumentative.
15 COMMISSIONER HUR: I'll sustain that objection
16 and rephrase.
17 MR. KEITH: Q. When a prisoner comes to the
18 jail as an arrestee, he's turned over to the custody of
19 the sheriff's deputies?
20 A. That's correct.
21 Q. And they have to book him into custody?
22 A. Yes.
23 Q. They have to ensure that he is released at the
24 appropriate time according to court orders?
25 A. He or she, yes.
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1 Q. And if that doesn't occur, then that
2 incarceration of that prisoner becomes illegal, does it
3 not?
4 A. That depends.
5 Q. Okay. Now, the sheriff has to work as a peer
6 with other law enforcement leaders?
7 A. Yes.
8 Q. As an equal with the district attorney?
9 A. I would hope so.
10 Q. As an equal with the chief of police?
11 A. Yes.
12 Q. As an equal with the chief of the San Francisco
13 Adult Probation Department?
14 A. Yes.
15 Q. Your sentence of March 19th, 2012, included
16 three years of probation, correct?
17 A. Yes.
18 Q. So until March 2015 you will be on probation?
19 A. I believe so.
20 Q. And you'll be on probation under the
21 supervision of the San Francisco Adult Probation
22 Department?
23 A. I believe so.
24 Q. And the San Francisco Adult Probation
25 Department has to make recommendations to the court
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1 regarding whether or not you are performing the duties of
2 your probation correctly?
3 A. I believe so.
4 Q. The sheriff has to work as a colleague with the
5 San Francisco superior courts?
6 A. Yes.
7 Q. We discussed before how the sheriff provides
8 security for the courts?
9 A. Yes.
10 Q. And sheriff's deputies are responsible for
11 executing court orders?
12 A. Yes.
13 Q. As a result of your conviction, you are
14 required to appear in San Francisco Superior Court for
15 probation hearings?
16 A. Yes.
17 Q. As a result of your conviction, you're subject
18 to a Superior Court Stay Away Order?
19 A. Yes.
20 Q. Under that Stay Away Order, you cannot have a
21 firearm under your possession or control?
22 A. Yes.
23 Q. The sheriff's department has written standards
24 of professional conduct?
25 A. Is that a question?
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1 Q. Does the sheriff's department --
2 A. Yes.
3 Q. -- have standards of professional conduct?
4 A. Yes.
5 Q. And those are in writing?
6 A. Yes.
7 Q. And those written standards of conduct apply to
8 every deputy in the department, correct?
9 A. It's everybody, yes.
10 Q. And if a sheriff's deputy doesn't meet the
11 sheriff's department written standards of conduct, he can
12 face discipline, correct?
13 A. Yes, possibly.
14 Q. Well, who makes that decision?
15 A. There's a chain of command, and that depends on
16 the nature of the offense.
17 Q. Who in the department has the authority to
18 suspend a deputy?
19 A. Well, ultimate authority would be the sheriff,
20 but it is not uncommon for the undersheriff to also
21 render discipline as well too in absence of the sheriff.
22 Q. I just want to focus on the question of
23 suspension.
24 A. Yes.
25 Q. Is the sheriff the only person in the
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1 department who can suspend a deputy?
2 A. Circumstantial.
3 Q. Is the sheriff the only person in the
4 department that can terminate a deputy?
5 A. Yes.
6 Q. Do the sheriff's department written standards
7 apply to the sheriff himself?
8 A. I believe so, yes.
9 Q. And in a larger sense, shouldn't the sheriff
10 lead the department by example?
11 A. Yes.
12 Q. Every one of the 890 deputies in the sheriff's
13 department should be able to look to the sheriff for an
14 example, correct?
15 A. Yes.
16 Q. They should be able to look to the sheriff to
17 exercise good judgment?
18 A. Yes.
19 Q. Every deputy should be able to look to the
20 sheriff to exercise self-control?
21 A. Yes.
22 Q. Every deputy should expect the sheriff to
23 refrain from abusing his power?
24 A. Yes.
25 Q. Every deputy should expect the sheriff to
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1 support law enforcement efforts?
2 A. Yes.
3 Q. Every deputy should expect the sheriff not to
4 commit a crime?
5 A. Yes.
6 Q. So, Sheriff, I want to turn to some of those
7 written rules and regulations that the sheriff's
8 department has.
9 And for the Commission, this is an exhibit --
10 the Mayor's Exhibit 13.
11 COMMISSIONER HUR: Hold on, Counsel.
12 MR. KEITH: Should I give this to Mr. St. Croix
13 to pass to the witness?
14 COMMISSIONER HUR: You have copies?
15 MR. KEITH: I do have copies for the
16 Commission, if the Commission needs them.
17 (Discussion off the record.)
18 MR. KEITH: I don't have them here, though. I
19 don't have those extra binders here.
20 COMMISSIONER HUR: No problem.
21 If you have copies of the exhibits for us,
22 though, that would be helpful, because we have -- I mean,
23 we have lots of the briefs.
24 MR. KEITH: Okay.
25 COMMISSIONER HUR: Typically we'd expect either
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1 a binder provided by the parties or --
2 MR. KEITH: Right.
3 COMMISSIONER HUR: To be handed out.
4 MR. KEITH: Right. We brought binders last
5 time, but they were rejected. So they're sitting across
6 from my office. I can have them brought over tomorrow.
7 COMMISSIONER HUR: Okay. That'd be great. In
8 the meantime --
9 MR. KEITH: In the meantime, I do have copies
10 of Exhibit 13. Unfortunately they're not -- there's no
11 binder clip, but they are in order.
12 COMMISSIONER HUR: Okay.
13 MR. KEITH: So we'll have to just break up the
14 copies.
15 COMMISSIONER HUR: That's fine.
16 Mr. Waggoner, while he's doing that, we've --
17 we investigated as to whether we could get you a
18 microphone, and there's just no suitable microphone for
19 you. So if you wouldn't mind, please, speaking loudly
20 when you make an objection. We'd appreciate that.
21 MR. WAGGONER: Of course, thank you.
22 MR. KEITH: Are all the Commissioners ready?
23 COMMISSIONER HUR: Yes.
24 MR. KEITH: Okay. Thank you.
25 Q. Sheriff, before you, you have a copy of Exhibit
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1 13. And that's a copy of the "San Francisco Sheriff's
2 Department Employee Rules and Regulations."
3 Do you have that before you?
4 A. I do.
5 Q. Okay. Now, there is a section there, Section
6 2.1 called, "Standard of Conduct." That's on Page 4.
7 Will you turn to that, please?
8 A. (Witness complies.)
9 Q. So, Sheriff, the Standard of Conduct states --
10 this is 2.1, "Standard of Conduct - Employees shall
11 conduct their private and professional lives in such a
12 manner as to avoid bringing the Department into
13 disrepute."
14 A. That's what it says, correct.
15 Q. What a law enforcement officer does off duty is
16 important. Yes?
17 A. Yes.
18 Q. It's important because it reflects on the whole
19 profession.
20 Does it reflect poorly on the whole department
21 if one deputy isn't up to standards?
22 A. It can, yes.
23 Q. Okay. What if a lieutenant isn't up to
24 standards, can that reflect poorly on the department?
25 A. It can, yes.
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1 Q. Okay. What if the captain isn't up to
2 standards, can that reflect poorly on the department?
3 A. It can, yes.
4 Q. What if the sheriff is not up to standards, how
5 does that reflect on the department?
6 A. It can yes, absolutely.
7 Q. So the sheriff can be -- so in your opinion
8 when the sheriff doesn't live up to the department's
9 standards, does it reflect poorly on the department?
10 A. Yes, it can.
11 Q. So are there situations when the sheriff
12 doesn't meet standards when it doesn't reflect poorly on
13 the department?
14 A. I think that the sheriff is the leader of the
15 department and should lead by example. And if that also
16 means that the sheriff can demonstrate redeeming
17 behavior, then the sheriff, I think, or some of their
18 employees may have that possibility too.
19 Q. Sheriff, would you turn to Page 8 of this
20 document.
21 A. (Witness complies.)
22 Q. At 2.31 there's a definition of misconduct.
23 Do you see that?
24 A. Yes.
25 Q. Section A, the definition of misconduct for the
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1 sheriff's department includes, "conviction of any felony
2 or misdemeanor."
3 A. Yes, I see that.
4 Q. You fell below that standard?
5 A. (Nods head.)
6 Q. Yes?
7 A. Yes. I pled to a misdemeanor, yes.
8 Q. Okay. Well, do you think that when you plead
9 to a misdemeanor you don't get convicted?
10 A. No.
11 Q. Okay. So you've been convicted of a
12 misdemeanor?
13 A. I pled to a misdemeanor. 236 of the Penal
14 Code.
15 Q. That's not what I asked.
16 Were you convicted of a misdemeanor?
17 MR. WAGGONER: Objection. This has been asked
18 and answered and stipulated to.
19 COMMISSIONER HUR: He hasn't answered the
20 question.
21 THE WITNESS: Yes.
22 MR. KEITH: Q. And that falls below the
23 standards of conduct of the sheriff's department?
24 A. It can, yes.
25 Q. Are there some convictions that don't fall
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1 below the standards of conduct of the sheriff's
2 department?
3 A. Not pertinent to your question, no.
4 Q. I want to know if there are any convictions
5 that are excusable for a member of the sheriff's
6 department?
7 A. Not according to this definition.
8 Q. Well, this is the sheriff's department
9 definition, isn't it?
10 A. Yes.
11 Q. Okay. Are you above the definitions in the
12 sheriff's department policies?
13 A. No.
14 Q. Now, looking at Item C, under the definition of
15 misconduct, "Conduct, on or off duty, unbecoming to a
16 deputy." And there's a notation there for sworn
17 personnel.
18 Sworn personnel in the sheriff's department,
19 that is someone who's a peace officer in the State of
20 California?
21 A. 830.1 in the Penal Code.
22 Q. Correct.
23 So that is someone who is a peace officer in
24 State of California?
25 A. Correct.
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1 Q. And so sworn personnel are held to that high
2 standard of having their off-duty conduct that's --
3 having their off-duty conduct measured as part of whether
4 they're meeting job standards; is that correct?
5 A. Correct.
6 Q. There are some examples listed here of what
7 constitutes misconduct in the sense of conduct unbecoming
8 to a deputy. It says, "e.g." and then it lists a series
9 of examples.
10 The first example is an arrest, correct?
11 A. Yes.
12 Q. Okay. You were arrested?
13 A. Yes.
14 Q. Okay. And now, it can happen that a person can
15 be arrested but not have committed an offense; is that
16 correct?
17 A. Of course.
18 Q. Okay. Now, in your case, you were arrested and
19 you in fact committed a criminal offense?
20 A. I pled to an offense, that's correct.
21 Q. Are you -- are you disputing that you committed
22 a criminal act?
23 A. No.
24 Q. So you committed a criminal act?
25 A. Yes.
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1 Q. You were arrested and in fact you committed a
2 criminal act?
3 A. Yes.
4 Q. You fell below that standard?
5 MR. WAGGONER: Objection. We've stipulated --
6 the sheriff has stipulated to a plea for misdemeanor
7 violation of Section 236 of the Penal Code. This line of
8 questioning --
9 COMMISSIONER HUR: Okay.
10 MR. WAGGONER: -- is asking the sheriff to make
11 legal conclusions that are not relevant to the underlying
12 proceeding of what official misconduct is under the
13 Charter for elected officials.
14 COMMISSIONER HUR: Mr. Waggoner, so the
15 procedure I'd like to employ with objections is object,
16 state your bases, and if I or other members of the
17 Commission request argument, we certainly will.
18 I'm going to sustain that objection because I
19 think we've gone over it multiple times.
20 MR. KEITH: Q. So, Sheriff, Item D under
21 Misconduct, 2.31 d. of the standards that apply to all
22 deputies in the department and you, "Conduct, on or off
23 duty, which reflects adversely on the San Francisco
24 Sheriff's Department" is considered to be misconduct.
25 A. That is what it says.
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1 Q. Do you think your conduct --
2 MR. WAGGONER: Objection on the same grounds.
3 COMMISSIONER HUR: The question and answer are
4 in. No question's pending.
5 MR. KEITH: Q. Do you think that your conduct
6 reflects adversely on the sheriff's department?
7 A. Yes.
8 Q. Let's turn to a little later in the same
9 document, Exhibit 13. Let's turn to Section 9.5.
10 A. (Witness complies.)
11 Q. So this section is entitled, "Departmental
12 Investigations - Cooperation."
13 "Employees are required to actively and
14 courteously cooperate when questioned by a competent
15 authority in an investigation conducted by our agency or
16 others."
17 When the San Francisco Police Department was
18 investigating you, did you agree to be questioned by
19 them?
20 MR. WAGGONER: Objection. This Section 9.5
21 relates to employees of the department. The sheriff is
22 an elected official and this section's not relevant.
23 COMMISSIONER HUR: I'm also not clear why it's
24 relevant because -- why don't you establish some
25 foundation for it.
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1 MR. KEITH: Okay.
2 COMMISSIONER HUR: I'm going to sustain it for
3 now.
4 MR. KEITH: Q. Sheriff, could you turn to
5 Section 1 of this document, Page 1.
6 A. (Witness complies.)
7 Yes.
8 Q. There's a definition of employee there at 1.5.
9 It says, "Same as Departmental Personnel."
10 Do you see that?
11 A. I do, yes.
12 Q. Okay. Looking at 1.4, "Departmental Personnel:
13 Any person who receives a salary or wage which is paid
14 whether by, or through, the San Francisco Sheriff's
15 De
partment, regardless of the source of funds, for
16 service rendered to the Department."
17 Did you get a salary when you were the sheriff?
18 A. Yes.
19 Q. Okay. Can you turn back to Page 20, go back to
20 that section about departmental investigation.
21 A. (Witness complies.)
22 Q. So, Sheriff, looking at 9.5, that same section,
23 we have some -- we have a list of the requirements that
24 employees are required to follow when they -- when
25 they -- when there is an ongoing investigation.
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1 Section D, "Give answers that are clear,
2 responsive, unambiguous and that most accurately reflect
3 the truth of the matter."
4 Do you see that?
5 A. Yes.
6 Q. Do you acknowledge that you had a
7 responsibility when you were sheriff to do just that?
8 A. Yes.
9 Q. Now, looking at Page 21, next page, 9.7.
10 Another one of the rules of conduct -- 9.7 is entitled,
11 "Truthfulness - Employees are required to be truthful at
12 all times whether under oath or not."
13 Do you see that?
14 A. Yes.
15 Q. And do you acknowledge that that standard
16 applies to you as sheriff?
17 A. Yes.
18 Q. Now, Sheriff, you are currently serving your
19 criminal sentence?
20 A. Yes.
21 Q. One of the conditions of your criminal sentence
22 was that you participate in 52 weeks of counseling under
23 Penal Code Section 1203.097, correct?
24 A. Correct.
25 Q. Specifically you must participate in 52 weeks
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1 of domestic violence counseling?
2 A. Yes.
3 Q. Now, that type of counseling is also called a
4 batterers' program?
5 MR. WAGGONER: Objection; relevance.
6 COMMISSIONER HUR: Sustained.
7 MR. KEITH: Q. So when you go to these
8 domestic violence counseling classes, do you learn
9 anything?
10 MR. WAGGONER: Objection. That's vague;
11 speculative.
12 COMMISSIONER HUR: Do you understand the
13 question, Sheriff?
14 THE WITNESS: I do.
15 Profoundly, yes.
16 MR. KEITH: Q. One of the things you learn in
17 a domestic violence counseling class, that you can't make
18 excuses for violence?
19 A. Correct.
20 Q. You can't minimize your own acts of violence?
21 A. Absolutely.
22 Q. And you learn that a person who's a batterer
23 can't rehabilitate himself overnight?
24 A. I agree.
25 Q. In your domestic violence program, you're being
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1 taught that you can't blame the victim for your own acts
2 of violence?
3 MR. WAGGONER: Objection; relevance.
4 COMMISSIONER HUR: Overruled.
5 THE WITNESS: Yes.
6 MR. KEITH: Q. You learned that domestic
7 violence is an abuse of power?
8 A. Yes.
9 Q. And you're taught you must take responsibility
10 for your own acts of violence?
11 A. Agreed.
12 Q. Any of these principles that we've just
13 discussed that are taught in these programs, do you
14 disagree with any of them?
15 A. I do not disagree with any of them.
16 Q. Well, do you personally -- do you personally
17 believe in these principles that we've just discussed
18 about teaching -- about what is taught in a batterers'
19 program?
20 MR. WAGGONER: Objection; relevance.
21 COMMISSIONER HUR: I'll overrule that.
22 But, Mr. Keith, I hope we move on soon.
23 You may answer, Sheriff.
24 THE WITNESS: I -- I do not disagree with any
25 of it. I agree with it.
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1 MR. KEITH: Q. Sheriff, you committed an act
2 of violence on December 31st, didn't you?
3 MR. WAGGONER: Objection. Lacks foundation.
4 COMMISSIONER HUR: The foundational objection
5 is overruled.
6 THE WITNESS: I grabbed my wife's arm and
7 bruised it. That is an act of violence, yes. Something
8 I regret terribly.
9 MR. KEITH: Q. It wasn't an accident that you
10 grabbed your wife's arm?
11 A. It wasn't my intention, but I did it, and I
12 take full responsibil
ity.
13 Q. And when you say it wasn't your intention to
14 grab your wife's arm, do you mean that you accidentally
15 slipped and had to grab onto her?
16 A. No. I reacted intensely to a quarrel and I was
17 wrong in the way that I reacted.
18 Q. And you reacted by choosing to reach out and
19 grab your wife's arm?
20 A. Correct.
21 MR. WAGGONER: Objection. The sheriff's
22 already stated that.
23 Asked and answered.
24 COMMISSIONER HUR: I'll let the answer stand,
25 but please proceed.
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1 MR. KEITH: Q. And your wife sustained a
2 bruise as a result of that?
3 A. Yes.
4 Q. An injury?
5 A. A bruise, yes.
6 Q. Was it your wife's fault that you committed an
7 act of violence against her?
8 A. Absolutely not.
9 Q. Was it Ivory Madison's fault that you committed
10 an act of violence against your wife?
11 A. No.
12 Q. Was it Callie Williams' fault that you
13 committed an act of violence against your wife?
14 A. No.
15 Q. Was it the district attorney's fault that
16 you --
17 MR. WAGGONER: Objection.
18 MR. KEITH: Q. -- committed an act of
19 violence against your wife?
20 MR. WAGGONER: Objection; relevance. Obviously
21 it was not -- we stipulate -- the sheriff stipulates it
22 was not --
23 COMMISSIONER HUR: Counsel, what did we say
24 about the objections. I got the basis.
25 It's sustained.
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1 MR. KEITH: Q. Are your political enemies
2 responsible for your act of violence against your wife?
3 MR. WAGGONER: Objection. Same grounds.
4 COMMISSIONER HUR: Sustained.
5 MR. KEITH: Q. Now, Sheriff, you falsely
6 imprisoned your wife?
7 A. Rephrase, please.
8 Q. Did you falsely imprison your wife?
9 A. Rephrase, please.
10 Q. Did you unlawfully violate the personal liberty
11 of your wife?
12 A. I pled to a 236 of the Penal Code, which is
13 false imprisonment, if that's what you're inferring, sir.
14 Q. Did you do it?
15 A. Yes.
16 Q. You falsely imprisoned your wife?
17 A. I pled to 236 of the Penal Code.
18 Q. Sheriff, I'm not asking you what you pled to,
19 Sheriff. I'm asking you what you did.
20 MR. WAGGONER: Objection; argumentative.
21 MR. KEITH: Q. Did you restrain your wife's
22 liberty?
23 A. Yes.
24 Q. And was that an unlawful act?
25 A. Yes.
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1 Q. So on December 31st, 2011, you committed an act
2 of violence against your wife and you falsely imprisoned
3 her; is that correct?
4 MR. WAGGONER: Objection. Asked and answered.
5 COMMISSIONER HUR: Sustained.
6 MR. KEITH: Q. Now, Sheriff, in your
7 declaration, at Paragraph 4 and 5, you give us this
8 information about what happened on December 31st -- I
9 assume 2011. It didn't happen on December 31st, 2012?
10 A. Of course.
11 Q. Okay. "I had an argument with my wife, Eliana
12 Lopez. At the end of the argument, I grabbed her arm.
13 This resulted in a bruise."
14 Then Paragraph 5, the first sentence, "It was
15 wrong of me to grab Eliana's arm."
16 We don't get any details about whether it
17 happened in a van or whether it happened in your home.
18 Those are not provided in your declaration.
19 A. I'm sorry, is there a question?
20 Q. Your declaration doesn't give any further
21 details on what happened between you and your wife.
22 A. I'm more than happy to answer a question.
23 Q. Why didn't you put more details in your
24 declaration?
25 MR. WAGGONER: Objection. Calls for a
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1 disclosure of attorney-client privilege information.
2 COMMISSIONER HUR: I'm going to sustain that
3 objection.
4 Can you rephrase, Counsel.
5 Well, I'm going to actually take that back.
6 Yes, I'm going to sustain the objection, but I'll allow
7 you to lay foundation if you want to get to that.
8 MR. KEITH: Q. Sheriff,
you told Michael
9 Krasny a lot about what happened in this incident of
10 December 31st?
11 MR. WAGGONER: Objection; relevance.
12 COMMISSIONER HUR: Counsel, I think there's a
13 question.
14 Can you repeat the question and I'll let you
15 object. Can you repeat the question?
16 MR. KEITH: Yes. I'll start with a new
17 question.
18 Q. You did an interview with KQED?
19 MR. WAGGONER: Objection; relevance.
20 COMMISSIONER HUR: "An interview with KQED."
21 What is this -- what is this going to, Counsel?
22 MR. KEITH: I've been asked to lay a
23 foundation, so I'm trying to do it piece by piece to get
24 to the question that -- that I'd like to ask.
25 COMMISSIONER HUR: Okay. I'll give you a
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1 little leeway there.
2 Overruled.
3 THE WITNESS: Yes.
4 MR. KEITH: Q. And you -- you spoke on the
5 Forum program for more than a half an hour with Michael
6 Krasny?
7 A. Yes.
8 Q. You gave him more information than you provide
9 in this declaration?
10 MR. WAGGONER: Objection; relevance.
11 COMMISSIONER HUR: Overruled, but it's a short
12 string.
13 THE WITNESS: I believe so.
14 MR. KEITH: Q. Why?
15 A. Because he asked.
16 Q. You're aware that this declaration is your
17 opportunity to put your sworn testimony before this
18 Commission and the Board of Supervisors?
19 MR. WAGGONER: Objection. That's argumentative
20 and -- I'll leave it at that.
21 COMMISSIONER HUR: Overruled.
22 THE WITNESS: The question again, please?
23 MR. KEITH: Q. You realize that this
24 declaration is your opportunity to put your sworn
25 testimony in front of the Ethics Commission and the Board
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1 of Supervisors?
2 A. Yes.
3 Q. Okay. And you chose to provide this amount of
4 information under oath?
5 A. Yes.
6 Q. How tall are you?
7 MR. WAGGONER: Objection; relevance.
8 MR. KEITH: In any case involving a violent act
9 with a victim, the size is relevant.
10 COMMISSIONER HUR: I'll overrule it.
11 THE WITNESS: About 6'1", little over 6 feet.
12 MR. KEITH: Q. How much do you weigh?
13 MR. WAGGONER: Objection; relevance.
14 COMMISSIONER HUR: It's the same relevance.
15 Overruled.
16 MR. KEITH: Q. Was December 31st, 2011, the
17 first time you ever used physical force on your wife?
18 A. Yes.
19 Q. Was December 31st, 2011, the first time you
20 ever used physical force on any woman?
21 A. Yes.
22 Q. The first time that you ever bruised a woman?
23 A. Yes.
24 Q. You've never bruised a woman before?
25 MR. WAGGONER: Objection. Asked and answered.
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1 COMMISSIONER HUR: Sustained.
2 MR. KEITH: Q. And then you also mentioned --
3 let me step back for a moment.
4 Before December 31st, 2011, had you ever
5 prevented a woman from leaving your home?
6 A. No.
7 MR. WAGGONER: Objection; relevance.
8 COMMISSIONER HUR: The answer's in.
9 MR. KEITH: Q. Now, after that December 31st
10 incident with your wife, did you ever contact anyone for
11 advice?
12 MR. WAGGONER: Objection; relevance.
13 MR. KEITH: I'll rephrase.
14 Q. On December 31st when you grabbed your wife and
15 bruised her, did you realize that you had just done
16 something wrong?
17 A. Yes.
18 Q. And did you come to any conclusion on December
19 31st that you needed to take some steps to deal with
20 whatever it was that compelled you to grab your wife and
21 bruise her?
22 A. Yes.
23 Q. What's the first step that you took?
24 A. Seeking a therapist.
25 Q. What day did you do that?
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1 A. The following week. Actually, in fact, before
2 that. In the course within a few days I wanted to see
3 somebody -- issues regarding the potential custody of our
4 son and unresolved between me and my wife hoping that w
e
5 would go together in counseling, yes.
6 Q. Now, Sheriff, can you clarify your answer for
7 me.
8 Did your answer pertain to something -- advice
9 that you sought before December 31st or after December
10 31st?
11 A. After December 31st, but it had been an ongoing
12 discussion.
13 Q. Did you contact anyone on January 1st?
14 A. Rephrase.
15 Q. Did you contact anyone on January 1st seeking
16 help with whatever it was that compelled you to grab and
17 bruise your wife on the 31st?
18 A. No.
19 Q. Did you suggest that your wife contact anyone?
20 A. I remember encouraging my wife to talk to
21 whomever she wanted to talk with -- talk to, yes.
22 Q. Did you make any suggestions as to who she
23 should talk to?
24 A. I left that entirely to my wife.
25 Q. Did you make any suggestions?
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1 MR. WAGGONER: Objection.
2 THE WITNESS: I left that entirely up to my
3 wife.
4 COMMISSIONER HUR: The answer's in.
5 Sheriff, I'll allow you and your counsel to
6 decide what you want to do, but typically if your counsel
7 makes an objection, there's a ruling on the objection
8 before the answer.
9 THE WITNESS: Okay. I'll pause before I
10 answer. I think it's just a timing issue.
11 COMMISSIONER HUR: Sure.
12 THE WITNESS: Yes, I understand.
13 MR. KEITH: Q. The ultimate decision about
14 who to contact and when, it would be up to your wife?
15 MR. WAGGONER: Objection. Calls for
16 speculation and is also covered by spousal privilege.
17 COMMISSIONER HUR: I don't think the question
18 is asking for a statement. I would -- I would overrule
19 the objection.
20 THE WITNESS: Could you rephrase, please?
21 MR. KEITH: Q. Did -- can we just read the
22 question back, please.
23 THE REPORTER: "The ultimate decision about who
24 to contact and when, it would be up to your
25 wife?"
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1 THE WITNESS: Yes.
2 MR. KEITH: Q. Did you make any suggestions
3 to your wife as to who she might contact after December
4 31st?
5 MR. WAGGONER: Objection. Protected by spousal
6 privilege.
7 COMMISSIONER HUR: You are asserting, then,
8 Mr. Waggoner, a spousal privilege here with respect to
9 their conversations?
10 MR. WAGGONER: Yes.
11 COMMISSIONER HUR: Do you have a response to
12 that, Mr. Keith?
13 MR. KEITH: My response is that this has been
14 waived. There have been numerous public statements by
15 the sheriff that -- with regard to marital strife before
16 this incident, after this incident, and, you know, his
17 own decision to get counseling, discussions that he had
18 with her.
19 UNKNOWN PERSON IN AUDIENCE: Would you speak
20 up, please?
21 MR. KEITH: I'm sorry.
22 Discussions that he had with her. There's been
23 a front-page story in the Chronicle about their
24 communications that they had following this incident.
25 There's been a ruling by the Superior Court that the
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1 marital privilege was waived based on that.
2 So, I don't think there's any marital privilege
3 left. It's all been disclosed -- or at least a
4 substantial portion.
5 COMMISSIONER HUR: I'd like to hear from
6 Mr. Waggoner.
7 Before I do, I want to just give the public and
8 the crowd here notice. This is live testimony here.
9 It's very serious. And while you may have a reaction, I
10 ask that it not be a physical reaction or a verbal
11 reaction. And if there is one, unfortunately, we're
12 going to have to ask you to leave.
13 The sheriff is instructed if anybody -- if you
14 see anybody who makes an outburst, please remove them
15 from the hearing room.
16 Thank you.
17 Mr. Waggoner, please come to the podium so we
18 can hear you.
19 MR. WAGGONER: Mr. Keith is correct in that
20 Judge Kahn, in the Superior Court, did determine that the
21 spousal privilege did not apply to very specific
22 communications as between the sheriff and his wife,
23 specifically text messages.
24 However, simply because the sheriff and his
25 wife may have waived privilege as to one set of
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1 communications, as to one very specific time period, that
2 is not a waiver of the entire privilege on any subject at
3 all for every other communication.
4 It was -- it's limited and should be construed
5 as limited, and -- and on that basis I'll submit.
6 COMMISSIONER HUR: I -- I agree that the
7 spousal privilege does not necessarily waive all
8 communications between the sheriff and his wife.
9 However, to me, this seems like it is in line
10 and in the same time period as the text messages that the
11 parties have stipulated are admissible. So I would
12 overrule the objection to that question.
13 MR. KEITH: If I could ask the court reporter
14 to read back the question.
15 THE REPORTER: "Did you make any suggestions to
16 your wife as to who she might contact after
17 December 31st?"
18 THE WITNESS: We both discussed counseling.
19 That was the only suggestion that had been -- that had
20 been exchanged.
21 MR. KEITH: Q. What day did you have that
22 discussion?
23 A. Over the -- the next few days.
24 Q. So January 1st?
25 A. 2nd, 1st, 3rd, maybe, yes.
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1 Q. Okay.
2 A. Because this had also been a discussion that we
3 had before the 31st.
4 Q. Okay. Did any -- were any specific names
5 discussed about who you might contact in light of what
6 happened on December 31st?
7 A. Actually, we both agreed we would do our own
8 research and we would exchange people that we had
9 discovered as potential people we could go see together,
10 correct.
11 Q. Okay. What names did you discover?
12 A. Well, the very person that I actually started
13 to see, who we wanted to see together, but because of the
14 Stay Away Order we were prevented from doing so.
15 Q. Sheriff, can you just tell me what names?
16 A. One name is Dr. Leopold Viela (phonetic).
17 Q. What are the other names?
18 A. There was a list of other names discussed.
19 Q. So, Sheriff, you went to Monterey with your
20 family on the 2nd and 3rd of January?
21 A. Yes.
22 Q. About what time did you get back on the 3rd?
23 A. About 6 p.m.
24 Q. Were you at home that night?
25 A. Yes.
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1 Q. Until what time?
2 A. The whole night.
3 Q. So you never left?
4 A. Well, once I came home on the 3rd, I then went
5 to a meeting. Yes, I went to the Plumbers and
6 Steamfitters Hall where I delivered invitations to my
7 inaugural. That was the only meeting I went to.
8 Q. All right.
9 A. And that was between approximately 6:30 and
10 7:15.
11 Q. And after you got home at 7:15, did you stay
12 home for the remainder of the night?
13 A. Yes.
14 Q. Now, on the 4th, at about 8:30 in the morning
15 did you drop your son off at day care?
16 A. I did.
17 Q. And then after that where did you go?
18 A. I was to meet the -- well, quickly back home to
19 gather my work stuff, and then went to the City Hall to
20 meet with then -- well, retired Undersheriff Jan Dempsey,
21 and then drove to -- down south for the demolition of the
22 San Bruno Jail.
23 Q. Okay. And that's actually a San Francisco
24 County Jail even though it's in San Bruno?
25 A. Correct. Our jails are in San Bruno, down
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1 south, but it's our property.
2 Q. And then how long did that ceremony last?
3 A. Well, the ceremony probably lasted longer than
4 I stayed, because I returned quickly back to participate
5 in my last budget and finance committee meeting, which I
6 was a member of with the Board of Supervisors.
7 Q. Did you have any calls with your wife -- let me
8 put it this way.
9 Did you try to contact your wife that morning,
10 before you got to that budget committee meeting?
11 A. I may have, but we didn't connect.
12 Q. Did you leave a voicemail message that morning
13 for your wife?
14 A. I may have. We often text and/or voice.
15 Q. I want to show you a copy of Exhibit 80.
16 Does the Commission have Exhibit 80? That's
17 one of the text message exhibits.
18 (Discussion off the record.)
19 MR. KEITH: Does every member have Exhibit 80?
20 COMMISSIONER HUR: Does anyone need a copy?
21
Please proceed.
22 MR. KEITH: Thank you. Sorry for the delay.
23 COMMISSIONER HUR: You can give the witness a
24 copy.
25 MR. KEITH: (Complies.)
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1 Q. Now, Sheriff, Exhibit 80 is a packet of text
2 messages between you and your wife.
3 A. (Examination of documents.)
4 Q. Could you turn to the text messages on January
5 4th, about five or six pages in.
6 A. (Witness complies.)
7 COMMISSIONER HUR: Counsel, so we are all on
8 the same page, can you tell us --
9 MR. KEITH: There's a page that has text
10 messages from January 2nd, 3rd, and 4th.
11 COMMISSIONER HUR: Thank you.
12 MR. KEITH: Q. Now, Sheriff, do you see that
13 text message on January 4th, on the bottom of the page
14 that has text messages from the 2nd, 3rd, and 4th?
15 A. Yes.
16 Q. You had sent your wife a message, "Left you a
17 VM but didn't hear back. What happened?"
18 Do you see that?
19 A. I do, yes.
20 Q. Okay. And that was a -- that was a message
21 that you sent at 12:03 p.m. on January 4th?
22 A. Yes.
23 Q. Did you leave a voicemail that morning for your
24 wife?
25 A. I'm sure I did, yes.
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1 Q. Okay. What was the subject of the voicemail?
2 A. That I'm returning your call.
3 Q. What was her call about?
4 A. It wasn't clear. That's why I sent a text.
5 Q. So when you ask about what happened, why is
6 that question in the text? What are you following up on?
7 A. Because I wasn't sure what my wife was
8 referring to.
9 Q. And what is it -- to the best of your
10 recollection, was it that your wife said in the message
11 that she left for you?
12 MR. WAGGONER: Objection. Asked and answered.
13 COMMISSIONER HUR: Overruled.
14 THE WITNESS: It was simply vague and
15 ambiguous. I honestly didn't know, and so I was just
16 texting her back trying to get clarification. Are you
17 okay? What happened? I wasn't sure.
18 MR. KEITH: Q. Can you tell me anything about
19 what the message from your wife sounded like, anything at
20 all?
21 A. Routine.
22 Q. Routine about what?
23 A. Our son potentially or something else. Nothing
24 other than what it says. I didn't understand.
25 Q. Now, Sheriff, have you become aware of a
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1 telephone call that your wife had with Linnette Peralta
2 Haynes on the morning of January 4th, that lasted about
3 39 minutes?
4 A. I'm sorry, what is the question?
5 Q. Sheriff, are you aware -- have you become aware
6 of a telephone call between your wife and Linnette
7 Peralta Haynes on the morning of January 4th, that lasted
8 about 39 minutes?
9 A. Yes, I have since become aware of it, yes.
10 Q. Okay. Now, Linnette Peralta Haynes was your
11 campaign manager?
12 A. Yes.
13 Q. As your campaign manager she had many
14 responsibilities?
15 A. Yes.
16 Q. She had responsibilities with the budget for
17 your campaign?
18 A. Not exactly, no. There were other people
19 involved in the budget in the campaign, but she was a
20 principal partner to it, yes.
21 Q. She was a principal partner in helping to craft
22 your public message during the campaign?
23 A. Not exactly. I had a consultant for that.
24 Q. Did she do logistics for your campaign?
25 A. Yes. I would define it more like outreach and
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1 organizing, field is the campaign term.
2 Q. So when you have a field -- a person who's
3 organizing in the field, problems arise in the field and
4 they help address them?
5 MR. WAGGONER: Objection; relevance.
6 MR. KEITH: Goes to --
7 COMMISSIONER HUR: Wrap it up quickly though.
8 Overruled.
9 THE WITNESS: As it pertains to precincts and
10 field organizing in one's aspirations for an election,
11 correct.
12 MR. KEITH: Q. Was Linnette Peralta Haynes
13 loyal to you?
14 A. I'd like to believe so.
15 Q. And do you trust Linnette Peralta Haynes?
16 A. Yes.
17 Q
. You value loyalty?
18 A. Yes.
19 Q. You value trust?
20 A. Yes.
21 Q. Had you communicated with Linnette Peralta
22 Haynes before the morning of January 4th about what
23 happened on December 31st?
24 A. Not at all, no.
25 Q. Had you left her a message?
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1 A. No.
2 Q. Text message?
3 A. No.
4 Q. E-mail?
5 A. No.
6 Q. Had you ever communicated before January 4th
7 with Linnette Peralta Haynes about problems in your
8 marriage?
9 A. No.
10 Q. In 2011 did your wife ever go out with Linnette
11 Peralta Haynes, just the two of them?
12 A. Oh, I'm sure.
13 Q. How often?
14 A. I'm sorry, I couldn't answer that. I don't
15 know.
16 Q. Now, Sheriff, on the 4th, your budget hearing
17 concluded around 12:15 in the afternoon?
18 A. I thought a little bit later.
19 Q. Okay.
20 A. But I'll believe you if that's correct.
21 Q. Okay. In any case, did you leave around 12:15
22 in the afternoon or a little later?
23 A. Later.
24 Q. Where did you go?
25 A. To my office and darting back and forth between
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1 my office and the sheriff's office. Since I was four
2 days away from being inaugurated, we were still moving
3 out of my supervisor's office.
4 Q. And so, when you went to your office after the
5 budget hearing, did you just stop in for a moment? Did
6 you stay there for awhile? Were you moving things?
7 A. Moving. It was chaotic. There was a lot of
8 moving going on in those last few days.
9 Q. And had -- had Michael Hennessey already
10 vacated the office that you were going to move into?
11 When I say "the office," I mean the physical office. I
12 don't mean the office of the sheriff.
13 A. No.
14 Q. Okay.
15 COMMISSIONER HUR: Counsel, if this is a good
16 breaking point, we're right about 9:00 o'clock.
17 MR. KEITH: It's as good as any.
18 COMMISSIONER HUR: Okay. Sheriff, I caution
19 you that you are still under oath and we ask that you not
20 discuss your testimony overnight since you're still on
21 the stand officially.
22 THE WITNESS: I understand. Thank you very
23 much.
24 COMMISSIONER HUR: Okay. The witness is
25 excused until tomorrow.
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1 Counsel, if we could do a couple of
2 housekeeping things.
3 Typically we would expect the exhibits that you
4 plan to use with the witness in advance or -- I mean, you
5 could pass them at any time, but it probably would
6 disrupt your examination more than necessary.
7 MR. KEITH: Like I said, we brought them last
8 week, but then we were told they weren't needed. So we
9 just didn't bring them. We'll bring them tomorrow
10 morning.
11 COMMISSIONER HUR: Okay. Is that doable for
12 you, Mr. Kopp, with respect to exhibits you're going to
13 use?
14 MR. KOPP: We should be able to do that, yes.
15 COMMISSIONER HUR: Okay.
16 Okay. Mr. Keith, how much more time do you
17 think you have, because we need to figure out the
18 schedule for the remaining witnesses tomorrow?
19 MR. KEITH: How long -- how long do you think
20 we've been going so far? About an hour?
21 COMMISSIONER HUR: Almost an hour.
22 MR. KEITH: Less than an hour?
23 COMMISSIONER HUR: A little less, but almost.
24 MR. KEITH: I'm going to say an hour.
25 COMMISSIONER HUR: Okay. Mr. Waggoner, do you
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1 have any sense yet of whether you want redirect and how
2 much time you think you'll need?
3 MR. WAGGONER: Yes, Commissioner, we would like
4 to redirect. I don't think we would need more than an
5 hour. Probably, maybe, a half hour or less.
6 COMMISSIONER HUR: Okay. So we're starting at
7 9:00. 10:30 -- okay.
8 So here's what I propose. We start at 9:00.
9 When we're done with the sheriff, we take a morning
10 recess. That will be 10 to 15 minutes.
11 After that, if you could have your client, the
12 mayor, ready to testify, let's say, at 11:00
13 approximately. I think -- I'm hoping that 11:00 will be
14 safe. Such that if we end a little early, maybe we take
15 a little bit longer break or deal with -- I'm sure we
16 have many administrative things we could discuss if we
17 need to fill the time. But just to provide the mayor
18 with some -- with some sense of when to show up.
19 MR. KEITH: Could I have a moment.
20 (Discussion off the record.)
21 COMMISSIONER HUR: Sure.
22 MR. KEITH: Okay.
23 COMMISSIONER HUR: Is that reasonable to
24 sheriff's counsel?
25 MR. KOPP: That's fine.
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1 COMMISSIONER HUR: Any objection from the
2 Commissioners on that?
3 (All Commissioners shake their heads
4 negatively.)
5 COMMISSIONER HUR: Okay. And then subsequent
6 to that we'll have the mayor. My thought is to take a
7 lunch break after the mayor, and then go into the
8 examination of Mr. Lansdowne after lunch.
9 Okay?
10 MR. KEITH: Okay.
11 COMMISSIONER HUR: Before we adjourn, it has
12 been our practice to make interim rulings on the
13 decisions that we made and take a vote on them.
14 These -- these rulings are not final. We -- we
15 are in a continuing meeting. So like we do -- like if
16 this was a normal one-day meeting, we would hear public
17 comment and then take official votes, but these are
18 interim votes. But because we've been doing them, I
19 think it is helpful in terms of summarizing the interim
20 decisions of the Commission.
21 So is there a motion to adopt the rulings that
22 the Commission has made, the interim rulings the
23 Commission made?
24 COMMISSIONER HAYON: So moved.
25 COMMISSIONER HUR: Is there a second?
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1 COMMISSIONER RENNE: I'll second.
2 COMMISSIONER HUR: All in favor?
3 (Commissioners in unison said "aye.")
4 COMMISSIONER HUR: Opposed?
5 Hearing none, the meeting is adjourned.
6 (Whereupon the meeting recessed at
7 9:35 o'clock p.m. to be reconvened,
8 Friday, June 29, 2012, at 9:00 o'clock a.m.)
9 ---oOo---
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1 I, the undersigned, a Certified Shorthand
2 Reporter in the State of California, hereby certify that
3 the witnesses in the foregoing hearing were duly sworn by
4 the court reporter to testify to the truth, the whole
5 truth, and nothing but the truth in the within-entitled
6 cause; that said proceeding was taken at the time and
7 place therein stated; that the testimony of said
8 witnesses were reported by me, a disinterested person,
9 and was thereafter transcribed under my direction into
10 typewriting; that the foregoing is a full, complete, and
11 true record of the said testimony.
12 I further certify that I am not of counsel or
13 attorney for either or any of the parties in the
14 foregoing proceedings and caption named, or in any way
15 interested in the outcome of the cause named in said
16 caption.
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18 Date: July 11, 2012
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23 JEANNETTE SAMOULIDES, CSR #5254
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