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Tuesday, June 18, 2013 | 10:22 p.m.

Posted: 7:13 p.m. Wednesday, April 18, 2012

Judge's tentative ruling against Mirkarimi comes after telling interview

Ross Mirkarimi SF Sheriff closeup 1/16/2011
Ross Mirkarimi SF Sheriff closeup 1/16/2011

KTVU.com and Wires

SAN FRANCISCO —

After giving an exclusive interview to a public radio station detailing a domestic dispute between him and his wife, Ross Mirkarimi was tripped up by a judge’s ruling Wednesday in his legal fight to stay San Francisco’s sheriff.

A judge issued a tentative ruling Wednesday that denied the suspended sheriff’s motion to remove City Attorney Dennis Herrera from the suspension proceedings.

In his tentative ruling, San Francisco Superior Court Judge Harold Kahn denied the motion by the attorney of Mirkarimi, 50, who was suspended last month by Mayor Ed Lee on official misconduct charges and was facing an administrative process at City Hall to decide whether he can keep his job.

Mirkarimi was suspended without pay on March 21, two days after being sentenced to three years' probation and other penalties for his guilty plea to a misdemeanor charge of false imprisonment in connection with a Dec. 31 domestic violence incident involving his wife.

In an interview with KQED’s Michael Krasney Wednesday morning, Mirkarimi offered his first in depth comments about the chain of events that resulted in the fight and ultimately led to his pleading guilty to misdemeanor false imprisonment.

According to Mirkarimi, he was driving his wife Eliana Lopez and their son to a pizza restaurant when the couple we engaged in a “horrible quarrel.”

After their argument panicked their son, Mirkarimi said he turned their minivan around instead of going to the restaurant.

At one point, he said she tried to get out of the van and he bruised her arm in the process of keeping her inside the vehicle.

“She was screaming, and I reached over from the driver's seat, still with my seatbelt on, to put my hand underneath her arm and try to guide her back into the passenger seat so we could just de-escalate,” said Mirkarimi.

San Francisco Mayor Ed Lee, who suspended Mirkarimi after he plead guilty to the misdemeanor and requested the city to attorney to investigate Mirkarimi’s on misconduct charges, reacted to his account at an event later that day.

“I think that perhaps that version wasn't out, but it may not be consistent with the videotapes and things that we have the privilege of seeing and the testimony that we've seen as well,” said Lee.

Mirkarimi has a right under the city charter to a hearing on the official misconduct charges before the city's Ethics Commission, which would then make a recommendation to the Board of Supervisors.

Unless nine of 11 board members approve the charges to remove Mirkarimi from office, he would be reinstated as sheriff.

David Waggoner, Mirkarimi's attorney for the suspension proceedings, had filed a motion last week seeking to remove the city attorney's office from the proceedings, arguing it had a conflict of interest by representing the mayor and advising the Ethics Commission at the same time.

"The city attorney cannot ethically serve as both the prosecutor of this attempt to remove Sheriff Mirkarimi and the lawyer for one of the supposedly neutral fact-finding and decision-making bodies," Waggoner wrote.

Herrera responded with a filing on Monday in which he noted that the Ethics Commission and Board of Supervisors would be advised by outside counsel for the suspension proceedings.

Kahn's tentative ruling, issued Wednesday afternoon, sided with the city attorney.

"Because the city attorney is representing the mayor in his official capacity with respect to actions he took on behalf of the city in accordance with a provision of the charter authorizing the mayor to take such actions, the city attorney is not barred from representing the mayor in this case," Kahn wrote.

The judge added, "The retention of outside counsel by the Ethics Commission and the Board of Supervisors moots (Waggoner's) argument that there is a conflict."

A hearing on the issue was scheduled for the following morning at the Civic Center Courthouse.

Kahn was also expected to consider on Friday a separate motion by Mirkarimi's attorneys to overturn his suspension.

The Ethics Commission was then scheduled to begin its hearing on the official misconduct charges next Monday, barring any changes as a result of the judge's ruling on Friday.

Vicki Hennessy, a former chief deputy with the department, was appointed by the mayor as interim sheriff while the case moves forward.

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