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tv   [untitled]    July 8, 2012 2:30pm-3:00pm PDT

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political witch-hunt. and so, again, it's connected to these particular calls, it's like trying to get evidence of a conspiracy. you have to infer. you have to infer from the fact that you have thing that's nobody would ever testify to. >> i open it up to my fellow commissioners. i appreciate the argument, mr. keith, but to me i do not see how this is relevant and i see that there is some hearsay but it's so general that i'm not even sure i would give it any way -- but i know there's a lot here. i welcome these from my fellow commissioners. >> when i was going through this, i read this a couple different times and i still don't really see the connection. so i would -- i would vote to
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exclude it on relevance grounds. i mean, i understand your witness disuation theory but i still don't see the connection here with the journalists and press coverage. >> any other dissenting views if other commissioners. ok. hearing none, i think we should move on. >> need to know what specifically to sustain the
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objections? >> i think the whole -- >> 21 through 28? >> 21 through 28. mr. keith, why don't i do this. why don't i give you a chance to tell me that if there's anything different -- i think it all relates to the same issue. unless there's something different in there that we overlook that needs to come in. >> the fact is these witnesses experienced harassment. it seems that how witnesses are treated in a criminal action when they're getting calls like this -- again, i don't think the complaint is about press coverage. press coverage is inevitable in a case where you have as well known a defendant but they're getting the kinds of calls that
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suggest a campaign against miss madison and that's -- it seems to me taking all of that evidence out it simply takes -- it seems to me to be too much. i can understand taking out the the cease dean sift letter on the theory it come -- cease and desist letter that it comes from another attorney. i think it's too much to take out all of it. that would be my argument. >> when you go to paragraph 22 though, just in connection with the argument that mr. keith is making, is it was the sheriff's attorney who sent a subpoena which they describe as being intrusive, overbroad and harassing subpoena to this red room omnimedia corporation. that certainly unless there's some justification, one could
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say that is clearly done in retaliation to miss madison's involvement. which i think if one accepts the mayor's argument that it is evidence of some kind of intimidation and conduct by the sheriff that inconsistent with his duties as a law enforcement officer. but don't know what that subpoena was. it may well have been very relevant to the criminal proceeding. but the way it's characterized here is being intrusive, overbroad and harassing. and that apparently went into court or did something. >> they hired an attorney. they went into court and there was media conferring and they finally narrowed it down and produced some documents. that's what i understand to have occurred in the criminal case.
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>> if i could just -- >> please. >> exactly what happened here with a lot of the mayor's subpoenas. there were objections because they were overbroad, intrusive, et cetera. those objections were sustained and finally when they were narrowed down, documents were produced. >> was the subpoena issued through the sheriff's office? >> criminal action. >> it wasn't the sheriff's authority, subpoena as a defendant in a criminal action? >> correct. >> to me, it's not uncommon if this was a subpoena that was issued in the court of criminal proceedings, again, i think that is probably subject to some litigation exclusions and is part of devil's advocacy. if it had been the sheriff himself using his subpoena power, if he has any to harass the witness, i totally agree
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with mr. renne, i would find that highly relevant. if he's aville defendant and he's seeking discovery, i'm not sure i see the relevance. i don't know, mr. renne, if you have any further thoughts on the issue. does any member of the commission propose to not exclude paragraph 22? >> have i no problem with excluding it. >> unless there's dissent from the commission, it sounds like 21 through 28 will be excluded. ok. let's go to mr. hennessey.
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the first objection is to the full paragraph on page 2, second full paragraph on page 2. by the way, if we ever have to do any more declarations, can you please include paragraph numbers? this is extremely painful without paragraph numbers. >> yes. >> thank you. first full paragraph on page 2 of mr. hennessey's declaration beginning with i am aware and ending with the elected county sheriff, the mayor's argument is
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that this relates to separate incidents under different law. and that it would be -- it's irrelevant. i agree with that. i would sustain the objection to that paragraph. and i welcome the view of my fellow commissioners. >> i completely agree. i think that we definitely don't want to get in a situation where we're doing little mini trials on different instances that happened in the '70's and '80's. i think it's totally not pertinent. there were situations that occurred under different provisions, different language of the charter, different standards. >> just to be clear, this is the first full paragraph. i may have said the second. i meant the first.
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next objection is to the second full paragraph of page two. the objection is based on the statements mr. hennessey is talking about how he would be viewed. i don't see how that is relevant here either. i would sustain the objection to the second full paragraph of page two. niss dissenting views from the commission? that objection will be sustained. the third objection to the third full paragraph.
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here he's an expert. i think he's qualified to testify about this. it is a little general. i certainly understand the objection, but this one i would overrule. we have testimony from the hennessey and we will have chief lansdowne as well. i would permit this. i would overrule the objection.w commissioners? ok. that paragraph shall be omitted. there are no objections to mr. lansdowne. nancy lyman?
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-- lemon's declaration? i am sorry. was there something about lansdowne? >> about michael hennessey. we are trying to work up a scheduling issue. chairperson hur: while we are on it, that is on my list. what is his status? >> as i discussed on a conference call, the sheriff and the seat is more than willing to submit to cross-examination remotely. however, he will not appear in person, primarily because he has a family member who is severely disabled, for which he is responsible, and he is currently living 3.5 hours away. we have offered repeatedly to make him available for remote testimony. chairperson hur: is he
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available june 19? what is your view on this? >> i do not know the availability of care givers for this issue. to me, experts are a little different than regular witnesses. the party hires them and retains them. one of the jobs of an expert is to show up. for me, i do not think it is right or fair for him not to show up. i think it is very difficult to cross-examine an expert, where you are going to be using a lot of exhibits, while they are on television. from our standpoint, we would really like to see him here. chairperson hur: i agree with you. this is not a percipient witness. you should figure this out, when you hire someone, that they will show up, if asked to cross- examine. >> let me respond to that concern. the fight of the matter is that share of tennessee is not
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retained in the usual sense of an expert. he is not being paid. he was asked to provide a declaration. the reason being, we do not think there is a better expert witness in the state or the country about the qualifications and conduct expected of the san francisco sheriff than the man who held the office for 32 years. he is retired. he has moved away. he cares for a family member. we sought out the expert we thought was best. i think this is more than reasonable, that he offered to submit to remote cross- examination. maybe some of these concerns are valid, but i think they could be overcome. chairperson hur: is he within our -- what is the scope of our subpoena power? >> i would assume it is 75 miles, just like a court.
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it sounds like he is beyond that. chairperson hur: i am inclined to take a harder line on an expert. if you have retained an expert, whether you are paying him or not, it is incumbent upon you to insure he is going to be available for cross-examination. we made clear that any witness who does not subject himself to cross-examination, if he is subject to control of a party, is going to have his declaration severely diminished. the notion of doing eight remote deposition for ms. lopez is a different issue. i know she is not your client. she is outside the country. i think it is a different issue. it is not particularly easy to
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take a deposition over skype. i welcome the views of my fellow commissioners. but i would be inclined to require him to show up, if you want to rely on him. any dissenting view from my fellow commissioners? >> could you just explain to us what the consequences are if he does not testify? just amplify your phrase about reliance. chairperson hur: any witness who submits a declaration but does not submit to cross-examination, we would give it whatever we thought it deserved. that weight, to me, would be almost nothing. to me, if the party wants to cross-examine a witness, they should have that opportunity. to me, it would be dangerous to rely on a declaration of someone
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who the other party did not have the opportunity to cross- examine in person. >> the party -- it remains in, but it is up to us what weight to give it, and it may be very little? chairperson hur: yes. ok. i do not know if that changes or could change your view of whether he is going to show up or not. is it possible that changes your view? >> it does not change my view, because mr. hennessy has been consistent throughout, and that is no surprise to the mayor. if something changes, i will certainly let you know. chairperson hur: meaning, if he will show up in person? >> if he can find care for his family member, i certainly will let everyone know. up to this point, his position
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has been consistent. chairperson hur: he is the primary caregiver? >> yes. chairperson hur: and there is no secondary caregiver? >> from what i am informed, that is correct. chairperson hur: he told you that? >> correct. chairperson hur: we gave you notice of what we were going to do at the beginning. i would stand by it. miss lemmon. the declaration is extensive. i have read the declaration. i have also read people versus brown.
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my understanding of that case, and i am happy to have my fellow commissioners or council tommy i am wrong -- it appears that that case allows, in a domestic violence action, the expert testimony of a domestic violence experts to explain why a witness may change her testimony, if she testifies, if a certain amount of time passes. the opinion appears to permit that, pursuant to evidence code 801, as well as one that relates specifically to domestic violence, and does not appear to require that there be more than one allegation of abuse. mr. kopp, my question to you -- why doesn't people versus brown require us to allow dr. lemon to
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testify at least for that limited purposes? >> it might, if her expert opinion or relevant to the real issues of the case. our position is that that opinion does not relate to the issues in the case. we do not believe that all the material she is relying on and all the facts she has set forth in our opinion really affect -- i noted specifically, the silver bullet points she hit, they are not going to in like new on any particular issue in the case. -- not going to enlighten you on any particular issue in the case. you hit the nail on the case when you said, "with respect to a domestic violence prosecution puzzle that is not what this is. that is the reason we do not think it is relevant. chairperson hur: ms. kaiser?
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>> brown makes clear that this testimony is admissible under the regular evidence code section, section 801, and not just the special section for criminal prosecution. 1107 is a separate evidence code section geared toward criminal prosecutions and says the testimony is admissible for the purpose. we are not in a criminal proceeding. but the brown case, by the supreme court, said we would come to the same conclusion, and do come to the same conclusion, under section 801, the section for regular expert testimony in civil cases and administrative cases, and frankly also in criminal cases. it is just that there is a special duplicative rule in criminal cases, in case the court was about to get the wrong. the legislature is making a
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strong policy consideration in criminal cases. but the ruling in brown is explicitly, we do not need to resolve a particular conflict 41107, for the very reasons that commissioner hur stated, under 801. i do not think brown is the only reason for which such testimony is admissible, and i am happy to address that if there are sections of the declaration not raise it. chairperson hur: i think we should take it one topic at a time, but i will give you that opportunity. brown does seem to say that if -- particularly when an alleged victim comes forward and testifies, months after the fact, expert testimony as to why
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a story has changed is relevant to a determination of that witness's credibility. unless i have the wrong read of brown, and you can point me to why i am wrong, i think that lemon should come in at least for that purpose. parts of it, at least. >> i would just reiterate that the sections, the evidence code sections we have been talking about, 1109 at our previous hearing and 1107 tonight, by our own terms specifically relate to criminal law. chairperson hur: we are talking about 801. >> i submit all the objections we have made at this point. chairperson hur: i welcome the questions or views of my fellow commissioners. commissioner renne: you said it
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is not relevant to any issue that has to be decided in this case. what do you mean to be the issues/$w this commission has to decide in making its recommendations? >> whether the sheriff's conduct on december 31 or thereafter, up to the end date of the written charges, which i believe is the date he entered his plea, constitute official misconduct. i am not sure if i can break it down any further for you. see, i just think that this is -- we are going far afield, when we start submitting this type of expert witness testimony. hong -- commissioner renne: of
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does it make a difference whether or not that conduct constituted domestic violence, or was merely just something that happened between a husband and a wife? >> fundamentally, we think that what ever happened on that date cannot constitute official misconduct, because it is before he became sheriff. but considering the mayor's argument that it can predate taking the oath of office, i think the phrase domestic violence is susceptible to a lot of different interpretations. i notice that in one part of the declaration, mr. demint opines that the charge on which the share of -- miss lemon appliance the charge on which the sheriff was convicted was domestic violence, spousal battery.
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but i think that you all are more than capable of making that determination yourself, without having this expert opinion. i think you can decide that for yourself. i think it is totally unnecessary, and a waste of time and resources. >> doesn't the amended charge charge the sheriff with an act of domestic violence? it is not just us trying to figure out whether certain things happen on a certain day. he has been charged with an act of domestic violence. why wouldn't a domestic violence expert help us sort through the issues of what conduct constitutes an act of domestic violence? >> the label you put on it is immaterial. it is what happened. whether it was him grabbing his wife's arm in the middle of a heated argument, or something more the mayor wants to to believe, you can decide for
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yourselves. was that official misconduct? you do not have to put that label on it. maybe i did not answer the question for you. >> you think it is just a matter of labeling? >> yes. the charter does not say the domestic violence is one of the things for which a public official can be removed. the charter is vague. it attempts to define official misconduct. in my opinion, the task of the commission is to decide whether what occurred constitutes official misconduct, not whether it constitutes domestic violence. >> why don't i asked a different question? do you think that the crime of false imprisonment that the sheriff pleaded guilty to is
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domestic violence? >> i do not think i can answer that question, because it depends on how you will define the term. if you want to define it by the terms and conditions of probation when you are convicted of that crime, and are they some of the terms and convictions you would get if you were convicted of a battery on your spouse or significant other, possibly. but i do not think the term is sufficiently definite for me to give a response to that question. >> if the term is not sufficiently definite for you, wouldn't expert in that field help us figure that out? >> maybe so. but that assumes the foundational question, which is, is that important to your determination? our position is that is not. it is just a little. commissioner hayon: from my point of view, we have at least
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two declarations, ms. madison's and ms. lopez's declarations, which are fundamentally completely different stories of the same event. for me, i feel that i need some help in trying to figure out why there is such a wide discrepancy in these declarations of these witnesses, in terms of how they describe the events that took place. i think that an expert like miss lemmon could possibly be helpful. perhaps not. perhaps once we hear what she has to say, we will fill this does not apply to the witnesses that we have. but perhaps it will be helpful
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and will be relevant in helping us to decide which of these stories has more credibility. that, and of course cross- examination of the witnesses themselves. i certainly could see the need to have her testify. chairperson hur: that is the purpose i would want it for. other than that, we can go through it, but i think a lot of it probably does need to be stricken. to the extent it relates to that, i think we need it. commissioner studley i do not think we need a seminar on domestic violence. that is not really what we are deciding. but we need to consider the testimony of these individuals. given such wide disparity, i think we could use a