>> it costs money. i am not trying to be flip. who is going to play -- going to pay the airplane ticket? >> you would like the city to pay? >> i would. >> what do the costs in tailbacks -- entail? is this a round trip? >> do i address you as your honor? >> commissioner is fine. >> if there could be advanced notice, the airplane ticket would be cheaper. with two weeks' advance notice, a regular coach ticket round trip from caracas, you are looking at roughly $1,500. it is an approximate figure. my request would be that if she were to come and testify, a tuesday evening or thursday evening, she would fly in

wednesday. she would testify that day and then return home after her testimony. >> the total of the cost is the air fare from here and back? >> i think so. >> can i hear from mr. keith or ms. kaiser on this? does the mayor have a position on the costs of bringing ms. lopez to san francisco? >> she is a defense witness. normally, we would expect a defense witness to pay for it. we would consider their request. i will take it to the mayor. this is the first i have heard of it. i am happy to take it to the mayor. >> i am sorry. i have a couple more questions. if there is not an agreement for ms. lopez to appear live, is she willing to appear by video testimony? >> it is interesting. i have thought about it.

i do not think skype would work. my preference is that she would come here to testify. i have never seen the president of skype testimony. i have a difficult time in my experience. it drops. sometimes it works. sometimes it does not. ms. lopez was also listed by the mayor's office as a witness. >> the sheriff has submitted a declaration in support of the defense. she is here to be cross- examined by the mayor. any witness who does not appear for testimony, the declaration is going to receive little to no weight. given the status of her declaration, her testimony,

whether live or by skype, is likely something that would give the declaration she submitted more weight, because she will have been subjected to cross- examination. >> i believe my client is credible, telling the truth. that is why i am saying i want her to get to be here. >> are you saying you will not make her available by skype? >> i am saying i want to use all my efforts to get her personally here, so you can view her. you can see how credible she is. you can watch her demeanor as she testifies. i am saying my wish, commissioner, is that we get her here, but i figure out some way that she can be present. in a fallback position, perhaps -- i am reluctant to say yes, that she is willing to skype.

it seems to me maybe that would almost forfeit the effort to try to get her to be here. my preference is, and ms. lopez 's preference, is that she appeared before you to give testimony. my plan does not have resources. -- my client does not have resources. her husband does not have a job. i know this is an unusual situation. that is why i am asking -- >> she is outside of the subpoena power of this body. >> i know. >> i am not aware of any authority the commission has to compel the mayor or any other city agency to pay for this trip. if they do not do it voluntarily, our options are video or no live testimony.

>> i appreciate that, commissioners. i am saying to you that i hope that the mayor's office will pay approximately $1,500, so she can be brought here for them to cross-examine her, and you can see her testimony. if the amounts that are unwilling to do it, i will try to figure out some other way. maybe i will have a raffle. maybe i will have a collection. if that does not work, the fallback position would be skype. what i am trying to get across is that i am trying to have it be that ms. lopez gets to appear before you. >> i appreciate that. i agree that her being live would be preferable. it would allow us to evaluate the testimony better than skype. i have done skype examinations. it is better than nothing.

you have to work out the details in advance. >> maybe i can speak with the mayor's representatives, and at the break we can figure something out. i think that is what they would want as well. >> thank you. before we let you go, and there may be some other questions -- are you telling me that she could be available on july 18 or 19, either live or by skype? >> yes, commissioner. >> any other questions while we have heard? if you would not mind sticking around a few minutes? >> absolutely. mr. kopp, this is a witness from home you submitted a declaration

on the sheriff's behalf. i do not know exactly how this would work, to share in the cost of the ticket to bring ms. lopez here. >> not at the present moment. if the mayor were to reinstate his pay, pending the outcome of these proceedings, would be able to get that done. there is the willingness. there is just not the resources. >> i understand. any questions for mr., regarding this issue? -- for mr. kopp, regarding this issue?

mr. keith, when you think you will have an answer on this issue? >> i can talk to the mayor tomorrow. i may not have an answer by tomorrow, but certainly, some time shortly after, i could have an answer. >> much appreciated. thank you, sir. we also should deal with the declaration that ms. lopez submitted, and whether or not the mayor has objections to that declaration. i am not going to require that you make them orally, or that we address them now, given that she would not be testifying until the middle of july. do you have objections to her declaration? >> we do, commissioner, in terms of when we could have them put together, i expect the second week of july. i will not have much time next

week to do it. there is one basic objection that i wanted to call the attention of counsel, which is t of the declaration is not valid, because it does not state it is worn under penalty of perjury, which is required for any declaration executed outside the state of california, to make it a valid both. -- valid oath. if they can cure it, i wanted to give them notice of that right away. >> ok. why don't we have the objection to the lopez declaration by july 9? it is not particularly long. >> i could do it by the 10th.

>> by july 10. if the sheriff would like to submit a response, we can do that by -- a week? july 17? >> i am not a huge fan of capering you folks. presumably, i would be able to make my arguments orally. we have those states down. july 10, for any objections, july 17 for any response.

the next issue, as it relates to ms. lopez, is the video. i understand that you did not submit a brief in response to the mayor's brief. >> correct. what is your position, with respect to the video? >> i would stand on the objections i believe we made previously, that it is here say, not subject to an exception. i know commissioner randy was interested in why you might decide this differently than the superior court. i will reiterate that i do not think the superior court ruling on this issue provides any sort of collateral. i think there is no probity between parties. i think you folks are a completely different body, and you can decide this issue for yourselves.

we believe the superior court wrongly decides the issue. i submit. >> having reviewed the brief, and having reviewed the video, i think the video is admissible. i think that, under the case law, it does qualify as an excited utterance. i think it also could be admissible to indicate physical injury and describe it. i welcome the views of my fellow commissioners on the admissibility of the lopez video. commissioner liu? commissioner liu: i agree we are not bound by the superior court. but i also agree that, in reviewing the video and the case authority cited in the brief, that it does meet the criteria for the perce exception under

evidence code 1240. she was cheerful, emotional, and holding in her speech. i do not think it is very different from what was described in the case cited by the mayor's office. >> just from the perspective of a lay person, we would not be here. we would not be going through any of this, if it were not for that video. i think we certainly should take a look at it as a commission. i think it is absolutely relevant and important for us to see it. >> i just want to say that my client continues to assert that that video was a privilege to

video, made in the context of an attorney-client relationship. that has been shot down, but, for the record, had my client not [inaudible] >> hearing no objection from the commission, i think we should preliminarily admit the video. it should come into evidence. the other declarations, unless the commission thinks there is something else we should discuss, with respect to ms. lopez? there is one thing. mr. keith and mr. kopp, do either of you have an objection to ms. lopez appearing by skype if payment of her plane ticket cannot be worked out?

>> no. >> commissioner, i do not know if we have an objection. the reason is this. when this issue was raised by the other side, we did some research into the validity of oaths and testimony given from abroad. it is not clear to us that, under the various treaties that govern these, that the oath would be valid. i do not have any other problem with the testimony being by skype. we are not convinced that the of itself would be valid, and we are not sure if that is a risk we want to take, given the validity of the oath. >> let us say that we take the testimony. we get the transcript. we send the transcript to ms. lopez. she signs the transcript, under penalty of perjury. does that obviate your concern? >> i think it would.

>> great. thank you. i apologize. this is the third time i have asked you to come up, and i appreciate your willingness. indeed. do you have any objection to bringing the transcript, if this occurs by skype? we have a transcript that is transcribed in san francisco of the testimony that would occur in caracas. have ms. lopez review the transcript and sign it, under penalty of perjury of the state of california. >> i have no problem. i apologize. i should have figured that out, that it should have said under penalty of perjury of the state of the laws of california. i am sorry. >> i know this may sound mechanical, but is there a way for you to resubmit the declaration? >> i am going to, absolutely.

it may not get resubmitted until monday, but i will have an appropriate signature page. >> it should be re-signed. >> it will be. >> thank you. ok. other declarations? i want to commend both sides for the helpful work he did on the madison objections. i think that while we can disagree with certain positions you may have taken, i appreciate both of you working to come to resolution on things, and having us focus on what is likely the more important portions of these. >> thank you. it did take more than an hour, though. [laughter] >> i would join in the

chairman's observation. i did find it is very helpful, the way in which it was done. i do not know where the want objections and comments in the same form, which made it very easy for me to follow. >> that was my intention. essentially, i was when to walk through it and have the commission way in. this was submitted by the mayor's office. did the mayor's office accurately reflect the stipulations of the dispute? >> there was an amendment submitted, and i agreed with it. from our perspective, it fairly sets forth the disputes. i do not know that either of us need to say anything to you

folks. >> my view on this is that we go through them. unless commissioners have any questions, agreed. ok. it appears the first dispute is paragraph 21. >> there is an initial dispute about the general hearsay objection. i wanted to make sure you did not miss that. >> to the extent that the objection is here say and relates to comments that ms. lopez made to ms. madison, consistent with our prior rulings, i would be inclined to

admit those statements. the mayor is not introducing them for a hearsay purpose. they are going to show ms. lopez's state of mind. does that mean that if we disagree with your non-hearsay purpose, you do not want us to permit it? we are allowing here say into the record. you do not want it in for perce purposes? -- for here say purposes? -- for hearsay purposes? >> for this time friend, it is

relevant for mind set. it is hard to say i would not want any of it admitted. i would offer it, but it is hard to say which of these is covered by other evidence. >> if we find it does not go to a non-hearsay purpose, there are things you would not want to come into the record, which you otherwise want to come into the record? >> i want to be frank about the other evidence the hearsay evidence might supplement. since we are covering different topics, we would offer a generally. as far as the truth of the matter, i think the state of mind is probably the most significant. >> my view is that we admit the hearsay testimony, and we decide

later when we are actually evaluating the fact, or whether it should be administrative here say. i welcome the views of my fellow commissioners on that. >> i have a question which may be a little bit off target. some of the testimony which we may exclude on a hearsay basis or irrelevance basis, if a witness comes in and testifies to the contrary, has that opened the door to getting this testimony come in on a credibility question?

something that has troubled me, as i have thought about the declarations and the cross examination that will occur, is that we have excluded something. if the witness testifies that x does not happen, and it is not a credibility issue when somebody else in the declaration says it did happen, i would just like a little education on that. >> i think that is the correct observation. i think that -- it has become even more correct, in light of the fact that we did this stipulation before ms. lopez's documentation king in. this would put some evidence into dispute. we may need to revisit. i am not sure exactly how we would do that, other than to may

be set up a time to do it after all the testimony is in, and say that since the witness testified in this way, the statement by another witness might come in as a credibility issue. >> i am not sure i follow. it was a rare instance when we excluded testimony surely -- purely on the basis of hearsay. typically, our exclusions or relevance based. -- were relevance-based. irrelevant testimony will presumably be excluded, subject to objection. if it comes in and contradicts a hearsay statement, i am not sure the statement necessarily goes to the credibility. i do not know. mr. kopp?

>> i do not want to be in a position where people are trying to set up impeachment on some collateral issue, some irrelevant issue the commission has already determined is irrelevant. >> while i certainly want to get this record right, we spent a lot of time on this. i am hesitant to open the door to revisiting rulings we made, and the notion of going back through all the declarations at the end of the testimony is not something i would support. i do not know if you had anything particular in mind, about things we have excluded. >> i did not necessarily have anything in particular.

you used the magic phrase that all trial lawyers worry about. that is "opens the door." when i read some of the statements that were made in ms. lopez's declaration, it does raise a question in my mind. they are putting that document in. we have ruled earlier on some of the subject matter. if counsel for the sheriff puts it in their document, the classic argument is that has opened the door to an area where we have precluded it in the mayor's case.

i have nothing specific in mind but i think it's something both sides should be aware of. >> i see the point. i suspect that the mayor is going to hold us to our previous decisions with respect to other declarations and will object to portions of lopez we deemed irrelevant. that would be my expectation. i think we should wait and see what the lopez declaration looks like once question get the objection. i understand the concern. ok. paragraph 21, the objection is to page nine, lines 21 and 22. i would overrule that objection.

i think it does go to state of mind. state of mind. does the commission have any comment with respect to the objections to paragraph 21? ok, hearing none, paragraph 23, page 10, lines 4 through 6, i would sustain this objection -- i'm sorry, that was already stipulated. the dispute is the next one. page 10 lines 6 through 7. i would sustain that objection.

i think per rule 352, it's more highly prejudicial then probative. >> i completely agree. i think it's very presidential. >> any other comments from the commissioners with respect to the objection number b-2? maybe i will refer to it that way so we're all clear where we are. b-3, that is stipulation. b-4, page 10, line 17 and 18. i would overrule that objection. i think -- i think it should be admitted for a nonhearsay purpose.