Gay marriage foes ask court to stop judge from showing Proposition 8 trial video
Reporting from San Francisco -- The federal judge who presided over the Proposition 8 trial is under fire from Christian conservatives for showing a three-minute videotape of the trial on the lecture circuit.
The sponsors of the 2008 ballot measure that banned same-sex marriage have asked a federal appeals court to order retired Judge Vaughn R. Walker, who ruled against Proposition 8, to return the videotape so it can be put under lock and key.
Andrew Pugno, a lawyer for the Proposition 8 campaign, said Walker’s use of the video segment in lectures “violates every rule and every court order on the books.”
“Just from start to finish, the judge illustrated a consistently one-sided bias in the case, and going rogue with trial videotapes just further undermines the legitimacy of the trial outcome,” Pugno said.
But UC Irvine Law Dean Erwin Chemerinsky said the move against Walker, a Republican appointee who is openly gay, appeared aimed at embarrassing him because of “anger at his decision.”
“I think there is an enormous difference between broadcasting the trial and showing a three-minute clip as part of a lecture,” said the law professor, who declined to predict how the U.S. 9th Circuit Court of Appeals would rule on the matter.
Lawyers for ProtectMarriage, the Proposition 8 campaign, have told the 9th Circuit that Walker’s use of the video recording “defied” the U.S. Supreme Court, violated his own court order sealing the video, flouted various court policies and amounted to judicial misconduct.
“The trial recordings were not the personal property of Judge Walker, for him to use as he pleased,” attorney Charles Cooper told the court. “He had access to them only by virtue of his role as the judicial officer presiding in this case.”
Walker, who presided over the 12-day trial in San Francisco last year, initially planned to videotape the proceedings for public viewing. But ProtectMarriage objected and took its case to the U.S. Supreme Court, which ruled 5-4 along ideological grounds against cameras in the courtroom.
The high court’s conservatives said the Proposition 8 trial was unsuitable for broadcast because witnesses might be intimidated or suffer retaliation.
Walker relented but permitted videotaping for the court’s use and for viewing by an overflow crowd in another courtroom.
ProtectMarriage said the 9th Circuit should order Walker to refrain from future disseminations “to ensure that the confidentiality of the trial recordings is not breached again, as well as to restore public confidence in the judiciary.”
The videotaped recording shows Claremont McKenna College professor Kenneth P. Miller being cross-examined about the relative political power of gays, a matter relevant to whether sexual orientation requires special constitutional protection. ProtectMarriage hired the political scientist as an expert witness.
In a letter to the 9th Circuit, Walker, 67, said he considered the video part of his judicial papers when he retired earlier this year.
He said he has given about six lectures on cameras in the courtroom and used slides or videos from several trials, including the O.J. Simpson criminal case.
“The basic point of the presentations is that videos or films of actual trials are more interesting, informative, compelling and, of course, realistic than reenactments or fictionalized accounts,” wrote Walker, who did not respond to a call for comment.
Walker said he used the video from the Proposition 8 trial in talks to a class he teaches at UC Berkeley’s law school, to a legal group and in a lecture at the University of Arizona, which was broadcast on CSPAN.
“If the court believes that my possession of the videos as part of my judicial papers is inappropriate, I shall, of course, abide by that or any other directive the court makes,” Walker wrote.
The Proposition 8 case “involved a public trial,” Walker reminded the 9th Circuit. Quoting from a late chief justice, he concluded: “‘People in an open society do not demand infallibility in their institutions, but it is difficult for them to accept what they are prohibited from observing.’”
ProtectMarriage also wants the 9th Circuit to order the attorneys challenging the marriage ban, which remains in effect during appeals, to return their copies of the videotape, which they used in closing arguments.
In opposing the ProtectMarriage motion, the same-sex couples who sued to overturn the measure said the 9th Circuit should not only deny the motion but should make the videotape of the entire trial public.
“There was no reason to keep the video of this trial under the cover of darkness in the first place,” the plaintiffs said in a court filing.
Attorneys for the news media, including The Times, also have urged the 9th Circuit to reject the motion and make public video recordings of the trial.
Then-President Reagan initially nominated Walker for the bench, but gay rights groups lobbied against the Republican lawyer. President George H.W. Bush eventually won Walker’s confirmation.
Viewed as a conservative with libertarian leanings, Walker infuriated gay rights groups when he was a lawyer by representing the U.S. Olympic Committee in a lawsuit against a gay athletic competition.
A decision by the 9th Circuit on the videotape is pending.
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