Court won’t release videos from Prop 8 trial

LISA LEFF | Associated Press

LOS ANGELES — A federal appeals court refused Thursday to unseal video recordings of a landmark trial on the constitutionality of California’s same-sex marriage ban but said it needed more time to decide if a lower court judge properly struck down the voter-approved ban.

Siding with the ban’s supporters, the 9th U.S. Circuit Court of Appeals in San Francisco ruled the public doesn’t have the right to see the footage that former Chief U.S. District Judge Vaughn Walker had produced with the caveat it would be used only by him to help him reach a verdict.

Chief Judge Walker “promised the litigants that the conditions under which the recording was maintained would not change — that there was no possibility that the recording would be broadcast to the public in the future,” a three-judge 9th Circuit panel said in a unanimous opinion.

The 2010 trial over which Walker presided lasted 13 days and was the first in a federal court to examine if prohibiting gay couples from marrying violates their constitutional rights.

It was open to the public and received widespread media coverage, so the recordings would not have revealed any new evidence or testimony.

Walker, who has since retired and revealed he is in a long-term relationship with another man, originally wanted to broadcast the trial in other federal courthouses and on YouTube.

The U.S. Supreme Court forbade him from moving forward with that plan after the ban’s sponsors argued that distributing trial footage could subject their witnesses to harassment.

At the time, the 9th Circuit did not allow the federal courts within its jurisdiction to televise trials. The appeals court since has adopted rules that would permit trials to be broadcast under limited conditions.

“The 9th Circuit correctly ruled that when a trial judge makes a solemn promise, as Judge Walker did by assuring the parties that the trial video would not be publicly released, the judiciary must not be allowed to renege on its pledge,” said Austin Nimocks, a lawyer for the coalition of religious conservative groups that sponsored Proposition 8,

“To rule otherwise would severely undermine the public’s confidence in the federal courts by breaching the bond of trust between the people and their justice system,” he said.

The 9th Circuit has said it wanted to resolve the public release of the trial videos before it addresses the more substantive issue of whether Walker correctly struck down Proposition 8 on federal constitutional grounds.

The appeals court panel heard arguments about that a year ago, but does not face a deadline for making a decision.

A coalition of media organizations, including The Associated Press, and lawyers for the two couples who successfully sued to overturn Proposition 8 in Walker’s court have petitioned to have the Proposition 8 trial recordings made public on First Amendment grounds. The group maintained the ban’s backers have not proven their witnesses would be harmed if people got to see what they said under oath.

Walker’s successor as the chief U.S. district judge in Northern California, James Ware, agreed in September and planned to unseal the videos. In its Thursday ruling, the three-judge 9th Circuit panel said Ware had erred and ordered the recordings kept under seal.

“The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word. The record compels the finding that the trial judge’s representations to the parties were solemn commitments,” the appeals court said.

The panel also refused to return to Walker a copy of the recordings that Ware gave his colleague upon his retirement last year. Walker had used snippets of footage in public talks about the value of broadcasting court proceedings, but gave it back while the skirmish over the videos played out.

Gay rights advocates said they wanted to use the recordings to try to puncture political arguments used by opponents of same-sex marriage, but that Thursday’s decision would not be an insurmountable obstacle to that goal.

Screenwriter Dustin Lance Black, who serves on the board of the group funding the effort to overturn Proposition 8 in court, has written a play called 8 based on the trial transcript and interviews from the 2010 court fight that will premiere in Los Angeles next month with a cast that includes George Clooney, Jamie Lee Curtis and Martin Sheen.

“The fact that (the marriage ban’s backers) have gone this distance to keep the tapes from the American public, what it has done and increasingly will do, is inspire efforts that we will help lead to make sure the public knows what happened in the courtroom,” said Chad Griffin, president of the American Foundation for Equal Rights.

—  John Wright

Judge mulls unsealing videos from Prop 8 trial

Judge James Ware

After Monday’s hearing, Vaughn Walker’s successor says he’ll issue written ruling at later date

LISA LEFF | Associated Press

SAN FRANCISCO — The legal sparring over California’s same-sex marriage ban returned to a federal courtroom Monday with a judge hearing arguments on whether he should unseal video recordings of last year’s landmark trial on the constitutionality of the voter-approved measure.

Lawyers representing two same-sex couples, the city of San Francisco and a coalition of media groups that includes The Associated Press asked Chief U.S. District Judge James Ware to make the recordings public.

They maintained that allowing people to see the proceedings for themselves was necessary to demonstrate why Ware’s predecessor, former Chief Judge Vaughn Walker, ultimately struck down the ban, known as Proposition 8, and to counter any perceptions that Walker was biased against same-sex marriage opponents from the start.

“Releasing the video would allow everyone to review and make their own judgment about what happened,” Theodore Boutrous, the couples’ attorney, told the judge.

Ware did not rule at the end of Monday’s hearing but said he would issue a written ruling at a later date.

Attorneys for the ban’s backers want to keep the videos under wraps. They argued that disseminating oral and visual recordings of the 13-day trial would be a direct violation of the U.S. Supreme Court’s position on the issue.

As the trial got under way in January 2010, the high court, on a 5-4 vote, blocked cameras from covering the high-profile case so they could be streamed live to other federal courthouses and possibly posted on YouTube.

Walker, asked the court staff to keep shooting the proceedings, but sealed the videos with the understanding that they were being produced for his own review in reaching a verdict.

“We were entitled to rely on those unqualified assurances, and we did,” David Thompson, a lawyer for the religious and conservative groups that sponsored Proposition 8, said about the move by Walker.

In taking the matter under advisement, Ware said he was torn between the desire to preserve public access to court proceedings and upholding the integrity of the courts.

“The judicial process is affected when a judge takes the position of, “I will seal this and use it only for a limited purpose,’ and then that is changed by a different judge and unsealed and used for a different purpose,” the judge said.

Walker’s ruling from last August overturning Proposition 8 as an unconstitutional violation of the civil rights of gay Californians is currently on appeal. The recordings are part of the case record before the 9th U.S. Circuit Court of Appeals.

Also before the federal appeals court is the proponents’ challenge to Ware’s refusal in June to vacate Walker’s decision. The ban’s sponsors have argued that Walker should have revealed he was in a long-term gay relationship before he presided over the closely watched trial.

Boutrous said at Monday’s hearing that the move to challenge Walker’s impartiality made it more important for the public to see the videos first-hand.

“They tried to undermine the integrity of the court by attacking the proceeding,” he said.

Ware did not seem convinced. He noted that during his 24 years on the bench, “I’ve had lots of parties attack me” and that it was up to the appeals court, not the public, to decide if Walker had acted appropriately.

Gay rights supporters already have used the written transcripts to recreate the full 13-day trial for online audiences. Next month, Morgan Freeman, Marisa Tomei and other big-name actors are scheduled to perform a dramatic play about the trial that screenwriter Dustin Lance Black, who won an Academy Award for the film “Milk,” created from the written testimony.

To those who have not been following the Proposition 8 narrative closely, it therefore may not be immediately obvious why attorneys were spending their time and clients’ money fighting over the recordings as if they were the Nixon White House tapes.

Gay rights supporters claim the footage is their smoking gun, proof that arguments against same-sex marriage cannot hold up under rules of evidence sustained scrutiny and legal standards.

They want to use live segments, especially the cross-examinations to which the expert witnesses called by Proposition 8′s supporters were subjected, to nudge the American public further in its embrace of same-sex marriage, although it’s unclear what the vehicle for the snippets would be.

“There really is only one question–what do they have to hide?” said American Foundation for Equal Rights President Chad Griffin, whose group is funding the Proposition 8 case.

The Proposition 8 defense team, meanwhile, has argued that putting the trial recordings into the public realm could subject their witnesses to unwanted scrutiny in a way that written transcripts have not.

In persuading the Supreme Court to block the broadcasts, lawyers had argued that same-sex marriage opponents feared being harassed by gay rights supporters if their images were distributed widely.

—  John Wright