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Tag: David Boies

Liveblogging Day 12: Part III

By Rick Jacobs

The epic cross of Mr. Blankenhorn by the masterful David Boies continues.

DB: Badgett is someone whose articles I have read, but not sure of this particular article.

BO: Offer as evidence.

Cooper: No objection.

DB: I’ve read several of her articles and I appreciate the integrity of those articles. She’s obviously taken a position opposite of my own on almost every question, but she’s a good thinker.

Judge Walker: You got your answer.

BO: Amato article, move it in?

Judge Walker: Yes.

BO: This is an article in which Amato investigates how children in households with both bio parents differ with children from someone else.

DB: You are reading that from a summary.

BO: You’ve read the whole thing? (more…)

151 Comments January 27, 2010

Liveblogging Day 12: Part II

By Rick Jacobs

We are on break until 1050. I cannot adequately transcribe or describe what is going on. Mr. Blakenhorn is much more interested in winning small debating points than he is in being a good witness for his side, or for anyone. The judge admonished him gently by saying that his testimony will be weighed by his conduct as well as his expetise. He did not understand that. This is not good for them and it is good for us, but it’s bad for society to have a guy like this out there acting as a sanctimonious keeper of the truth on marriage. He wants to have it all ways; at end, he says he’d sacrifice the happiness and health of gay and lesbian families to maintain what sees as the essential institution of marriage.

Boies: Who are the principal scholars on whom you rely?

DB: Let me take a moment to make a note to myself as I collect my thoughts on that question.

[Walker stands up for a stretch, drapes arm over beige judge’s chair. Today is red tie with a sort of white polka dot pattern on a blue shirt.]

(Blankenhorn is left-handed, just FYI.)

DB: Would it be against procedure for me to consult a copy of my book to look at the index?

Boies: Putting on the record that you have not consulted your book and you don’t have a photographic memory, are there any writings or scholars on whom you rely? (more…)

134 Comments January 27, 2010

Liveblogging Day 12: Part I

By Rick Jacobs

It’s the last day for evidence in this trial. We’re still upstairs, in the 19th floor Ceremonial Courtroom. This morning, Teddy from FDL beat me to the room, but it’s pretty much our same little group. So far, there are about eight people here, with a few meandering in. I ran into AP’s Lisa Leff on the way into the building today.

Up on 19, we’ve formed a sort of community. Everyone is respectful of each other, even if we are not all on the same side. The Prop. 8 folks continue to sit in the jury box up here, behind me. I’m at the long plaintiff’s table, next to the projector that occasionally shows videos, slides and “demonstratives” from the trial room.

The other twelve foot long, blond wood table that would have been at home in a college library.

0834: The judge just entered.

Judge Walker: Good morning. Mr. Blankenhorn, you understand that you are still under oath.

DB: Yes

Judge Walker: The oath that you took yesterday still applies?

Boies: Good morning Mr. Blankenhorn. I’m going to start with some things we agree on. You agree that marriage is a public good.

DB: Yes.

Boies: What is a public good?

DB: Benefits society..

Boies: Good for children and couples.

DB: Yes.

Boies: You believe it would benefit gay and lesbian couples and their children to allow same sex marriage?

DB: I believe it is likely to do that. (more…)

279 Comments January 27, 2010

0 for 2: Blankenhorn Looks Lost

by Brian Leubitz

The Defendants continued their case today by calling David Blankenhorn. If you were watching the liveblogging today, you will notice that Blankenhorn is at times combative, and as Rick points out, a little “pastorly.” While he was perhaps more comfortable talking to crowds and in the witness stand than Prof. Miller, he also crumbled on cross-examination. How far did he stray from the defendants talking points? This far:

DB: I believe that adoption of same sex marriage would be likely to improve the well-being of gay and lesbian households and their children.

But, Blankenhorn started out in a far different place. Unlike Prof. Miller, Blankenhorn doesn’t have a university and a doctorate to shield himself behind. Sure, he does have a master’s degree in a questionably related field, but he did talk to a few people while writing his book. Oh, and he worked on a task force for President Bush the elder. But as for actually looking at the actual data, not so much:

Boies: You are aware that there are jurisdictions that have permitted same sex marriage?
DB: I am so aware.
Boies: Have you attempted to study effects of same sex marriage in any of these jurisdictions?
DB: Yes, but I want to explain my definition of study.
Boies: I’d like to explore this in an orderly way. Which countries?
DB: Tried to pay some attention to effects of same sex marriage in Scandinavia and Massachusetts. But I have not conducted scientific study with data. I have talked to people and read about it. I did not come up with expert findings on those subjects.
Boies: Your honor, I object.

By objecting, Boies was arguing that Blankenhorn was, in fact, not a qualified expert. Judge Walker noted that if it was a jury trial, he might not be admitted, but as their is no jury to prejudice, he allowed it. And, it is probably fortunate that he did. Because for all of Blankenhorn’s geniality, he couldn’t really escape his underlying problem: testifying before a judge isn’t about how friendly you are, or how pleasant you can be, it’s about the facts of the case. And Blankenhorn either didn’t know them, couldn’t remember, or just plain attempted to make them up. Take this exchange, where Judge Walker was getting visibly frustrated:

Judge Walker: Than why don’t share your answer?
Boies asks question again.
DB: I believe that some of the scholars believe that permitting same sex marriage would lead to deinst of marriage. And goes on…
Judge Walker: Shall I take that as a “I don’t know?”
DB: With respect your honor, I do know the answer. I said it and I can repeat it.
Judge Walker: (Quite exasperated) The record is quite clear on what you said.
Boies: What scholars said that same sex marriage will lead to lower marriage rates?
DB: It will take me a few minutes to compose my memory.
Boies: Let’s be sure you know what is being asked. Which scholars that you have named with Cooper assert that deinstitutionalization of marriage will be hastened by same sex marriage and will lead to lower rates of hetero marriage.
DB: Professor Norval Glenn said that. He’s one of the most distinguished family scholars.
DB: Prof. David Popenoe from Rutgers is another one.
DB: Popenoe says that same sex marriage will reduce hetero marriage rates. I can’t sit here right now that I cannot prove in exact word formulation what he said. If he were sitting here, I believe that’s what he would he say.
Boies: I am asking you to tell us what these people have written, not what you think they’d say if they were here, or what you believe they think. Do you understand the difference.
DB: Of course I do.
Boies: Answer my question.
DB: I am trying to the best of my ability. I came all the way from NY to be here to answer your questions to the best of my ability. I believe that Popenoe asserts that deinstitutionalization of marriage will lead to lower marriage rates, but I do not know if he mentioned same sex marriage.
Boies: While we were talking, I was looking at Professor Glenn’s paper. I don’t see that it mentions same sex marriage?
DB: It never occurred to me that everything I would say regarding my views had to be documented. I have studied this for twenty years. Maybe I made a mistake, but it never occurred to me that all of the views that I state had to tie to documents at end of book. If it did, this would have had many more scores of documents listed.

Oh, jeez, you big city lawyer, I didn’t realize that as an “expert” witness I had to base my testimony on documented facts rather than my own opinion or how I would think the real experts would answer.

This last statement is really rather stunning coming from a witness who was put on the stand as an expert. He essentially admitted that he doesn’t know how real academics work, or how a bibliography works, or really the subject matter that he is supposed to be testifying upon.

At the end of the day, Blankenhorn is like a scared 7-year old who hasn’t studied for a history test. I almost expected his last answer to be Yeti or Santa Claus. He was reaching, grasping for anything he could possibly reach. But, even he had to acknowledge that marriage equality would help gay and lesbian families. Blankenhorn is, after all, the guy who wrote a New York Times op-ed with Jonathon Rauch arguing that the federal government should repeal portions of DOMA and allow same-sex couples the rights of married couples, just not the name. Separate but equal. Everything but the name. Just make sure that gay and lesbians are just one step behind.

While Rauch might disagree, it is the hasty compromise of a man who sees the truth for what it is. Marriage would benefit gay and lesbian families. It wouldn’t harm straight families.

The Constitution’s promises of equal protection under the law will eventually win out. Separate but equal is anathema to the Constitution, and Blankenhorn’s career has been a story of a man fighting to keep small minds small. Today, he got called on it.

148 Comments January 26, 2010

Liveblogging Day 11: Daily Summary

By Julia Rosen

Can you believe we only have one day left of testimony? That’s a shame because watching David Boies cross-exam the defense’s witnesses sure has been entertaining. Our Trial Trackers can’t get enough of it. The stats and comments go through the roof any time Boies is grilling someone.

For those who like metrics as much as I do, we are now at 1.3 million views and over 13,000 comments. That’s more than a thousand comments a day.

Rick will be back tomorrow, which is likely to be a half day, since Boies just has to finish his cross examination of David Blankenhorn. Charles Cooper told Judge Walker today that they will not be calling Frank Schubert to the stand, so Miller and Blankenhorn will be their only witnesses. Then we will have a several week break before the closing arguments.

With that said, daily summary time… (more…)

54 Comments January 26, 2010

Liveblogging Day 11: Part VI

By Rick Jacobs

This witness is probably very clever. He is belligerent, but clever. I fear that even though he is worthless or worse for their side, he’ll be great to say that he was bullied or whatever. He was not. He’s just uncooperative and not an expert on anything discernable.]

Boies: Did Prof. Quayle write anything in here about same sex marriage?

David Blankenhorn (DB): No. I’m not aware of her ever having said anything about same sex marriage. That was written in 1988.

Boies: Deinstitutionalization?

DB: No. She’s a historian. That’s a term that comes from sociology.

Boies: Neither Davis, nor Quayle, or Fraser, nor Committee of Anthropology of Northern Ireland, nor prof. Vandenberg, nor prof. Malinowski talk about same sex marriage or deinstitutionalization of marriage?

DB: Not correct.

Boies. I was trying to speed things up, but it won’t work. (more…)

169 Comments January 26, 2010

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