Live-blogging from San Francisco: Today’s Prop 8 trial hearing on releasing the tapes
The subject of this hearing is the plantiffs’ motion to unseal the videotape recordings from the Prop 8 trial. Courage’s Rick Jacobs and Ana Beatriz Cholo are sending in dispatches from the courtroom with other members of the P8TT community contributing. Updates will scroll from the top
By Adam Bink
11:36 (Adam): Rick and Ana report in that things are concluded for the day. Thanks to everyone for following and contributing especially in the comments!
As you know, it takes resources (travel costs, staff time, web hosting, tech support, etc.) to provide this important space. And since this space is the #1 Google search result for Prop 8 trial, we want to make sure we’re on-point and full-throated when it comes to covering the trial and ensuring accuracy when folks stumble onto us.
To that end, if you like the coverage we’ve provided here, please consider becoming a Sustaining Member of the Courage Campaign to see this trial through. As you saw when the AFER legal team screened our members’ re-enactments, we’re making a difference. As you saw when our members’ signatures were mentioned in the Supreme Court dissent on whether to televise the trial, we’re making a difference as creating the first-ever online petition to be mentioned in a Supreme Court case. But we need your help to continue, for the cost of a few coffees per month. Join us!
Thanks again. This thread will no longer update.
11:26 (Ana): Pugno is now holding court with reporters, making the claim that he must guard against the release of the tapes to protect against witness intimidation, a year and a half later. Reporters are asking why not release the tapes, especially since Pugno and co. claim bias on the part of Judge Walker.
11:15 (Ana): A question comes up about standing in the case. Boutrous says if the courts rule that the Prop 8 proponents have standing, they’ll win on the merits. If there is no standing, Prop 8 falls.
11:10 (Ana): Boutrous: The Prop 8 tapes aren’t “state secrets.” Notes that the Prop 8 proponents don’t want the tapes out because they change peoples’ minds. Notes that if Judge Ware rules against them, the next step would be to appeal to the 9th Circuit.
11:02 (Adam): Chad Griffin from AFER asks the key question, “What do they have to hide?” Boutrous notes that there are so many re-enactments out there, but nothing like the real thing, and that’s why the tapes should be released. Absolutely right.
10:52 (Ana): AFER is holding a press conference downstairs. More coming from that.
10:50 (Adam): The court stands in recess. What do you think?
10:49 (Rick): Boutrous: Mr. Thompson suggests that Rule 77.3 means could only be viewed in courthouse. When we asked for copy of tape, they did not object. We viewed outside of courthouse for preparation for today and other work. No ironclad rule that you cannot view outside courtroom.
Judge: In fairness, you viewed under protective order.
Boutrous: Yes. Supreme Court treats contemporaneous release of oral arguments, which they have been recording for 50 years, differently from delay. They do release on delayed basis. Supreme Court did not rule on delayed release. So we request release.
Judge: As I walked into the building today, I saw a sign that said, Free the Tapes (laughter). It’s not lost on court how important this is. I will take this under submission. We live in a world where the media has found it’s way into the courtroom and I generally feel that’s for good. It’s a part of our government that’s important to our form of government. Even our court has opened up to cameras. This is an issue not so much about cameras about this record that has been made. I do appreciate that the record and subject matter if of high public interest and the use of the tape might heighten public interest. There’s an old argument that parents use with kids to say, “because I said so.” There’s a little bit of concern about following rules as they are. The one conflict you’ve set for me is the compelling reason to open record. There is no Congressional law or Supreme Court rule that says there cannot be broadcast. I want to take that under advisement. I don’t feel same urgency as I felt under previous issue (is Walker biased?), but I will rule quickly. I want to find out if 9th has record. In the good old say, the record went up to the 9th and we did not have the record any more. I am also interested to find out if I am changing the way we do things so that the clerk of this court should change who has record or if I’m directing my ruling to 9th’s clerk.
I do appreciate the time and effort and expense your clients allow you to devote to these matters. The court is in recess.
10:45 (Ana): Ware says he doesn’t feel a sense of urgency, but won’t delay very long before giving a ruling.
10:43 (Ana): Ware: it’s not lost on the court how important how the kinds of arguments being made here are. I will take this under submission.
10:39 (Rick): Boutrous: Last point, that you would be able to see and hear what they sound like (witnesses) is flimsiest thing I can imagine. Can see Blankenhorn and Miller all the time. One of the things that has changed is Scalia ruled that when people donate to initiative battles (ie around marriage) they enter public debate. Same here.
I thought that Thompson would say that there has been some harm or threat to witnesses, but did not happen.
Thompson has elevated Rule 77.3 above 1st amendment. Once it is part of record, it’s different. Supreme Court did not rule on that. Courts have not ruled on this. Courts have not said there is right to broadcast. Common law rights allowing public access applies to all evidence, transcripts, etc. Mr. Thompson did not address because 1st Amendment arguments have to be much more narrow.
10:38 (Ana): Boutrous back up. Says argument re: real video & reenactment is “you would know how witnesses look like, sound like” – “flimsiest argument”. Says Thompson has elevated Rule 77.3 above the 1st Amendment.
10:35 (Rick): Judge: That’s for contemporaneous broadcast. But would it be same for five years from now?
DT: Witneses may be unwilling to step forth if they are subject to broadcast on national TV. Irreperable harm.
Judge: Don’t I need a hearing to prove that later irreparable harm might appear?
DT: That has been litigated.
Judge: They were dealing with situation where court would broadcast to other courthouses and then later might appear on CSPAN or something.
DT: The Media Coalition says trial is now closed. Was sealed in August 2010.
Judge: Why not seal transcript? There are rules that allow you to seal transcript. Why would not transcript be sealed?
DT: Because the judicial conference has found substantive difference between broadcast images and words.
Judge: Is there something different about video?
DT: Well, if it were public, it could be on YouTube and would lead to harrassment…
Judge: Entire transcript can be and is in public domain. The narrow issue you raise is that there would be something intimidating with video.
DT: Yes. You’d know what witness looks like, sounds like.
Judge: You know what they look like and sound like. This was connected to other courtrooms, but you raise question about permanence, that it can be repeatedly viewed.
DT: I have been thinking about the issue of 9th Circuit seeing it. I have to think about it.
Judge: I won’t quote you in my order, but I will have to address there. I cannot conceive of any circumstance that the reviewing court cannot see. Sounds like you have moved from not available to reviewing court to no position.
DT: Yes. I ask for stay if you do unseal.
10:30 (Rick): Judge: Does 77.3 (the local rule about broadcasting) make it part of the record or not?
DT: It’s immaterial.
Judge: Your argument is whether this recording is part of the record or not? I can see your concern about broadcast. Was there objection when the judge recorded for his use?
DT: 77.3 says you cannot be electronic transmittal is permitted if authorized by judge or magistrate judge, but Supreme Court says negative inference is cannot broadcast.
Judge: Are you saying if it’s removed from seal, it’ll be broadcast? Same true if I remove protective order, parties are free to do what they please?
DT: If court unseals, it’s immaterial. Whether plaintiff’s lawyers are under order or not, public would have it.
Judge: Let’s suppose you have to prove burden, like a trade secret.
DT: Supreme Court says qualitative difference between public broadcast…
Judge: Supreme Court ruled that way because 9th made amendment to local rules and felt the timing of implementation of local rule was not sufficient. You are saying that even if it had been sufficient, the Supreme Court would have said you can’t show it under any circumstances.
10:25 (Adam): Rule 77.3, referenced below, can be found here (thanks to Alan E. from the comments).
10:23 (Rick): Judge: To your knowledge, no one raised striking this from record?
DT: Correct.
Judge: Do you accept burden to keep under seal?
DT: I’d make a couple of points. Rule 77.3 removes burden unless they (Boutrous et al) can prove this violates 1st Amendment. They argued this to the Supreme Court when trying to get say lifted. No constitutional right for broadcast. Boutrous said this is not quite the same thing as evidence. All the common law requires is to make actual evidence and trial transcript public.
Judge: Marvelous thing about common law is that it is common until applied. Your argument is that I am legally foreclosed from opening seal?
DT: Eg of video tape of Clinton testimony which was played in court in lieu of testimony. Ruling that public had right to view at time in manner jury saw, no requirement that it be made public in the same form (8th Circuit).
10:17 (Rick): David Thompson for Prop 8 proponents: Chief Judge Walker represented in court, in written notice on 15 January and said “the potential for public broadcast has been eliminated.” We are entitled to rely on those assurances and we did. Our experts doubted, but one did step forth.
Judge: Would it be improper for 9th Circuit to play the to play?
DT: No electronic transmission outside of this courtroom.
Judge; Even though it’s part of the record, it’s not permitted for the 9th?
DT: Yes.
Judge: When a record goes up on appeal, 9th unable to see it?
DT: Yes. They could come to this courtroom to see it.
Judge: Even the 9th can’t come here?
DT: Well, we might not like this, but it would violate plain letter of this.
Judge: I need to examine this carefully because the 9th asked me to decide. I’ve had state secrets cases that were sealed, but 9th can unseal to decide. You’re arguing that 9th can’t unseal.
DT: No, I’m saying that this tape cannot be seen.
Judge: But you are saying that this tape is not part of record?
DT: No. It’s part of record, but Judge Walker said it was not going to be publicly broadcast. Not concerned about 9th, but about unsealing for public.
Judge: Walker put seal in place on own? I thought reason for sealing was to keep out of public record, but hearing your argument as I do, I must particulate the argument so that 9th may not see it.
DT: Purpose of seal is to keep it from the public. Our concern about it being made public would not obtain if the 9th and employees see it.
Judge: But 9th broadcasts. They cannot play it in open court.
DT: Would object.
Judge: Was there objection when played here?
DT: No because it was not played outside of courthouse. Candidly did not think about exception for 9th and rule does not contemplate that;.
10:15 (Ana): Judge Ware: “somewhat concerned” that proponents are arguing that the videotapes should not even be shown within the 9th Circuit.
10:09 (Ana): David Thompson is now speaking for the Prop 8 proponents.
10:08 (Rick): Burke: It’s all of it. Very fact that it’s secret raises question as to why it’s secret. (Judge leands on right hand, listening intently)
Judge: If this motion had been made on January 14 2010, the day after the Supreme Court ruled, your argument would have been different or the same?
Burke: Your honor, the trial would still have been going on then. But now the record is complete. There is no evidence, not even a declaration before the court, that the sealing order should remain in place. If there was that showing, it might be close, but there wasn’t. State appellate court ruling in 1990, show that 1st Amendment can rise above confidentially. Dealt with juror questionnaires. Rights of confidentiality do not trump public’s rights to know. Not unprecedented to have a difficult circumstance… the court can apply a test that is not in dispute with 9th Circuit and unseal.
Re: court’s need to assure the public’s rights to access, integrity to assure public has right of access. Clear there is public interest in this trial. When courts rule—CA Supreme Court, 9th or US Supreme — will decision be understood by those who have to follow it? This video tape captures the process of the extraordinary case. Very few cases go to the 9th circuit, to the CA Supreme Court three times, affects millions of people. Idea that you would keep them sealed calls into question that there is some secret. What is the secret?
Now it calls into question that Judge Walker had bias. Those decisions deserve sunlight, particularly here where there is no harm.
10:02 (Rick): Mr. Burke (For media consortium): What is common law right for access? It is not even close. Compelling test to preclude public access is not met here. The court knows and the court’s students, had they come here, would undoubtedly say that with sealing order, you revisit later. The situation has changed. The trial is over. The record is complete. It’s not as if the trial will be reponed. Record is complete. Remarkably, it is pending before two courts: in one sense, it’ll be heard for the third time before CA Supreme Court and before the 9th.
If you can re-enact on the streets of Los Angeles, surely the public cannot be hurt by and the public can be benefited by seeing the evidence. In this very week that the issue about unsealing came about, proponents challenged and its now before the 9th Judge Walker’s ability fairly to try the case. By saying that Walker is biased and could not act fairly, public perception is that trial was unfair. That’s very important.
Third is that there is no harm in making public. How can court proceedings publicly be conducted but under seal? How could you have a case where public’s interest in seeing, you have reenactments and the prospect of a Broadway performance, how can you say that the public is not interested? Is the standard satisfied if the public is interested and cannot see the evidence?
Judge: You have put your finger on a key question. Circumstances of recording call into question whether I should treat recording same as other documents in trial? The recording exists because Supreme Court said it would be sealed.
9:57 (Ana): Mr. Burke is up from the media coalition representing newspapers, TV stations, etc. He opens with the argument that the trial is complete and the record is closed, and not like it will be re-opened. Notes that the Prop 8 proponents’ claims of unfair trial actually merits release of footage to let the public decide.
9:56 (Rick): Judge: Anyone who testifies in a trial must know that anyone can read transcript, reenact. But when a judge says something is sealed, how does that affect witnesses or others when record is unsealed by another judge? Let me give you an example. If a US attorney comes to me in a trial and says in camera to me that a disgruntled employee was accusing a witness of something, but I see that it’s not worthy, so you don’t have to make it public. So I seal. And then another judge later on unseals and that hurts the integrity of the witness who has been unfaifly assailed. Speak to how one judge can unseal something of the other and what effect it wil have?
Christine: In this case, we have recording made without objection for Judge Walker to use in chambers. He did so. There was no motion by the proponents to strike from record. So today we have part of trial record that is sealed. Integrity of court is best pursued in long run that 1st amendment governs unless there is specific reason to keep sealed. I do understand that there are policy considerations to this decision, but this court has case law to apply. Perhaps there will be rule changes. I understand this may be uncomfortable for court, but that’s where we are.
9:51 (Ana): Christine: in 18 months since trial, no one has approached or intimidated the witnesses. Nothing. No adverse consequences whatsoever.
9:49 (Rick): Christine from SF City Attorney’s office is up arguing.
Christine: Judge relied on video. 9th circuit says that hypothesis must be concrete. First is that proponents relied on facts that were very limited. They used media accounts and hearsay to go to Supreme Court to seal. That record discussed instances of true intimidation, which is horrible, with economic boycotts. The latter is part of our tradition per the Supreme Court. Prof. Segura during trial showed thast economic boycotts are part of tradition and are protected under 1st amendment. The facts that the proponents provided were before the trial, saying that one of their witnesses would not have testified had it been public, but no proof. No evidence that anyone has intimidated or approached Blankenhorn or Miller (their ONLY two witnesses) has happened since trial. Not something court can rely on.
9:45 (Rick): Boutrous tries to introduce something that Blankenhorn, widely quoted and publicly appeared, on C-SPAN video (a marriage debate outside of the trial). Other side objects while “cheerfully stipulating” that Blankenhorn appeared publicly, but no new evidence.
Judge: Sustained, but note that the video is already submitted so it’s public.
Judge: What is the rule? If you are saying that the court should be part of public education, I’d say kick that upstairs to the policy makers.
Boutrous: The idea of the trial was outrageous. They tried to undermnine the integrity of this court by attacking Judge Walker. They appealed ruling saying that Judge biased. Therefore, they should be barred from arguing against releasing tapes. They are tying to undermine ruling by challenging Judge Walker himself. That is special, narrow reason in addition to broader reason. That’s why we ask that the court unseal.
Judge: One of things judges’ faces is being attacked in public. I have been assailed many times in my 24 years. There’s nothing you are doing that would enhance your chances on appeal. You are asking me to take the view that the public should have the right to see which might be better done by those representing the media.
9:39 (Rick): Boutrous: In the real version, Mr. Blankenhorn seems more sincere, but that’s because the actors had not seen the trial. Two more clips. During Mr. Blankenhorn’s direct testimony, he volunteered and explained something about deinstitutionalization of marriage.
Plays both original and reenactment. (“I meant to say for our own purposes today, heterosexuals did the de-institutionalization of marriage. De-institutionalization is not something that just crops up a few years ago when we discussed extending marriage rights to gays and lesbians. It predates all of that.”)
9:36 (Rick): Boutrous: Your honor, I cannot see why the public should not see the real thing when public can see it with actors. I’d like to show Blankehorn’s real testimony and then reenactment. (Now we again see Boies cross-examining Blankenhorn, their witness, who said, “We’d be more American on the day we allow same-sex marriage than the day before.”)
Another group at MarriageTrial.com did re-enactment of every frame. It’s pretty good, but not quite the same. (Shows the wonderful re-enactment on the split screen. So great!) Clip:
9:34 (Rick): (Really neat to see Marisa Tomei and Josh Lucas in West Hollywood’s Plummer Park reenacting trial for Courage Campaign. Makes me choke up. Seeing her reenact the testimony while watching Kristin and Sandy watch here in the courtroom is amazing.)
Boutrous: Now play real thing that we used in trial. (Shows Olson questioning Perry with Walker watching. The three split screens that I so remember during the trial. This is what I watch most of the time, as I was usually in the overflow room. And here I watch Kristin and Sandy and Chad and Adam watch their trial. It’s so powerful. Everyone needs to see this!)
9:31 (Rick): Boutrous: This part of evidence in open court. Won’t harm anyone.
Judge: Part of record because Judge Walker made it so. What causes unfettered discretion?
Boutrous: We believe if court had announced that if he wanted to make a movie…
Judge: What about a sealed record as your opponents say with condition that it would never be seen by anyone else?
Boutrous: Proponents know difference between judicial record and otherwise. Should have been clear to them that once it was judicial record, they should not have been lulled into sense it would remain private. Not one bit of evidence, not one whiff, that their witnesses have been harassed. Oregon case with murder said transcript should be sealed, but court said no. Restriction must further the interest they promote. Here they have no such extension.
Boutrous: Re-enacted by actors and public. Want to show clip. The Courage Campaign tried to get public to re-enact trial, a worthy endeavor. To kick that off, they had Marisa Tomei and Josh Lucas reenact Perry Testimony. Plays the following clip:
9:28 (Adam): A fact sheet (pdf) from AFER on what our opponents are trying to hide.
9:27 (Rick): Boutrous: Supreme Court said in Craig case that public’s right matters. Public needs to see a case. Better for defendant to have public looking in as a check (Supreme Court says) to keep fairness. Here, the defendants don’t want to let the public in.
Judge: How do you deal with inconsistency of public seeing vs. district court not being videotaped?
Boutrous: Once evidence is before court, 1st amendment higher and requires higher standard to prevent seeing it.
Judge: Using the video is the same as Walker’s notes which are not evidence.
Boutrous: But these are evidence because they were used during the closing arguments. I thought about this case. We have transcript. We have exhibits. We have recording that shows exactly what evidence is.
Judge: That does make a difference. We often have video marked into evidence. The transcript is evidence and documents are evidence. I have a hard time putting this as category of evidence. What rule of evidence applies? It is part of record and I am bothered by what to do with something that is record by judge’s action.
9:22 (Rick): Judge: I think we are admonished to pay attention to way case is decided, not to public. I try to avoid the public when deciding a case. Sounds to me that you think the trial should be made public for the public. The video is available to the 9th Circuit. Why should this court unseal record (did say fairness of trial matters)?
9:19 (Rick) (cont. from bottom of 9:16 update): Boutrous: I agree. The court reporter did a great job. Here it is particularly important to release the video because the proponents have attacked Judge Walker and tried to undermine the judicial process. They cannot have it both ways: say trial was biased and then block video. Under 1st amendment, must show why video should be sealed, narrow. They don’t come close to that. Their main argument is that their witnesses are subject to harassment, but that’s 20 months ago and none of that has come true.
The video testimony of two of their experts, we used in court. It’s all posted on court website. If they objected to video, they would have objected to using those videos.
9:16 (Rick): Judge: The motion is made by the plaintiffs. There are four parties who wish to speak. They’ll get 20 minutes each. Don’t feel obligated to use it all.
Boutrous: The court has described that our request to unseal is because it is the quintessential record of the trial and it will show the public why Walker struck 8. The first amendment requires opponents who want to unseal…
Judge: Let’s clarify our language. I draw a distinction between the judicial record and a document that is part of the record. Perhaps the recorders transcript is the only official record.
9:15 (Rick): Judge Ware: Purpose of today is a continuation of the hearing of earlier this summer about whether the video of the trial on which Judge Walker relied is to be unsealed. There is no motion asking that the recording be striken from the record. That has certain legal implications for how this document might be treated. Since we are a court of record, that has legal implications. This is not a motion which is further to any objection of the recording itself.
This is a motion made in combination of recusal of trial judge. We have not been asked to speak further to that issue.
9:13 (Rick): We begin. Judge Ware walked in, we all rose. He said “good morning,” but when there was not much response, he said, “not too friendly out there.” The laywers introduced themselves. The judge said, “I invited my class here. Is anyone here? (none). Their grade just went down a notch.
9:12 (Rick): When we think of this trial, it’s easy to groan about how long it has taken, but as I said to Kristin and Sandy, look at how far we’ve come. Kristin points out that “we just keep winning.” And even before the first verdict, which was a year and three weeks ago, we had already won.
Never before had such a mainstream powerhouse legal team assembled to put homosexuality and America on trial. The evidentiary phase alone put the other side out of business. Even more, the excellence of AFER’s conduct of every aspect of this trial has put the issue of marriage equality and full equality front and center in a way that we otherwise could not have imagined.
I keep saying, much to the chagrin of some in the movement and even the brilliant Linda Hirshman (for whose upcoming book about the history of the movement I can hardly wait), Prop.8 was the best thing that has happened to the movement in decades. It woke us all up and made us all realize that it’s our movement, not someone else’s. People like Evan Wolfson, the father of marriage equality, have been energized by the result. And this trial arose because the campaign was so outrageous. And because the idea of waiting or each state to vote on each other’s rights seems so un-American.
So yes, the trial has already worked its charms. I do hope the judge allows you all to see what I saw. That will help us put the “Stop SB 48” anti-eduation folks in their place as well.
9:05 (Adam): If you have to check out during the hearing, you can follow along with the intrepid live-tweeting from Ana at @equalityontrial and @couragecampaign. Go Ana!
9:04 (Rick): The atmosphere is different this time. The benches are mostly empty and the lawyer’s tables are also much less densely populated. There are only three attorneys at the oxymoronic ProtectMarriage.com table. Even Andy Pugno, the architect of mutitple legal defeats for his oxymoronic client (and his own defeat in running for Assembly as a one trick, anti-gay pony) is not sitting at the counsel table.
Chad Griffin, our hero who is the chief strategist and leader of the American Foundation for Equal Rights (AFER) and the Mad Men-looking AFER executive director Adam Umhoefer are in the row ahead of us with Kristin and Sandy Stier. Dennis Herrera, the irrepressible SF City Attorney is sitting with the brilliant Terri Stewart along with Ted Boutrous, Enrique Monagas and two others whom I don’t recognize.
We have two TV monitors on either side of Judge Ware’s courtroom, indicating that this time we’ll have video presented. And one or two of those may well be from Equality on Trial.
8:58 AM (Ana): ProtectMarriage.com’s Andy Pugno just arrived.
8:50 AM PST (Rick): Ana and I are waiting in the corridor on the 19th floor of the Burton Federal Courthouse. This time, almost no one is waiting to get in. Our field organizer Anthony Ash was here at 0530 with his mother and a friend from Fresno to assure that we’d have a place in line, but alas, the line consists of about ten of our intrepid P8TT community, including Voice of Concern and DaveP.
Every time I have the honor of live-blogging one of the installations of this marathon trial, I realize how grateful I am to each of you, whether here physically or otherwise. How can I forget that first day on 10 January 2010 when I happened to come upstairs here to “see what was going on,” only to realize that with the Supreme Court having stopped the video broadcast of the trial, this blog became the Prop. 8 trial central for tens of thousands of people. And we formed a community that has held together for nearly two years.
It’s that very issue that we’re here to “try” today, namely should the video recordings of the trial be made public? The question on its face seems almost absurd, considering that our blog made every jot and tick public as in time did others. And then the transcript itself appeared online verbatim. It was reenacted completely under the leadership of John Ireland. Courage Campaign’s Testimony: Equality on Trial made some of the most poignant scenes from that trial public with actors such as Marissa Tomei and Josh Lucas.
So the trial content is hardly secret. But the oxymoronic ProtectMarriage.com still wants to play hide the salami with the videos because they so fear that the truth will bury them and of course they are right. When lies and deception are destroyed, when the emperor truly has no clothes (or in this case is not much of an emperor to begin with), run for cover! Otherwise, the world will see that, well, you are naked and the view is not pretty.
Ted Boutrous with his mane of white/black hair and tanned visage gave me a hug as he and the wonderful Enrique Monagas, both from Gibson Dunn, made their way into the courtroom. This morning’s session will probably go about an hour. And you’ll be there. Yes, Ana and I will live blog and tweet, but you’ll be there all the more because the P8TT community inspired Equality on Trial which is actually part of the pleading from our side this morning.
Thanks for bringing the trial of the century alive. Thanks for the mutual support. If I could hug you, I would.
115 Comments August 29, 2011
