Bench Memos

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Walker’s Continuing Mischief on Videotaping Trial


Back in January, Judge Walker originally arranged for the videotaping of the anti-Prop 8 trial as part of his unlawful plan to broadcast the trial.  Walker’s broadcasting plans were ultimately thwarted by the extraordinary (and fully warranted) stay order by the Supreme Court in an opinion that was plainly a stinging rebuke of Walker’s lack of impartiality:

The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.

As the Court pointed out, “Some of [Prop 8 proponents’] witnesses have already said that they will not testify if the trial is broadcast, and they have substantiated their concerns by citing incidents of past harassment.”  (Slip op. at 13.)

After the Court blocked Walker’s broadcasting, Walker, over the objections of Prop 8 proponents, proceeded with his plans to videotape the trial.  The reason offered by Walker for his continued videotaping was his own “use in chambers” of the videotape:   “I think it would be quite helpful to me in preparing the findings of fact to have that recording.”  (Trial transcript at 754:18-20, 755:3-4 (Jan. 14, 2010.)

As Prop 8 proponents informed Walker (see Walker’s final opinion, at 35-36), several of their expert witnesses refused to testify because Walker continued the videotaping.  And who could blame them?  Given Walker’s remarkably biased course of conduct even as of that date, there was little reason for anyone to trust his representation that the videotapes would be only for his own “use in chambers.”  Indeed, it’s difficult to take seriously Walker’s contention that the videotape “would be quite helpful … in preparing the findings of fact.”  The trial transcript was obviously a superior resource for ease of review, and it seems unlikely that Walker would ever have had cause, say, to review a witness’s videotaped testimony to assess the witness’s demeanor.  (Imagine Walker to himself:  “Ah, yes, plaintiffs’ expert didn’t even blush when she contended that gender and procreation have never been at the core of traditional marriage.  How compelling!”)

As it happens, Walker has amply vindicated the distrust of the witnesses who refused to testify.  He broke his word that the videotape would be used only for his own in-chambers use when he, out of the blue, issued an order stating that a copy of the video would be made available (subject to a protective order) to any party who wished to use part of it during closing arguments.  Copies of the video were then made available to plaintiffs.  After closing arguments, Prop 8 proponents requested that plaintiffs return the videos to the court, but plaintiffs refused.  Prop 8 proponents then asked Walker to order plaintiffs to return the videos, but Walker rejected their request and affirmatively authorized plaintiffs to “retain their copies of the trial recording.”  (Final opinion, at 4.)  It’s reasonable to expect that, thanks to Walker and notwithstanding the protective order, the trial video or edited clips from it will one day suddenly appear on the Internet.

Notwithstanding all this, Walker has the gall to contend that Prop 8 proponents “failed to make any effort to call their witnesses after the potential for public broadcast in the case had been eliminated.”  (Final opinion, at 36.)  In fact, Prop 8 proponents informed Walker that their witnesses were refusing to testify because he continued videotaping the trial.  (See final opinion, at 35-36.)  And given Walker’s actions, the witnesses were correct to believe that the “potential for public broadcast” had not been eliminated.


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