Bench Memos

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Judge Walker’s Gambit to Bamboozle the Supreme Court—Part 3


The joint gamesmanship of Judge Walker and Ninth Circuit chief judge Alex Kozinski in support of their goal of televising the anti-Proposition 8 show trial has been so transparent that even a news article in San Francisco’s legal newspaper refers matter-of-factly to their having “willfully orchestrated a break from official federal judiciary policy.”  It appears that it was Kozinski (who can be an excellent judge on those occasions when he doesn’t succumb to his own willfulness or to his own admiration of his cleverness) who pushed Walker to make the meaningless cosmetic rebranding of his YouTube order.

Some time on Friday—evidently after counsel for the Proposition 8 sponsors filed their emergency petition to the Ninth Circuit—Kozinski issued an order that granted Walker’s request to transmit real-time live streaming to designated federal courthouses and that stated that Walker’s supposed “request for posting the files of the videos on the district court’s website is still pending.”  Never mind that there was no record that Walker had ever made such a request.  Perhaps Kozinski and Walker privately worked out a revised request.  Or perhaps Kozinski himself decided that the superficial cosmetics of the rebranded request—avoiding any reference to YouTube—would be better.  In any event, Kozinski’s statement that the request was “still pending”—in an order that counsel for the Proposition 8 sponsors obviously weren’t aware of (their emergency petition states that there was no record that Kozinski had yet acted)—may well have been dispositive in the decision by the Ninth Circuit panel to deny the emergency petition.  (Counsel for the plaintiffs made the ongoing pendency of the request their lead ground in opposing the subsequent request for a Supreme Court stay, but the Supreme Court, to its credit, saw through the gamesmanship.)

Some time on Sunday, Kozinski sent a six-page letter to Judge Anthony Scirica, chairman of the executive committee of the Judicial Conference of the United States, and to James C. Duff, secretary of that body.  Kozinski’s letter responded to a January 8 letter from Scirica and Duff in which they had written “to bring to [his] attention … the policy of the Judicial Conference of the United States which does not allow courtroom proceedings in civil and criminal trials in district courts to be broadcast, televised, recorded or photographed for the purpose of public dissemination.”  Scirica and Duff asked Kozinski “to consider the Judicial Conference policy” in deciding whether to authorize televising the anti-Proposition 8 trial.

Kozinski’s response to Scirica and Duff (which Walker entered into the record yesterday and which the plaintiffs and media supporters have since filed with the Supreme Court) is noteworthy in several respects. 

First, Kozinski again characterizes Walker’s request as a “request to place a video recording … on the Northern District’s website” and asserts that the request is “not ripe for decision” because “necessary technical issues have not yet been resolved.”  Only a naif would not perceive Kozinski as trying to game the Supreme Court’s then-pending review of the stay application. 

Second, Kozinski contends that the Ninth Circuit’s pilot project “was developed after considerable deliberation and careful research.”  Unlike Walker (see point 1 here), Kozinski doesn’t acknowledge that the entire program was driven by the desire to televise the anti-Prop 8 trial.  Nor does he disclose that, unlike what you would expect from a product of “considerable deliberation and careful research,” there is no resolution, order, or other publicly available information setting forth the policies and procedures that will govern the new program.  Indeed, if there really are “necessary technical issues have not yet been resolved,” that would be yet further evidence of Kozinski’s unseemly rush.  Kozinski’s promise that “we will be proceeding with great caution” is belied by his course of conduct and cannot be taken seriously.

Third, Kozinski contends that “there is no Judicial Conference policy prohibiting trial courts from placing video recordings of non-jury civil proceedings on their websites.”  Insofar as Kozinski is contending that the Judicial Conference policy against public broadcast of civil proceedings in district court doesn’t apply to placing video recordings on websites, he’s making a fetish of technological developments and ignoring the fair-trial concerns that animate the Judicial Conference policy.  (It’s also worth noting that the Supreme Court’s interim order yesterday blocks “broadcast” of the proceedings, which the Court clearly understand to include via Internet postings.)  Insofar as Kozinski is contending that Judicial Conference policy doesn’t legally bind him, he’s correct, I think*—but that’s no warrant to be reckless of fair-trial concerns, including concerns about abuse and harassment of witnesses and other trial participants.  Yet Kozinski says not a word about those concerns, notwithstanding the extraordinary harassment of Proposition 8 supporters that has previously occurred.

This, of course, isn’t the first time that Kozinski has engaged in mischief with computer servers, as Judge Scirica, who wrote the opinion admonishing Kozinski for his “conduct exhibiting poor judgment,” is well aware.  By making its interim order permanent, the Supreme Court would spare Kozinski from exhibiting further poor judgment in this case.

* It’s interesting to note that Judge Walker has himself characterized the Judicial Conference policy to be binding.  In General Order No. 58 (page 8 here), which he issued in 2005, Walker stated:  “Policy of the Judicial Conference of the United States prohibits, in both civil and criminal cases in all district courts, broadcasting, televising, recording, or photographing courtroom proceedings for the purpose of public dissemination.”  In addition, his court’s 2009 General Information Guide for Journalists states (on page 4):  “Broadcasting of proceedings is prohibited by policy of the Judicial Conference of the United States.”

Tags: Whelan


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