Despite Wednesday’s Supreme Court order barring broadcast of the anti-Prop 8 trial, Judge Walker yesterday directed, over the objection of counsel for the Prop 8 sponsors, that video recording of the trial continue. His stated justification is twofold: (1) Local Rule 77-3 (the version lawfully in effect, apart from the purported amendments) prohibits recording only for the purposes of public broadcasting or televising; and (2) his purpose in recording the trial from this point forward is so that he can later review the video when making his findings of fact.
This second prong of the justification is difficult to take seriously. An official transcript of the trial testimony is prepared on a daily basis, and the combined transcript will be the easiest source to review. (In the unlikely event that there were a material dispute over the accuracy of the transcript, the court reporter would consult the audio recording.) There is zero reason to believe that Walker will be making credibility determinations based on a witness’s demeanor, and even if he would be, the live testimony would give him the best basis for doing so.
Given the joint shenanigans to date of Walker and Ninth Circuit chief judge Alex Kozinski, there’s ample reason to suspect that they’re intent on finding some means to broadcast the trial. Any witness who previously had reason to fear harassment will have continuing reason to do so if the recording continues.
It’s worth noting that on Monday, in the aftermath of the Supreme Court’s initial interim order barring broadcasting, counsel for plaintiffs based his request for continued recording solely on the basis that the bar was temporary and might be lifted. (Official Transcript for Jan. 11, 2010, at 14-15.) Now that the bar on broadcasting will continue for the duration of the trial, that rationale has disappeared.