Bench Memos

Judge Walker’s Gambit to Bamboozle the Supreme Court—Part 1

Last Thursday, as part of his order for televised coverage of his anti-Proposition 8 show trial, Judge Vaughn Walker ordered “the transmission of these [trial] proceedings on a delayed basis to YouTube, for purposes of posting on the Internet so the proceedings can be made generally available.”  (Official Transcript for Jan. 6, 2010, at 17:6-8.)  Walker had his court’s IT expert explain to the parties in open session that “we’ve started up a YouTube channel”—“The YouTube address right now is … it’s like U.S. District Court California Northern District”—and that “Our intent is to upload the entire thing.”  (6:9, 8:21, 9:3-5).

In the immediate aftermath of the Supreme Court’s interim order yesterday barring Internet broadcasting of the trial, Walker, who evidently remains as fervent as ever in his desire to televise the trial, tried to put lipstick on his pig by purporting “to clarify” a point: 

What the Court [i.e., Walker] has contemplated and what the Ninth Circuit pilot project contemplates is a posting on the Northern District of California website.  It is not a Google YouTube posting that may be commonly understood.  Rather, that service is under consideration as a conduit for posting an audio and visual feed pursuant to a contract that the government has with that service.

(Official Transcript for Jan. 11, 2010, at 10:1-9.)

Set aside Walker’s disingenuous effort to recast his latest change of course as a clarification.  The cosmetic change that Walker is now proposing is substantively meaningless.  It has zero bearing on the concerns that warranted the Supreme Court’s order.

First, posting the video of the trial on the court’s website violates the version of the court’s Local Rule 77-3 that is lawfully in effect in exactly the same way that YouTube posting would.  (See “Judge Walker’s ‘Immediate Need’ for a YouTube Circus—Part 2.”)

Second, posting the video of the trial on the court’s website presents exactly the same potential for abuse and harassment of witnesses and other trial participants that YouTube posting would.  As a tech-savvy colleague informs me, posting on the court’s website, as compared to posting on YouTube, makes it at least as easy (and, depending on the format of posting on the court’s website, perhaps even easier) for anyone to splice and dice the video, post highlights, overlay the video with text or special effects, and make alterations.  There remains, in other words, the same possibility that any particular excerpt of any witness’s testimony or any counsel’s statement, whether or not presented fairly, could “go viral.”  And the potential for abuse and harassment of witnesses and other trial participants remains thousands, if not millions, of times greater than an ordinary unrecorded trial would entail.  (Walker has shown himself either desirous of, or wildly reckless about, this potential for enhanced abuse and harassment, as I discuss in points 3 and 4 of “Judge Walker’s ‘Immediate Need’ for a YouTube Circus—Part 1” and in my essay “Staging a Show Trial on Same-Sex Marriage.”)

If Walker thinks that his meaningless cosmetic revision will trick the Supreme Court justices, he’s taking them for fools.