Bench Memos

More on Vaughn Walker’s Continuing Defiance on Prop 8 Trial Recordings

Last week I highlighted, in these two posts, former district judge Vaughn Walker’s illegal taking into his private post-retirement possession the video recordings of the anti-Prop 8 trial as well as his illegal public dissemination of an excerpt of those recordings on several occasions. As I explained, Prop 8 proponents filed a motion in the Ninth Circuit for an order compelling Walker to cease further disclosures of the video recordings and to return any copies that are in his possession, and Walker in turn submitted a letter devoid of any meaningful defense of his illegal course of conduct.

In the meantime, the Prop 8 plaintiffs/appellees have filed a combined opposition to Prop 8 proponents’ motion and their own motion to unseal the video recordings. Yesterday, Prop 8 proponents filed their combined reply in support of their own motion and their opposition to plaintiffs’ motion to unseal. Here are the opening three paragraphs of the reply (some citations omitted):

The video recordings of the trial in this case owe their existence to then-Chief Judge Walker’s assurance to Proponents that the recordings were being made not for the purpose of broadcasting the trial, but solely for his use in chambers.  Not only was this assurance necessary to comply with Local Rule 77-3, which prohibits dissemination of trial proceedings beyond “the confines of the courthouse,” it came on the heels of an emergency Supreme Court decision specifically enforcing Rule 77-3 against Chief Judge Walker.  Proponents understood Chief Judge Walker’s assurance to exclude the possibility that he would later broadcast, or enable the broadcast, of the trial recording.  He subsequently confirmed this understanding when he emphasized that the refusal of several of Proponents’ expert witnesses to testify at trial could not reasonably have been motivated by a concern about “the potential for public broadcast” of the trial recordings because that potential “had been eliminated.”  Proponents took Chief Judge Walker at his word, as did two of Proponents’ expert witnesses in deciding to testify even though the proceedings would be recorded.

Former judge Walker makes no reference to any of this in defending as “permissible and appropriate” his public use of “the actual cross-examination excerpt from Perry.” 

Appellees, for their part, trumpet this course of events as virtuous.  “There was no reason,” Appellees say, “to keep the video of this trial under the cover of darkness in the first place.”  Worse, they ask this Court to join them in ignoring Local Rule 77-3, Judicial Council policy, then-Chief Judge Walker’s commitment, and the Supreme Court’s stay decision, and to unseal and release the trial recordings into the public domain.  And this, they say, will “promote[] public confidence in the integrity and impartiality of the judiciary.”

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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