Bench Memos

Order Unsealing Video Recording of Anti-Prop 8 Trial

In the latest step in the anti-Prop 8 farce, Chief Judge James Ware of the Northern District of California ruled today that the video recording of the anti-Prop 8 trial should be made public. Ware’s ruling (which he has stayed until September 30) caps an extraordinary series of steps in which former district judge Vaughn Walker and Ware have acted to evade the Supreme Court’s January 2010 ruling that blocked Walker’s unlawful effort to broadcast his anti-Prop 8 show trial. Here’s a quick summary:

1. “Not only did [the district court] 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.”

So wrote the Supreme Court majority in its per curiam opinion in January 2010, explaining its decision to block Walker’s broadcasting order. Among other things, the Court found that Prop 8 proponents would likely suffer irreparable harm if the trial were broadcast. Crediting concerns that pro-Prop 8 witnesses had expressed about their own security, the Court stated:

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…. [W]itnesses subject to harassment as a result of broadcast of their testimony might be less likely to cooperate in any future proceedings.

2. After the Court blocked Walker’s broadcasting, Walker, over the objections of Prop 8 proponents, nonetheless 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), most of their expert witnesses refused to testify because Walker continued the videotaping. But, in the context of the Supreme Court order and Walker’s statement of his own limited purpose for videotaping, two pro-Prop 8 witnesses decided to testify.

3. At the end of May 2010, Walker 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” for purposes of the appeal (still subject to the protective order). (Final opinion, at 4.) 

4. In mid-February 2011, two weeks before he retired as a judge, Walker delivered a speech at the University of Arizona in which he played a portion of the video recording that contained cross-examination of one of Prop 8 proponents’ witnesses. That speech and the video recording, as Walker surely knew, were videotaped by C-SPAN, and they were broadcast several times by C-SPAN.

5. Ware’s opinion today rewards Walker’s contemptuous treatment of the Supreme Court’s January 2011 order. According to Ware, “public confidence in the fairness and integrity of the process” require that “once an item is placed in the record of judicial proceedings, there must be compelling reasons for keeping that item secret.” Ware finds that no such compelling reasons exist. Among other things, he determines that (a) Prop 8 proponents failed to object to Walker’s placing the video recording of the trial in the trial record; (b) Walker did not limit the recording to chambers use only but instead, “without objection, made copies of the digital recording available to the parties for use during closing arguments”; (c) the Supreme Court’s order was narrow in scope; and (d) Prop 8 proponents’ concern that public dissemination of the recording could have a chilling effect on witnesses’ willingness to cooperate in a future proceeding was “mere unsupported hypothesis or conjecture” (internal quotation marks omitted).

Let’s address these briefly in turn:

(a) Prop 8 proponents objected to Walker’s decision to record the trial. Given his overruling of that objection and his claim that he would use the recording in chambers, Prop 8 proponents had no separate basis for objecting to his decision to put the recording in the trial record (especially since he placed the recording under seal and ordered the plaintiffs to protect the recording from public disclosure). Their previous objection to the recording itself should suffice to preserve their claims, and it’s absurd that Walker’s evasion of the Supreme Court order should somehow place a heavy burden on Prop 8 proponents to show compelling reasons why dissemination of the trial recording shouldn’t occur.

(b) Ware can assert that Walker did not limit the recording to chambers use only by collapsing the months between Walker’s statement that he would use the recording for his own use and his sua sponte order inviting parties to use the recording during closing arguments. (Indeed, in the “Background” section of his order, Ware himself acknowledges that Walker’s May 2010 order “expanded the use of the recording” (emphasis added).) Given Walker’s sua sponte order, Prop 8 proponents can hardly be faulted for failing to object in advance to an order that they had no reason to anticipate (and that placed the recording under seal and a protective order).

(c)-(d) Walker’s and Ware’s actions are plainly inconsistent with the reasoning of the Supreme Court’s January 2010 order. The Supreme Court credited the witnesses’ fear of harassment and specifically stated that “witnesses subject to harassment as a result of broadcast of their testimony might be less likely to cooperate in any future proceedings.” Walker and Ware have done as much as possible to make that harassment a reality, yet Ware dismisses the effect on witnesses as “mere unsupported hypothesis or conjecture.”

In the grand scheme of things, Walker’s shenanigans (now abetted by Ware) on the video recording of the anti-Prop 8 trial pale in comparison to Walker’s outlandish decision on the merits. But they are part and parcel of Walker’s broader course of misconduct in what deserves to be recognized as the most egregious performance ever by a federal district judge.


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