Proponents of California’s Proposition 8 alleged in a court brief Wednesday, April 13, that former U.S. District Court Chief Judge Vaughn Walker “defied” a U.S. Supreme Court decision in February when he showed a college audience a video clip from the 2010 landmark trial, Perry v. Schwarzenegger.
Walker’s speech, which can be viewed on CSPAN at http://www.c-spanvideo.org/program/298109-3, covered the history of cameras in the courtroom and was co-sponsored by the American Bar Association and the Cronkite School of Journalism at the University of Arizona. It took place on February 18, 2011.
According to the brief, Walker played a portion of the video recording of the trial proceedings during a speech at the university in February. And though Yes on 8 attorneys concede that a Supreme Court order barring Walker from broadcasting the trial “expired,” the 9th Circuit has a long-standing policy that prohibits coverage of district court proceedings.
The brief acknowledges that anyone can view the full recording of Walker’s speech, with the excerpt from the trial, on CSPAN’s website. It does not make note that the trial was a public trial, open to reporters who reported on the proceedings, and that transcripts of the trial are available to the public, as well as re-enactments of the courtroom proceedings.
But the brief asks the 9th Circuit to order Walker “to cease further unlawful and improper disclosures of the trial recordings…and to return to this Court any copies of the trial recordings in his possession, custody, or control.”
It also asks the 9th Circuit to order that the legal team headed by Ted Olson and David Boies, challenging the constitutionality of California’s same-sex marriage ban, return their copies of the trial recordings as well. The Olson-Boies team was provided a copy of the videotape by Walker, says Yes on 8 attorneys, for use in preparing closing arguments in June 2010.
The Yes on 8 attorneys do not allege any injury has come from the showing of a portion of the court proceeding.
Judge Walker officially retired from the court on February 28th of this year. He told the University of Arizona audience that the 9th Circuit first allowed broadcast of a case 20 years ago and has approved the broadcasts of 259 appellate cases since then.
Walker said Perry v. Schwarzenegger was the “perfect case” for the 9th Circuit’s decision to begin broadcasting certain district court cases. The only issue at the time, said Walker, was a possibility of broadcasting and posting on the Internet and requests for transmission to remote courthouses.
Walker said Yes on 8 attorneys believed their witnesses would be intimidated by broadcast of the proceedings, and the U.S. Supreme Court upheld their objection. He showed a clip of Boies cross-examining political science professor Kenneth Miller, one of Yes on 8’s expert witnesses. During the two-minute clip, Miller was silent for a long period of time, pondering his response to a question from Boies.
Walker remarked, “The public ought to see that, in those moments, not much happens” and that trials often involve long, intricate lines of questioning and discussions with judges over points of law.
“You can see a train of argument, a train of thinking, a train of logic follows inextricably,” said Walker. “And so, if anything, and of course I disclose my bias here, I think a broadcast of a trial would be even more interesting than the broadcast of an appellate proceeding.”
He said that broadcasts also avert the possibility of re-enactments and even musicals. For the latter, he showed a clip from a musical about Proposition 8.
“What would you rather have people learn from about the court’s function? Reenactments or the real thing?” asked Walker.
“The real thing is far better, far more informative and far better for the public and for teaching people about how our institutions work than the kind of reenactments,” said Walker. “The real thing is always much better.”
Judge Walker was in the news last week, too, after having shared with a small group of reporters that he has, for the past 10 years, been in a relationship with a man. Interestingly, Walker began his University of Arizona speech with an anecdote about Broadway star Ethel Waters.