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Federal judge hears arguments for, against releasing Prop 8 trial recordings

Tuesday, August 30, 2011
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A federal judge in San Francisco on Monday heard arguments on whether to release videotapes of last year’s historic trial on Proposition 8, in which then-U.S. District Court Chief Judge Vaughn Walker ruled that the voter-approved ban on same-sex marriage was unconstitutional.

Walker, now retired, recorded the trial but has said the recordings were for his personal use only.

The videos, whose live broadcast was blocked by the U.S. Supreme Court, are still “the ultimate judicial record (that) will allow the public to see exactly what led Judge (Vaughn) Walker to strike down Proposition 8,” Theodore Boutrous, lawyer for two gay and lesbian couples and an advocacy group, said at a federal court hearing in San Francisco.

David Thompson, representing sponsors of the 2008 ballot measure that outlawed same-sex marriage, countered that Walker assured both sides, in his August 2010 ruling finding Prop. 8 unconstitutional, that “the potential for public broadcast in this case has been eliminated.”

Chief U.S. District Court Judge James Ware told lawyers seeking release of the videos that he would have to weigh the need for public access against the effect on “the integrity of the judicial process” when one judge promises secrecy and a second judge overrides him.

Walker left the bench in February, but not before giving a speech at Arizona State University on cameras in the courtroom, at which time he played several minutes of video from the trial, a move that sparked outrage from Prop. 8 supporters.

Prop. 8′s backers had argued last year that their witnesses would be subjected to harassment, threats and intimidation if the trial was broadcast.

Boutrous, arguing for the public release of the tapes, said there has been no evidence of intimidation or harassment of pro-Prop. 8 witnesses since the trial, despite their identification in media coverage and their voluntary appearances on television.

Ted Olson, lead attorney on plaintiff’s legal team, said he believes Yes on 8 attorneys are reluctant to let members of the public “see with their own eyes and hear with their own ears” how Yes on 8’s two witnesses gave testimony that undermined Yes on 8’s position.

Olson will be representing the team on September 6 in the California Supreme Court hearing to determine whether “Yes on 8″ has authority under any state law to press an appeal of the District Court decision in a federal appeals court.

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