Tug of war over videotapes of Perry trial

by on July 3, 2010  •  In Uncategorized

From Karen Ocamb at LGBT POV:

At the end of the federal Prop 8 trial June 16, Variety’s Ted Johnson and I asked plaintiffs’ attorney David Boies if they were going to release the videotapes of the trial or post the clips of testimony that co-counsel Ted Olson had used in his closing argument. Boies said they couldn’t because “Those are under a protective order from the court. And the court will have to make any determination on that. Even though we used them in the trial – it’s still up to the court what further distribution they get.”  Boies said the Media Coalition would have to take up the cause to get the videotape or the clips released. No word yet on whether then Media Coalition intends to press the case.

Both Boies and Olson lamented that the Court had ruled for secrecy and the world had not had the opportunity to see the plaintiffs’ moving testimony and the ProtectMarriage witnesses change their minds on the witness stand. Others of us lamented that the world didn’t have the opportunity to see how two world-class attorneys argued their cases before an insightful and often humorous judge.

Well, it appears the Prop 8 proponents are still worried about that. Their attorney Charles Cooper [has] filed a [motion,] asking Walker to recall all the tapes, lest they “accidentally” see the light of day. 

Following are excerpts of the motion:    

“On January 13, 2010, the Supreme Court stayed this Court’s order that the trial proceedings in this case be recorded and broadcast beyond the San Francisco federal courthouse. Hollingsworth v. Perry, 130 S. Ct. 705, 714-15 (2010). The stay remains in effect. Id.

In court the next day, Proponents asked “for clarification … that the recording of these proceedings has been halted, the tape recording itself.” Trial Tr. 753. When the Court responded that the recording had “not been altered,” Proponents reiterated that, “in light of the stay, … the court’s local rule … prohibit[s] continued tape recording of the proceedings.” Id. at 753-54 (emphasis added). Rejecting Proponents’ objection, the Court stated that the “local rule permits … recording for purposes of use in chambers and that is customarily done when we have these remote courtrooms or the overflow courtrooms.” Id. (emphasis added). The Court concluded, “that’s the purpose for which the recording is going to be made going forward.” Id.

On May 31, the Court sua sponte announced: “In the event any party wishes to use portions of the trial recording during closing arguments, a copy of the video can be made available to the party.” Doc #672 at 2. Plaintiffs and Plaintiff-Intervenor each requested and obtained copies of the trial video—the former requesting the entire video, the latter the testimony of certain witnesses. See Doc ##674, 675.

Closing arguments were held on June 16. Proponents thereafter requested Plaintiffs and Plaintiff-Intervenor promptly to return all copies of the trial video in their possession to the Court, but they denied the request. See Decl. or Peter A. Patterson in Support of Proponents’ Motion for Administrative Relief. 

Now that closing arguments are complete, the sole purpose identified by this Court for disseminating copies of the trial video to Plaintiffs and Plaintiff-Intervenor—potential use at closing argument—has been satisfied. There is simply no legitimate justification for permitting Plaintiffs and Plaintiff-Intervenor to maintain possession of copies of the trial video. What is more, in issuing its stay order, the Supreme Court held that “irreparable harm” would “likely result” from public broadcast of the trial. Hollingsworth, 130 S. Ct. at 712. The risk of such harm, of course, does not depend on the means by which a trial recording is made public. And even with this Court’s requirement that all copies of the trial video be “maintain[ed] as strictly confidential,” Doc #672 at 2, it cannot be denied that dissemination beyond the confines of the Court has increased the possibility of accidental public disclosure. In light of this possibility, we respectfully submit that there is no justification for this Court to permit Plaintiffs and Plaintiff- Intervenor to maintain copies of the trial recording.

For these reasons, Proponents request an order directing Plaintiffs and Plaintiff-Intervenor to return to the Court immediately all copies of the trial video in their possession.”


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