Thursday, January 7, 2010

Enlarging the Courtroom

There is a very strong chance that Protect Marriage, the campaign committee behind the Proposition 8 ballot initiative, whose outcome led to a ban on same-sex marriage in California, wanted their efforts to have national impact. Regardless of their results in California, that wish seems to have been granted, although not always with the results they would have preferred. On the other hand it is hard to guess whether or not they anticipated that their "success" in California would be so vigorously challenged by a lawsuit that will now be heard in a Federal nonjury trial, the first in any court at the Federal level on the question of same-sex marriage. More likely, however, they did not anticipate that, whatever their interest in national impact may have been, this trial will be made accessible to a national audience, as was reported yesterday afternoon by Bob Egelko, Staff Writer for the San Francisco Chronicle:

Next week's trial in San Francisco of a lawsuit challenging the initiative that banned same-sex marriage in California won't be televised live, but it will be videotaped for delayed Internet release on YouTube, a federal judge ruled Wednesday.

Chief U.S. District Judge Vaughn Walker in San Francisco ordered the video coverage, the first for a federal trial in California, over the objections of Proposition 8's sponsors. Their lawyer argued that allowing the proceedings to be viewed outside the courthouse would violate their right to a fair trial by intimidating their witnesses.

To some extent Judge Walker may be credited with having the chutzpah to offer Protect Marriage the kind of exposure they seem to have been craving, thus providing the perfect be-careful-what-you-wish-for object lesson. It is only because, in the grand scheme of things, the release of the "Fixing Intel" report is likely to constitute the greater act of chutzpah that Judge Walker is out of the running for the Chutzpah of the Week award; but, since the trial is scheduled to last between two and three weeks, his turn may yet come. Egelko's report continues as follows:

"The knowledge that you're testifying to untold thousands or millions ... can cause some witnesses to become more timid" and induce others to be overly dramatic, attorney Michael Kirk told Walker.

Prop. 8's campaign committee, Protect Marriage, has maintained that some of its supporters have been harassed, and that witnesses whose testimony was widely seen would face further danger.

Walker will have the power to order that individual witnesses' faces be concealed or their voices muted on the YouTube uploads.

Kirk said such actions would only draw attention to the witnesses. But Walker said this case seemed ideal for a pilot program, approved last month by the federal appeals court in San Francisco, to allow telecasting of selected nonjury civil trials.

He cited the wide interest in the case and said most of the witnesses will be campaign officials or academic experts accustomed to speaking in public.

"I've always thought that if the public could see how the judicial process works, they would take a somewhat different view of it," the judge said.

Apparently Protect Marriage believes that the size of the audience in the courtroom will have an impact on how witnesses behave and that scaling that size up to anyone capable of going to a YouTube URL would undermine that judicial process. On the other hand one of the responsibilities of the judge is to see to the welfare of the witness. There are a variety of measures that the judge can take to ensure that welfare, and a lawyer can even formally request that one of those measures be taken. Thus, on the one hand we have a judge who feels that it is appropriate for this case to be heard in a larger "virtual" courtroom; and on the other hand we have Project Marriage challenging his decision to do so. Fortunately, the judicial process has a way to resolve this challenge:

Walker's order, subject to final approval by the appeals court's chief judge, allows live video feeds to public areas of federal appeals courthouses in San Francisco, Pasadena, Seattle and Portland, Ore., and to a federal court in Chicago that has requested it.

The videotape will be posted on a YouTube site ( as soon as possible, which might be later the same day or the next morning, said Buz Rico, the court's technical adviser.

Thus the question of the size of the courtroom now sits on the desk of the Chief Judge of the Ninth U.S. Circuit Court of Appeals, which has televised past hearings but not trials. If that approval is given, then the extent of the "virtual courtroom" in both space and time will be strictly defined.

Needless to say, there is the risk that this affair could turn into this century's version of the Scopes Monkey Trial, which also happened to involve a case in which strongly held religious convictions were deliberately set on a collision course with individual secular rights. However, by deliberately allowing such a large audience, Judge Walker is virtually obliging himself to make sure that this case proceeds according to the strictest legal disciplines. He has proposed a noble experiment towards advancing better public appreciation of our judicial system; and I, for one, hope that his proposal will be approved.

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