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Federal judge wants Prop. 8 trial shown to the public

The legal battle over same-sex marriage could become the first federal trial in nine Western states to be videotaped in its entirety for public viewing, an attorney says.

January 07, 2010|By Maura Dolan

Reporting from San Francisco — A federal judge in San Francisco said Wednesday that he wants the federal trial over the constitutionality of Proposition 8 to be videotaped and distributed over the Internet.

"This certainly is a case that has sparked widespread interest," U.S. District Court Judge Vaughn R. Walker said at a hearing Wednesday. The nature of the case and its importance warranted "widespread distribution," he said.

If Walker's view is endorsed, as expected, by the chief judge of the U.S. 9th Circuit Court of Appeals, the legal battle over same-sex marriage will become the first federal trial within the jurisdiction of the 9th Circuit -- which includes nine Western states -- to be videotaped in its entirety for public viewing, said media attorney Thomas Burke.

"It is a rare day and a lot of decades in coming that a federal court allows cameras in the court -- even its own cameras," Burke said.

In addition to running the entire proceedings on You Tube hours after they occur, the court videotape would be broadcast live at several other federal courthouses, including the 9th Circuit courthouse in Pasadena, Walker said.

Supporters of Proposition 8 opposed public dissemination of the trial video and argued that witnesses would be intimidated by having their testimony watched by millions of people. The Proposition 8 campaign also objected to live feeds at other courthouses.

Walker said that many of the campaign's experts who would testify are "academics -- people who stand up before classrooms all the time."

But Michael Kirk, representing the campaign, said a classroom talk was substantially different from being asked "to testify across the country and across the world" in a "contentious and highly politicized" case. Kirk said supporters of Proposition 8 have been harassed. "The risk is just unacceptable," he said.

Kirk later refused to say whether the campaign would ask a higher court to overturn Walker's decision.

Opponents of Proposition 8 favored courtroom cameras. Theodore J. Boutrous Jr., a lawyer for two same-sex couples who have challenged the measure, told Walker that the videos should be released to the public "as close to simultaneously as possible."

"What happens in the courtroom is public property," Boutrous said.

Burke, representing a media coalition, asked Walker to permit a professional media company to broadcast and provide "instantaneous access."

Walker rejected that request. He said it was important for the "process to be completely under the court's control." The judge said he could stop the video at any time.

Although the media did not get what it wanted, Burke called Walker's decision "a really important first step" to televising federal trials.

The trial is scheduled to start Monday and is expected to last two to three weeks. Walker's decision on Proposition 8's constitutionality is expected to be appealed to the U.S. Supreme Court.

The California Supreme Court has upheld Proposition 8 as a valid amendment of the state Constitution. The federal case is based on federal constitutional challenges.

The videotaping is part of a pilot project launched by the 9th Circuit last month. The Judicial Council of the Ninth Circuit, the governing body for federal courts in the West, approved the use of cameras in civil, non-jury cases on an experimental basis.

"We hope that being able to see and hear what transpires in the courtroom will lead to a better public understanding of our judicial processes and enhanced confidence in the rule of law," 9th Circuit Chief Alex Kozinski said.

maura.dolan@latimes.com

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