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Appeals court refuses to make public the videotapes of Prop. 8 trial

A three-judge panel of the U.S. 9th Circuit Court of Appeals said the tapes should remain sealed because the trial judge had promised defenders of the same-sex marriage ban that they would be used only within the court.

February 03, 2012|By Maura Dolan, Los Angeles Times
  • Billy Bradford of Castro Valley, Calif., waves a pair of flags outside San Francisco City Hall while same-sex couples line up to see if they can be married in the city in 2010.
Billy Bradford of Castro Valley, Calif., waves a pair of flags outside San… (Eric Risberg )

Reporting from San Francisco -- A federal appeals court refused Thursday to make public videotapes of the historic trial weighing the constitutionality of California's same-sex marriage ban, a victory for backers of Proposition 8.

A three-judge panel of the U.S. 9th Circuit Court of Appeals said the tapes should remain sealed because the trial judge had promised Proposition 8's defenders that they would be used only within the court.

"Litigants and the public must be able to trust the word of a judge if our justice system is to function properly," the panel said.

The ruling overturned a lower court decision that would have made the tapes public — a position favored by media and gay-rights groups.

The 9th Circuit panel also is considering whether Proposition 8 is constitutional.

That decision, which could come any day, is expected to be appealed to theU.S. Supreme Court. During arguments, the judges appeared to be leaning in favor of striking down the measure voters passed in 2008.

Thursday's ruling said that retired U.S. District Chief Judge Vaughn R. Walker — who presided over the 2010 Proposition 8 trial and ruled the measure unconstitutional — repeatedly had reassured opponents of gay marriage that the tapes would not be broadcast.

To set aside Walker's commitments would "compromise the integrity of the judicial process," the court said.

Theodore J. Boutrous Jr., an attorney for Proposition 8's challengers, expressed disappointment but added that the legal team was "looking at the big picture" and hoping for a ruling soon to overturn the marriage ban.

"It speaks volumes that the proponents of Proposition 8 are so insistent about concealing the videotaped record of this historic trial," Boutrous said.

But attorneys for ProtectMarriage, sponsors of Proposition 8, said the 9th Circuit simply had ensured that a judge's "solemn promise" would be kept.

"The American people deserve a court system that upholds the integrity of the judicial process," said Austin R. Nimocks, an attorney for ProtectMarriage.

Andy Pugno, general counsel for ProtectMarriage, agreed, observing that the ruling had more to do with the integrity of the court than with whether federal trials should be televised.

"This is about a judge who became so obsessed with striking down traditional marriage that he found himself disregarding the law and turning the trial proceedings into a sham," Pugno said.

Walker is openly gay, but he did not publicly disclose a long-term relationship with a partner until after he retired last year. ProtectMarriage is trying to use that point to get his ruling against Proposition 8 invalidated, but appeared during arguments unlikely to succeed.

ProtectMarriage's charge that Walker was biased became one of the key arguments for making the tapes public.

The group called only two witnesses during the trial, and their testimony was undercut during cross-examination. Gay-rights lawyers presented a slew of expert witnesses from the nation's top universities to help make their case.

Before the trial started, Walker announced that portions of it would be broadcast on a delayed basis on the Internet and shown by videotape in other federal courthouses around the country.

ProtectMarriage objected and obtained aU.S. Supreme Courtruling prohibiting broadcast. The group argued its witnesses would be intimidated and vulnerable to harassment.

The group protested again when Walker went ahead and videotaped the trial, but the judge insisted the tapes would be used only to assist him in the writing of his ruling and to provide access to an overflow crowd in a nearby courtroom.

After retiring from the bench, Walker showed a snippet of the trial testimony during a lecture on cameras in the courtroom. ProtectMarriage demanded that he return his copy of the tapes, which he did voluntarily.

The 9th Circuit said Thursday that Walker's copy of the tapes should remain in the court.

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