January 16, 2010
by Brian Leubitz
Yesterday, during the cross examination of plaintiff’s expert Michael Lamb, defense attorney David Thompson had Lamb comment on studies by two “experts” that the plaintiff had planned to call during the trial. It seems now that the two “experts” were, according to Prop 8 counsel Andy Pugno, “fearful of retribution” if they were to testify. Apparently the mere suggestion that their evidence would be videotaped shocked them into submission. Nothing like confidence in your own work, for you there. Anyway, that’s Pugno’s story anyway. The real story, as is so often the case with Pugno, is actually far different.
“The experts they withdrew were ones that [gave deposition statements] that simply disagree with their thesis,” said Boies. He said plaintiffs would introduce evidence later to show that the defense’s own experts have “admitted that they did not have a basis for believing that same-sex marriages would harm heterosexual marriages and no reason for depriving gay and lesbian couples marriage [and doing so is] depriving gay and lesbian couples harm. They admit that,” said Boies, “and it guts the case of defendants.”(Keen News Service 1/15/2010)
For some legal background here, depositions for trial, though not typically held in a court room, are under oath. Such evidence can be admissible to the record on certain occasions. Now, many depositions are taped these days so that the court reporter can verify the testimony and to preserve the record. If that occurred in this instance, it puts the lie to Pugno’s explanation even more clearly. But, even if there is no video of the deposition, the fact that the experts were not willing to testify simply because they might be videotaped should be a big red flag for the court.
In the end, these experts might end up blowing up in the defense’s face. If Boies and team is able to show what he claims, that their testimony was without basis, the experts have opened themselves to charges of perjury. Removing the possibility that the defense team knew about the baselessness of the depositions, because such a circumstance would be an egregious violation of professional responsibility, this also has huge implications for the case. If the defense experts admitted that there is no basis to say there is harm to straight marriages, that point becomes a big longshot to recover for the defense.
These two experts and the story surrounding their disappearance should be closely watched as we head into the second week.