January 25, 2010
By Rick Jacobs
It’s just after 0830 and we’re back for week three, day ten. I now feel as is I belong up here on 19, in the Ceremonial Court Room, with Teddy from FDL and seven or so others. Frank Schubert just walked in. For the record, he’s a genial guy and he obviously knows how to win campaigns. Let us not mistake skill for belief. He’s no William Tam or Andy Pugno (see Brian’s excellent post).
The Prop. 8 side has given notice that they want to call Frank, but the plaintiffs have objected. We’ll see what happens.
The first order of business this morning will be procedural and then we’ll have the plaintiff’s document dump, which I have a feeling will be more than fascinating.
For those of you not in San Francisco, it’s wet and cold again. Remember that that the first day of the trial, with that beautiful vigil organized by Molly McKay and MEUSA, was a cold, crisp and eventually very bright day. While I’m not much into omens, that was the right way to begin this trial.
One last point. At some point today or tomorrow, I’ll write a bit about the folks behind AFER, but I want to mention again the key person. His name is Chad Griffin. I have known Chad since the Dean Campaign, in 2002. He’s young (well, he’s recovering slowly from that), uncannily smart and has a natural talent for communications. While Rob Reiner had the idea to hire Ted Olson and gets full credit for same, Chad made all of this happen. He’s sometimes a bit reluctant to get too out front and that’s probably smart given today’s environment, but we all owe him a huge debt of gratitude.
We’ll be back to you, the community that cares so deeply about equality, to help get some ideas about how to build our movement during the coming weeks, months and even years before this winds up, almost inevitably, at the Supreme Court. We cannot rely on judges alone. We have to show our friends, neighbors, coworkers and all of America that we progressives, we who are gay or lesbian or bisexual or transgender, we who are straight and care about our nation, all want equality.
We’re waiting for the judge. And then off we go!
Judge Walker: Good morning. I hope you had a good weekend. Mr. Boutrous, I understand you have some things to bring up?
B: We understand that the proponents want to call Mr. Schubert. We do not think the proponents have the right to call Frank Schubert while having obstructed our inquiry with 76 objections to producing documents. In terms of calling Mr. Schubert to authenticate documents, we have no particular objection, but if
Judge Walker: When did you learn that Mr. Schubert would be a witness? As I recall on Friday, the defense was going to call Mr. Blankenhorn and Mr. Miller. They did not mention Mr. Schubert.
B: Last night. We filed a motion to object to Mr. Schubert. They have zealously guarded Mr. Schubert thinking, state of mind, they even objected to admitting Schubert article. We would have to cross tomorrow.
Ms. Moss: We received plaintiff’s motion against Schubert last night at 1145PM. This may be moot. Depends upon the documents that plaintiffs submit. Depends on docs they will submit based on 9th Circuit’s revision. In lieu of reopening depo, questioning would be limited to authenticating docs. That itself may not have to happen depending upon plaintiff’s agreement to the docs we submit.
One of the objections that we have…
Judge Walker: Assuming that they all come in, you have to assume they will.
M: Depends on whether they come in blank or with tender with specific tender.
Judge Walker: The evidence is what it is.
M: We might need a witness to respond to them as opposed to wait for their post—trial briefing when they would say that some documents are campaign docs and some not.
Judge Walker: These are defendant’s docs?
M: Some are, some not.
Judge Walker: ” What is source of docs?
B: Some are docs before trial that we’ve laid foundation. Some are from website, some from trial.
Judge Walker: Do you believe that the source of all docs is ProtectMarriage.com?
B: Some are not directly from ProtectMarriage.com, but we can show that ProtectMarriage.com funded and are connected from another source but they screened it in advance.
Judge Walker: That is category you are concerned about?
M: Yes. We very much dispute that some of the docs are made by, produced by ProtectMarriage.com. If coming in through sponsoring witness, clear from witness source and we could clarity. If docs are just moved into record, we may have to put on witness such as Schubert. These are docs we produced because we were forced to do so. They are moving into evidence. We have right to call witness.
D: They disclosed at 0829AM that they have objections. There are many, many docs on list that Schubert needs to authenticate, so they want to use Schubert for other stuff.
M: We want to move into evidence other docs. If everything that they’ve ided comes, in, we may need to bring Schubert up.
B: We asked in depo (Schubert) over and over about docs. Did Protect<arriage.com produce simulcast? Instruction not to answer. What
M. is asking for is since they have blocked us in depo—really quite extraordinary how depo was handled—now they want to have it both ways bringing Schubert up to talk about docs when the blocked dep.
J: I’ll reserve on that. We’ll proceed with doc production and then I’ll decide whether or not we need to call Schubert.
Boutrous: Now want Mr. Boies.
Boies (B): What we don’t have agreed to, is that we have objections to some of their designations is that the witnesses they have called are not competent to testify on those matters.
Judge Walker: (refer to some legal designation that fits with this objection.)
B: We have marked yellow ones that we agreed to and rest pink or red.
Judge Walker: Happily most are yellow.
B: Yes, we’ve tried to limit our objections. They have designated a whole series of questions and answers that shows that Prof. Young has very limited expertise. She’s not an expert in psych, soc., anthropology, and clinical dev. Is an expert in religion. She is an expert in Hinduism. Never did study in US about prejudice against gays and lesbians. Has never studied how many g and l are raising children, consequences. Not even familiar with views of US churches toward homos. Does not know proportion of children raised by gay and l or single couples.
Judge Walker: Excuse me for interrupting. Perhaps the way for me to deal with this is for me to take these into chambers to review? Mr. Nielson, who is going to deal with this?
Nielson (N): Patterson will deal with this, but I’ll make points. Court did admit parts of depo that Young and Nathanson made. There’s no question that they designated their testimony, but they want to use designation that is outside of their expertise. Under rule of completeness, we want to show that Y and N produced information that was beyond their expertise. Great irony here. They want to put info in that is outside of their expertise, but rule of completeness means they should be in.
Judge Walker: Very well, I need to see testimony in question.
B: We think yellow is what we played and should be brought in. Pink is not responsive.
N: That is not objection that I have heard before.
Judge Walker: I’ll read at lunch break or this evening and we can talk about it.
Moss: Very briefly, defendant interveners have order to compel against several groups that are associated with No on 8. We are not asking for argument, but for ruling.
Chis Desseaux (CD) (For Plaintiffs)
CD: First admission by parties, campaign messages (on which we have disagreements), docs from witnesses that should be brought. These should not be objectionable. Start with good news. 46 docs defendant has no objection. I appreciate courtesy Ms. Moss has shown in doing that.
M: No objection.
CD: Have witness binder that ties docs to witnesses for your convenience. These are docs that both sides have agreed to move into evidence. List we gave you includes all three categories.
Judge Walker: I assume at some point you are going to take me through these and tell me what these docs establish.
CD: Thought we’d do in closing or post-trial.
Judge Walker: Very well (with quizzical look on face). I don’t want to make your presentation overly long. There are a number of docs here and what I am supposed to derive from them is not clear. If you want me to derive some fact or inference or admission, you need to make that clear.
CD: Let’s look at all of them and then figure out what’s best. Next category is campaign docs. Three simulcasts we want to move into evidence: 503-505. 1867. 1868 and 506. 1867 and 1868 are court reporter-certified. The other is from PM.com website. These were moved in in depo with Prentice. P said they were part of pastor rapid response. Undisputed that simulcast part of grassroots campaign, paid for by campaign, undisputed that they are part of campaign.
If counsel wants to move against these, we can now. Or I can show some other evidence that makes clear there is no dispute.
We have binders for the court that are campaign material. 2075 (gives binders to court for review).
CD: Start with 2075 because we already moved into evidence and there was no objection. We can move this to screen as already in evidence. Blast email from F and S identifying themselves as campaign managers of Yes on 8. Passage that begins, “on www.protectcamarriage.com ” Also find videos of 25 September, 1 October and 19 October for various rallies to take place, all church-related.
Next document is 421. Exhibit 421 got from website. Not produced. Did check website over breakfast in my hotel room this morning and it was still there. Webcast protect marriage.com presents, which seems to be rather unequivocal evidence that ProtectMarriage.com behind rallies. Offers for sale these DVDs for $5 per DVD. That’s how we got them.
J: There’s also reference as well to “for more info about Prop. 8, visit www.protectmarriage.com .”
M: Moss? It is not a website of ProtectMarriage.com. I don’t know who maintains website. Mr. Prentice said he was never aware that these simulcasts were for sale. Fact that they want to put these into evidence when they have not proven that this is pm.com website. We do not dispute that simulcasts were paid for by PM.com. However, we do not know what is in simulcasts that plaintiffs contain are relevant. Prentice testified that he did not attend simulcast. Memory could be wrong, but I’m not sure anyone from PM.com was there. Without showing relevance, we are at a loss as to what is relevant. We know that we paid for them. The website is as it is. Not from files of PM.com and need to lay foundation.
CD: Ms. Moss just conceded that simulcasts paid for by ProtectMarriage.com. This is document we put on our list Thursday. This morning, website shows still presented by ProtectMarriage.com so it’s a bit odd that they’d object. I have another document that may shed additional light (2656).
2656 is document produced during trial by ProtectMarriage.com. Jim Garlow sends email to Mr. Flint. About halfway down you’ll see that Mr. Pugno says, “If we are saying that Protect Marriage is paying, CCM cannot say presented at no charge.” Pugno further says “CWA presents must be taken off, but it is presented by ProtectMarriage.com.” “The mass mailing must also be identified as coming from the Campaign’s address.” CWA is Christian Women of America.
Judge Walker: Objection to admitting 2656?
Judge Walker: (Interrupts) Very well. Admitted.
M: We are saying that since money for simulcasts from ProtectMarriage.com, had to be disclosed, but if they are trying to draw inference that ProtectMarriage.com controlled content, not established. Not clear what they want to show with these simulcasts.
Judge Walker: I gather there is no objection that ProtectMarriage.com paid for?
M: No objection.
J: Very well. That is sufficient basis to admit. It is admitted.
[So here we go again. PM.com does not want their own campaign info admitted because it is so damning because it is true.]
CD: New doc. Email between Tracy from Skyline Church with Prentice. Four page agenda of simulcast before it is presented. If there is question of coordination, here it is.
M: No evidence as to whether Prentice read or responded to email.
J: That goes to weight of evidence rather than whether it should be admitted?
M: Our objection is that they have not shown relevance?
Judge Walker: You’re going to that now?
CD: Paid for by ProtectMarriage.com and represented by Mr. Pugno that paid for by ProtectMarriage.com. That’s relevance. Want to enter all as evidence. My hope is that we can admit all as relevant, but show messages that were presented to CA voters as part of campaign.
CD: Playing 6-minute excerpts.
[You HAVE to read this. Here is the essence of Ron Prentice and Andy Pugno’s Campaign. And by the way, Frank, if you sanctioned this, which I’ll bet you did, shame on you. You should have objected to this, that it’s beyond the pale. This is just lies and fear. That’s how they won.]
Shows 6 minutes of Pastor Jim and Tony Perkins and others. Roberto Miranda, Lion of Judah Church of Boston, says, “Polygamists are waiting in the wings! If we have same sex marriage, we’ll have polygamy next.” Perkins video from US Capitol. People all over America do not understand implications of same sex marriage. Destroys foundation of marriage. Here I’m visiting couple in Mass where they show book that shows child being introduced to Clifford and his same sex partner.
Miranda says that governor of mass elected by strong support of homo lobby. Homo teaching being admitted more and more to schools, people of mass being desensitized day by day, being more and comfortable with same sex marriage…”
Garlow, “thanks for coming on. We see in papers that sky did not
AA Minister: No one wants to be called bigot. Attempt to hijack civil rights movement. I’m offended by that comparison. I had no choice but to be born black as opposed to deviant behavior …
Another AA guy: “Offended. Racist to compare homosexuality to being AA. Being black is not a choice. Being homo is.
(Screen is blank, but hearing stuff)…Saying that kindergarten books are already out there showing that kids in kindergarten are being to be homo.
Compare this to 9.11. How does this directly affect us? I did not know planes would crash into building. Change of marriage is same sort of thing. If Prop. 8 passes, it’s like 9.11.
AA guy interviews woman. Let’s just say that sexual attraction is definition. Pedophiles would have to be allowed to marry. Mothers and sons. Man who wanted to marry horse. Any combination would have to be allowed.
[No smoking gun here, more like an arsenal of incendiary devices. This is how they won. FEAR. LIES.]
Judge Walker: Ms. Moss?
M: If these are admitted, we want to review for rule of completeness to see if we need to add anything. [I can’t imagine what the hell they’d add. They’ve said it all.]
CD: Email between Prentice and Pastor Garlow.
M: We need to see relevance so we can see if we need to respond should we have any evidence to respond with.
CD: If we move to evidence, we’ll be pleased to point out…
M: Post-election doc.
Judge Walker: I notice that.
CD: I can show relevance. Email shows that after election trying to keep simulcasts out of public hands.
J: Goes to control?
CD: Yes and state of mind. “We must control message from simulcast.” Jim, I do not see any way to show any of simulcast to see “religious bias.” This is about what’s about to come up on Dr. Phil Show. [Prentice is trying to avoid showing that there is religious bias in campaign.]
CD: Pre-election videos that show Prentice speaking at rallies. Want to admit. And want to play 2.5 minutes to you.
M: If I am correct that these were shown in entirety to Mr. P during depo and he agreed they were he speaking, no objection.
P: We know that today we must win. That’s why we are so grateful that 2,500 pastors have come out on consistent basis every month. If someone is going to vote no, we flip them to show that kids will be taught this in schools. We have spent thousands of dollars on polling. Continue to do so. In 1999, LDS got involved in Hawaii. With capital S, they were significantly involved. No different this time. Campaign will cost minimum of $25 million and LDS across this state deeply involved. Catholic Bishop in SD, three evangelical ministers from SD all got involved. Asked Focus on the Family for money. They sent us $50,000 that allowed us to get petitions printed. Thanks to you, we are here, we will win. Don’t pay attention to newspapers, we have secret weapon (or secret voters or something, but basically, the weapon is kids in school.)
CD: Flyer from California Family Council of which Mr. Prentice is CEO and Mr. Tam is involved. This is flyer that was produced during campaign. Any effort to distance campaign from knowledge or control, not credible.
M: Not PM.com. No evidence that this was distributed. No evidence as to whether this was draft. Dispute at depo as to date. Prentice disputed that some on this flyer were not involved in ProtectMarriage.com. Should not come in as something that was distributed. IF it was, to whom? Mr. Prentice is head of CA Family Council. Something that happened to be in his files and got produced.
Judge Walker: Goes to weight rather than admissibility. Without attaching weight, I’ll admit it.
CD: On page two of exhibit, “background: “The goal of the homo community is not marriage. IN fact, in countries where homo marriage is legal, no more than 3% married. Goal is full annihilation of marriage…”
1999—With the onset of domestic partnerships, CA legislature begins incremental attack on marriage.
CD: Another video. From Tony Perkins
M: Mr. P saw this video in depo and did recognize himself in video. I don’t know that this was shown to CA voters and until they can show that it was shown to CA voters, object to relevance. Website that talks about video, not ProtectMarriage.com. Can pull down from website now, but not show it was shown.
J: Weight. P was shown video at depo. Relevant. Admitted.
Everett Rice (AA fellow): Says that Prop. 22 would be overturned by judges unless Prop. 8 passes.
P: Homo lobby stronger and stronger.
VO: Activists made sure via media that CA court knew what they wanted to do.
P: If this passes, children will be indoctrinated
(Shows video of guys kissing at City Hall…Not only something to tolerate, but will be something to celebrate.”
(P: Whole argument that children need “mother love and father love”
Dads have instinctual differences from Moms. When do kids learn to be leaders without Dad?
Intentionally robbing children of male and female role models that God intended them to have.)
CD: Want to intro another video by American Family Association (the previous one was also). AFA donated $500,000 to campaign. Wanted to put out video during campaign with Mr. P in it talking to voters. For people who made this video with Mr. P. cooperating and participating, relevant.
M: No evidence that put out during campaign. No evidence that P was speaking in video for ProtectMarriage.com. No evidence that he knew what it would be used for, nor would be used to persuade voters. He’s not party. If there is article, it is hearsay. Not clear that it does, but if it does (prove that it was made for campaign), it’s hearsay.
CD: Article by people who made it …
J: I sustain objection. Tenuous connection.
[NOTE] I’ve started a second thread over here.