By Julia Rosen
Shocking nobody, Charles Cooper from Protect Marriage and the Prop 8 side wants the courtroom during closed arguments closed to cameras. He penned letter to Judge Walker in response to the one last week from the Media Coalition. Advocate:
In a letter to U.S. district judge Vaughn R. Walker, attorney Charles J. Cooper wrote that allowing cameras in the courtroom would violate an earlier stay order by the U.S. Supreme Court, which in January blocked broadcast of trial proceedings as part of a pilot project previously approved by a judicial council of the Ninth Circuit Court of Appeals.
Karen Ocamb has the full letter up at LGBT POV (and Scribd is below, thanks Kathleen!).
This is the interesting bit, beyond the arguements over due process and other lawyerly talk.
Fourth, there is little merit to the Media Coalition’s argument that “the concerns earlier reviewed by the Supreme Court should not preclude” the public broadcast of closing arguments because they “will solely consist of the arguments of counsel—and not witness testimony or evidence.” As an initial matter, the parties may play excerpts from the video-recorded depositions during the course of closing arguments. In any case, in Hollingsworth, the Supreme Court specifically cited the findings and policies of the Judicial Conference of the United States, noting that while those policies “may not be binding on the lower courts, they are at the very least entitled to respectful consideration.” 130 S. Ct. at 712 (quotation marks omitted). While it is true that the deleterious effect of public broadcast on witnesses is one of the concerns undergirding the Judicial Conference’s policy, it is by no means the only concern. As we have explained previously, the Judicial Conference’s policy also rests on findings that public broadcast has negative effects on some judges and attorneys, including distraction, grandstanding, and avoidance of unpopular decisions or positions. Moreover, the Judicial Conference has repeatedly stressed that “the presence of cameras in a trial courtroom … increases security and safety issues” and that “[t]hreats against judges, lawyers, and other participants could increase even beyond the current disturbing level.”
There’s a lot there, so let’s unpack it.
First, Cooper is contending that since there exists a chance that video taped depositions will be aired that the whole proceedings should not be televised. That’s an easy fix. Turn off the video feed and just use the sound, or turn the cameras completely off.
The rest of it is Cooper arguing that, because the Supreme Court doesn’t like cameras to begin with, and cited some “Judicial Conference” in their original decision, Walker should listen to what the Conference says and not allow cameras in. If that is the case, then the whole pilot project for video taping other trials ought to be junked out the window. But there has never been an explicit ruling from the Supreme Court saying that cameras should never be allowed in a court room.
Note that Cooper is managing to work in a “protect us, we are victims” line right there at the end. It just does not hold water when it comes to the closing arguments. These are well rehearsed lawyers who are very used to the public eye, as is Judge Walker.
Now we wait for Walker to issue his ruling on the request from the Media Coalition.
By Rick Jacobs
[Cross-posted from the Huffington Post]
History is being made in California this month, as hundreds of thousands of lesbians and gay men, their friends, families and allies around the world crowd into what has become a virtual courtroom.
I have been sitting in the courtroom from the opening arguments, but I was expecting to simply observe, absorb and comment. Instead, I am in the overflow room at the Courthouse — watching what would have been seen on YouTube by millions — and recording one of the key moments in gay civil rights history on the Courage Campaign Institute’s “Prop 8 Trial Tracker” web site that is providing wall-to-wall coverage of the trial.
While our Constitution guarantees access to a fair and open trial, the modern definition of access is being rapidly expanded as a federal court in San Francisco hears a challenge to Proposition 8, the California initiative that stripped equal marriage rights from the state’s lesbian and gay families in 2008.
The Internet is giving the world the chance to experience this trial in real time, something our Supreme Court did not want to allow via television. From Courage’s Trial Tracker site to Karen Ocamb’s LGBT.POV, FireDogLake, Pam’s House Blend and many other sites, the news about the trial is spreading like wildfire online.
The online rush to witness equal rights being put on trial began when U.S. District Court Judge Vaughn Walker asked for public comment on his decision to allow video access to the proceedings. The response was overwhelmingly in favor of televising the trial, with more than 138,000 supportive online petition signatures generated in just three days by the Courage Campaign Institute and CREDO Action, compared to a mere 32 for the opposition. This is a testament to the marriage equality movement’s desire to be out and open, while the opposition seeks to hide — ironically — in its own closet of homophobia.
Judge Walker’s decision to allow public video access was overturned by the U.S. Supreme Court. But in his dissenting opinion to the majority’s 5-4 decision banning video from the trial, Justice Stephen Breyer twice cited the 138,248 online signatures submitted on paper — making clear that the public had weighed in and that the nation’s interests would be best served if the trial was available for public participation.
What is remarkable is that this may be the first time an online organizing campaign of this nature has been cited in a Supreme Court decision.
Despite the decision, the public demand to witness our rights on trial could not be unplugged. The Prop8TrialTracker.com live blog — which Courage set up using a mobile broadband device in the courtroom overflow area — has generated nearly 1 million views [ED NOTE: now more than 1.1 million views] and more than 7,000 comments [ED NOTE: now more than 10,000 comments] since launching on January 11.
We initially set up this trial-tracking web site to allow the public to “view” the trial when video access was in limbo. Now, our live blog is sparking a powerful public catharsis across the nation, with readers offering their own testimony to the personal consequences of being denied the right and responsibility of marriage. Just as the plaintiffs’ stories are opening hearts and minds, thousands of people are coming out and telling their stories online, with powerful effect.
This window to justice, once thrown open, is now offering the entire nation the chance to participate in the trial. Many hundreds of comments are being left every day on our blog, with readers amplifying the expert testimony being given in the courtroom with their own responses as well as forming a unique community of “Trial Trackers” in the threads.
We obviously hope Judge Walker reads this testimony for justice and equality being offered every day by the millions who cannot be present at the trial.
At its core, our system of justice also allows us “our day in court” — the power to be heard and to confront our accusers. That’s what is happening right now in California. Millions of people have the chance to be heard as their rights — and indeed basic American values of justice and fair treatment for all — are on trial.
They are speaking out because they believe that it is much harder to deny a right in the abstract than it is in the flesh. It is one thing to say that marriage should be between a man and a woman. It is something different, and much more difficult, to stand before loving, committed same-sex couples and tell them they are less equal than straight couples.
This is, I believe, one of the primary reasons the anti-gay side sees its witness list shrinking by the minute. Truth thrives when you shine a light on it and lies, misinformation and bigotry shrink and slink away when exposed.
We can ask ourselves what the outcome may have been in other trials if only there was this level of participation, but can you imagine?
During the legal proceedings leading up to the Proposition 8 trial, much was made of the power of the Internet to allow Californians to watch justice at work. While those were good arguments, we are discovering that perhaps the most important use of the Internet is the power it gives both the judiciary and the public to see how this one case effects so many Americans in our everyday lives.
By Rick Jacobs
For anyone who thinks that online action does not matter, please read this excerpt below from Mr. Justice Breyer’s dissent (.pdf) in today’s 5-4 decision by the Supreme Court of the United States not to allow the public to see the Prop. 8 trial ongoing now in federal court in San Francisco.
Then, on December 31, the Court revised its public notice to ask for comments directly. By January 8, 2010, the Court had received 138,574 comments, all but 32 of which favored transmitting the proceedings.
There was also sufficient “opportunity for comment.” The parties, the intervenors, other judges, the public—all had an opportunity to comment. The parties were specifically invited by Chief Judge Walker to comment on the possibility of broadcast as early as September. And the entire public was invited by the District Court to submit comments after the rule change was announced, right up to the eve of trial. As I said, the court received 138,574 comments during that time. How much more “opportunity for comment” does the Court believe necessary, particularly when the statutes themselves authorize the local court to put a new rule into effect “without” receiving any “comments” before doing so when that local “court determines that there is an immediate need” to do so (and to receive comments later)? And more importantly, what is the legal source of the Court’s demand for additional comment time in respect to a rule change to conform to Judicial Council policy?
The proponents of Prop. 8 seek to hide and obfuscate. They did not want their own ad played in court. They did not want documents from their own strategists to become public because the documents show clearly that their entire campaign was built on the decades of prejudice and fear that we heard about in detail yesterday from Prof. Chauncey. As Ted Olson keeps saying, their arguments do not hold up in public or in court. They only win when they can manipulate the media and the public, using scare tactics.
Please keep reading this blog and keep telling your stories. Keep sharing the story of this trial of LGBT rights in America and of America itself. The world hears you and more importantly, your neighbors and your friends hear you.
[UPDATE] For background on the signature delivery, Julia Rosen blogged here yesterday about the Courage Campaign Institute and CREDO Action’s delivery of these signatures last Friday:
On Friday the Courage Campaign Institute delivered 140,671 signatures on a letter to Judge Walker, per his request for public comments on airing the trial. 138,248 were on paper, the rest of the letters urging him to televise the trial were delivered electronically.
It turns out that (Courage and CREDO) accounted for nearly every single comment Judge Walker received.