Judge Vaughn Walker, shortly before his retirement from the federal bench earlier this year, made a speech in Arizona and used a three-minute clip from the video trial record as a visual aid to make a point about broadcasting federal trials. Charles Cooper, lead attorney for the defendant-intervenors, is quite unhappy about Walker’s use of this public record, and has asked the federal court to seize and seal the video record.
You may recall that the US Supreme Court ruled that the Perry trial could not be broadcast as Walker had planned, but the judge maintained that the video record would be used by him. Apparently, “use by the presiding judge” is not restricted to in-chambers review while developing his extraordinary ruling in favor of marriage equality.
His University of Arizona talk included video of about three minutes of the cross-examination of one of Protect Marriage’s witnesses, Kenneth Miller, a political science professor. The speech was aired on C-SPAN.
Judge Walker believes the video record is public, and that his permitted use of it (at least while still on the bench) extends to the public realm. Cooper, on the other hand, wants the court to retrieve all copies extant and prohibit future public viewings of any portion of the video:’
Although Walker retired from the bench 10 days later and is no longer subject to judicial discipline, “he can be ordered to cease further unlawful and improper disclosures,” said Charles Cooper, the sponsors’ lawyer.
He asked the Ninth U.S. Circuit Court of Appeals to retrieve all copies of the video from Walker and the plaintiffs who challenged Prop. 8 and seal them from public view. The same court is reviewing the sponsors’ appeal of Walker’s ruling in August overturning the measure.
Ted Boutrous, of the plaintiffs’ legal team, takes the what-have-they-got-to-hide approach favored by right-thinking people everywhere:
A lawyer for the same-sex couples who challenged Prop. 8 said its sponsor, a conservative religious coalition called Protect Marriage, were continuing efforts to hide the proceedings.
“Why should the public be denied the opportunity to see and hear what happened in a public trial in a public courtroom in a case involving the constitutional rights of millions of people?” asked attorney Theodore Boutrous.
Throwing a cloak of secrecy over this trial proceeding isn’t going to make the defendant-intervenors’ case. They lost, and Cooper looks silly trying to protect his performance, and the absurd case he made, from public view.