Federal judge for same-sex marriage trial approves taping but limits live broadcast

SAN FRANCISCO — Chief Judge Vaughn Walker made it clear Wednesday that he will forge ahead with televising the federal challenge to Prop 8.

But he also signaled he doesn’t want to be the next Lance Ito.

The trial, which begins on Monday, will be filmed by court personnel, Walker ruled, but it will not be broadcast live. Instead, the recording will be posted on a YouTube page at some point after the close of the day’s proceedings. Walker declined an offer from In Session (formerly Court TV) to broadcast live, with its own crew.

“I think in view of the nature of this proceeding, it is important for this process to be completely under the court’s control,” he said.

Lawyers representing the Yes on 8 campaign objected to any broadcast beyond an overflow room in the San Francisco federal building, arguing that witnesses would be intimidated, or change their testimony. But Walker was skeptical, pointing out that depositions have been widely videotaped for years.

Before Walker took the bench Wednesday, court personnel demonstrated how the camera facing the witness could be shut off, should the situation demand it. In the video sample shown to observers in the gallery, the cameras facing the judge and the attorney’s lectern remained active, resulting in a screen display split three ways.

“Our intent is to upload the entire thing,” said IT specialist Buz Rico.

While a live broadcast won’t be made available to the public at large, real-time viewing will be available at federal courthouses in other cities, Walker said. So far, that list includes Pasadena, Seattle, Portland, Ore., and Chicago. The Ninth Circuit will also set up a screen at its headquarters at Seventh and Mission streets in San Francisco.

Cameras have suddenly become a serious attention suck in what was already a high-profile trial. After a frenetic six months of pretrial litigation and discovery, a team of lawyers from Gibson, Dunn & Crutcher and Boies, Schiller & Flexner who represent same-sex couples will square off Monday against the Yes on 8 campaign in a bench trial.

Walker acknowledged in court Wednesday that the Ninth Circuit began formalizing its pilot program in October, with an eye toward the Prop 8 trial. The circuit’s judicial council OK’d the program last month for civil, non-jury trials selected by each district’s chief judge. Alex Kozinski, the circuit’s chief judge, must then grant his approval.

Gibson, Dunn partner Theodore Boutrous Jr. voiced strong support for broadcast in court Wednesday. Tossed a few softballs by Walker — including one about the “checkered history” of televised trials — Boutrous replied that this is a bench trial about constitutional issues, not a murder case.

“We think this is an ideal situation to use this pilot program,” Boutrous said.

Thomas Burke, a Davis Wright Tremaine partner representing a media coalition seeking live broadcast, noted that the court’s cameras are “consumer” quality, while the networks could provide broadcast-ready footage with no technical problems. But that didn’t sway Walker.

When Yes on 8 campaign lawyer Michael Kirk tried to cite U.S. Judicial Conference guidance against cameras, Walker asked whether that really applied more to criminal trials. The Prop 8 campaign raised lots of money and openly electioneered, Walker said.

“They assumed a public face, if you will,” he said.

Kirk, a Washington, D.C.-based partner at Cooper & Kirk, argued that blacking out a given witness’s video feed wouldn’t help. “That fact in and of itself will shine a spotlight on that person,” Kirk said.

In the end, Walker tried to voice a larger objective.

“I’ve always thought if the public could see how the judicial process works, they would take a somewhat different view of it,” he said, adding: “I think it’s worth trying in this case.”

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