Tuesday, December 29, 2009

Prop. 8 proponents oppose televising trial in Perry v. Schwarzenneger; Perry plaintiffs respond

Letter by Prop. 8 proponents opposing use of cameras in Perry v. Schwarzenneger, filed 12/28/09

(Thanks to California attorney Rick Xiao for providing me a copy of the letter.)

On December 17th, the Ninth Circuit issued a press release announcing a pilot program on the experimental use of cameras in non-jury, civil proceedings. Less than a week later, a Media Coalition of national news networks sent a letter to Judge Walker, informing him of the Coalition's interest in "gavel-to-gavel" television coverage of the trial in Perry v. Schwarzenneger. The Coalition also expressed willingness to submit a formal brief, if Judge Walker thought briefing warranted.

In this letter, Charles Cooper, counsel for the Prop. 8 proponents, sets out their objections to televising the trial. One objection concerns a local court rule and a federal judiciary policy banning use of cameras in court proceedings. Cooper explains why the Judicial Conference - the federal judiciary's policymaking body - adopted the policy against televising trials, and applies the rationale to the trial in Perry. Cooper claims that his clients risk losing an opportunity for a fair trial if it's televised:
Most importantly, given the highly contentious and politicized nature of Proposition 8 and the issue of same-sex marriage in general, the possibility of compromised safety, witness intimidation, and/or harassment of trial participants is very real.
Cooper also claims that a televised trial would "impinge on the privacy interests" of witnesses, particularly those "only tangentially related to the case." As a result of these risks, some witnesses may be too afraid to testify.

See also reports by Variety and the San Francisco Chronicle.

12/30/09 update

Supplemental Letter By Prop. 8 Proponents Opposing Use of Cameras in Perry Trial, filed 12-29-09

In this supplemental letter, the Prop. 8 Proponents acknowledge a proposed amendment to local court rule 77-3 prohibiting the use of cameras in civil proceedings.

Reply by Perry plaintiffs to Prop. 8 proponents' letter opposing television coverage of Perry trial, filed 12-29-09

Journalist Karen Ocamb reports on a reply to Cooper's letter by an attorney for the Perry plaintiffs, Theodore J. Boutrous, Jr..

Boutrous states:
Proponents’ concerns about “the possibility of compromised safety, witness intimidation, and/or harassment of trial participants” (Doc # 324 at 6) are utterly unsubstantiated and groundless speculation. Indeed, Proponents willingly thrust themselves into the public eye by sponsoring Prop. 8 and orchestrating an expensive, sophisticated, and highly public multimedia campaign to amend the California Constitution. They certainly did not exhibit a similar fear of public attention when attempting to garner votes for Prop. 8 from millions of California voters, when touting their successful campaign strategy in post-election magazine articles and public appearances (see Doc # 191-2; http://www.youtube.com/watch?v=ngbAPVVPD5k), or when voluntarily intervening in this case. In any event, many aspects of the trial—including opening and closing arguments and testimony by the parties’ experts (who were designated after the Court first raised the possibility of televising the proceedings)—will not even remotely implicate Proponents’ purported witness-related concerns. To the extent that this Court determines that witness issues or other factors militate against permitting camera coverage of particular portions of the trial, the Court possesses broad discretion to decide, on a case-by-case basis, whether certain portions of the proceedings should not be televised and can control the format and timing of all broadcast transmissions.

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