Judge Walker’s decision to televise the Prop 8 trial gravely prejudices the outcome of the trial, Bench Memos on National Review Online.
In addition to its illegality (see Part 2), Judge Walker’s televising order threatens unfair and irreparable—and wildly asymmetric—prejudice to the parties and witnesses supporting Proposition 8. For that reason, his order should be vacated before trial begins next Monday.*…
Given all the harassment of Proposition 8 supporters that has already occurred, “it is not surprising,” as counsel’s December 28 letter puts it, that “potential witnesses have already expressed to [counsel] their great distress at the prospect of having their testimony televised” and that “some potential witnesses have indicated that they will not be willing to testify at all if the trial is broadcast or webcast beyond the courthouse.”…
plaintiffs’ declared trial strategy (see point 3 of Part 1) is to show that the sponsors of Proposition 8 who testify as witnesses are contemptible bigots—and that strategy will have the predictable consequence of inciting harassment and abuse of these witnesses and their counsel. By contrast, the attorneys defending Proposition 8 have no litigation interest in showing that particular opponents of Proposition 8 are, say, really interested in destroying marriage altogether, or are anti-religious bigots, or are “irrational.” Their task, rather, is merely to show that Proposition 8 is rationally related to, or otherwise sufficiently advances, legitimate governmental interests.
I am not contending here that supporters of Proposition 8 are more genteel than their opponents. I am merely making the elementary point that the posture and related trial strategies of the two sides virtually guarantee that televising the proceedings will have a dramatically asymmetric effect on the abuse and harassment that witnesses and other trial participants anticipate and experience.
Given the number of illogical and biased rulings Judge Walker has already made, I’m wondering whether a fair trial is even possible. Has he already made up his mind about this case? This sounds like it it going to be a replay of the fiasco in Iowa, where the judges had plainly already made up their minds, in advance of hearing the case.