Prop 8 Defense Lawyer Makes Strong Close in 9th Circuit Conflict of Interest Argument

SAN FRANCISCO, December 9, 2011 -- The Prop 8 Legal Defense team went to the 9th Circuit Court of Appeals again on Thursday to present arguments on two motions. The first hearing was to appeal the decision of Federal District Court Chief Judge David Ware to reverse the commitment of trial Judge Vaughn Walker that a video he made for his own use would never be made public. In the second hearing, Charles Cooper, on behalf of the voters of California, argued that Walker's decision must be set aside and a new trial granted because he did not disclose that he was in long-term committed same-sex relationship, the same circumstances as the plaintiffs seeking to overturn Prop 8. In other words, Walker was sitting in judgment of his own case, the defense team argued.

Videos of the two hearing are below. Both are interesting, but if you only have 15 minutes, treat yourself to the closing of conflict of interest hearing. Starting at 0:52 minutes into the hearing, Chief Deputy City Attorney Therese Stewart approached the podium to argue that the Prop 8 Legal Defense motion was nothing more than another example of anti-gay bigotry. She went on to claim that every gay person wanted to get married. Presiding Judge Stephen Reinhardt had to interrupt her several times to explain Cooper's argument to her and how it had nothing to do with what she was trying to claim.

It got better, when Cooper rose for rebuttal and turned the plaintiffs' evidence and argument against them in a very impassioned closing (starting at 1:04).


The first hearing of the day focused on whether or not the video made for Judge Walker's personal private use should be made public, even though he committed to the Prop 8 defense it would not. The strategy of organization trying to redefine marriage was to exploit the trial for publicity purposes, something that would have an intimidating effect on the experience of attacks on Prop 8 supporters during and after the campaign. 

The Judges asked what difference would it make to release the video because transcripts of what the witnesses said were already public. The answer was provided by an attorney on the other side representing an intervener called the Media Coalition. He argued that the video would reveal body language and facial expressions that are not apparent in the written transcript. Why would that be important? It seems to indicate that they might want sue clips of witnesses undergoing grueling cross examination to suit their purposes.

Prop 8 defense counsel David Thompson made an outstanding argument. The judges questions seemed to indicate that they might think that a Judge's word and commitment really ought to mean something to protect the integrity of the judicial process. We are awaiting their decision.


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