Litigation

TV Rules for Prop. 8 Trial Spur Debate

By Peter Hardin

In a pioneering move, the U.S. Ninth Circuit Court of Appeals recently approved a pilot program for limited use of cameras in federal trial courts within that nine-state western circuit. The “experiment” could lead to TV coverage of next week’s scheduled proceedings in a lawsuit contesting California’s ban on same-sex marriage.

Or not. Some well-placed lawyers and advocates are upset about that prospect. Attorneys for the sponsors of Proposition 8–which state voters adopted in 2008 to restore a ban on gay marriage–contend that televising the proceedings could  break court rules,  and said a related rules amendment is outright unlawful, according to an article in National Review.

The author of the article, “Staging a Show Trial on Same-Sex Marriage,” is Edward Whelan, a conservative commentator. Whelan uses his article to assail “kangaroo-court procedures,” and he questions whether an abuse of judicial authority will be avoided.

The Ninth Circuit’s Judicial Council, the governing body for federal courts in western states, approved the experimental use of cameras in district courts to capture video recordings of  civil, non-jury proceedings. A press release announced the action Dec. 17.  Chief Judge Alex Kozinski of the 9th Circuit explained:

“We hope that being able to see and hear what transpires in the courtroom will lead to a better public understanding of our judicial processes and enhanced confidence in the rule of law. The experiment is designed to help us find the right balance between the public’s right to access to the courts and the parties’ right to a fair and dignified proceeding.”

According to the press release, the new action responded to a resolution supporting use of cameras, passed by judges and lawyers attending the 2007 Ninth Circuit Judicial Conference.

Before the Ninth Circuit action, the only U.S. district courts permitting television cameras were in New York State, the New York Times reported; it said the state’s Southern and Eastern Districts permit video recording in civil trials.

U.S. District Judge Vaughn Walker is set to preside when a nonjury trial starts Jan. 11 in the lawsuit challenging the same-sex marriage ban, according to a report by KVTU News.  On New Year’s Eve, a document showed up on the Web site of the U.S. District Court for the Northern District of California, where he sits, calling for public comments on a revised rule to permit TV coverage of proceedings as part of a “pilot or other project authorized authorized by the Judicial Council of the Ninth Circuit,” according to Whelan. Public comments are due by Jan. 8.

Whelan depicts Judge Walker as “rushing to override longstanding prohibitions…so that he can authorize televised coverage of the Proposition 8 trial” and questions whether a fair trial could be held if it gets TV coverage. In the context of prior harassment of Proposition 8 supporters, lawyers for the Proposition 8 sponsors say potential witnesses have voiced “great distress” about the televising of their testimony and would not show up if the trial is broadcast. They also say televised coverage would run contrary to national federal court policy, according to the San Francisco Chronicle.

Lawyers representing the plaintiffs challenging the same-sex marriage ban have urged that the courtroom be open to cameras. For more stories about the Proposition 8 case, see earlier Gavel Grab posts.

Full post as published by The Gavel on January 05, 2010 (boomark / email).