Olson and Boies file motion to release Prop 8 tapes

April 16, 2011 at 7:37 am 79 comments

By Adam Bink

As noted in the comments yesterday, in response to what was filed by the Prop 8 proponents, Olson and Boies filed a motion with the 9th Circuit to release the videotapes:

SAN FRANCISCO — Lawyers for two same-sex couples who sued to overturn California’s gay marriage ban want a federal appeals court to make videotapes of the case’s lower court trial public.

The lawyers filed a motion Friday arguing that the recordings should be treated like other public records.

They’re asking the 9th U.S. Circuit Court of Appeals to lift a seal that has been in place since the 2009 trial.

The move comes in response to efforts by the ban’s sponsors to persuade the 9th Circuit to order the trial’s now-retired judge to return his personal copy of the proceedings.

Their legal team says former U.S. District Judge Vaughn Walker acted improperly while recently giving talks on the history of cameras in courtrooms when he played a clip of one of their witnesses being cross-examined.

The tapes should be part of the public record. As I wrote earlier, the proponents don’t want America to see the faces of discrimination. Shame on them.

Entry filed under: Briefs, Prop 8 trial.

A South Beach thank you to P8TT Judge Walker responds to video release criticism

79 Comments Add your own

  • 1. Kathleen  |  April 16, 2011 at 7:40 am

    And joined by City and County of San Francisco

    • 2. Kathleen  |  April 16, 2011 at 7:42 am

      Here is Plaintiffs’ Motion:

      • 3. Sheryl Carver  |  April 16, 2011 at 9:28 am

        As always, thanks so much for getting this to us so quickly, Kathleen!

      • 4. Kathleen  |  April 16, 2011 at 10:29 am

        You’re welcome, Cheryl.

        For those who didn’t see it, here’s the Proponents’ original Motion asking that all copies of the videos be returned to the Court:

        And Judge Walker’s response (hope this link is working; there were some problems with Scribd the night I uploaded it)

        • 5. Kathleen  |  April 16, 2011 at 10:36 am

          Oops. That first link is missing its “h”

    • 6. Carpool Cookie  |  April 16, 2011 at 3:58 pm

      I love this bit:

      “In the end, [the] motion raises the larger issue of whether the trial video—the best, most accurate record of a trial of significant public importance—should be kept secret at all….No credence should be given to Proponents’ continuing narrative in this case and beyond: the myth that they, rather than gay men and lesbians whose equal citizenship they have continued to deny, are the victims here; that they or their witnesses are at risk of persecution or harassment because of their speech or religious beliefs. There is simply no reason to believe that the release of the trial video poses any risk to Proponents or their witnesses — particularly when, as discussed below, all of the information captured in the video is already public. And any such risk is negligible compared to the harm to the public interest from keeping the trial video secret.

  • 7. Southern Bell  |  April 16, 2011 at 7:41 am

    Could someone explain better why the tapes are still sealed? I thought all documents became public record after certain time has elapsed, or in this case can they not be released due to ongoing appeals etc.?

    • 8. Carpool Cookie  |  April 16, 2011 at 3:01 pm

      I don’t have the long technical answer for you, but there are different rules for different courts. Apparently the federal rules are different than those in other courts whose trials we’ve seen broadcast. It might go back to mob trials (?) where they felt witnesses wouldn’t come forward if they knew they’d be on TV?

      Anyway…I think it’s kind of riiculous. Courtrooms are public spaces and anyone can attend a trial if they get in line early enough. It’s about transparency in government and avoiding the sense of there being “backroom deals.” So if the public can attend in person, why can’t they see it on tape.

      As for witnesses, well, they shouldn’t say things in public (such as on the witness stand) they wouldn’t want overheard. If they refuse to testify because they’re ashamed, they can be subpoenaed. (sp??) As for experts, how devoted are they to their opinion if they won’t share it for all the world to see?

      Yes….the tapes should be made public, for goodness sake!

      • 9. Michelle Evans  |  April 16, 2011 at 3:18 pm

        Considering that the full transcripts of the trial are definitely public record, it doesn’t make any sense that the videos would need to be withheld.

        It does show the power of video over the written word, however. How many people (besides many here) would or have taken the time to actually read all that transpired? With video, it is easy for someone to sit back and just watch–or have some other source, such as TV news, select applicable scenes to show to highlight what was said.

        Reaching a much larger audience, the videos would be extremely powerful, which is of course what the proponents are so afraid of. Look at what happened when Louis was able to sit and talk with just a few LGBT people. Imagine the reaction of the general public if the words and deeds of our side could be seen by millions of people to compare directly against the words and deeds of the proponents. Brian and Maggie would be out of a job very quickly. (and wouldn’t that be fantastic!)

        • 10. Carpool Cookie  |  April 16, 2011 at 3:33 pm

          I am happy to say I read all the trial transcript, though it was sometimes a chore. I printed them out at work and put them in big plastic volumes, and even with combining several days into the same binders, I think it was 12 or 14 big volumes. I didn’t even have enough shelf space for them, and had to line them up on the kitchen counter.


          • 11. Michelle Evans  |  April 16, 2011 at 4:01 pm

            I have all the transcripts, but never printed them out. Good for you! All that paper would have drove us broke. :-) I wish that someone would have published these in some sort of a comprehensive volume. An example is that after the Space Shuttle Challenger accident in 1986, the presidential commission that did the investigation came out with a heavy, multi-volume report. Having the transcripts will be invaluable for future researchers on these subjects.

          • 12. Elizabeth Oakes  |  April 16, 2011 at 4:11 pm

            Dollars to donuts there will be a book on the trial once the Supremes have made a final determination, be it on standing or merits. I’m going to have mine autographed by Vaughn and Therese and Ted and David.

        • 13. Philly Karl  |  April 16, 2011 at 5:37 pm

          As long as hate and money exist, Brian and Maggie will always have jobs. That’s just the way hate and money work. When marriage equality finally comes (and it will), they will be pushing for a constitutional amendment to ban it. As long as they can convince their filthy rich supporters that God REQUIRES this effort, they will never go hungry.

          • 14. Southern Bell  |  April 16, 2011 at 5:50 pm

            Thanks for the replies! I would LOVE to buy a book and/or video of this whole historical event once it’s all said and done. To be able to say I read the blogging every day in ‘real time’ (sorry to say I don’t have to time or patience to go through the actual transcripts). Besides, I bet the live blogging was infinitely more amusing than formal transcripts.

  • 15. Bob Barnes  |  April 16, 2011 at 7:48 am

    Since Maggie claims Chuck Cooper did such an excellent job as well as the rest of the pro-Prop 8 team, why wouldn’t they want the tapes to be released?

    • 16. Kathleen  |  April 16, 2011 at 7:50 am

      Exactly. Let their supporters see what an “excellent” job Proponents did in defending Prop 8 in court!

  • 17. Ronnie  |  April 16, 2011 at 7:55 am


    • 18. JonT  |  April 16, 2011 at 1:57 pm

  • 19. Sagesse  |  April 16, 2011 at 8:00 am

    Proponents may just wish they’d let this issue alone. Awaking the tiger, and all.

    • 20. Ann S.  |  April 16, 2011 at 8:14 am

      Just what I was thinking.

    • 21. Carpool Cookie  |  April 16, 2011 at 3:03 pm


      Their side isn’t always so…bright.

      • 22. Kate  |  April 16, 2011 at 3:05 pm

        They also have absolutely no sense of humor. The wit here at this site is one of its finest features.

        • 23. Carpool Cookie  |  April 16, 2011 at 3:37 pm

          I don’t have the letter in front of me, but Judge Walker’s 2-page response ended with a court quote that was something like, [i]”The public cannot accept what it is forbidden to see.”[/i] Meaning, the public isn’t going to follow a law or legal decision they were not allowed to see crafted and put in place. Why should they give any authority to something shrouded in secrecy?

          He’s quite the clever little bunny!

          • 24. Carpool Cookie  |  April 16, 2011 at 3:52 pm

            Here is the quote: (Olson and Boies use it in their brief (ABOVE), too:

            “it is difficult for [people] to accept what they are prohibitedfrom observing”

            Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572 (1980)

  • 25. Ed Cortes  |  April 16, 2011 at 8:27 am

    I really want to see where this goes!

  • 26. Alan E  |  April 16, 2011 at 8:29 am

    But the threats to the witnesses livelihoods?! They will be shown as bigots on TV as well as in print!

    • 27. Michelle Evans  |  April 16, 2011 at 4:03 pm

      They were already shown as such under examination at trail.

  • 28. Alex  |  April 16, 2011 at 8:30 am

    As much as we want the tapes unsealed I seriously doubt it will happen. If it does the Supreme Court will only reseal them.

    • 29. AnonyGrl  |  April 16, 2011 at 8:31 am

      I think you are probably right, sadly.

  • 30. John B.  |  April 16, 2011 at 8:32 am

    Can’t somebody file a FOIA request to get the tapes?

    • 31. Kathleen  |  April 16, 2011 at 8:45 am

      The FOIA doesn’t apply to courts.

    • 32. Bruce McRoberts  |  April 16, 2011 at 10:57 am

      It also doesn’t apply to Congress or any of its subsidiary units, as I recall. Executive branch only.

  • 33. Ed  |  April 16, 2011 at 8:41 am

    I mean, come on…..don’t we all remember….i think it was in 1994 (the Michael Jackson case…) *that* was televised. Hell, the OJ Simpson case was televised…..This case wasn’t. Sure….thats balanced….

    • 34. Carpool Cookie  |  April 16, 2011 at 3:04 pm

      But that was in the interest of NATIONAL ENTERTAINMENT!

      When it comes to actual ISSUES, forget it.

  • 35. Alex  |  April 16, 2011 at 8:47 am

    Ed California Courts allow most court proceedings to be televised. Federal Courts are behind the times.

  • 36. DazedWheels  |  April 16, 2011 at 9:25 am

    If the 9th U.S. Circuit Court of Appeals unseals the record, maybe the whole thing could be immediately uploaded as a torrent before the Supremes could weigh in?
    I’d seed that torrent forever! Can’t stop the signal! :-)

    • 37. AnonyGrl  |  April 16, 2011 at 9:28 am

      That would be shiny.

      • 38. DazedWheels  |  April 16, 2011 at 9:30 am

        “I aim to misbehave.”

        • 39. AnonyGrl  |  April 16, 2011 at 2:55 pm

          “Let’s be bad guys!”

    • 40. Michelle Evans  |  April 16, 2011 at 10:59 am

      That’s why the P8TT is one of my favorite places in the ‘verse.

      • 41. DazedWheels  |  April 16, 2011 at 4:41 pm

        ’cause when we can’t crawl, when we can’t do that… there’s always someone here to carry us.
        (paraphrased, but so very true)

        • 42. AnonyGrl  |  April 17, 2011 at 4:51 pm

          OK.. that made me teary.


    • 43. Elizabeth Oakes  |  April 16, 2011 at 4:00 pm

      As my Open Source friends say: Information Wants To Be Free.

  • 44. JPM  |  April 16, 2011 at 9:51 am

    Who, specifically, ordered the video ‘sealed’ in the first place? Is there a document specifying this? Does it give some reason why the video was ordered sealed?

    I understand that the Supreme Court ordered that the trial not be broadcast live, but that order did not say anything about keeping video under lock and key after-the-fact, did it?

    • 45. Kathleen  |  April 16, 2011 at 10:23 am

      Other than the order from SCOTUS stopping broadcast of the trial, the only order Proponents reference (based on a quick skim; if you see others, let me know) is the one the parties were bound to in order to obtain a copy of the videos for use in closing arguments.

      That order, in turn, references Doc 425, available here:

      If you find other references in Proponents’ motion that you can’t locate, let me know and I’ll make them readily available. (you can also write to me: Prop8TT at gmail dot com)

      Again, these only seem to apply to the parties (Plaintiffs, Proponents, Plaintiff-Intervenors, etc.). I admit to not having paid much attention to the details at the time, so I’m trying to piece it together myself.

      • 46. JPM  |  April 16, 2011 at 11:08 am


        From document # 425

        “Even after the termination of this litigation, the confidentiality obligations imposed by this
        Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
        otherwise directs.”

      • 47. JPM  |  April 16, 2011 at 11:20 am

        Why would a different judge,

        Judge Joseph C. Spero

        be signing this order (#425), and not Judge Walker?

        • 48. Kathleen  |  April 16, 2011 at 11:41 am

          Spero was the magistrate judge to whom Walker referred a number of items. He handled a lot of the discovery issues. It’s not unusual for the presiding judge to be assisted by a magistrate judge, particularly in a complex case when the presiding judge has a full calendar.

          • 49. grod  |  April 16, 2011 at 1:00 pm


            Wasn’t Judge V Walker on 2 or 3 recent occasion in breach of this order by showing selected brief clips from these tapes as a teaching too? Why would he adhere to the strict letter of that order? Might he be testing the scope of the decision?

            Judge Walker – a gift that keeps on giving.

          • 50. Carpool Cookie  |  April 16, 2011 at 3:14 pm

            @ grod:

            In arguments like this, you’re not really in violation until a panel says you are. There are always different ways to look at a legal situation. The H8ers say Walker was in violation…but reading the brief, you see that the wording surrounding the recordings can be interpreted different ways.

            For instance…Walker did not “broadcast” the clips…CNN did. So is their argument with Walker. Also, the taping was done “with the intent to study for closing arguments”…and, well, that’s what happened. They WERE made with the intent to study for closing arguments, and they WERE studied. Now, what is okay to do with them after that is for the court to decide. But it is not clear if anyone’s in violation, or not.

          • 51. Kathleen  |  April 16, 2011 at 6:11 pm

            It’s not clear to me whether Walker is bound by the protective order.The copies of the video were given to the parties (only the plaintiffs and plaintiff-intervenor CC of SF, IIRC) on condition of abiding by the protective order, but I’m not sure that Walker is under any such obligation.

    • 52. Carpool Cookie  |  April 16, 2011 at 3:10 pm

      If you read the pleading (legal brief) demanding the tapes back, it recounts the history of the tapes. They were started — I THINK — because Judge Walker thought the trial would make a good candidate for broadcast in the federal courts pilot program that was going to explore broadcasting trials.

      The the H8ers flipped out and said their witnesses would drop out if they were going to be on TV (though the real reason was because Boise and Olson got then to discredit their own statements in pre-trial depositions) so it was decided to keep filming, but only to make a record for the attorneys and the judge to study as they geared up for final arguments. And they were allowed to use clips in these closing arguments to make it court.

      The filming was also used to telecast the trial within the courthouse for reporters and the public who couldn’t fit in the actual courtroom, who were ushered into 2 bigger rooms elsewhere in the building.

  • 53. chris  |  April 16, 2011 at 9:51 am

    Do these video exist in vhs form or digital form? If they are digital, then it would take almost no time to copy/post them. But if they are tapes, wouldn’t it take weeks to copy them?

    • 54. AnonyGrl  |  April 16, 2011 at 2:58 pm

      Apparently digital, since the clip was on a hard drive.

      I don’t know if the originals are vhs or digital.

  • 55. Carol  |  April 16, 2011 at 10:05 am

    Our constitutional system envisions open trials except in extraordinarily sensitive cases, usually involving state secrets or sensitive personal information. Here the only people with personal information to protect were the plaintiffs, who bravely put themselves out in front.

    We already have the transcripts, so why should the video remain sealed?

    And thank you, Kathleen, for the link to the motion.

  • 56. Matthew  |  April 16, 2011 at 10:20 am

    I’m having trouble figuring out if judge walker did anything wrong.

    The clips he played certainly aren’t flattering, but the context he played them in really didn’t have anything to do with the trial itself. He was emphasizing the long pause, lol.

    The big question is does this actually put the ruling in jeapordy?

    • 57. Kathleen  |  April 16, 2011 at 10:26 am

      I seriously doubt it. In fact, I can’t find anything that would have put Judge Walker under an order to not show these videos. Maybe there’s something I’m missing; I haven’t had the time to do a thorough search. But the only thing I see is an order prohibiting the parties in the case from disclosing videos in their possession.

  • 58. Nyx  |  April 16, 2011 at 11:26 am

    In the days of yore this was the type of post that got me addicted to this site. Threads were I learn more from the comments then from the posts themselves. Thanks everyone!

    • 59. Michael  |  April 16, 2011 at 11:29 am

      Well said!

      • 60. BK  |  April 16, 2011 at 12:49 pm


    • 61. elliom  |  April 16, 2011 at 12:35 pm

      I totally agree…THIS is the type of posting I’d like to see more of. Something that sponsors comment and discussion. I feel there’s been a lack of that lately. That’s been part of the reason for my extended AWOL period. It’s nice to be back.

      In re: this post. It shows the Proponents are scared. Ppl are starting to see through these frivilous and trivial arguments, and they’re scared their ignorance is gonna show.

      “Best to keep one’s mouth shut and be thought a fool, than to open one’s mouth and remove all doubt.”

    • 62. Doug  |  April 16, 2011 at 12:53 pm

      completely agree–thanks for the post.

  • 63. Carpool Cookie  |  April 16, 2011 at 3:27 pm

    What I’m confused by is why no one has leaked the tapes yet. I don’t mean the attorneys on either side, I mean the many many many people who have access to them. They’re in the courthouse and on a bunch of computers. If you look at the briefs, you’ll see how many law offices are involved on each side.

    I work in a law office….and there are 6 attoneys in the suite. I have access to the evidence used in our cases, and if I wanted to, evidence used in all the other cases just by virtue of working there and seeing what goes on. The attorneys are under an obligation not to expose stuff…but what about secretaries, cleaning crews, all the tons of people involved in keeping a business running? What about household members with access to these attorneys’ computers, or video library? There are a million opportunities for leaks, and I’m surprised it hasn’t happened….even by computer hackers.

    Even when court documents are placed “under seal” in a courthouse, it doesn’t mean staff or involved parties can’t access them. They’re not encased in cement and stored in a safe at the bottom of a well in a basement…it’s a [i]metaphorical[/i] seal. So even if everyone gave back their original tapes or disks, it doesn’t mean they can’t be leaked from within the court system.

    I’m not encouraging anyone to break the law, I’m just surprised the situation hasn’t naturally unfolded in this direction.

    • 64. elliom  |  April 16, 2011 at 3:51 pm

      I’m kinda surprised these haven’t leaked out yet either…and if they were moved off shore somewhere, they’d be outside the jurisdiction of the US court system, so there’d be no way to stop their desimination.

      • 65. AnonyGrl  |  April 16, 2011 at 5:39 pm

        I am not surprised they haven’t leaked.

        Olson and Boies know how bad it would be for their case if their copy leaked… and Cooper knows how bad it would be for his MOVEMENT if his copy leaked… I am sure they are all treating them like GOLD and keeping them VERY secure.

        • 66. Carpool Cookie  |  April 18, 2011 at 12:14 pm

          But what I am saying is, in the court system and in the Proponants’ (H8ers’) offices, there are all kinds of people, some of whom must be interested in getting this documentation out to the public, regardless of where their daily paycheck comes from. It’s surprising to me that none of those people have taken matters into their own hands.

          • 67. AnonyGrl  |  April 18, 2011 at 12:45 pm

            True, true!

    • 68. DazedWheels  |  April 16, 2011 at 4:50 pm

      As much as I want to see the entire thing broadcast, and freely available on the net, I want it to be done completely above-board – otherwise the story becomes about the leak, not of how the Proponent H8ers and their shadow backers manipulated voters through fear, lies and bigotry, then their attorneys and witnesses failed horribly during the trial. Just my two cents…

      • 69. elliom  |  April 16, 2011 at 4:54 pm

        oh, i’m by no means advocating that this be done…just surprised it hasn’t been, given the nature of the trial, and ppl’s desire to see it for themselves.

        • 70. DazedWheels  |  April 16, 2011 at 4:59 pm

          Oh, I know. I didn’t mean to imply anything. I’m surprised by it, too, but glad it hasn’t leaked.

          • 71. elliom  |  April 16, 2011 at 5:01 pm

            Guess everyone’s been satisfied with the plethora of info already out there…the court docs (thanks to our team of legal eagles), the reenactments, coverage on multiple blogs, newspapers, etc. I know if I were to get to watch the actual trial now, it’d be kinda like watchin’ a movie after readin’ the book.

      • 72. Bob  |  April 16, 2011 at 5:47 pm

        but the public does not want to know how they, the voters, where manipulated through fears lies and bigotry, the general public has no interest in being informed,,,,, that’s why they are continuallly manipulated….

        and that is a large part of what we’re up against, ( getting the public on our side) it’s of no interest to them…. they have more interest in a leak , or some other way that makes if entertainment,,,,,,

        I like the way Judge Walker used them in the educational setting he did, those people he was pitching them too, have the ability to learn from them, and that crowd may themselves go and view them all,,,, or question why they can’t use them to further their discussion about the beneftits of televising court cases,,,,

        I also have thought about getting them off shore, to some international LGBT organization..

        the tapes are creating a story and life of their own, and have the potential of renewing interest in the court case itself,,,,,,

        when will we have a verdict,,,,????

  • 73. karen in kalifornia  |  April 16, 2011 at 5:30 pm

    I love Boies and Olsen.
    This is how to do it. This is how to “attack” the Antis. Proponents thought they were going on the offense, but no, these two brilliant lawyers and their gang turned it into OUR offense. I need state level anti gay momentum to be turned into offense for US just like this. Think Maryland where equality narrowly went down in the Legislature. Think Rhode Island where equality is stalled because the Catholic religious thing is being so assertive (Italian American Democrats get calls from their priests to not support equality).
    Love Boies and Olson.

  • 74. truthspew  |  April 16, 2011 at 5:40 pm

    The bigots at NOM and their ilk are scared about this and I can explain why they are so scared.

    You at the Prop 8 Trial Tracker and Courage Campaign provided spectacular coverage of the trial here on this blog.

    What the bigots are afraid of is that many of them made our case for us. If those videos get out, and they will, it’s going to show them for what they are, bigots at heart.

  • 75. Ann S.  |  April 16, 2011 at 8:26 pm

    KQED (the San Francisco NPR affiliate) has a story on the infamous showing of the tape in Arizona here.

    A clip of the oral argument before the 9th Circuit in the Perry case was also part of his presentation and can be found there (in addition to a link to the entire presentation, which of course has already been posted by Kathleen and, I think, by others).

  • 76. Sagesse  |  April 16, 2011 at 9:35 pm

    Has anyone else wondered why, other than committee chairman Trent Franks, only democrats questioned witnesses at the DOMA hearing?

    “The 10-member panel includes some of Congress’ most virulent opponents of gay rights, including Representatives Steve King of Iowa and Jim Jordan of Ohio. But when all 5 of his Republican colleagues failed to appear, Franks found himself in the minority.”

    Trent Franks Leads House Hearing On Obama’s Gay Marriage Decision


    • 77. Ann S.  |  April 17, 2011 at 11:28 am

      Maybe they didn’t want to embarrass themselves?

      • 78. Ann S.  |  April 17, 2011 at 11:28 am

        The other Republicans, I mean.

  • 79. Rhie  |  April 18, 2011 at 11:08 am



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