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Vaughn Walker’s Continuing Defiance on Prop 8 Trial Recordings

One of the clear early signs of former district judge Vaughn Walker’s determined malfeasance in the anti-Prop 8 case was his resort to procedural shenanigans and outright illegality in furtherance of his fervent desire to broadcast the trial, in utter disregard of (if not affirmatively welcoming) the harassment and abuse that pro-Prop 8 witnesses would reasonably anticipate. Walker’s escapade was blocked by an extraordinary (and fully warranted) stay order by the Supreme Court in an opinion that was plainly a stinging rebuke of Walker’s lack of impartiality:

The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.

Walker ended up recording the trial proceedings but, assuring Prop 8 proponents that he was doing so only for his own use in deciding the case, he ordered the video recording of the trial to be placed under seal.

But, believe it or not, Walker himself recently publicly displayed and broadcast a portion of the video recording—containing cross-examination of one of proponents’ witnesses—notwithstanding that he thereby violated his own order and his court’s local rules, contravened the policies of the Judicial Conference of the United States and of the Ninth Circuit, and thumbed his nose at the Supreme Court. Specifically, in mid-February, two weeks before he retired as a judge, Walker delivered a speech at the University of Arizona in which he played that video recording. That speech and the video recording, as Walker surely knew, were videotaped by C-SPAN, and they have already been broadcast several times by C-SPAN.

Earlier today, Prop 8 proponents filed a motion in the Ninth Circuit for an order compelling Walker to cease further disclosures of the video recordings and to return any copies that are in his possession. Below the fold, I copy the introduction to the motion. 

What follows in the remainder of this post is the introduction to the motion filed today by Prop 8 proponents:

On February 18, 2011, Judge Walker delivered a speech at the University of Arizona in which he played a portion of the video recording of the cross-examination of one of Proponents’ expert witnesses in the trial of this case.  The speech was video taped by C-SPAN, and it was subsequently broadcast on C-SPAN several times beginning on March 22.  See, “Details – Airing Details.”  The speech is available for viewing on C-SPAN’s website.  See id.

By publicly displaying the video recording of a portion of the trial testimony, Judge Walker (1) violated his own order placing the video recording of the trial under seal; (2) ignored the clear terms of the district court’s Local Rule 77-3, which prohibits the broadcast or other transmission of trial proceedings beyond “the confines of the courthouse”; (3) contravened the longstanding policies of the Judicial Conference of the United States and the Judicial Council of this Court prohibiting public broadcast of trial proceedings; and (4) defied the United States Supreme Court’s prior decision in this case ruling that an earlier attempt by then-Chief Judge Walker to publicly broadcast the trial proceedings “complied neither with existing rules or policies nor the required procedures for amending them.”  Hollingsworth v. Perry, 130 S. Ct. 705, 713 (2010).  Thus, Judge Walker “‘engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts.’”  In re Complaint Against District Judge Joe Billy McDade, No. 07-09-90083 (7th Cir. Sept. 28, 2009) (Easterbrook, C.J.) (quoting 28 U.S.C. § 351(a)).

But even more regrettable, perhaps, than all of this is the fact that Judge Walker’s use of the trial recording repudiated his own solemn commitment to Proponents in open court that, despite Proponents’ objection, the trial was being video recorded “simply for [his] use in chambers,” because it “would be quite helpful to [him] in preparing the findings of fact.”  Ex. 1 at 754:18-19, 755:4.  In reliance on this assurance, Proponents took no action to prevent the recording of the trial.  One of Proponents’ expert witnesses also relied on this assurance, deciding to testify after then-Chief Judge Walker had made clear that the trial recording would not be broadcast.  Now a portion of his testimony has appeared on national television, and he regrets his decision to trust this assurance.

What’s done is done.  Judge Walker’s speech, and C-SPAN’s public dissemination of it, cannot be undone, and given that Judge Walker has recently retired from the federal bench, he cannot be disciplined.  See In re Charge of Judicial Misconduct, 91 F.3d 90, 91 (9th Cir. Judicial Council 1996).  But he can be ordered to cease further unlawful and improper disclosures of the trial recordings, or any portion thereof, and to return to this Court any copies of the trial recordings in his possession, custody, or control.  We respectfully request that he be ordered to do so.  We also request that Appellees be ordered to return their copies of the trial recordings, which were provided to them by then-Chief Judge Walker for their use in closing argument below and in the appeal to this Court.  Putting aside that providing copies of the trial recordings to Appellees also violated Local Rule 77-3, the policies of the Judicial Conference and this Court’s Judicial Council, and then-Chief Judge Walker’s assurances in open court, the purpose for which they were provided has now been fulfilled, and Appellees’ continued possession of the recordings can no longer be justified.

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