Judge Vaughn Walker's Use of Trial Video Under Fire From Prop 8 Supporters

Eight months after his decision striking down Prop. 8, Vaughn Walker is once again infuriating the ballot measure's backers. Walker, who retired from the bench in February, is under fire for using a 3-minute video clip from last year's trial during a presentation he made at the University of Arizona. The topic: "Shooting the Messenger: How Cameras in the Courtroom Got a Bad Rap."

Background: Judge Walker was prepared to have last year's trial broadcast live and made available on YouTube. But Prop. 8 backers succeeded in blocking that plan. The U.S. Supreme Court stepped in as the trial was beginning and ordered the broadcast stopped.

Over objections from Prop. 8 attorneys, the cameras continued rolling during the 2-week trial. Judge Walker said he wanted to review the tapes later in writing his opinion.

But during a legal seminar at the University of Arizona on Feb. 18 Walker used a 3-minute segment from the trial. Walker's entire presentation -- including the trial video clip -- was recorded by C-Span (watch it here)... and is now available for viewing in its archives. The clip shows attorney plaintiffs' David Boies cross-examining Claremont-McKenna political science professor Kenneth Miller on whether Prop. 8 meets his definition of "official" or state sanctioned discrimination. It is not a particularly flattering clip, as it shows Boies getting Miller to acknowledge that laws against same sex marriage discriminate against gay and lesbian couples. Throughout his speech at the U of A, Walker emphasizes that showing the trial would have had no adverse impact on the outcome and would serve a public purpose.

This week Prop. 8 backers cried foul -- saying Walker illegally used that clip, which was under seal during the trial and explicitly forbidden from broadcast by the U.S. Supreme Court. In a lawsuit filed with the 9th Circuit Court of Appeal, Prop. 8 attorneys accuse Walker of illegally and unethically using the tapes and ask the court (the same court now considering the appeal of Walker's decision) to force Walker to turn over all copies of the trial so they won't be broadcast again.

Walker retired from the bench 10 days after that Feb. 18th speech -- so he's no longer subject to professional discipline. Walker recently told the media he thinks the tapes are part of the public record.

Ironically, when the 9th Circuit heard the appeal of Walker's decision last December, cameras were allowed in the courtroom. In fact, the 9th Circuit regularly allows broadcast of appellate proceedings.

The appeal of Walker's decision is currently on hold while the State Supreme Court considers whether proponents of ballot measures have legal standing to defend them when state officials decline to do so. Meanwhile, gay rights groups are mulling over the pros and cons of a 2012 ballot measure to undo Prop. 8 and legalize same sex marriage.