Proposition 8 Trial Reenactments

Although the Supreme Court put the kibosh on efforts to broadcast in a limited fashion the ongoing Proposition 8 trial in California, that has not stopped efforts to release video from the trial.

In an unprecedented move, two producers have been staging elaborate reenactments with real actors playing the judge, lawyers and witnesses, and posting it all on YouTube:

Frustrated by a Supreme Court decision barring broadcast of the trial, two Los Angeles film types are translating the courtroom testimony into elaborate YouTube re-enactments, complete with professional actors, realistic sets and a budget that might buy you lunch.

“We told the actors: ‘Don’t embellish this. These are real people. This is real testimony. We have to be true to that,’ ” said John Ainsworth, an actor who, along with a filmmaker, John Ireland, is producing the videos and an extensive media campaign of their own.

Once completed, 60 hours of video will reconstruct 12 days of testimony taken verbatim from court transcripts. Each day’s testimony will be uploaded in hourlong chapters to YouTube and marriagetrial.com, a Web site Mr. Ireland and Mr. Ainsworth created for the project. They said Tuesday that they hoped to have all the video online within two weeks.

Though many in the cast have real acting chops — one plays the president on the Fox show “24” and another, Tess Harper, was nominated for an Academy Award — all are volunteering their time. Shooting takes place in 16-hour stretches on weekends in a mock courtroom at the University of Southern California’s law school.

I played a few clips and found them grindingly realistic.

By that I mean, they are at times exceedingly boring, filled with asides, mistakes, halting speech, objections and admonishments from the judge on how to properly object, mundane matters like whether a document was already admitted or not, whether a video playback is working properly -- in other words all the stuff that actually occurs in a real trial.

Fascinating stuff.

Now Here's How You Criticize A Federal Judge.

Noted conservative lawyer and NRO legal contributor Ed Whelan tears into the Chief Judge of the Northern District of California, Vaughn Walker (a Bush I appointee), who is about to begin trial on the same-sex marriage case brought by Ted Olsen and David Boies.

Let's see --

1. He calls it a "show trial."

2. He says Judge Walker just wants publicity and is seeking to convert the proceedings into a

"high-profile, culture-transforming, history-making, Scopes-style show trial of Proposition 8’s sponsors. Specifically, Walker is rushing to override longstanding prohibitions on televised coverage of federal trials so that he can authorize televised coverage of the Proposition 8 trial. Televised coverage would generate much greater publicity for ringmaster Walker’s circus."

3. He says Judge Walker "wants to stack the deck against Proposition 8" and "has resorted to procedural shenanigans and outright illegality."

4. He says Judge Walker's acts are "in plain violation" of the rules prohibiting broadcasting federal trials and the "obvious purpose" of Judge Walker's actions is to subvert those rules (even though Whelan concedes that Judge Walker may be in "technical compliance" with the relevant federal statute).

5. He calls Judge Walker's actions "kangaroo-court procedures."

6. Whelan says "[o]nly an idiot or a hardened ideological advocate for same-sex marriage — and Walker is no idiot — would imagine that the Proposition 8 case is a good candidate for the program."

7. Whelan concludes that "[i]f Judge Walker persists in failing to recognize that elementary fact, the national civics lesson that he will be providing is yet another reminder that too many of our federal judges willfully abuse their authority in order to advance their own political agendas."

8. For good measure, Whelan did a follow up post, lamenting that "[t]here’s no end to Judge Vaughn Walker’s shameless procedural shenanigans" and that "the only 'immediate need' is for Walker to disqualify himself for his patent lack of impartiality — or for some higher court to step in."

You know, just to be safe, I'm gonna take another long look at Judge Zloch's order.

Are Ted Olsen And David Boies Just Better Than We Are?

Via AL there is an interesting post at PrawfsBlawg on the new suit by Ted Olsen and David Boies that challenges Prop 8 on Constitutional grounds.

I just read the complaint and think it's a total crapshoot, as the issues are framed as purely ones of Due Process and Equal Protection under the United States Constitution.

Professor Araiza questions the timing and motive of the suit, and notes that legal activists in the trenches are not too pleased that two huge Supreme Court bigshots have jumped into the fray:

I have got to assume that Olson and Boies picked this cause, and only then went looking for clients. Indeed, Olson's comments yesterday support this interpretation, which of course jibes with what we all know about high-profile lawyers like these two -- a lot of their work is all about causes, not individual clients per se.

If that's true then it's hard to avoid the conclusion that Olson and Boies have intervened in the strategy directed by other cause lawyers -- among others, the ones quoted in the Times article as expressing concern and even annoyance about the lawsuit -- who have made gay rights their lives' work. (Hence the title of this post.) At best this strikes me as naive; at worst (again leaving aside the cynical political explanation) it strikes me as an arrogant hijacking of a long-term process worked out by someone else. If Thurgood Marshall were still alive he would probably react to this lawsuit by expressing gratitude for the unpopularity of civil rights litigation in the 1930's: at least he didn't have to fend off others' attempts to bring a school desegregation case to the Court before the time was ripe.

I know a little about Boies and litigated with him (the 2000 recount) and against him (on a few commercial matters). I know many lawyers who now work with him. He's very skilled and impressive but can't just wave a magic wand and line up the votes on such a squirrely legal issue.

Olsen is a whole other can of worms, but I have to assume he's sincere and wants to win this on the merits.

Still, it's not a good sign that they apparently did not coordinate this filing with the folks who are litigating these issues on a daily basis.

As well-regarded as those two advocates are, I just don't see that factor adding a whole lot to this issue. Query if it will even make it to the Supremes, assuming the district court bonks it and the 9th affirms.

Either way there will be lots of pro bono hours racked up at those two firms.