Today, a three-judge panel of the Ninth Circuit Court of Appeals declined to release Judge Vaughn Walker’s videotapes of the Prop 8 trial. The panel’s decision seemed to be determined by the fact that Judge Walker promised to keep the tapes under seal. We expected as much.
But, that makes the opinion sound broader than it actually is. In fact, the opinion is so narrow, the panel was compelled to use the word “narrow” twice in one sentence. The court concluded that Judge James Ware “abused his discretion” when he ignored his predecessor’s promises to keep the tapes under seal and ordered them released anyway, and because the Prop 8 Proponents “relied” on Judge Walker’s promises, the tapes could not be released or it would damage the integrity of the judicial system. The opinion stays silent on the right of access to trial video recordings, silent on the possible equivalence of transcripts and videotape, and silent on who has the burden of proof. That is, my argument that the videotapes constitute transcript plus did not come into play.
Remarkably, the opinion is also silent on precisely how Protect Marriage relied on Judge Walker’s promises. This omission makes me question an opinion that is otherwise right on the law.
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