View Comments      Email Article       Printable Version

Published: January 28, 2010

Star Chamber

Prop 8 Trial Liveblogging

This unedited blog appeared on the liberal site Political Forum.com on January 25.

Today the Plaintiffs’ Counsel has advised they will play about 90 minutes of video before resting their case. We may see some fireworks, too, since D-Is advised on Saturday morning that they play to call Frank Schubert, of Schubert Flynt Consulting, the campaign manager for Proposition 8. Plaintiffs’ counsel has filed an objection to this witness since he specifically declined to answer questions on the same topics 76 times during his deposition.

Waiting now for Judge Vaughn Walker to take the bench.

Judge Walker is on the bench.

Boutrous wants to exclude MR Schubert’s testimony. Asks that your honor take this up first thing today.

Walker: Why before they present their case?
B: They want him to talk about the genesis of the campaign, and that would be a waiver of privilege, so all the documents they have withheld would have to come in. The obstruction has been remarkable, the degree to which our inquiry has been blocked.

B: The ostensible purpose of bringing him in is authenticity; either there’s no reason for him to testify (authenticity) or we must get lots more documents.

Walker: Didn’t Cooper say on Friday there would be two experts, Miller and Blankenhorn. When did you learn about Schubert?

B: Sunday morning, 8:30am. Cooper said there might be one more, on Friday, to authenticate docs. We have told them we don’t obejct to the docs, don’t question their authenticity. They have zealously protected any line of inquiry about his state of mind, his strategy, his planning, even blocked us from asking him about his articles.

Moss: We received their motion about 11:30 last night. We’d like 24 hours to respond. We don’t know if we’re going to call him. A variety of docs, we don’t agree on authenticity. We may need Schubert depending on what they bring in. These docs have been withheld per the Ninth Circuit’s order. They want to move in a variety of docs, and we would use Schubert about those docs, it would only be for authentication.

Walker: Do you know which docs? Doesn’t that tell you whether you need to call Mr Schubert?

Moss: One objection…

Walker: Assume they come in.

Moss: Well they might come in blank, or they might be tendered with significance and relevance.

Walker: Evidence is what it is.

Moss: They will make representations about the docs, do we need a witness to discuss their contentions about the document. Until they have questioned a witness about that, we won’t know what their point is.

Walker: Are these defendants’ docs?

Moss: Some are, some are not.

Walker: How many?

Plaintiffs Counsel: 30-40, some produced during trial, some from websites, some from D-Is during discovery.

Walker: Are you saying you believe the source of all is ProtectMarriage.com.

PC: Some documents don’t show the source, but it’s clear they prepared it, connected to it, even though it was another source was screened by PM.com

Walker: And it’s that concerns you, Moss?

Moss: Very much in dispute about whether these docs are PM.com’s. If coming in under sponsoring witness, we could clarify on cross. IF just moved into record, then we might need to call Schubert for facts that we’d like clearly presented. We’ve produced these because we were ordered to, they are introducing them into evidence. But we should have the right to question.
PC: We first heard about this at 8:29.

Walker: AM or PM?

PC:: AM, and there’s only one document at issue.

Moss: These are new documents, we want to add if we call Schubert, what we dont’ know is what additional documents will come in. We will have to decide after we see what they bring in.

Boutrous; We asked Schubert over and over about these documents? (Quotes motion, instructed not to answer). Moss now saying, havibng blocked our depo inquiry, wants to question him for the first time on the stand. They want it both ways, why should be get to testify for the first time.

Walker: Thank you all, I’m going to reserve on this. We;ll see what docs come in, I’ve read your papers, I’ll consider further the issue when it becomes ripe.

Boies: Would like to discuss the designation and counterdesignation of Young and Nathanson, depo’s we played and Defendants played. They came forward with additional designations, theirs are responsive. We don’t agree, though, we have certain objections to their designations, which we feel demonstrate the witness is not competent to testify.

Walker: A knowledge challenge?

Boies: Perhaps beyond that, goes to the witness’s expertise. We’ve marked their designations in yellow if we’ve agreed, and in pink that we object to.

Walker: Happily, most of these are in yellow.

Boies: Yes, if you’ll skim the yellow, they’ve designated a whole series of questions and answers to show Young is not an expert in psychologhy, psychaitry, political science, child development, sociolofy; she is an expert in religion, but only Hinduism. She never studied whether there’s American prejudice against gays and lesbians. She’s never studied how many G&L raising children or the consequences of that. She doesn’t know the views of American churches toward G&L. She describes one man one woman marriage as ‘the norm; but doesn’t know how many children are being raised in it or outside it.

Walker: Excuse my interruption, what if I review these in chambers and discuss with you and Mr Patterson, or Mr Neilsen.

Neilsen: My points are, the court admitted certain designations about the witness’s expertise, these areas of the taped depo were outside the area of expertise. They are very ironically saying that witness’s testimony is outside the area of expertise, our counterdesignations are outside the witness’s areas, even though we are only respondeing to the plaintiffs’ wquestions. It is a great irony, that our counterdeignations can’t come in but their designations can.

Walker: I would like to see the actual testimony rather thandeal with it in the abstract.

Boies: Yellow is responsive, pink is non-responsive.

Walker: Pink is a small portion.

Neilsen: This is new objection, I’ve heard relevance before.

Walker: Highlighting very helpful in this fashion, I’ll read them at lunch or this evening and then we can talk about them. Anything else?

Moss: We have several subpoenas to No on 8 groups, these are pending, we need a ruling on this soon.

Walker: Very well, now willMr Dusseau make this presentation?

Dusseau: Yes your honor, here’s what we plan to do. We have many exhibits and documents in three categories. First, from the parties, second, from the campaign, and third, relating to witnesses but did not get in during testimony.

D: We don’t see much argumnet about authenticy, we don’t have lots of quesitons about them. We’ve reached agreement on 46 docs, they have no objection. Moss discussed with us since THursday, we appreciate their courtesy, here;’s that list.

D: Move these agreed docs in to evidence

W: Moss?

M: No objection

Walker: Entered into evidence

D: I’ve prepared a binder of the admissions by parties, these are the doc that we have admitted, these are the actual docs on the list.

Walker; Are you going to take me through these to show what they establish?

D: During closing, or post-trial briefing, we may refer to them. We just what to be sure that the facts presented have foundation and authority.
Walker: You need to tell me what you want me to get, or infer, or reach conclusions about, wrt these docs.
D: Maybe I could move on to the disputed docs, about the campaign and the structure of the campaign. The first are simulcasts: PX503, 504, 505 and corresponding Xtripts: 1867, 1868, 506. First two are court-certified Xtripts; 506 is on the PM.com website.

D: There is no dispute that PM.com provided the total funding, that this is activity reaching CA voters before the campaign,coordinated by the campaign, relevance is beyond dispute. Would you like to hear arguments about this, or wait to hear our further arguments about the campaign material? We have several binders of campaign material (PX2075 is the first)

[walker does't have the binder yet]

[now everyone has binders]

D: This is a blast email from Schubert and Flynt, from their official capaity, with a passage referring to their website PM.com, about the live simulcasts for pastors, for young adults, and for entire families. This alerts everyone to PM/com simulcasts.

D: Also PX421,

we gotr from a website, checked this morning, it is publicly available: protectmarriagesimulcast.com, and it says at the top, ProtectMarriage.com,even though opposing counsel claims that PM.com has nothing to do with this. These are publicly availble, simulcasts for five dollars each, which is how we got them since D-I was nonresponsive.
D: move into evidence
Walker: Moss?
Moss: Created by organization or individ separate from PM.com, Prentice says at his depo that he was unaware of this. PM wasn’t part of this or responsible, or maintained this website, Prentice said he knows nothing. PM paid for simulcast but had no control over the content, what was said. We don’t know what of these simulcasrts Plaintiffs say is relevant, Prentice wasn’t there, we don’t know that anyone from PM was there. These are not from the files of PM.com, and don’t have anythnig to do with PM.com
Walker" Dusseau?

D: The website says ProtectMarriage.com presents. I do have another document that might assist Your Honor before ruling? PX2656
Walker: Very well. I have that now
D: PX2656 produced during trial, not avail on depo. Email chain between Jim Garlow, Mr Pugno, and MR Flynt about a CARD relating to these events. "CCM is broadcasting at no charge, but PM is paying CCM." Pugno asks here that all the Concerned Women for America be removed, and that it show that ProtectMarriage.com is presenting the event. The mass mailing must show it comes from PM.com." Clearly, this is evidence that the mailer for the simulcase was from PM/com

MOss: No objecttion –
Walker: Very well, admitted.
Moss: — but your honor, this is about the mailer card,not about the simiulcast, not about the DVDs, not about who paid for it. They are trying to prove that PM.com controlled the simulcase.

Walker: I gather there is no dispute that PM.com paid for the simulcast
Moss: Correct your honor

Walker: And these DVDs are of the simulcasts?
MOss: Yes

Walker: Well then there has been sufficient foundation shown ad they are admitted.

[MOSS LOSES, STEPS AWAY IN SHAME....]

D: email to Prentice talking about the simulcast
Moss: No proof Prentice even read this email

Walker: That goes to the weight of the evidence, not its admissability, Moss.

Moss: Yes your honor.

Walker: Let me review: No objection to… (lists)

Moss: we don’t believe they’ve shown specific relevance

D: Paid for by PM.com, messages before the election to CA voters, we have about six minutes of clips we’d like to show, admit the entire thing, and then show excerpts that were being presented to CA voters.

Walker: You are asking the court to rely on these excerpts. Play them then.

((( VIDEO…

Jim Garlow, in San DIego, first satellite simulcast: Polygamists will use the saem argymnets, children will be taught in schools that gay marriage is a good thing.

Tony Perkins: From teh US Capitol: "Few families are really thinking through the implications of same sex marriage. It confuses children, even elementary age children get materials affirming same sex marriage. [Now we hear the drivel from the Wirthlin family about the diversity books showing same sex households]

Perkins: YOur kindergartener was given a book abuot homosexuality in the public schools? Relationships, behavior, CLifford & his partner Henry are in this book getting breakfast ready for their children.

Garlow; HAve you had a revolution in Mass?
Rev Miranda: We have a governor elected by the homosexual lobby, in education we have homosexual teaching integrated into the public schools, our \children being taught homosexuality. Our people are becoming desensitized to homosexuality.

Garlow: WE being told the sky hasn’t fallen, but it seems like a generation is losing the difference between right and wrong.

(More talk, about hijacking the civil rights movement. "I’m offended because I didn’t choose to be black, so their choice has nothing to their rights." Homosexualituy is a choice, skin color is not. They are comparing my skin to their sin.

(Lots of prurient talk about homosexuality in kindergarten, quite strident.)

(Talk about the Domino Effect throughout America — people also asked how 9/11 directly affected them, the world was a different place and the redefinition of marriageis exactly the same as 9/11)

Pedophiles would have to be allowed to marry children eight or nine yers old. A man asked to marry his horse. Son and mother, father and daughter, where will it ever stop?

[The tone of these videos is really amped-up hysteria, crowd motivation through fear]

END OF VIDEO

Walker: MOss?

Moss: Well we maintain our objection, but we may want to add other excerpts under the doctrine of completeness, so if they do come in, then we may want to put in our own list of excerpts.

D: Transcripts and all documents introduced.

Walker: Another simulcast and its transcript? Very well, 503 admitted onthat basis and 1867 1868 and 506. ADmitted.

D: The next document is about these simulcasts, we have a disagreement about it. PX2773, email exchange Garlow and Prentice. First portion is from Garlow to Prentice,then Prentice to Garlow, cc Schubert and cc FLynt, seek to admit this.

Moss: We need some tender, they need to show relevance, what inferences are they drawing from it?

D: Hope to do that after moving into evidence, then I can highlight the part I’m talking about

M: This is a post-election doc

D: Yes it is, and the head of PM.com is trying very hard to prevent the simulcasts from becoming public. It’s after the campaign, but tlaking abuot the control of the simulcasts that happened before the election. Goes to state of mind of D-Is.

Walker: Referring to Prentice’s 11/16?

D: This is about what goes on the Dr Phil show? "shows religious bias to a national audience" these are Prentice’s word

Walker: 2773 admitted.

D: Next we have two videos 390 and 391 of rallies where Prentice spoke before the election about the campaign.

Walker: MOss?

Moss: If these were shown in the entirety to Prentice in his depo, we have no objections.

Walker: Very well

(BEGIN VIDEO: "so grateful 2500 pastors have come together on a monthly basis on these webinars. If people were planning to vote NO, all we had to say was that there children would be taught about homosexuality. They would flip. We know we have a hidden force. [talks about significance and secrecy of LDS in Prop 22] This battle will cost 25 million dollars, and LDS people have been very generous, a group of pastors included the Catholic Bishops in San Diego wanted to take this on. Then I turned to Focus on the Family and they gave us $50,000 to print thepetitions, and we were ready to go~!" END VIDEO ]

D: NExt document is PX21 is a flyer produced by the California Family COuncil Foundation, which Dr Tam said was part of the coalition, Prentice is its president. This flyer was distributed before the eection, no dispute as to authenticity, it came from thier files, anyattempt to distance the campaing – shares the asame CEO.

Moss: No evidence it was distributed. We don’t know if it was a draft, there was a dispute at depo regarding the date. Some orgs listed were not involved in the Prop 8 campaign. I’m not clear on those points, it should not come in without foundtion. If it comes in, we need to know who saw it, voters, churchgoers? It was simply in his files, we don’t know if he even wrote it.

Walker: Goes to weight, Moss, not admissaility. ADmitted.

D: Draw attention to the section on the second page there is asection called BNackground. "the goal of the homosexuality is not marriage. when they can marry, only 3% do. thier goal is the annihilation of marriage and the enactment of their homosecual agenda."

D: Next two PX480 (video) & PX2681 (article produced byAmerican Family Association which donated half a million to the Yes on 8 campaign. Made available to voters before the election.

Moss: Prentice recognized himself in the vid at depo. Unsure it’s been established this was made available to voters before the election. May have been filmed before the election, but not shown or available to voters? Not sure 2681 was avail to voters either.

Walker: Moss’s comments, again, go to weight and not admissability. PX480 admitted.

D: May I show exceprts of 480 now then?

Walker: Yes

((VIDEO — homosexual lobby is very powerful, Prop 22 was to be overturned and challenged. "Activists" trying to make a homosexual triumph that makes children be taught about same sex marriage. Mandatory teaching and influential images (shows marriages at city hall in SF) "The spectre of children being raised in same sex homes. Where do you go to find out how to change the oil if you have two moms? It’s not the same natural aspect. Who’s gonna teach kids the dad stuff if there’s two moms. Instead of parents having complementary role models, these marriages mirror easch other and rob children of God’s plan for them."))

D: American Family Association made the video and also wrote the article.

Walker: What’s the connection to Prop 8?

D: Donated half a million dollars, made a video including Mr Prentice speaking to voters before the election. Characterizeing what they are trying to communicate.

W: MOss?

M: No evidence Prentice speaking on behalf of Protectmarriage.com. He’s not a defendant, and there’s no evidence that he was speaking for PM/com, he didn’t know how it would be used, the article is hearsay if it’s being used to prove the truth of the matter.

D: It talks about upcoming November election for Prop8

M: NO evidence the article was posted on the internet before the election.

Walker: sustained, no evidence to admit PX2681 (articel

D: Move on to PX2589 — email from Prentice to a redacted party about Prop 8.

Walker: Moss?
Moss: No objection
D: (reads) "Number 10: what gays do in their private lives is their business, but I don;’t want children exposed to it in school."

D: PX2597 produced by D-I, written and sent by Prentice before election, shouldn’t be admissability issues.
Walker: Hearing no objection, admitted.

D: Last page, [signature gathering without paid gatherers, Catholics, Bishops, National Organizationfor Marriage, Knights of Columbus all gave huge gifts of money to gatherers]

D: Exhibit 2455: email chain from Maggie Gallagher to Brian Brown and Frank Schubert cc Prentice (before election)
Walker: Hearing no objeciton, 2455 admitted.
D: REads something written by Brian Brown: "We’re going to need to get approvalfrom Schubert Flint on this. The text of the agreement requires that anything specific to California to get approval."

Moss: Hearsay

D: Should be admitted as to state of mind, Brown under the impression he has an agreement that he has to run everything by S-F.

Moss: Making inferences about the state of mind of someone not on the stand. We have no sponsoring witness to examine, hearsay.,

D: Not hearsay if state of mind.

Walker: Clearly admissable document, perhaps this is why the proponents wish to call MR Schubert, admitted.

D: Related topic of the network and support PM.com had. PX2660

D: not sure what the objection is?
Walker: Hearing no objection….
Moss: Well we’re unsure of wht cast they want to put ont his doc.

Walker: It’s from Ron Prentice, the head of PM.com, and is therefore entirely relevant, admitted.

D: (reads) Evangelicals, Catholics, LDS, Orthodox Jews, Arlington Group of churches, overwhelming grassroots support…

D: PX2385, produced by Mr Schwartzer, tried to keep his identity secret during discovery. When his identity was discovered we did get some docs from him. We have here an email sent to mr Prentice although not produced by them, therefore admissable, from MsSnow.

Moss: Hearsay, it’s from Snow, outside the campaign, sending it in, presumably they are hearsay not from a party.

Walker: It’s to Prentice, therefore I admit it.

[MOSS SLINKS AWAY, LOSING ANOTHER ONE]

D: As Moss points out, Ms Snow is a member of the Arlington Group, talkes about "organizing heavy hitters" — Garlow, Blunt, Pence, Burr, Meese, Dobson.

MOss: These are not efforts on behalf on Prop 8, Arlington Group worked on many state efforts, we can’t examine her.

Walker: It was sent to Mr Prentice, reflective of his state of mind, admissable, therefore IN.

MOSS RETURNS TO HER SEAT

D: PX2150, actual flyer from the campaign itself, produced by the D-I, I don’t understand the objectio.

Moss: We have no objection.

Walker: Therfore admitted.

D: Final set of binders, docs that relate to subjects of testimony that we had hoped to move into evidence, but ther is disagreement on some.

[more binders!!]

D: First two are 1675 and 1676, two statements of the American Anthropological Assoc on the subject of race. No dispute as to authenticity. The other side has ade the argument that sexual orientation is an undefinable minority. THis article shows the complexity of race as well, and therefore pertains to the affordability of suspect class status to groups that are ill-defined.

Moss: Take judicial notice, no objection

Walker: Court will take notice of 1675 and 1676

D: Couple of passages. (reads about races as natural and separate, although science now shows races are not biologically distinct groups…. at the end of the 20th century we now understand that culture is developed within children as they learn. How people are treated and accepted has a direct impact on their performance. Race was developed to create unequal populations.

Walker: Admitted

D: 2566 and 2581, your honor. 2581 we obtained from Library of Congress showing the Treasurer denying tax exempt status in 1974 to a PRIDE Foundation.

Walker: 1974? And you want to admit this under the ancient documents rule?

D: Please don’t shoot the messenger!

W: Very well, Moss?

Moss: Authenticity not established.

Walker: The Library of Congress would obtain such a documnet? You did not obtain this from the LoC? The IRS document came from where?

D: The copy we got from a website, but the document we got can be obtained, MR Olson reminds me, from the Library of COngress.

Walker: When counsel makes representations to the court, the court presumes to them be true. Therefore the document from the US treasury, IRS, denying the PRIDE Foundation of SF tax-exempt status, is ADMITTED.

D: (reads letter, about activities promoting homo tendencies among the public, deviant sexual behavior being promoted and therefore not charitable)

D: And also 2566, your honor. From the same website, but also obtainable from the Library of COngress. 1966, Civil Service Commission describes the prohibition of G&L from employment in the civil service.

W: As you represnet this is an official government record, it is admitted. Is there any part you wish to draw the court’s attention to? Rather than the website, it is the document itself I am admitting.

D: On page two of the exhibit, of particular note: "types of deviant sexual behavior, age of participant" Essentially denies homosexual as a person based on alleeged group conduct.

Walker: Very well.

D: Wants to admit a bunch more documents that support Badgett. They asked Badgett questions about Europe, we have lots more info about Europe that we didn’t have a chance to discuss after the cross.

D: PX 2329- from Statistics Netherlands, additional data we think would be helpful to have in the record.

Walker: You represnet these same form the ocfficial website of the netherlands govenment.

MOss: Most are fine, but 2829 deals with birth rates that wasn’t introduced with Badgett. WE don’t have any objection to the marriage and DP registrations statistics, but the birth rate is something she did not speak about.

D: We beleive the D-I raised the issue of birth rate

Walker: Yes, they did, anad these docs will be admitted.

[MOSS LOSES AGAIN]

D: DIX1826 & PX2627:
Moss: No objection
Walker: good, problem solved
D: PX2345 and PX2346 are the final docs in this category, CDC national data regarding health stats, marriage and divorce rates by states 1980-2007. Marriage and divorce rates relevant to arguments made by D-I

Moss: Court would take judicial notice.
Walker: they are government records and therefore admissable.

D: Two final notes: Plus whatever in on this note that was just passed to me.

D: We heard about 100 docs last night about 11:30, I didn’t deal with those in this presentation. One more doc I need to clear up, if we could take our break.

Walker: Very well, break until five minutes of the hour

I WILL START A NEW LIVEBLOG

© California Catholic Daily 2010. All Rights Reserved.