Video Would Prove Prop. 8 Trial Was Fair, Lawyers Argue

A videotape of last year's Proposition 8 trial might be the best evidence available that it was conducted fairly, lawyers who want the recording made public argued today.

"The video is a unique way for the public to see and hear what happened in the courtroom," lawyer Theodore Boutrous told the judge in the case, according to live tweeting from the courtroom by the American Foundation for Equal Rights. Boutrous represents same-sex couples who challenged the 2008 ballot measure, which was overturned during the trial in question.

Since the trial concluded and Judge Vaughn Walker was subsequently outed as a gay man, "proponents have attacked the fairness of the trial," Boutrous argued. "They've tried to undermine the public's confidence in the judicial system."

The judge tried steering debate away from how releasing the tape would benefit the public. Boutrous argued the tape is part of the record of the trial and as such should be made public.

"It does seem to me that it is part of the record, and I am bothered by the question of what to do with something that is made a part of the record by the judge's actions," said U.S. district judge James Ware, according to the foundation.

Ware will now have to decide whether to release the tape despite a promise from Walker that he would be the only one to see it. Walker had said he planned to use it as a reference while making his own decision.

David Thompson argued the other side, insisting that at least one of its witnesses had relied on the judge's assurances the tape wouldn't be seen. He also argued that some of the witnesses called during the trial would become targets for harassment if the video becomes public.

Ware said he didn't feel "urgency" but "I won't delay very long before giving you a ruling."