Thompson’s arguments
3:05 PM, PST,
Judge Hawkins:
Were your clients under the impression that the tapes would be sealed forever?
David Thompson:
No, only for 10 years, at which time, an extension could be asked for, and possibly given.
Plaintiffs want to know, what are the harms?
DT says, four harms:
1. Witness intimidation and harassment; SCOTUS agreed with that in 2010. Hawkins and Rhinehart argue with him, that this harm is not relevant because these particular witnesses have not been harassed. Thompson is doing a good job coming back to the main point: that the federal judiciary itself had been testing whether broadcasting can lead to witness intimidation and inhibition. Rhinehart says Miller didn’t say anything that would lead to him being harassed because he gave objective evidence on the political power of gays and lesbians. But Rhinehart seems to think that Frank Schubert could have been harassed. (So I’m wondering: whether this particular person is likely to be harassed, is that actually the issue?)
2. Scalia testified that video testimony can be diced and sliced to distort the actual testimony. Rhinehart asks, “Is that expert testimony,” as if Scalia doesn’t count. A very catty comment, by Rhinehart, IMHO.
3. Witnesses less likely to cooperate in the future
4. Systemic harm to the integrity of the judicial process, if Walker gave solemn assurances and then violated those assurances.
Smith:
Does the Northern district rule out what took place in this case?
Walker can create the tape for his purposes, and he can enter it into the record. Smith says this is flat out. Thompson says that it can be entered into the record only under seal. Smith says, “The law doesn’t say that it can’t be unsealed.”
As an ordinary citizen, I must say, this sounds like legal hairsplitting.
Jennifer Roback Morse, Ph.D.
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