It was to be a theatrical scene in a trial filled with them: San Francisco City Attorney Dennis Herrera, a key same-sex marriage backer looking to run for mayor, gently leading San Diego Mayor Jerry Sanders through emotional testimony about his conversion from gay-marriage opponent to supporter after his daughter came out to him as a lesbian.
Before Herrera could deliver his opening line, though, Chief Judge Vaughn Walker walked onto his stage.
"By the way, I've read the deposition taken by one of your deputies ... I think he needs some counseling on proper objections in a deposition," Walker said last week. "I think you really need to review that deposition, Mr. Herrera, as the leader of your office, and do a little woodshedding of some of the lawyers."
"OK," Herrera responded, "we will take a look at it, your honor."
During the federal challenge to Proposition 8, Walker took a laid-back approach with evidence and generally let the lawyers try their cases -- with a few exceptions, like the Herrera incident. Trial will conclude this morning, save for closing arguments, which will happen in a few weeks. That gives Walker time to come up with specific questions based on the evidence, which will be a key measure of where he stands in crafting factual findings that might stand up on appeal.
Over 11 trial days, Walker would usually admit evidence with the caution that its importance would be determined later. On Tuesday, for instance, Yes on 8 lawyer Charles Cooper of Cooper & Kirk called David Blankenhorn as an expert in marriage as an institution. Yet, Blankenhorn is not a college professor and has never published anything peer-reviewed on same-sex marriage. He is president of the Institute for American Values, and David Boies of Boies, Schiller & Flexner challenged his expert qualifications.
Had this been a jury trial, the question of allowing Blankenhorn on the stand "might be a close one. This being a court trial, I'm going to let Mr. Blankenhorn testify," Walker said.
The exchanges between Boies and Blankenhorn on cross-examination got exceedingly testy. "My questions are designed to be precise questions so I get a yes or no answer, or I don't know," said Boies.
"No, sir, often the answers are not amenable to those choices," Blankenhorn responded. Walker didn't intervene until the two approached shouting level -- and then only gently. Eventually, the judge suggested a "good night's sleep" to help ease the process, and ordered the parties into court the following morning. (They had been scheduled to conclude Tuesday.)
Walker made a few forays into rating the performance of lawyers, and with Herrera, the judge wasn't done with one exchange about the depositions. After Sanders finished his testimony and was excused, Walker again addressed Herrera on a subject that judges usually handle with a private phone call.
"I think your office needs a little counseling on that subject, of how to defend and take depositions," Walker said. This time, Herrera mustered a short "thank you, your honor" and left the lectern.
The attorney in question, Ronald Flynn, declined to comment. "Our office holds itself to the highest professional standards," said Chief Deputy City Attorney Therese Stewart. "It doesn't mean we please all the judges all the time, but I'm very proud of the contributions of this office to this case, including Mr. Flynn."
Walker had previously dinged one of the defense lawyers from Cooper & Kirk in open court for his cross-examination skills. The same day he chided Herrera, Walker complimented James Campbell from the Alliance Defense Fund on a deposition he took.
While he allowed much into the record, Walker didn't write the lawyers a blank check. At the conclusion of the plaintiffs' case, Gibson, Dunn & Crutcher partner Christopher Dusseault successfully moved scores of documents into evidence, most of them turned over by the Yes on 8 campaign and its official proponents. However, he also tried to introduce something taken from the Web site of a group that gave hundreds of thousands of dollars to the Yes on 8 campaign, but wasn't part of the official effort. Walker said no.
On the substantive issues, Walker didn't reveal much about his leanings -- most of his questions were clarifying. He did seem interested in why California Attorney General Jerry Brown didn't bar Prop 8 from the ballot since he now says it is unconstitutional. And from the start, he asked whether the state should get out of the marriage business altogether. For the rest of his thoughts, closing arguments will be the tell.
