News

The federal lawsuit [challenging Proposition 8](http://www.equalrightsfoundation.org/our-work/perry-v-schwarzenegger/) began last week in San Francisco. I have a direct and obvious interest in the outcome; I like being married.

I have one of the 18,000 California same-sex marriages that remained in effect after the proposition passed in 2008. But it’s a piecemeal situation: the State of California considers me married, but Illinois doesn’t. Iowa does; Idaho doesn’t.

And as far as the U.S. government, I’m a single man.

This lawsuit challenges Proposition 8 on grounds that it violates the equal protection and due process protections of the U.S. Constitution. And if it turns out right, it could be a game changer like Loving v. Virginia, which struck down state laws on interracial marriage.

When the U.S. Supreme Court decided last week to block video from the trial, I lost my chance to see what was happening in the courtroom. Sure, I could [follow the updates on Twitter](https://twitter.com/#/list/johnaugust/prop-8-trial-updates), but the fortune cookie-length summaries didn’t feel like enough connection to a landmark case.

So I flew up to San Francisco to watch the trial.

The proceedings are open to the public. All that’s required is a civic interest and a photo ID.

There’s already ample [online](http://nclrights.wordpress.com/2010/01/20/nclr’s-legal-director-shannon-minter-on-perry-v-schwarzenegger-proceedings-day-7/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+NationalCenterForLesbianRights+%28National+Center+for+Lesbian+Rights%29) [coverage](http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202439304299&Trial_Airs_Mormon_Churchs_Role_in_Prop_) about what’s happening, and what’s being said. But none of them put me in the room. With that goal, I want to provide a sketch of what it feels like to be there, since most Americans will never sit inside a federal district court.

Setting
—–

The 17th-floor courtroom is impressive, both in appointment and scale; you could fit a basketball court snuggly in its footprint. Grooved planks of cappuccino-colored wood stretch up to a barrel-vaulted ceiling. At the front of the room, a massive wall of pale polished stone backs the judge’s bench. A single, undersized judicial seal hangs above. To the right of the judge, an American flag drapes around its pole, making it seem like the cloth is simply tacked to the wall by the brass eagle on top.

The court clerk and reporter sit on an elevated platform directly in front of the judge, a tangle of cables dripping over the edge. ((The court reporter’s transcript shows up in real-time on attorney’s laptops. I found myself reading it at times, amazed at her ability to keep up.)) The witness sits to the judge’s left. A single podium faces the judge, and it’s from this spot that attorneys must direct their questions to the bench or the witness. There’s no pacing around. There’s also no way to physically approach the judge for a sidebar conversation.

Every courtroom drama you’ve seen has long tables for the prosecution and defense teams. Take those tables and rotate them 90 degrees. Place twelve chairs around each and you have room for a lot more lawyers, each working off a laptop or a black flat-panel monitor. The plaintiffs’ team fills every seat at their table, while the defense has between five and seven staffers at work, with additional support staff at side chairs or tables. Wire shelves hold rows of binders. It’s all very tightly packed. Any attempt to approach the podium means stepping around others.

There is no jury in this trial. The space where a jury box would be has consumer-grade videocameras on tripods ((The video is carried via closed circuit to a spillover courtroom for the public.)) and two sketch artists. One of them, a man who looks like actor Richard Jenkins, keeps raising binoculars to get a closer look at his subject.

Roughly a third of the floor space is devoted to six divided rows of benches for observers at the back of the courtroom. They’re pews, really, which adds to the churchy feel of the chamber. The first two rows are devoted to counsel and badge-wearing media. The back rows are open to the public. Altogether, maybe 100 observers can watch.

Unlike a conventional trial, the plaintiffs (a gay couple and a lesbian couple) sit with the crowd. There is really no other place to put them.

The chamber has no windows. Occasionally, you can hear thunder from the storms, but the room otherwise seems detached from the outside world.

Characters
—

Everyone springs to their feet when Judge Vaughn Walker enters. Now in his mid-60s, his Cronkite-ish voice would make him a good narrator for a History Channel documentary. Beyond an opening conversation with the opposing attorneys about newly-filed motions, he says little during the day. Based on recaps of previous days’ events, I expect him to be asking more questions directly of witnesses and counsel, but he mostly seems content to listen. ((Except this: Judge Walker admonishes San Francisco City Attorney Dennis Herrera for an underling’s poorly-executed deposition, saying that the aide needed a “woodshedding.” It’s a really uncomfortable moment, like a professor announcing a student’s failing grade while passing back exams.))

You see little visible difference between the two legal teams. They are both predominately white, predominately men, and invariably dressed in dark suits. ((After a careful census, I decided the men on the plaintiff’s team had slightly longer, shaggier hair.)) Crossing paths at the bathroom, you are never sure who is on which side. But everyone is polite, holding doors and squeezing tight in the elevator.

For each witness on the stand, one member of each legal team is empowered to speak. Everyone else keeps to leaning-in whispers or silently mouthed words as binders are passed. Post-It notes are passed back and forth, with additional staffers squeezing in through a side door that’s partially blocked by a large monitor.

Witness testimony is often accompanied by demonstratives, PowerPoint slides that show a graph or related text excerpt. Both teams have staffers assigned to getting these on-screen, along with other pieces of evidence such as video clips. The defendants had brief trouble getting video to play with a clip from the Yes on 8 campaign, but the day was otherwise free of technical issues.

Structure
—-

For each witness, there’s a direct questioning, a cross-examination, and a redirect. During each phase, everything is more or less locked down. Attorneys and observers can (quietly) enter or exit the room, but everyone is expected to sit down and shut up. Judge Walker permits laptops and cell phones for email and tweeting, but beyond the light tapping of fingers on keyboards, it’s library-quiet in the room. ((I had forgotten my iPhone charging cable, so I kept my phone switched off to save the battery. This e-chastity ended up being a good thing, as it forced me to pay attention and take notes on paper, which became this sketch. A kind-hearted woman let me borrow her cable to charge up before my flight home.))

That all changes the moment it moves from direct to cross, or cross to redirect. Suddenly, it’s a flurry of pent-up action and re-setting. It reminds me most of film production, with crews swarming the set the moment the director yells cut. Staffers bring new binders and huddle for quick conversations.

The judge calls a ten-minute break in the morning, and another one later in the afternoon. At lunch, everyone heads downstairs to the commissary on the second floor. I have lunch with the plaintiffs. It’s a small world; Jeffrey Zarrillo manages the same movie theaters in Burbank my husband used to run, and we know some of the same people.

While there is a lot of trial coverage online, I don’t see any traditional media all day. No cameras, no tape recorders, nothing.

The day’s work ends at 4 p.m., after the plaintiff’s redirect of Professor Lee Badgett.

Dialogue
—-

In a trial without a jury, attorneys are not trying to elicit sympathy. That’s not say there are not emotional moments; several witnesses have teared up on the stand. But feelings are not as important as facts. Both sides are trying to get things on the record, which means getting witnesses on the stand to say what they need to say.

For direct testimony, this is pretty straightforward. The attorney asks a structured series of questions that allows the witness to make the required points.

During the cross-examination, the opposing attorney tries to make his case, either by presenting contrary evidence or drilling into a something the witness said. As an observer, this often feels like hearing the setup to a joke, trying to anticipate the punchline. The attorney asks a series of questions, and you wonder, “Where is he going with this?”

A few years ago, I had to give a deposition in a civil trial. I started the day giving very detailed answers, treating it like an EPK interview for a movie I’d written. Then I realized that every new thing I said introduced four more questions. By the fifth hour, I’d figured out the advice generally given to witnesses: listen, evaluate, formulate, talk. And then shut up.

We have a natural instinct to move things along and fill awkward silences, but the best witnesses take their time, unhurried and unflappable. When asked, “Would you also agree..,” they don’t. They restate their points in simple terms.

It’s nothing like movie or TV courtrooms with their zippy rhetorical boxing. Rather, it’s slow and calculated, like a chess match. During one particularly soporific stretch, the defense asked Professor Badgett to work through a lot of hypothetical math. Written figures are dry; spoken figures are numbing. To her credit as a witness, she cooperated without ever indulging his conclusions. But the audience thinned noticeably as the cross-examination reached its third hour.

The verdict
—-

The trial is expected to wrap up as early as next week, so anyone hoping to see it in person should plan on getting there soon.

Depending on the testimony, it can be riveting or dull. Like church, you may find yourself squirming, trying to find new ways to sit on the benches without your tailbones breaking through your flesh.

But no matter how strongly you feel on the issue of same-sex marriage, it’s a fascinating opportunity to see a part of government that otherwise functions off-screen. I’d recommend a day in court to any interested citizen.

For a broader overview of the issues in this case, I’d point you to an excellent piece in the [New Yorker](http://www.newyorker.com/reporting/2010/01/18/100118fa_fact_talbot).