From the moment I read David Boies's brilliant cross-examination of David Blankenhorn in the Prop 8 trial (Perry v. Schwarzenegger) I've been hoping the day would come when I could watch it on tape. Unfortunately, that's unlikely. First the Supreme Court said the trial judge (Vaughn Walker) could not live stream the trial. Then Judge Walker said he would make a videotape, but only for himself, and that it would not be released. Fast forward more than a year after Judge Walker struck down Prop 8. Gay rights supporters moved for the release of the videotape. The new judge assigned to the case after Judge Walker retired, Judge Ware, did order the tape's release, but last month the Ninth Circuit reversed and ruled that the tape must be permanently sealed. That dashed my hopes to see Blankenhorn huff and puff and squiggle and wiggle, in an environment he could not control -- the courtroom -- under the questioning of a masterful trial lawyer.
While it's no substitute for the real thing, I nonetheless enjoyed watching George Clooney (confession: I always love watching George Clooney) play the role of David Boies and John C. Reilly play Blankenhorn in the staged reading of 8, Dustin Lance Black's play derived from the trial transcripts. There were other superstars -- Brad Pitt as Judge Walker, Martin Sheen as Ted Olson, Kevin Bacon as Charles Cooper, the lead lawyer for supporters of Prop 8. (Jane Lynch was terrific in some asides as Maggie Gallagher). You can watch the whole performance here. The direct of Reilly and then the cross begins at 1:20, so you can fast forward to there. There's a break from about 1:38 to 1:44 for interaction among the plaintiff lesbian couple and their two sons (I didn't care for those portions of the script....) and the cross examination resumes after that.
In remarks at the end of the performance, the real David Boies noted the irony that Prop 8 proponents wanted to keep the public from viewing the trial, but the performance of 8, through the wonders of the internet and by virtue of the stars in the roles, would be seen by far more people than would have watched the trial tapes themselves. The play can't capture the twelve day trial, but it does highlight the dominant legal theme. Judge Walker expected real evidence of what society gains from prohibiting same-sex marriage, and the Prop 8 defenders did not, could not, and did not think they should have to, produce such evidence. After David Boies took the depositions of his opponent's expected witnesses, only Blankenhorn and one other wound up testifying. Only Blankenhorn testified about the state's interest in preserving different-sex only marriage, and, well, watch the play yourself and you'll see why he was completely ineffective. Better yet, read his direct and cross beginning on the 11th day of the trial here (on page 2716) and continuing on the 12th day here.