Prop 8 Trial Day 12: The End…Until March

Judge Vaughn Walker needs a break — and so, it seems, do the attorneys. So after testimony concluded on Wednesday, he announced that the trial will be back in session for closing arguments some time in March, after he has had the chance to review all the material.

The final hours were spent with David Boies’ continued cross examination of one of two defense witnesses, David Blankenhorn of the Institute for American Values. Once again, the exchange was tense, as Boies tried to extract concessions to Blankenhorn’s formula for what constitutes a marriage.

Shannon Minter, writing for Pam’s House Blend, wonders whether Blankenhorn, billed from the start as one of the central witnesses for the defense, was a net negative. He writes, “Blankenhorn did nothing to help himself, fighting Boies’s yes-or-no
questions at every turn even when Boies was simply laying a basic
foundation with uncontroversial points. Blankenhorn’s defensive
behavior verged on the histrionic, contrasting sharply with Boies’s
calm, matter-of-fact approach. At one point, Judge Walker stepped in
and instructed Blankenhorn to keep in mind that a fact-finder, meaning
a judge or jury, can consider a witness’s demeanor when deciding how
credible that witness is and how seriously to take his or her
testimony. Although Judge Walker delivered it with great diplomacy and
tact, this was a fairly sharp rebuke.”

Indeed, the defense pared down its list of witnesses, greatly reducing the amount of testimony. Andrew Pugno, attorney for, writes that the plaintiffs “put on a spectacular show trial of irrelevant evidence,” pointing to their expert witnesses on everything from self-esteem to money generated from same-sex weddings. But these were the parameters set by Walker, not Ted Olson and Boies.

Nevertheless, Pugno says that the magnitude of the testimony means little compared to what had to be proved.

“What may be lost in all the sensationalism of the past two and a half
weeks of trial is that the burden of proof to invalidate Prop 8 lies
squarely with the plaintiffs. They cannot win unless they prove that
the voters were “irrational” when they chose to preserve the
traditional definition of marriage in our state. Contrary to their
public relations claims, the outcome of this case does not depend on
whether the Prop 8 sponsors can prove that homosexual marriage will
harm traditional marriage. The controlling legal issue is not whether
homosexual marriage is good or bad, but rather whether the people have
the right to decide what is best.  The plaintiffs simply did not carry
that burden.”

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