On January 9, attorney David Boies helps plaintiffs Jeff Zarrillo and Paul Katami (foreground) prepare for their testimony
AFER photo by Diana Walker 
The two primary litigators in Perry v. Schwarzenegger—the Prop. 8 trial—have demonstrated during the first three days of the trail that they are as superbly prepared as most observers expected two of the country’s most famous lawyers to be.
The testimony from each of the expert witnesses has expanded on and explained in greater detail the story of discrimination that has opened the trial. Each element of the testimony has weaved through different aspects of the story, warping back to prior testimony to reinforce the message.
The lead attorneys in the case, Ted Olson and David Boies have—along with their deep team of fellow lawyers—brought to the courtroom a consistent and compellingly integrated story.
The heart of the testimony on both sides of the case, which challenges the constitutionality of the voter-passed ballot measure, will come from experts. The three east-coast academics—two historians and a psychologist—have testified so far along with the chief economist for the City of San Francisco. It’s been Hist 201, Hist 202, Econ 202, and Psych 202 so far with a special emphasis on LGBT studies.
Olson-Boies team weaves tapestry in trial testimony [contd.]
On Tuesday and Wednesday, Harvard history professor Nancy Cott recounted the history of marriage as both a civil law and religious ceremony. She explained that marriage laws have often been used to repress a disfavored minority, and placed Prop 8’s restrictions within that repressive history.
Yale history professor George Chauncey was the next witness. While Cott’s testimony focused on the history of marriage, Chauncey spoke specifically about the long history of discrimination and ridicule that gay people have faced.
San Francisco economist Edmund Egan appeared to offer a different chapter in the testimony, because he was asked to talk about the economic effects of Prop 8’s marriage ban. But plaintiff’s lawyers skillfully steered even Egan’s testimony back to the theme of discrimination. He testified that schools in San Francisco and elsewhere experience higher absenteeism rates when students experience harassment because of discrimination. It’s harassment, he said with the help of exhibits, often based on ridicule of a student’s perceived sexuality—whether the perception is justified or not.
Columbia University professor Ilan H. Meyer, an expert in mental health among minorities, testified Thursday about the psychological issues that often affect LGBT people because of the stigma they face. One courtroom observer described Meyer’s testimony as “dense but powerful”.
Howard Mintz, who covers the trial for San Jose Mercury News, observed that Judge Vaughn Walker seemed particularly interested in the testimony:
While the judge has been impatient at times with the length of questioning from lawyers on both sides, he seemed intrigued by Meyer's testimony and the debate over how stress and mental health impacts are measured on minority groups, scribbling notes throughout the afternoon.
Each of the experts have testified about a specialty—about one aspect of a broader story. But each expert has also built upon the personal stories told on the first day of the trial by the four plaintiffs.
The first four experts called for the plaintiffs’ case have attempted to weave the complex story of discrimination faced by LGBT people historically, and have carefully tied Prop 8 into that history—as both a symptom of historical discrimination and a new and more powerful bludgeon for repression.
Los Angeles Times reporter Maura Dolan reports on how Thursday’s witness warped back in testimony to the personal stories told during the trial’s first day.
Meyers testified that testimony by the plaintiffs during the trial demonstrated they have experienced harmful effects of bias.
He discussed remarks made by Kristin M. Perry, a lead plaintiff, that every day she wrestled with whether to conceal her sexual orientation at soccer games, parent-teacher association meetings, stores and elsewhere.
Perry testified that the constant worry that someone might react hostilely to her sexuality was "exhausting."
“The word ‘exhausting’ jumped out at me,” Meyer testified. “It has a special meaning in stress research.”
Meyer said concealment of one's sexual orientation for fear of rejection was “damaging and stressful” and testified about a federal government report that said gay male adolescents were two to three times more likely than heterosexual teens to attempt suicide.
During his testimony, Chauncey had said that laws and police practices until recently forced gays and lesbians to hide their sexuality. He noted that the entertainment industry also shied away from stories about homosexuality, which meant that “many young people growing up had no idea that there [were] other people like themselves.”
Meyer then explained on Thursday that attempting to conceal one’s identity is a common defense mechanism among LGBT people. Concealment, Meyer said, is a way of protecting oneself from possibly uncomfortable social, employment—and even familial—situations. Meyer described how LGBT people will often switch pronouns when talking about to co-workers about friends and partners.
Meyer testified that young gay people tend to internalize negative social beliefs about what it means to be gay. That the ability of gay youth to project a future “possible self”, Meyer testified
But Meyer said concealment is one of the psychological “stressors” that LGBT people often face which cause a range of problems from depression to suicide.
Trials aren’t—or at least shouldn’t be—scripted. But they are—or at least should be—well rehearsed. The attorneys don’t tell a witness what to say, but a well-prepared attorney should know exactly what the witness will say both in direct testimony and in cross-examination. At a well-prepared trial (and Boies is noted for his meticulous trial preparation), attorneys run witnesses through their testimony multiple times prior to a trial. The practice runs include both direct testimony and possible questions from cross-examination.
During witness preparation, one or two attorneys from the witness’s team are generally assigned to take the role of the other side. Those attorneys are expected to aggressively question the witness during practice sessions, to prepare the witness for what will come at the trial.
Observing the trial from the courtroom Thursday, Dan Choi, the former marine leutenant who was dismissed after revealing that he’s gay, wrote on Twitter, “Listen to Dr. Meyer. Broadcast the truth. Don't hide, conceal, or lie: it’s a private hell.”
Cliff Stoll of NCLR observed that during a break in his testimony, Meyer was surrounded by several courtroom observers who
The performance of the plaintiffs witnesses so far indicates that they’ve been superbly prepared by the Olson-Boies team. Even under what some courtroom observers described as bullying questioning by a defense attorney Tuesday, the first plaintiff’s witness, Cott, did not veer from the general theme of their testimony.
Another example of superb preparation was provided Wednesday after the cross-examination of Chauncey. Defense attorney David Thompson offered the movie Brokeback Mountain and the TV show Will & Grace as evidence that LGBT people no longer face the kind of ridicule they once did. Chauncey admitted during the cross-examination that the social situation for LGBT people, has indeed improved. “There has been a shift in public opinion,” Chauncey agreed, but he added that gays continue to encounter hostility.
But, following Thompson’s cross, plaintiffs’ attorney Therese Stewart displayed a deft use of exhibits when she introduced, over the objection of Prop 8 lawyers, a series of exhibits focusing on statements and documents made William Tam, the director of Traditional Family Coalition and a member of the Yes-on-8 executive committee. Those exhibits included a review of Brokeback Mountain written in the newsletter of Tam’s group. The review expresses deep disgust for the film precisely because it deals with a gay relationship.
If Thompson had scored any points in his cross, they were successfully muted with the exhibits—including deposition testimony from Tam—that were introduced in redirect by Stewart. Those exhibits demonstrated that a primary supporter of Prop 8 exhibited during the 2008 campaign the kind of contempt for LGBT people that Chauncey had described.
In his deposition, for example, Tam said about LGBT people, “They lose no time in pushing the gay agenda — after legalizing same-sex marriage, they want to legalize prostitution. What will be next? On their agenda list is: legalize having sex with children.”
It’s difficult for defense attorneys to present such a consistent story in the first part of the trial when the witnesses are called by the defense. The defense will get its chance to weave its own tapestry when they call their own witnesses in the trial’s second half. But through their cross-examination of plaintiffs’ witnesses, the defense should have begun by now to lay out at least the broad outlines of their own story.
Prop 8 lawyers appear to have missed a number of opportunities to do so, so far. They have, indeed, introduced some elements of their story. During the cross of both Cott and Chauncey, defense attorneys have introduced their argument that discrimination based upon profound religious belief should be discounted and should not be considered discrimination.
But defense attorneys appear to have mostly used a slashing tactic, attempting to poke a few holes in the tapestry weaved by the plaintiffs. They’ve taken quotations out of context from each of the witnesses in an apparent attempt to show that the witness hasn’t always been consistent through a long academic career. It’s a tactic that might be effective with a jury, but there is no jury in this case. Walker, who will decide the case, is unlikely to be much moved by ‘gotcha’ tactics.
Defense attorneys have also sought to discount the expertise of each of the witnesses so far by showing that each of them generally supports the concept of marriage equality for gay and lesbian couples. Again, it’s difficult to see how that tactic will be effective unless the Prop 8 lawyers plan to introduce witnesses who have never taken a position on anti-gay ballot measures.