The other day I posted about the terrible witnesses for the defense (homophobes) in the Prop 8 trial. They brought two experts - a professor and a conservative org president - who did not appear to be familiar with the studies done in their respective fields, who conceded a lot of ground to the plaintiffs' attorneys (including the facts that gay people face discrimination and that same-sex marriage would improve people's lives), and one of whom most likely didn't fit the legal definition of an "expert" on a topic, but was allowed to testify anyway because there's no jury at this trial.
I'm still baffled, since this isn't the first case of this type to be tried. Going back to the 90's in Hawaii, the right has been in court defending opposite marriage and winning a few cases too. Isn't there a rolodex they can use to find experts who sound credible? Or do they all sound this bad when cross-examined (as opposed to just shouting into talk radio)?
Maggie Gallagher offers an explanation:
My objection to televising high-profile trials is not theoretical. It emerges directly from the experience of the attempt to televise the trial for Proposition 8. Two-thirds of the expert witnesses-people who had been willing to sit for deposition, to prepare testimony, to fly to Sacramento to testify-dropped out under the prospect of having their faces and names televised. I understand their reluctance, because I know (personally) the kind of hatred and threats that adopting a high-profile position against gay marriage now generate. Many people I know who had a low profile-donors of a few hundred dollars or less-unexpectedly faced a tidal wave of hate that has impacted their personal and professional lives. People I know have been attacked on the street for holding up a "Yes on 8? sign, received death threats, and lost their jobs.
It's a perfectly wingnutty excuse - it's not that they did anything wrong, it's just that they're constant victims and no one's ever willing to help them out.
I have no doubt that it's unpleasant to get chewed out by the gays in email or letters. While the evidence of actual violence was spotty at trial, with most of the examples they brought up involving victims who were unwilling to call the police or press charges and incidents that went unreported by local media being discussed as fact, they have complained about sternly-worded postcards before and they probably got a few. And I also have no trouble believing that some gays were total dicks in those postcards; I've seen the hatefulness that can be directed at people within the community for not toeing the politically correct line.
But actual violence? There's little evidence that much of anything happened after Prop 8, and the history of violence based on sexual orientation has been a one-way street. The last century was dominated by stories of violence directed at LGBT people from straight people, and very little went in the opposite direction, even less that wasn't a retaliation against previous homophobic violence.
And we're the ones who are disciplined by that violence. We're the ones who don't hold hands with our lovers in public because we're worried about getting beat up. We're the ones who go from the bar to the car in groups in some parts of the country because we don't know who's waiting there to beat up a queer. And bullying in schools keeps queer kids quiet and in their place, if they don't just drop out of school entirely. Saying that the witnesses were intimidated out of testifying is just co-opting our experiences and using them in a totally clueless way to whine about how the trial didn't go well for them.
Even if the defense was working with hyper-sensitive witnesses, though, Gallagher's excuse doesn't hold water. First, the trial wasn't broadcast and they knew that for weeks before the defense had to call witnesses. Second, their names would have been broadcast anyway - the entire trial is public record and that's nothing new. Third, many of their witnesses are activists and polemicists in their own right. They've already been on TV saying the same things. And fourth, the witnesses who did testify were terrible. Were only the worst ones willing to show up and all the awesome witnesses who had done extensive studies intimidated?
I'm guessing Gallagher isn't that stupid, but that she's trying to work the refs and change the narrative on the trial from "The right had no proof for their claims" to "The trial was biased and illegitimate so if the right loses it just proves the system is broken." While she's not that stupid, there are plenty of journalists who are.
But it might not be the best argument to be making right now. She's basically telling every homo out there who thinks that "activism" means "writing pissy emails and comments and sending mean letters to people they don't know" that they've stumbled on a particularly effective strategy. Either that or the Religious Right's whines of violence from gays in charged situations like these scared off their own witnesses.