Prop 8 Trial Day 12: Gotcha Witness, Lesbians Love Boies, Day Of Rest


The American Foundation for Equal Rights’ press conference following the end of testimony.

Let’s start with Shannon Minter:

The majority of the day was spent on finishing up the cross-examination of David Blankenhorn, an expert witness for the defendants. As he did yesterday, renowned attorney David Boies absolutely nailed the examination. 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.

Keen News Services writes:

There is nothing like turning an opponent’s own words against him to both rile his emotions and destroy his position, and that was the work of attorney David Boies Wednesday morning.

. . . Boies asked him whether [Blankenhorn] was aware of any other instances throughout history in which marriage was something other than two people. Blankenhorn jumped into yet another long, rambling response.

When Boies suggested that polygamy might be an example, noting that many societies have accepted polygamy, Blankenhorn insisted that a man who marries several women does not necessarily engage in polygamy. He said each time the man marries, it is a marriage between “one man and one woman.”

Oh, really? BTB showcases Blankenhorn’s unique insights into marriage:

Boies had Blankenhorn list his three “rules of the game” (essential structures of marriage): 1) rule of opposites, man and woman; 2) set of two; 3) sexual relationship.

When asked if there were exceptions to rule one prior to 50 years ago, he listed a tribe in Africa with possible man-boy temporary marriages as part of a warrior caste.

When asked about rule two, he admitted that previously to 100 years ago, 83% of societies were polygamous.

And this is where I get the cringes again. It’s the back and forth, the deeply unsophisticated answers supplied by Blankenhorn. Via AutoStraddle:

Boies: Is that consistent with your rule of two?
Blankenhorn: Based on the studies of the finest anthropologists, this fits the rule of two.
Boies: But you are just a transmitter. You don’t do the work.
Blankenhorn: I am not a transmitter! Stop putting words in my mouth!
Boies: (Puts transcript of depo in front of him.)
Blankenhorn: Gotcha moment! You are right! I did say that seven months ago in a deposition! Gotcha moment!

And that third rule suffered a similar fate — As BTB tells us, “Boies noted that the Supreme Court had already determined that incarcerated persons may marry without the presumption that they would ever have sex.”

And the, after some more Blankenhorn blood was spilled, it was over, for now:

Judge Walker: Here’s what I’d like. I’d like to take time to go over this material. I don’t think at this time it’s helpful to have post-trial briefs. You may very well find it useful to submit your proposed findings of law tied to evidence. You’ve already submitted your proposed findings of law. I realize that you do have a lot of material to go through. I’ll be guided by your suggestion for amount of time you need.

And the Prop 8 Trial Tracker wraps it up:

Here is the timeline we are looking at… Amicus briefs are due on February 3rd. Judge Walker is bringing the lawyers in to go over these briefs on Feburary 26th. He indicated as they were wrapping up today that at that time (the 26th) he will schedule the closing arguments. That likely means we will not have closing arguments until early March, with the ruling several weeks after that, depending on how long Judge Walker takes.

And that’s it . . . for now.

(images via AutoStraddle)

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