David Boies (Photo credit: Bill Wilson)

SAN FRANCISCO — William Tam is what lawyers call an “adverse” witness. The head of a small coalition of Asian Americans in the San Francisco area who are opposed to same-sex marriage, Tam made a name for himself by propagating some of the most virulent public comments and literature in support of Proposition 8. He told a local Chinese-language newspaper that same-sex marriage would lead to siblings marrying siblings. He told a San Jose newspaper that it would lead children to choose a disease-ridden homosexual lifestyle. In various other media, he claimed it was a step toward the gay agenda’s aim of legalizing sex with children and that gays are twelve times more likely to molest children than straights.

The purpose of having Tam testify was to demonstrate that hatred was the driving force behind those who campaigned for Proposition 8. Not surprisingly, attorneys defending Proposition 8 sought to block Tam’s testimony and tried to show, on cross-examination, that Tam campaigned for Proposition 8 on his own with little or no direction from the official Protect Marriage group or its paid consultants.

When confronted, by plaintiffs’ attorney David Boies, with various e-mails, web pages, and campaign fliers that included statements linking Tam to Protect Marriage and its consultants, Tam often said he could not remember the connections to Protect Marriage or that the evidence was not what it seemed to be.

For instance, Boies showed Tam an email that was sent to Tam by a staffer at California Family Council, an affiliate of Protect Marriage. The email addressed Tam as part of the Protect Marriage leadership. Tam brushed off that reference as a political nicety. When Boies confronted him with fliers that advertised rallies he organized that included speakers from Protect Marriage and other groups, Tam said his only involvement was inviting Protect Marriage’s executive director Ron Prentice to speak, and that he couldn’t remember who invited the other speakers.

Tam attributed nearly all his negative information concerning homosexuality to “the Internet”—a response that he repeated often enough that the courtroom began to laugh each time he said it. And when Boies asked him whether he had anything to do with remarks claiming a link between homosexuality and bestiality—remarks that appeared on a website Tam was associated with—Tam said he was only the secretary of the organization that ran the website and that his colleagues ignored his objections to the statement.

Near the end of the day, Tam described himself as feeling like a “naughty boy being put in front of the classroom and being laughed at,” but he said little else to elicit any sympathy. His claims not to know the answers to some questions and not to remember the answers to others strained the boundaries of believability at times. Initially, he claimed not to know whether Focus on the Family and the Family Research Council were part of the Protect Marriage coalition, along with his group. When Boies noted that he got a lot of emails from the groups, he responded that he gets a lot of emails and doesn’t read them all. Then, just a few minutes later, Boies asked him to look at a list of groups that were part of the Protect Marriage coalition and identify the ones he knew to be part of the coalition. Among the groups he read off were Focus on the Family and the Family Research Council.

Tam also acknowledged being told by Protect Marriage officials to participate in certain debates on behalf of Proposition 8, and an email he wrote to his own TFC group’s members stated that he was “still waiting for Protect Marriage for instructions on when to start signature collection” to get the measure on the ballot.

Except for a brief cross-exam to try and paint some distance between Tam and the Protect Marriage campaign, defense attorneys spent little time with Tam. But earlier in the day, U.S. District Court Judge Vaughn Walker had to urge defense attorney David Thompson several times to move along on another of the defense’s inordinately long cross-examinations. Thompson’s cross-examination of political science expert Gary Segura began on Wednesday and finished just before the lunch break on Thursday.

While Thompson is clearly an experienced and able lawyer, his tactics are also clearly recognizable to the plaintiffs’ expert witnesses. Thompson, for instance, would get Segura to read only one sentence of a paragraph in a document—a paragraph that said something that appeared to suggest that the gay community is a powerful political force. But in answering the question, Segura, as did other experts, found a way of incorporating the context surrounding that sentence –context that often contradicted Thompson’s point. When Thompson tried to force Segura into a yes or no response or to restrict his full response, plaintiffs’ attorney Ted Boutrous, on re-direct, enabled Segura to answer.

This may not be as dramatic as courtroom television dramas, but it is often a riveting legal battle and one with important significance, depending in large part on how much Judge Walker already knows or doesn’t know about the context of civil rights political battles. During an important exchange Thursday morning, Walker appeared to demonstrate that he knows quite a bit.

The discussion was around boycotts, with Thompson attempting to illustrate that part of the reason voters supported Proposition 8 might have been their dismay with the gay community’s effort to organize boycotts against businesses that were helping to fund the initiative’s campaign. He pointed to a post-election article in the New York Times which said harassment and boycotts by gays against supporters of Proposition 8 would likely dissipate the ability of the LGBT community to “appeal to the notion of fairness,” in fighting for its cause. Segura begged to differ, noting that the black civil rights movement had made considerable gains through use of boycotts, as had other groups through the years.

Walker interrupted to ask Segura whether he had considered what the effect of the riots, vandalism, and boycotts that were aspects of the black civil rights movement in the 1960s had on the political support blacks garnered for their cause and on the political climate.

“As a general rule of thumb,” said Segura, any form of organized violence or disorderly behavior has a negative impact on public opinion.” But a non-violent tactic, such as a boycott, he said, “plays much better.” And he noted that the riots in Los Angeles that followed the verdict in the infamous Rodney King police brutality case “set into motion” a “Rebuild Los Angeles” program that sought to ameliorate the conditions of poverty that had contributed to the riots there.

“I’m not defending the actions,” said Segura, “but there are moments when acts [such as riots] are interpreted as a cry for help, an expression of frustration, or even the ultimate expression of powerlessness.”

The focus of the Thursday morning testimony was on the relative political power of the gay and lesbian community.

Judge Walker seemed particularly interested in documents and testimony relating to various religious organizations and people and their support or opposition for Proposition 8 and to same-sex marriage.

Defense attorney Thompson’s questions tried to downplay earlier testimony that showed a large and well-funded coalition of religious entities—including the Catholic and Mormon churches—were the primary organizers of the pro-Proposition 8 campaign. He asked Segura to convey to the court information from a survey that showed that “100 percent of people who identified as Quakers” supported the right of gay couples to marry. That would seem to suggest that the battle over Proposition 8 was not a David v. Goliath battle between powerless gays and the overwhelmingly powerful and mammoth church institutions.

But, once again, Segura, a clearly an experienced and unflappable expert witness, noted that the survey Thompson was referring to included only three people who identified as Quaker.

Thompson also introduced evidence—news reports mostly—that seemed to document several incidents in which people who supported the Yes on 8 campaign said they were assaulted by people who opposed it. None of the reports, including a Fox News program hosted by Bill O’Reilly, included quotes from the alleged perpetrators, and plaintiffs’ attorney Boutrous objected to each of the reports as hearsay. But Judge Walker, who acknowledged that he was approaching the introduction of most evidence with a “welcoming” attitude, did allow them into evidence. He also allowed plaintiffs to introduce into evidence the controversial television ad promoted by the National Organization for Marriage—called “The Gathering Storm.”

Defense attorney Thompson objected, saying the National Organization for Marriage was not part of the Protect Marriage group.

The trial resumes Friday morning.