Analyzing trials and predicting their outcome is the work of legal experts with years of experience evaluating the law, judges, juries, etc. That's not the level of experience I (or most of the journalists covering this trial) have. So, we're left listening carefully to the proceedings, attending daily media briefings by attorneys from both sides, and looking at whatever other tea leaves present themselves. In this case, there is no jury -- only Judge Vaughn Walker. What will he decide about the constitutionality of Proposition 8? No one -- except perhaps His Honor himself -- knows for sure. But one can't help but look for non-verbal cues.
And so, when Judge Walker takes out his yellow highlighter and starts marking up portions of his binder during testimony, it's only fair to assume he thinks this may be important to his decision. That's what happened this morning during testimony from UC Davis social psychology professor Gregory Herek. Herek was discussing a 2009 report from the American Psychological Association describing the ineffectiveness of therapies to change patients from homosexual to heterosexual. And out came the judge's yellow highlighter. Of course if the plaintiffs are to succeed in having Prop. 8 overturned they'll have to convince the judge of many things, including the fact that sexual orientation is an immutable or unchangeable characteristic, like race or gender.
Tea Leaf Update, 11am: Now Judge Walker is highlighting his binder during cross-examination, where the attorney defending Prop. 8 is stressing with the witness portions of studies suggesting that sexual orientation is changing and lacks a firm definition. So perhaps the yellow highlighter theory isn't, well, black and white.
By the way, Judge Walker seems to have a cold -- he keeps blowing his nose. Perhaps this explains his apparent impatience with this line of cross-examination. "When will it be convenient for you to move on to another subject?" he somewhat playfully asked defense attorney Howard Nielson, Jr. The attorney didn't budge, saying this point of sexual orientation being a moving target is central to their case.