06.30c. Chein v. Shumsky, , Perjury by Expert Witnesses; Trial Lawyer Judges? I've wondered what it takes for an expert witness to get prosecuted and convicted for perjury ever since reading of Martha Nussbaum's testimony in Romer. It is hard to prove that a witness is giving as his expert opinion something that he doesn't really believe, but often do experts make statements of disprovable fact. On page 127 of Frances Wellman's wonderful "The Art of Cross-Examination," he tells of the lawyer who impeached the testimony of one doctor by asking him,

Counsel: "Then perhaps you are acquainted with Andrews's celebrated work `On the Recent and Remote Effects of Head Injury?"

Doctor (smiling superciliously). "Well, I should say I was. I had occasion to consult it only last week."
The Andrews book, and a number of others about which Counsel asked with similar response from the doctor, were invented out of thin air. The doctor had perjured himself.

The Ninth Circuit, though, has just decided that a doctor's outright and intentional lies about qualifications are not perjury. Via Olson at Point of Law Chein v. Shumsky, No. 01-56320, D.C. No. CV-99-05296-ABC is about a doctor who swore that (in my words, not the court's)

(a) he was a specialist in orthopedic surgery, the subject of the case, emphasizing how important his specialist training was, when his actual residency was in the different field of physical medicine and rehabilitation,

(b) he had only one office, when he actually had his name listed in several, lending his name in dubious ways, a point important to his credibility,

(c) he graduated from the American University School of Medicine, Florida, when he in fact was enrolled in the American University of the Caribbean School of Medicine, Florida branch.
The case was close, but the majority of the en banc panel said that under California state law this would not be perjury, because the lies, though intentional, were immaterial.

What a stupid decision! If someone who wanted to clerk for those judges said he graduated from Yale Law School, and he actually had graduated from the less prestigious Golden Gate Law School, I don't think they'd consider it immaterial. Nor would they consider it immaterial if he said he was 25 years old when he was actually 30.

O�Scannlain's dissent is devastating. It is in that cute understated style in which a judge politely dismembers his colleagues without ever actually saying that they have made stupid arguments to pervert justice, but leaving the reader with no other possible conclusion.

Furthermore, as I understand it, the majority�s interpretation of California perjury law would seem to allow Chein, with impunity, also to have falsely testified that he was a recipient of the Nobel Prize in Medicine for his work in orthopedic surgery.[footnote 4] For this false, though hugely persuasive credential would only have conferred an enhanced ability to determine "the precise type of surgical procedure" that would be necessary, and would not be squarely relevant to the majority�s critically narrow question of who was better qualified to determine whether the plaintiffs might have "a need for future [orthopedic] surgery." Maj. Op. 8564. This is difficult to accept.

Perhaps, then, this is why the majority is willing to concede that a falsely claimed Nobel Prize in orthopedic surgery "could have been material." Maj. Op. 8564 n.4 (emphasis in original). But if that is true, it is for a state court jury--not a federal appellate court in a habeas corpus case--to determine whether Chein�s false advanced credential was material. We have no businesses determining, as a matter of state law, that a physician with a Nobel Prize in orthopedic surgery possesses a material expert qualification, while a physician with a recognized specialty in orthopedic surgery plainly does not. In other words, the majority has simply chosen the kind of advanced orthopedic credential it--rather than the jury--finds impressive. I believe such an approach is unwarranted.

Note that Judge O�Scannlain emphasizes that the legal role of the 9th Circuit is not even to decide whether the lies were material, but whether a jury could rationally have decided that the lies were material. Without daring say so outright, the majority opinion is saying that no rational person could think that a doctor's lying about his speciality was material to his credibility. How can anyone think that? The best explanation is that the majority is sympathetic to criminals and to sleazy lawyers who have need of sleazy expert witnesses.

It might be interesting to look into the histories of the judges. From the Www.appellate-counsellor.com and Federal Judicial Center I find:

Mary M. Schroeder, Lewis & Roca (1971-75)
Michael Daly Hawkins, United States Attorney for Arizona (1977-81); Private practice in Phoenix, Arizona (1973-77, 1980-94)
M. Margaret McKeown, Perkins Coie, Seattle, Washington (1975-98)
Kim McLane Wardlaw, O'Melveny & Myers (1980-96)
Ronald M. Gould, Visiting Professor, University of Washington School of Law, (1986- 88); Perkins Coie (1975-99).
Marsha S. Berzon, Woll & Meyer (1975-77); Altshuler, Berzon, Nussbaum, Berzon & Rubin (1978-99); Associate General Counsel, AFL-CIO (1987-99).

Diarmuid F. O�Scannlain, Private practice (1963-69, 1975-86); Oregon Deputy Attorney
Johnnie B. Rawlinson, Nevada Legal Services (1980); Clark County District Attorney's Office (1980-98)
Richard R. Clifton, Private practice, Honolulu, Hawaii, 1977-2002
Pamela Ann Rymer, Lillick McHose & Charles (1966-75); Toy & Rymer (1975-83)
Thomas G. Nelson, Parry Robertson & Daly (1965-79); Nelson, et al. (1979-90)
I don't know what kind of law firms are named here, but perhaps some reader can confirm or disconfirm my hypothesis about sympathy for sleazy lawyers based on personal experience. [Walter Olson, though, tells us in an update post that in fact the law- firm backgrounds of the majority and the minority are not much different, which disconfirms the hypothesis.) We do see that Clinton, a big friend of trial lawyers, appointed 5 of the 6 members of the majority, but only 1 of the 5 dissenters.

I thought of another motivation for the liberal judges. Environmental and family law cases often require "junk science" and experts of dubious repute. Thus, a liberal judge might want to allow experts to say pretty much anything.

Daubert-on-the- web highlights another odd feature of the case. From the majority opinion, which has been talking in its introduction on how carefully perjury must be defined:

These cautions apply with particular force to expert witnesses such as Chein. Although paid, usually well, for their efforts, such witnesses generally appear because they freely choose to do so, often with considerable immunity from subpoena. See generally Janet Fairchild, Annotation, Right of Independent Expert To Refuse To Testify as to Expert Opinion, 50 A.L.R.4th 680 (1986). Unless the strict requirements governing perjury convictions developed by the common law and applied by California are carefully applied, the willingness of experts to assist factfinders with the specialized knowledge needed to decide many cases, see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), may atrophy.
They are saying that since expert witnesses are paid, rather than compelled to testify, courts should let them stretch the truth more than people who are not paid to testify! The opposite is true, of course. A compelled witness has much less incentive to lie, and so a strong perjury law is less important; a paid witness is often paid precisely because of his willingness to lie. This is typical of the court system: ordinary people who wander in as ordinary witnesses or jurors are treated like trash, while "regulars" such as judges, lawyers, expert witnesses, and criminal defendants are treated with as much deference as possible. Recall how humorously this point is made with the "wagon train" in the novel, Bonfire of the Vanities. It's human nature, I suppose.

By the way, I also found that the 9th Circuit has a Mission Statement. These are almost always silly things to have, even more so for a court, which is supposed to be dignified and to have its mission stated not by itself, but by the U.S. Constitution. ... [permalink: 04.06.30c.htm]

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