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.
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 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,
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.
(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.
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:
MAJORITY:
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.
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).
DISSENTERS:
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 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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