Dissenting in part and concurring in part:

For Defendant Chein’s claims of insufficiency of evidence to sustain his conviction, I concur with the majority that the trial evidence as to Counts 1 and 4 was insufficient to support convictions for perjury. However, I dissent from the majority’s view of the sufficiency of the evidence on Count 2 and would reverse the district court’s denial of Chein’s petition for a writ of habeas corpus and remand to the district court with instructions to enter judgment granting a writ of habeas corpus directing the release from custody of Chein. This is surely the more desirable result for Dr. Chein but I find it necessary to also dissent on the following issue which would result in his being given a new trial, though one without a sitting judge testifying as an expert for the prosecution.

For Defendant Chein’s claims of due process violation — permitting a sitting Superior Court judge to testify as an expert for the prosecution in a criminal case and the misconduct of the prosecutor — I would reverse the finding of procedural default, and remand to the district court with instructions to enter a judgment granting a conditional Writ of Habeas Corpus directing the release of Chein unless the State of .California begins trial proceedings within 120 days of the issuance of the mandate.

I. DISCUSSION

It is unnecessary to recite a background of the case as it is fairly set out in the majority opinion. However, it may help with an understanding of the history of this case to note that Dr. Chein was called as a medical expert and treating physician by the plaintiff in a state court personal injury case. The judge presiding at that trial was so impressed by the cross examination of Dr. Chein that he took the case from the jury. RT 576; ER 106. He later referred to the county prosecutor the issue of whether or not to charge Dr. Chein with perjury. CT 356, quoting from the personal injury trial at RT 206. The record does not provide any information as to whether the referring judge volunteered to be an expert witness on the issue of materiality of the targeted testimony or whether the county prosecutor requested him to do so. Regardless, he was called by the prosecution and over the objection of the defendant, was permitted to testify.

This dissent will discuss the two issues in reverse order beginning with the issue of procedural default.

A. Procedural Default

Moving directly then to the issue of procedural default, to sustain a finding of *757 procedural default, the waiver of a constitutional claim must be based on independent and adequate state law grounds. Specifically, federal courts “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991). The state law ground is “independent” if it is not interwoven with federal law. La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir.2001). For the law to be “adequate,” it must be “clear, consistently applied, and well-established” at the time of the purported default. Calderon v. U.S. Dist. Ct., 96 F.3d 1126 , 1129 (9th Cir.1996) (citations omitted), cert. denied, 520 U.S. 1204 , 117 S.Ct. 1569 , 137 L.Ed.2d 714 (1997).

We have held that California’s contemporaneous objection rule is independent and adequate in some cases. See, e.g., Bonin v. Calderon, 59 F.3d 815, 842-43 (9th Cir.1995) (sustaining state court’s finding of procedural default where defendant failed to make any objection at trial). However, the recent decision in Melendez v. Pliler, 288 F.3d 1120 (9th Cir.2002), is instructive. “We held more than twenty years ago that the rule is consistently applied when a party has failed to make any objection to the admission of the evidence.” Id. at 1125 (citing Garrison v. McCarthy, 653 F.2d 374, 377 (9th Cir.1981)). “However, there are no California cases holding that the ruíe is applied consistently in situations in which an objection is made but the trial court in its discretion declines to consider it on the merits.” Id. Based on this distinction in the adequacy of California’s contemporaneous objection rule, the rule is inadequate as applied to the facts of this case.

In a pre-trial motion, defense counsel moved to exclude the judge’s testimony, and offered to stipulate to the factual events in the preceding personal injury case, arguing that the prosecution’s use of the judge in the preceding personal injury trial as an expert on materiality was “highly prejudicial without any countervailing relevance.” Excerpts of Record (hereinafter “ER”) at 11, 181. This expert witness on materiality was the same judge who had referred to the prosecutor the question of whether specific testimony of Dr. Chein in the personal injury trial warranted prosecution for perjury. At trial, defense counsel properly objected to a series of flagrantly prejudicial statements in the prosecutor’s opening and closing statements which were sustained. 1 Counsel also objected several times to extraneous comments from the judge testifying as to his opinion of the nature of the civil proceeding before him, which impinged generally on the Defendant’s character, or his belief that the Defendant was lying. 2 The morning after the judge’s testimony, coun *758 sel brought a motion for mistrial, making extensive comments on the problematic nature of the evidence. ER at 113-24. During argument on that motion, the prosecution raised the contemporaneous objection rule. ER at 119. In response, counsel stated “sometimes you have to object to preserve your right at that very moment, but sometimes it’s a situation, especially with a judicial officer, where ... testimony is of such a nature that it’s so egregious that it denies the defendant a fair trial. So its plain error.” ER at 121. The court took the motion under submission. ER at 124.

After the case, was submitted to the jury, the court heard argument on Defendant’s motion for a mistrial. 3 Counsel specifically stated that to have a judge express an opinion on materiality deprived the defendant “of the U.S. Constitutional right to a jury trial of that issue.” ER at 12, 181. In the written motion, counsel argued that “the combination of[the judge’s] testimony and the prosecutor’s refusal to obey the court’s simple rulings resulted in Dr. Chein receiving an unfair trial and he should be granted a new trial.” ER at 14. Counsel argued that “I don’t think he got a fair trial on the totality of the circumstances.” ER at 182. The Court ruled that “I’m not persuaded that a new trial should be granted on the grounds that have been stated.” ER at 183.

When the violation involves fundamental constitutional rights such as those involved here, with some objections and motions explicitly stating the constitutional basis of the objections, the contemporaneous objection rule has not precluded the California Supreme Court from granting relief. See, e.g., People v. Vera, 15 Cal.4th 269, 276 , 62 Cal.Rptr.2d 754 , 934 P.2d 1279 (1997) (permitting review of “certain fundamental, constitutional rights” despite lack of objection); People v. Rodrigues, 8 Cal.4th 1060, 1132 , 36 Cal.Rptr.2d 235 , 885 P.2d 1 (1994) (reviewing claim where failure to request jury instruction involved a “substantial right”); People v. Livaditis, 2 Cal.4th 759 , 775 n. 3, 9 Cal.Rptr.2d 72 , 831 P.2d 297 (1992) (finding rule satisfied when defendant’s general objections to evidence were overruled); Hale v. Morgan, 22 Cal.3d 388, 394 , 149 Cal.Rptr. 375 , 584 P.2d 512 (Cal.1978) (liberally construing attempts to raise due process objection at trial); People v. Blanco, 10 Cal.App.4th 1167, 1173 , 13 Cal.Rptr.2d 176 (1992) (noting discretionary consideration of due process claim when significant issue is raised); People v. Truer, 168 Cal.App.3d 437, 441 , 214 Cal.Rptr. 869 (Cal.Ct.App.1985) (finding discretionary review of constitutional arguments not raised below, where purely legal issue is raised). Faced with an unprecedented situation with a sitting state court judge called by the prosecution as an expert witness on the issue of materiality in a perjury case, the objections made by counsel were specific enough to fairly present the constitutional claims. Because Defendant did make general objections and a motion for mistrial, both identifying and implicating constitutional rights to a jury trial and to a fair trial, I would hold that procedural default does not apply to these claims and that on the merits the Defendant has been denied his right to a jury trial and to a fair trial as guaranteed by the Fourteenth Amendment.

B. Testimony of a trial judge as an expert witness in a criminal case and prosecutorial misconduct.

I certainly do not criticize the judge in the personal injury case for referring the *759 question of perjury to the prosecutor; presumably the judge believed it to be his duty. That said, the decision of the court in the criminal case to permit the trial judge from the personal injury case to be called by the state as an expert on the element of materiality in a perjury case was a fundamental constitutional error. In Merritt v. Reserve Insurance Co., for example, the California Court of Appeals held:

Merritt, 34 Cal.App.3d 858, 883 , 110 Cal.Rptr. 511 (1973). While Merritt addressed a judge’s testimony given in a subsequent civil case, the danger of violation of fundamental constitutional rights is magnified when it is offered in a criminal case.

Similarly, in Commonwealth v. Connolly, 217 Pa.Super. 201, 204-06 , 269 A.2d 390 (1970), the Pennsylvania Superior Court reversed a conviction where the defendant’s credibility had been impeached by evidence of prior convictions, presented through testimony of the trial judge presiding over the prior cases. That court noted that typically evidence of prior convictions is introduced through records. Id. at 204 , 269 A.2d 390 . The defendant had stipulated to the admissibility of records of his prior convictions. Id. Nonetheless, the trial court permitted the prosecution to call the trial judge to present this evidence,- who stated that the defendant’s case had been a “nuisance to him,” and that he had a “minor altercation with defense counsel.” Id. at 205 , 269 A.2d 390 . The Superior Court reversed the conviction for unfair prejudice, finding that the testimony impermissibly suggested that the defendant had a generally bad character:

Connolly, 217 Pa.Super. at 205-206 , 269 A.2d 390 .

In this case, by calling the civil case trial judge as an expert on materiality, the State was permitted to elicit his education, training, experience as a lawyer and the fact that he was an experienced California Superior Court judge. Specifically, the jury heard that the judge was an honors graduate of a prestigious law school, a Superior Court judge, a member of several committees on criminal law, taught and *760 lectured extensively, and had won several awards as a judge. ER at 94-95. A review of the judge’s testimony presents a picture of an articulate and determined witness. 4 For example, the judge interjected comments such as being upset “when I found out what was going on,” referring to Dr. Chein’s board certification “that wasn’t the legitimate board ... it was this outfit in Las Vegas,” that it was a “phony board,” and that Dr. Chein’s testimony was offensive to him. ER at 97, 111-12. Discussing the impeachment of Dr. Chein in the civil case, the expert witness judge commented that it would “obviously indicate that the doctor didn’t have any real experience in orthopedic surgery and that the jury shouldn’t necessarily accept what he had to say.” ER at 100.

Having lost his motion to prevent the judge from testifying, defense counsel did cross examine the judge and damaging testimony was elicited. In the motion for mistrial, counsel characterized impeachment of the judge as an impossible task. “I don’t look forward to arguing this case quite frankly in front of this jury, pointing my finger toward [the judge] and calling him a liar and a judicial disgrace.... ” ER at 116. Further, counsel noted “it’s not very easy to sit up and start dealing with a judge in front of a jury by objecting.... I don’t think you can cure that ... by an admonition about a judge or objection.” ER at 121. Indeed, the defendant then faced the impossible task of asking the jury to disbelieve and disregard the expert testimony of that a sitting judge.

Throughout the judge’s testimony, his answers exceeded the scope of the question, and violated the court’s ruling prohibiting testimony that the prior personal injury case was a “sham.” Compounding this error, the prosecutor also violated the *761 court’s ruling by referring to the civil case as a fake accident at least five times in opening argument and predicting that the personal injury trial judge would testify that the entire civil case was “a setup, a scam.” ER at 87. Despite that judge purportedly being called as an expert only on the issue of materiality, in closing argument, the prosecutor indicated that the judge believed the defendant was lying, and that the civil case was a sham, at least seven times. 5 ER 170-177. In doing so, the prosecution argued the judge’s testimony as evidence of the defendant’s guilt, as well as the judge’s opinion of the defendant’s character as a liar. Respectfully disagreeing with the majority, I would find that none of the trial court’s curative instructions did or could overcome this combination of constitutional errors. Such is the mischief wrought by permitting the prosecution to call a sitting judge as an expert witness in a criminal case. 6

Defendant was willing to stipulate to the testimony in the underlying civil proceedings, and objected that permitting the judge to testify as an expert would unduly prejudice him. ER at 12, 181. In my view, it is the high probability that a jury, in such circumstances as these, will accept the judge’s testimony as compelling a verdict consistent with that testimony and will abdicate its responsibility to make an independent evaluation of the evidence of guilt that requires a prohibition against such testimony. That is what happened here. To the extent that a sitting judge provides an imprimatur on the prosecution of the case through expert testimony, the state is relieved of its burden to prove each element of the offense beyond a reasonable doubt. Moreover, with the presence of the trial judge as an expert witness for the state, the deputy prosecutor undoubtedly felt additional pressure to win the case, which may have contributed to the prose-cutorial misconduct in this case and these constitutional violations.

This is not to say that a judge may never testify as a fact witness for the prosecution in criminal proceedings. In the case of United States v. Frankenthal, 582 F.2d 1102 (7th Cir.1978), the Seventh Circuit found that testimony of a sitting district judge as a percipient witness for the prosecution was not unfairly prejudicial to defendant. Id. at 1108 . In that case, the defense called a long-time family friend and attorney as a witness, to testify *762 that he had given the defendant a legal opinion that monitoring telephone conversations of employees was not unlawful. Id. at 1104 . If true, the testimony could have established a good-faith defense to wilfulness on one of the wiretapping counts charged. Id. at 1105 . To impeach the witness, the government called the district judge previously assigned to the case to testify regarding an ex-parte meeting with the attorney, who had met with the judge to discuss postponing the trial date. Id. Instead of discussing scheduling, the attorney told the judge that he had a financial interest in the Defendant’s business and stated that a trial would jeopardize negotiations for the sale of the business and bring financial harm to various companies and their employees. The judge thereafter wrote a letter of recusal to the parties in the case summarizing the conversation. Id.

At trial of the defendant, the judge was called to testify as a fact witness to impeach the attorney’s credibility. On appeal, the Seventh Circuit found no unfair prejudice in the testimony of the judge. While acknowledging that “calling a judge to give testimony in any proceeding is a delicate matter,” the court noted that the judge gave no testimony “as to anyone’s character or reputation.” Id. at 1108 (citing Canon 2 of the Code of Judicial Conduct, prohibiting voluntary testimony as a character witness). The defendant could have avoided impeachment by agreeing to strike the attorney’s testimony, but refused to do so. Id. at 1107 . Finally, the prosecutor made no improper use of the judge’s testimony. Id. Given careful safeguards to protect the defendant’s rights, there was no unfair prejudice, because the judge’s testimony was limited to “factual knowledge that was highly pertinent to the jury’s task, and he was the only possible source of that knowledge.” Id.

In this case, by contrast, each factor absent in Fmnkenthal is present here. The judge, called as an expert on materiality by the prosecution, gave answers and interjections which presented a negative opinion of the Dr. Chein’s character. The Defendant attempted to enter a stipulation to avoid the proposed judicial testimony, but those efforts were rejected. The prosecutor misused the judge’s testimony in opening and closing argument by indicating that Dr. Chein was a “liar” and part of a “sham” proceeding, and attributing those views to the judge. Most importantly, the judge was called not as a fact witness, but as an expert for the prosecution. The state could have called any non-judicial expert on the issue of materiality, such as a law professor. Consequently, the judge was not the only possible source of testimony on the issue of materiality.

On habeas review of this case, “[the] issue is not whether introduction of [the evidence] violated state law evidentiary principles, but whether the trial court committed an error which rendered the trial so arbitrary and fundamentally unfair that it violated federal due process.” Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir.1991) (citing Reiger v. Christensen, 789 F.2d 1425, 1430 (9th Cir.1986)). Thus, a denial of due process is “the failure to observe that fundamental fairness essential to the very concept of justice ... we must find that the absence of fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.” Lisenba v. California, 314 U.S. 219, 236 , 62 S.Ct. 280 , 86 L.Ed. 166 (1941) (admitting coerced confession into evidence violates due process).

The Defendant argues that the constitutional error in this case is structural error, and therefore not subject to harmless error analysis. I agree. Permitting a sit *763 ting judge to testify as an expert for the prosecution in a criminal case is not “simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991). Rather, it results in “a similar structural defect affecting the framework within which the trial proceeds.” Fulminante, 499 U.S. at 310 , 111 S.Ct. 1246 . Applying this standard to the facts of this case, I would hold that permitting a sitting trial judge to testify as an expert for the prosecution, about matters before him in a judicial capacity, violates the Defendant’s fundamental right to a fair trial and to a jury trial. Here, when combined with the repeated prosecutorial misconduct in flagrant disregard for the rulings of the criminal case trial judge, it is my view that Dr. Chein, whatever his character, was denied his constitutional right to a fair trial by a jury. Accordingly, I would reverse the finding of procedural default and remand to the district court with instructions to enter a judgment granting a conditional Writ of Habeas Corpus directing the release of Chein unless the state of California begins trial proceedings within 120 days of the issuance of the mandate.

C. Sufficiency of the Evidence

As to the analysis of the sufficiency of the evidence as set out in the majority opinion, I concur that the evidence is insufficient to sustain conviction on Counts 1 and 4. However, as to Count 2, the alleged perjury regarding the number of offices, in my view, on the issue of whether or not the plaintiff in the personal injury ease was injured and damaged in the incident in issue, it is immaterial whether Dr. Chein as his expert medical witness had one or more offices. Accordingly, I would hold that there was insufficient evidence to support conviction on any count and would reverse the district court’s denial of Dr. Chein’s petition for a writ of habeas corpus and remand to the district court with instructions to enter judgment granting a writ of habeas corpus directing the release from custody of Dr. Chein. However, at the least, Dr. Chein should receive a new trial on Count 2, one without the constitutional defect of a sitting judge as an expert witness for the prosecution.

. These are contained in section III A. 2 of the majority opinion.

. For example, when asked whether the board which certified the Defendant was approved by the American Medical Association, the Judge responded "it's a phony board.” Counsel's objection was overruled, but the Judge was instructed to respond either yes or no. ER at 97. Asked to explain an attorney's attempt to impeach Dr. Chein, after extensive comments, the Judge added:

ERat 102.

. It is unclear from the Excerpts of Record whether this was the same motion the court had earlier taken under advisement, or a subsequent motion for new trial.

. The following line of questioning is illustrative:

. In closing the prosecutor argued,

. The policy against judicial testimony is implicated any time a judge testifies. See Abramson, Leslie W., Canon 2 of the Code of Judicial Conduct, 79 Marq. L. Rev. 949 , 977-78 (1996). Specifically, the judge may unfairly influence the fact finder, as "conferring the prestige and credibility of the judicial office on a litigant's position ... the judge ... appears to be 'taking sides.’ ” Id. Further, a "judge’s testimony may be understood as an official testimonial ... and receive undue weight from the jury.” Id. "Moreover, an attorney should not have to balance the need for zealous cross-examination against the desire not to antagonize a judge who may preside in the attorney’s future cases.” Id.