Edmund Y. Chein v. Richard Shumsky, Chief Probation Officer, La County California State Attorney General

dissenting,

I respectfully dissent from the court’s decision to grant Edmund Chein’s habeas corpus petition based on its conclusion that there was insufficient evidence to convict him of perjury in state court. I do not believe that the State of California deprived Chein of his constitutional rights on these grounds. 1

I

Chein was convicted of three separate counts of perjury, the “specialist” count, the “office” count, and the “university” count. I discuss the constitutional sufficiency of the evidence for each conviction in turn.

A

As an expert medical witness at a personal injury trial, Chein was asked the following under oath: “And your specialty, what would be the correct designation?” He answered, “Physical medicine and orthopedic surgery.” While Chein’s residency included some rudimentary training in orthopedic surgery, the actual title of his residency program and consequent speciality designation was “physical medicine and rehabilitation” — not orthopedic surgery. Under California law, a perjurious statement must be both false and material. Cal-Penal Code § 118 (defining perjury as when a person, under oath, “states as true any material matter which he or she knows…

Dr. Edmund Chein was an expert medical witness in an automobile accident trial in California state court. He was also involved in a suit with a former business associate concerning the distribution of fees paid by patients. In both lawsuits he provided evidence — in the first instance trial testimony, in the second an interrogatory answer — that was misleading, at the least, concerning his medical credentials. At the instigation of the trial judge in the personal injury trial, he was charged in California state court with four counts of perjury and convicted of three. This ha-beas case raises various questions concerning the propriety of his conviction, of which we address only one.

Before plunging into the details of this perjury case, it is worth recalling “the traditional Anglo-American judgment that a prosecution for perjury is not the sole, or even the primary, safeguard against errant testimony.” Bronston v. United States, 409 U.S. 352, 360 , 93 S.Ct. 595 , 34 L.Ed.2d 568 (1973). Underlying this limited role of perjury prosecutions is the “one consideration of policy [that has] overshadowed all others during the years when perjury first emerged as a common-law offense:…

373 F.3d 978 Edmund Y. CHEIN, Petitioner-Appellant, v. Richard SHUMSKY, Chief Probation Officer, LA County; California State Attorney General, Respondents-Appellees. No. 01-56320. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 16, 2003. Filed June 25, 2004. Charles M. Sevilla, Cleary & Sevilla, San Diego, CA, for the petitioner-appellant. Brentford Ferriera and Matthew G. Monforton, Office of the District Attorney, Los Angeles, CA, for the respondents-appellees. Cliff Gardner, San Francisco, CA, for the amicus curiae. Appeal from the United States District Court for the Central District of California; Audrey B. Collins, District Judge, Presiding. D.C. No. CV-99-05296-ABC. Before SCHROEDER, Chief Judge, O'SCANNLAIN, RYMER, T.G. NELSON, HAWKINS, McKEOWN, WARDLAW, GOULD, BERZON, RAWLINSON, and CLIFTON, Circuit Judges. BERZON, Circuit Judge. 1 Dr. Edmund Chein was an expert medical witness in an automobile accident trial in California state court. He was also involved in a suit with a former business associate concerning the distribution of fees paid by patients. In both lawsuits he provided evidence — in the first instance trial testimony, in…