Thursday, August 14, 2003
En Banc Review Granted in Habeas Case Involving Testimony by Judge
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday granted en banc review in the case of a California man convicted of perjury for testifying falsely about his credentials as a medical expert who was denied habeas corpus relief because he forgot to assert his constitutional rights at trial.
Edmund Y. Chein moved on due process grounds to block testimony from the Los Angeles Superior Court judge who presided over the personal injury trial at which he testified, and he also cited due process in his federal habeas corpus appeal.
But Chein failed to mention due process during his state court perjury trial and based his objection only on relevancy, so he was procedurally defaulted from bringing up due process on appeal, a Ninth Circuit panel ruled in March.
A majority of the court’s active judges voted to review that ruling, Chief Judge Mary M. Schroeder announced in a brief order.
“In Chein’s case, the trial court ruled on the merits of the objections made by Chein,” Judge Johnnie B. Rawlinson wrote for the panel in March. “Unfortunately for Chein, his objections at the time of the perjury trial did not include the due process challenge presented on appeal. Chein’s failure to make a contemporaneous due process objection to the testimony of the trial judge bars pursuit of the due process challenge on appeal. The California Court of Appeal’s ruling to that effect was not an unreasonable application of clearly established Supreme Court precedent on procedural default.”
Chein was called as a medical expert but was devastated by the defense lawyer in cross examination, so much so that the trial judge called in the district attorney on the question of whether to prosecute him for perjury.
Chein was charged in an information with testifying falsely that he was a specialist in orthopedic surgery, that he had a single office location, and that he received a medical degree from the American University School of Medicine in Florida.
In opening arguments, the prosecutor repeatedly referred to what he said was a scam in which there was a question as to the nature of plaintiffs’ injuries in the underlying personal injury case, as well as in several other cases. The prosecutor implied, over defense objections, that Chein was part of an insurance fraud scheme.
The judge in the perjury trial upheld the objections and repeatedly admonished the prosecutor that that references to the previous trial, other that Chein’s testimony, were irrelevant.
In an unusual twist, the prosecutor then called the trial judge to testify.
In upholding the district court’s rejection of habeas corpus, the Ninth Circuit panel did not reach the propriety of a trial judge testifying on behalf of the prosecution because the objection came too late. The court did not identify the judge in its opinion, but San Diego attorney Charles Sevilla, who represented Chein, said it was Judge Robert Altman, who has since retired.
The panel also rejected arguments that the references to the underlying trial and to a possible fraud scheme denied Chein due process, on the same grounds—he made a timely relevance objection but neglected to raise due process at the time.
The judges rejected several of the findings of perjury, saying they were not supported by the evidence. But one count of perjury was upheld, and that was enough to sustain the conviction.
In a partial dissent, Judge Edward F. Shea said there should never have been any such testimony.
“I certainly do not criticize the judge in the personal injury case for referring the question of perjury to the prosecutor; presumably the judge believed it to be his duty,” Shea said. “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.”
Shea also said there was enough of an objection at various stages of the trial to the judge’s testimony that Chein should have been able to rely on the issue in the habeas case.
“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,” Shea said. “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.”
The case is Chein v. Shumsky, 01-56320.
Copyright 2003, Metropolitan News Company