Ninth Circuit Judges To Lawyer: Lying In Court Is Wrong, Mkay?

This oral argument transcript (or video) will make you cringe.

The panel was not amused. (Ninth Circuit via YouTube)

The panel was not amused. (Ninth Circuit via YouTube)

The U.S. Court of Appeals for the Ninth Circuit just handed down an opinion affirming the denial of qualified immunity to government employees. Just another day at the infamously liberal appeals court, right?

Not so fast. The opinion was written by Judge Stephen S. Trott, a Reagan appointee (and former member of The Highwaymen) who is not part of the Pregerson-Reinhardt-Berzon wing of that court. He was joined by two relatively moderate Obama appointees, Judge John Owens and Judge Michelle Friedland. And if you read about or watch video of the oral argument, it’s hard to find fault with the panel’s reasoning.

You can watch video of the argument over at YouTube, but for those of you at work or in class who can’t play video right now, here’s a good summary, from R. Scott Moxley of OC Weekly:

Using taxpayer funds, government officials in Orange County have spent the last 16 years arguing the most absurd legal proposition in the entire nation: How could social workers have known it was wrong to lie, falsify records and hide exculpatory evidence in 2000 so that a judge would forcibly take two young daughters from their mother for six-and-a-half years?

From the you-can’t-make-up-this-crap file, county officials are paying Lynberg & Watkins, a private Southern California law firm specializing in defending cops in excessive force lawsuits, untold sums to claim the social workers couldn’t have “clearly” known that dishonesty wasn’t acceptable in court and, as a back up, even if they did know, they should enjoy immunity for their misdeeds because they were government employees.

Moxley highlights a few key exchanges between the panel and Lynberg partner Pancy Lin, like this one:

Trott: How in the world could a person in the shoes of your clients possibly believe that it was appropriate to use perjury and false evidence in order to impair somebody’s liberty interest in the care, custody and control of that person’s children? How could they possibly not be on notice that you can’t do this?

Lin: I understand.

Trott: How could that possibly be?

Lin: I understand the argument that it seems to be common sense in our ethical, moral . . .

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And legal universe too — but Lin never gets there:

Trott: It’s more than common sense. It’s statutes that prohibit perjury and submission of false evidence in court cases.

Lin: State statutes.

Ah, mere state statutes. The federal ones must say something different, right?

Trott: And you’re telling us that these officials [weren’t] on notice that you can’t commit perjury and put in false evidence?

Lin: I understand broadly the principle that common sense tells us that lying is wrong and lying to….

Trott: Yeah, but it’s more than common sense. We’re using statutes against this kind of behavior.

Lin: I, uh, I don’t. I was not presented [sic]. I have not been seen [sic] any federal law or case law or law that tells me that in this situation that we were faced in that, which is what we have to look at….

In fairness to Pancy Lin, she found herself in the position of trying to defend the indefensible. One can’t help wondering whether the client or a senior partner — as a 2005 law school grad, Lin’s a fairly junior partner — forced her to take one for the team. The Ninth Circuit is known for doling out rather harsh benchslaps when lawyers appear before it maintaining untenable arguments, and this case was (or should have been) a clear loser.

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This argument couldn’t have been fun for appellant’s counsel. And that, my friends, is no lie.

Judges Reject Orange County’s Claim That Social Workers Didn’t Know Lying In Court Was Wrong [OC Weekly]
Hardwick v. County of Orange [U.S. Court of Appeals for the Ninth Circuit]
Preslie Hardwick v. Marcia Vreeken: Oral Argument [YouTube]

Earlier: Is The ‘Nutty Ninth’ Circuit Coming To Its Senses?
Who Wants To Watch a Prosecutor Get Benchslapped En Banc?
Ninth Circuit Orders Release Of Man Due To Prosecutorial Misconduct


DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.