Michael Hamar

Why Don't the State Bars Enforce Ethics Rules Against Introducing False Evidence?

Filed By Michael Hamar | October 17, 2010 2:30 PM | comments

Filed in: Fundie Watch, Politics
Tags: Charles Cooper, Liberty Counsel, Matt Staver, Perry v. Schwarzenegger, unethical attorneys

At Equality Virginia's legal seminar at the University of Richmond on October 16, during the course of the discussion of legitimate medical and mental health research in the context of litigation, the point was brought up about the fraudulent testimony and false research introduced in lawsuits by Christianist attorneys like Matt Staver and his kindred religious zealots at Liberty Council (an institution that I view as an ongoing blight on Virginia). Time and time again, the Christianists introduce evidence and false evidence from bogus "experts" some of which tracks to Paul Cameron.

Staver has to know the proffered evidence and deliberately distorted studies are false. Cameron was thrown out of every legitimate association he once belonged to for fraudulent research and one federal judge even opined in a decision that the only fraudulent evidence before him was the testimony of Cameron. Yet Staver and others - including now Charles Cooper in Perry v. Schwarzenegger - continue to introduce the same false evidence.

In Virginia, Rule 3.3 of the Code of Professional Responsibility provides in relevant part:

Rule 3.3 Candor Toward The Tribunal

(a) A lawyer shall not knowingly:

. . .(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

(d) A lawyer who receives information clearly establishing that a person other than a client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal.

The comments to the rule describe what constitutes remedial action:

When evidence that a lawyer knows to be false is provided by a person who is not the client, the lawyer must refuse to offer it regardless of the client's wishes... Upon ascertaining that material evidence is false, the lawyer should seek to persuade the client that the evidence should not be offered or, if it has been offered, that its false character should immediately be disclosed.

Yet the introduction of bogus testimony held out as scientific fact (as opposed to mere religious belief which is what it is under the most deferential analysis) goes on and on by Christianist counsel. When are the state bars going to start disciplining those like Staver who are knowingly seeking to work a fraud on the Courts time and time again with false testimony and false evidence? It's past time that the constant deference to religious based lies stop.

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Until the public rises up and bars attorneys from serving as judges the wolf will always be in the hen house. Hamilton, Franklin and Jefferson predicted that with enough time the cunning and self serving would gain control of the country an the people would have to revolt a second time to return the country to its founding premises.

I can't believe you even ask that question, since you are a lawyer yourself.. the same rule apply black law protect the judges and lawyers in courts as the blue law protects cops in the streets. Yes, its even worst in VA.. Where judges are appointed and not elected...

You're kidding, right? You think electing judges makes things better? Look at Texas.

Having lived and practiced law in states with elected judges (i.e., Alabama and Texas) and one with appointed judges (i.e., Virginia), elected judges are much more dangerous and out of control than appointed judges.

I would also point out that it is the State Bar, not the courts and judges that is responsible for attorney discipline. Here in Virginia, the Virginia State Bar doesn't even acknowledge that LGBT attorneys and/or clients exist in its diversity and access to legal assistance programs. We're invisible.

John Rutledge | October 18, 2010 9:43 AM

So why don't you ask Staver that himself, in a very public way? Cite VA code, cite evidence of Cameron discredited, show where Staver has used Cameron, then call on him to follow code. At that point he will have knowledge, as if he does not already, visibily given to him in front of witnesses, and a public call to action. Then followup with the State bar, all done with the help of a friendly news journalist , of course, to chronicle events.Sounds like an interesting story. They are always looking for those. Maybe get the reporter on board first. Bilerico blog us.
Why stop with Staver? Make it happen with others.
Go Michael!

As a lawyer, you know experts are the type of witness entitled to offer expert opinion and the other side has the right to cross examine the basis for the opinion and bring in its own experts. I don't know about these experts you are referring to or their studies, but the trial court must determine that the expert is using principals and methods reliably used by those in the expert's field before the opinion can be introduced. Once that hurdle has been met, how can the evidence be "false"? How can an opinion be "false"? It can't. Only facts can be true or false. Your beef goes to the weight of the opinion. If it is not admitted in the first place, then there is no harm. The fact of the matter is that many things are not near as "settled" as groups of social scientists and phychlogists and professinal associations claim them to be. There is a lot of wishful theorizing posing as settled principles. This sounds like yet another tactic to silence critical thought and analysis, just like it has been attempted with global warming and the origin of life. Instead of trying to punnish the attorney, do a better job of cross examining the expert witness and sit down.

I approved the immediately above comment of FSU Grad - who has a Liberty University e-mail address, btw - because it is symptomatic of the intellectual and factual dishonesty of Staver and similar folks at Liberty University, Regent University, Alliance Defense Fund, etc.

The writer alleges "Your beef goes to the weight of the opinion." No sir, it's not. My beef is with the deliberately falsified research of Paul Camerion and other Christianist "experts" who twist and misrepresent the work of legitimate researchers.

My beef is with deliberate lying which seems to be the hallmark of "godly Christians" who apparently worship only nine of the Ten Commandments. They deem themselves exempt from the Commandment against bearing false witness and lying. With all the literature that has disproved the arguments of the Christianists' faux experts, one would have to be living under a rock not to know that their claims and data are false - yet time and time again they seek to introduce it and work a fraud on the Court.

Not just Staver, but Bill McCollum in Florida too. He hired George Rekers and Walter Schumm to go in front of everyone and lie and paid them big for it too. And Rekers' testimony was thrown out because he's a lying nutjob.

There should be accountability for this, but I guess most people just say "Well, that's what they believe." Even as they're being called as experts on sociology, biology, etc.

Again, I don't know anything about the researchers in question. I just think it makes no sense to use the rules designed to prevent false facts from being knowingly introduced into evidence and apply them to expert opinion testimony. There are already safety measures, like Alex Blaze pointed out, to exclude the witness if, as you say, his or her research methods are improper. Additionally, there is cross examination to force the witness to answer questions about the weakness of his or her approach. But to put the attorney in the position to know more about the research than the expert so as to judge whether it was properly executed, puts the attorney in a position never intended by the rules of evidence or the rules of professional conduct. Every time two expert witnesses disagree in a case, one of the lawyers should be disbarred or disciplined because one of their expert witnesses obviously twisted, misrepresented or lied? That's just nonsense and I think you know it. I suspect your real motivation is to chill certain types of opinions offered by certain types of lawyers with a rule that could never be sensibly applied in the broader context of litigation. I call that results-oriented thinking. Which is the very criticism you level at the research you criticize. You won’t be satisfied until every dissenting voice is silenced in every profession that needs permission from government to earn a living. And you are willing to use the levers of government power to achieve that end. I pray you are not successful in this scheme.

FSU Grad,

You say "I don't know anything about the researchers in question" which is part of the problem. Do a little research on Paul Cameron or George "Rent Boy" Rekers - two of the darlings of the "Christian" law firms - and it will become quickly obvious that these guys are frauds and charlatans - and have been called as such by legitimate researchers and professional associations.

The only thing I want to "chill" is what I see as unequivocal unethical conduct by individuals like Matt Staver.

Oh, and on the "gays can change myth," here's a story - http://www.rferl.org/content/Curing_Homosexualism_In_Belgrade/2194867.html - on a guy who may likely become the Christianists' next "expert":

Petrovic is not a doctor, however, as has been reported in Serbian and some foreign media. He has a bachelor's of science certificate from an American outfit calling itself the International Institute of Original Medicine, which offers students the chance to become a "Certified Medical Missionary in Original Medicine."

How does Petrovic and his team ("me and my friends," as he describes them) claim to cure homosexuality? Quite simply: Patients must cut out junk food from their diet, "drink a lot of water," "reject anything that is diarrhetic, alcohol, caffeine," engage in "physical activity," "rest [at] appropriate times." Plus, one "must think about good things." Oh, and receive regular enemas.

FSU Grad, you may think that I'm joking, but stuff just this bat shit crazy is the norm among the anti-gay "experts." Oh, and did I mention Arthur Goldberg with NARTH? He's a convicted securities fraud felon who now is making money peddling the gays can change myth.

I don't need to do research on the researcher(s) to conclude that your remedy against lawyers is wrongheaded, unworkable and question your true end-game. Since you won't engage those arguments, other than to insist lawyers who use experts whose opinions are rejected are unequivocally unethical, I have nothing further to add.

Can you please link to the reaseach in question? Here is some falsified research to compare it too. http://www.wnd.com/?pageId=213213

Yes, please do cite what specifically you believe Staver lied about. Where did he cite Cameron's discredited studies? There's a difference between deliberately falsifying testimony or research for one's benefit and what you are attributing to Staver, a matter for which you have notably provided no specific evidence. This entire article is a fallacy of bare assertion. Let's be intellectually honest here.

My question is if these men are so full of "false" and "bogus" evidence, then how did they come to be known as "experts?"

Obviously, there is truth in the evidence they present or they would not be called into court and would be dismissed entirely.
How do you know that their testimonies are bogus?

Is it because they happen to be men with religious and moral worldviews?
Does that automatically disqualify an educated and intelligent person to be irrational and irrelevant?

That kind of thinking is bogus, if you ask me.