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The Shaken Baby Case

The US Supreme Court has issued its first opinion of the term.  Not surprisingly, it is a summary reversal finding, once again, that the US Court of Appeals for the Ninth Circuit has overstepped its authority to overturn a state criminal judgment.

Cavazos v. Smith, No. 10-1115, involves the second-degree murder conviction of Shirley Ree Smith for the death of her 7-week-old grandson.  The trial was a "battle of the experts," with the prosecution experts testifying little Etzel was shaken to death, and the defense experts testifying he was not.

The jury believed the prosecution experts and convicted Mrs. Smith of second-degree murder.  The state trial judge and appellate court upheld the verdict.  The federal district court concluded it had no authority to interfere.

The Ninth Circuit has granted relief to Mrs. Smith twice before and had the case sent back by the Supreme Court, only to grant relief again.  This time the high court has had enough.
The opinion of the Court in Jackson v. Virginia, 443 U. S. 307 (1979), makes clear that it is the responsibility of the jury--not the [federal habeas*] court--to decide what conclusions should be drawn from evidence admitted at trial. 
*                               *                            *
The Court of Appeals in this case substituted its judgment for that of a California jury on the question whether the prosecution's or the defense's expert witnesses more persuasively explained the cause of a death. For this reason, certiorari is granted and the judgment of the Court of Appeals is reversed.
*I added the bracketed term.  The state trial judge may have broader authority to set aside a verdict under state law.

Justice Ginsberg, joined by Justices Breyer and Sotomayor, dissented from the Court's decision to take the case up and from its decision to dispose of it summarily, but not necessarily from the ultimate result.

In sum, this is a notably fact-bound case in which the Court of Appeals unquestionably stated the correct rule of law. It is thus "the type of case in which we are most inclined to deny certiorari." Kyles v. Whitley, 514 U. S. 419, 460 (1995) (Scalia, J., dissenting). Nevertheless, the Court is bent on rebuking the Ninth Circuit for what it conceives to be defiance of our prior remands. See ante, at 8. I would not ignore Smith's plight and choose her case as a fit opportunity to teach the Ninth Circuit a lesson.

Does it matter if the lower court "states" the correct rule of law if it then proceeds to grossly misapply it?  Congress authorized federal courts on habeas corpus to step in not only where the state court decision is contrary to clearly established federal law but also where it is an unreasonable application.  Shouldn't the Supreme Court do the same on certiorari with the decisions of lower federal courts.

Justice Ginsberg's dissent is based in substantial part on developments in the understanding of infant mortality "in the years following Smith's 1997 trial."  But there is no rule of law authorizing federal habeas relief for changes in science since the trial.  Jackson is for jury verdicts that are unquestionably wrong based on the evidence before the jury at the actual trial, as the Supreme Court made clear two years ago in its unanimous decision in McDaniel v. Brown.  The majority notes that correcting "Smith's plight" is a job for state executive clemency authorities.

Executive clemency may not actually be necessary here.  The dissent indicates that Mrs. Smith served 10 years of her 15-to-life before being released and will now have to go back.  Maybe not.  Penal Code §190, at the time of the crime, allowed people convicted of second-degree murder to earn "good time" credits.  She might be eligible for parole immediately, and public safety is now the sole criterion for parole of lifers in California.


When interviewed about the Court's possible intervention, the L.A. Times reported her as saying "I won't go back to prison. I'll take my own life first, but I won't go back there."

Congratulations to Justice Kagan for parting ways with the liberal bloc and applying the rule of law. The Ninth Circuit rather transparently decided this case based on sentiment. Sentiment is for the political branches (to the extent it has a place in the formulation of public policy). The judicial branch is there to concern itself with law. This is a good harbinger for the Term.

I think you give Justice Kagan far too much credit. That she didn't join Ginsburg's joke of an opinion (and it is a joke) should be a given. That it is not simply reflects poorly on Justice Kagan.

Here's a great question from Justice Kagan today:

"Well, I thought that the second part of the test asked about harm. And here the person is sitting in prison for three times as long as he would have been sitting in prison had he had effective assistance of counsel at the plea bargaining stage. So why doesn't that just meet the requirements of Strickland, both deficiency and prejudice?"

Well, I thought that Cronic made it clear that the issue of harm related (with exceptions not relevant here) to whether the guy had a fair trial or not. How is she that clueless?

Justice Ginsburg’s opinion would be a joke if it were not so serious – one more illustration of the utter lack of integrity* of any number of justices. This example shows that they will take any opposing contradictory position to achieve the outcome they wish to reach. In support of her own dissent in Cavazos, Ginsburg cites Justice Scalia’s dissent from the very opinion she joined in Kyles v. Whitley. Why did she find his dissent persuasive in Cavazos but not in Kyles itself?

As Scalia observed in Atkins v. Virginia, “It is just a game, after all.

* http://www.americanthinker.com/2011/08/the_threat_of_liberal_judicial_activism_reaches_new_heights.html

Here's another way to see how bad the Ninth Circuit is: The Supreme Court doesn't even trust them to get the factual record right. In Early v. Packer the Ninth's facts "strain[ed] credulity." 537 US at 9. In Knowles v. Mirzayance they were "at best ... misleading." 129 S.Ct at 1418 n1. And now with Cavasos, the Ninth makes an assertion that's "simply false." Slip at 7.

Trial witnesses have to take an oath to tell the truth, but the Ninth Circuit just gets to make things up.

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