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October 31, 2011

Split SCOTUS summary reversal in California shaken-baby case involving sufficiency and habeas review

Shirley-smithThe Supreme Court this morning issued a summary reversal in Cavacos v. Smith, No. 10–1115 (S. Ct. Oct. 31, 2011) (available here), which starts and ends this way:

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 court — to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury. What is more, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court.  The federal court instead may do so only if the state court decision was “objectively unreasonable.” Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 5) (internal quotation marks omitted).

Because rational people can sometimes disagree, the inevitable consequence of this settled law is that judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold.  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....

It is said that Smith, who already has served years in prison, has been punished enough, and that she poses no danger to society.  These or other considerations perhaps would be grounds to seek clemency, a prerogative granted to executive authorities to help ensure that justice is tempered by mercy.   It is not clear to the Court whether this process has been invoked, or, if so, what its course has been.  It is not for the Judicial Branch to determine the standards for this discretion.  If the clemency power is exercised in either too generous or too stingy a way, that calls for political correctives, not judicial intervention.  

The decision below cannot be allowed to stand.   This Court vacated and remanded this judgment twice before, calling the panel’s attention to this Court’s opinions highlighting the necessity of deference to state courts in §2254(d) habeas cases.  Each time the panel persisted in its course, reinstating its judgment without seriously confronting the significance of the cases called to its attention.  See Patrick v. Smith, 550 U. S. 915 (vacating and remanding in light of Carey v. Musladin, 549 U. S. 70 (2006)), reinstated on remand, 508 F. 3d 1256 (2007) (per curiam); 558 U. S. ___ (2010) (vacating and remanding in light of McDaniel v. Brown, 558 U. S. ___ (2010) (per curiam)), reinstated on remand sub nom. Smith v. Mitchell, 624 F. 3d 1235 (2010) (per curiam).  Its refusal to do so necessitates this Court’s action today.

A lenthy dissent authored by Justice Ginsburg and joined by Justice Breyer and Sotomayor starts and ends this way:

The Court’s summary disposition of this case, in my judgment, is a misuse of discretion.  I set out below my reasons for concluding that discretion, soundly exercised, would have occasioned denial of California’s petition for review...

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.

But even if granting review qualified as a proper exer­ cise of our discretionary authority, I would resist summary reversal of the Court of Appeals’ decision.  The fact­ intensive character of the case calls for attentive review of the record, including a trial transcript that runs over 1,500 pages.  Careful inspection of the record would be aided by the adversarial presentation that full briefing and argument afford.  See, e.g., R. Fallon, J. Manning, D. Meltzer, D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 1480 (6th ed. 2009) (posing question whether summary reversal would “smack of unfairness to the losing party unless an opportunity were afforded for the filing of briefs on the merits”);  Gressman, Supreme Court Practice §6.12(c), p. 417, and n. 46 (ques­tioning the Court’s reliance on its own examination of the record in summarily reversing, without at least affording the parties, “particularly the respondent,” an opportunity to brief the critical issue and identify the relevant portions of the record).  Peremptory disposition, in my judgment, is all the more inappropriate given the grave consequences of upsetting the judgment below: Smith, who has already served ten years, will be returned to prison to complete a sentence of fifteen years to life.  Before depriving Smith of the liberty she currently enjoys, and her family of her care, I would at least afford her a full opportunity to de­ fend her release from a decade’s incarceration.

For some back-story on this remarkable case, check out this Los Angeles Times piece from last year headlined "A pawn in a legal chess match: Shirley Ree Smith spent 10 years behind bars for the death of her grandson before her conviction was overturned. Now she waits on skid row as the courts sort out whether a jury's verdict — even if wrong — must prevail."

October 31, 2011 at 10:25 AM | Permalink

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This is by far the most important paragraph:

"It is said that Smith, who already has served years in prison, has been punished enough, and that she poses no danger to society. These or other considerations perhaps would be grounds to seek clemency, a prerogative granted to executive authorities to help ensure that justice is tempered by mercy. It is not clear to the Court whether this process has been invoked, or, if so, what its course has been. It is not for the Judicial Branch to determine the standards for this discretion. If the clemency power is exercised in either too generous or too stingy a way, that calls for political correctives, not judicial intervention."

That Justice Kagan signed onto the majority opinion, and this passage in particular, is a tribute to her, and really bad news for Compassion Uber Alles crowd.

The other noteworthy thing about this opinion is that it should be an instant favorite with those who like Apprendi and Apprendi's respect for the jury, but somehow I just don't think it will be.

Posted by: Bill Otis | Oct 31, 2011 10:40:18 AM

I thought most of these shaken baby cases had been thrown out based on the junk science problems.

Posted by: Ala JD | Oct 31, 2011 12:09:57 PM

Bill,

You can only have respect for a jury when the information presented to it is solid, and it is now known that the foundation behind shaken baby syndrome is not nearly so solid as the proponents might have wished. This is not the fault of the prosecutors at the time, or the defense for failing to convince the jury, it is simply a matter of expanding information.

This is one area I believe our court system does have problems, it is very reluctant to revisit prior cases where the understood meaning of the known evidence has changed over time.

We don't respect the juries that convicted during the various New England witch hunts because we now know better. Why should we have any more respect for modern jury findings where the foundation has been knocked out from under the case?

Posted by: Soronel Haetir | Oct 31, 2011 12:39:51 PM

Actually, the "junk science" allegations don't survive scutiny of the "research" cited to support those claims. And a wide reaching review of SBS cases in the UK by Attorney General Lord Goldsmith in 2004 found error warranting new proceedings in fewer than 5% of those cases - a better record, it seems, than eyewitness testimony.

It is curious that the authors of the literature cited in Justice Ginburg's dissent is largely the product of witnesses who only seem to find opportunity to testify in cases in support of the "junk science" defense.

General practice attorney.

Posted by: george | Oct 31, 2011 12:42:22 PM

Soronel --

I discussed the conundrum of a "continuing review paradigm" for the accuracy of judicial determinations versus the advantages of a "finality of judgment paradigm" in the two comments at the end of this recent thread:

http://sentencing.typepad.com/sentencing_law_and_policy/2011/10/when-life-is-too-long-debate-over-older-prisoners.html#comments

I'd be interested in your reaction if you care to have a look.

Posted by: Bill Otis | Oct 31, 2011 1:32:37 PM

Hey Bill: I actually was thinking about what Cavacos v. Smith could mean for the continuing debate over sentencing enhancements in the federal system based on acquitted conduct. I remain cautiously hopeful that the four members of the Cavacos v. Smith majority here who were not on the Court at the time of Watts might be true jury-verdict fans and be chary of any judicial decision to enhance a sentence because the judge just think the jury got it wrong.

In other words, I know of at least one Apprendi/Blakely fan who is drawn to this ruling and hope it portends more pro-jury rulings in the months and years ahead.

Posted by: Doug B. | Oct 31, 2011 2:32:35 PM

Bill,

The courts may need to respect a jury finding but that doesn't mean the rest of us need to after the expert basis for that finding is significantly eroded. As I said in one of these threads I do have problems with our current system's requirement that once a jury brings back a guilty verdict the convict must prove they did not commit the crime beyond reasonable doubt. The courts may says something a little less strict is the standard but that sure appears to be what they use in practice.

I do think that we need some less strict form of review of the convictions themselves. I'm not sure what that would be and am even less sure the courts would go along with such a change if it were tried.

As for ongoing review, as I've said many times, so long as the conviction itself is sound I don't really care what happens to the offender. Someone would have to knock out every felony conviction before I would care about their being imprisoned. I don't particularly care about victims either, so if someone gets out of prison and commits a new offense, well, that's sad but oh well. So, no, I'm not in favor of such a system (for either early release or keeping someone locked up longer).

Posted by: Soronel Haetir | Oct 31, 2011 2:58:42 PM

The State process seems to have whiffed on this mess of a result. I may be able to buy that there simply isn't a federal/judicial remedy here (even if that means no remedy at all), but I am not buying that the state corrective process should make me feel better about the situation.

Posted by: Anon | Oct 31, 2011 3:11:12 PM

bill: "really bad news for Compassion Uber Alles crowd."

me: oh my! another post where you use German as a way to discredit those who disagree with you???

Posted by: virginia | Oct 31, 2011 3:30:18 PM

This is where the Ninth's history is a problem. Had this case been out of the Tenth Circuit, it may not have been reviewed.

Looks like Ginsburg's mad that the Ninth has gotten slapped around a bit. Waah.

Posted by: federalist | Oct 31, 2011 3:38:38 PM

virgnia --

You know I always want to be accommodating. I will therefore change it to "Compassion Over Everything Crowd."

Is that better?

Posted by: Bill Otis | Oct 31, 2011 5:45:29 PM

Doug --

Defendants got their remedy in Booker. As you know, I strongly disagree with that remedy, but I don't have the juice to get it changed.

Since the remedy chosen was an advisory system rather than requiring the government to prove sentencing facts BRD, the basis that might have been laid for a reconsideration of Watts went by the boards. That being the case, acquitted conduct -- i.e., conduct not shown BRD but that could still be shown by a preponderance -- remains the law, without any doctrinal basis having been established to overthrow it.

Posted by: Bill Otis | Oct 31, 2011 5:53:01 PM

I posted a rather lengthy response to your post in the other thread, Bill.

"This is one area I believe our court system does have problems, it is very reluctant to revisit prior cases where the understood meaning of the known evidence has changed over time."

As it should. There is virtue to finality even if that finality is wrong. Error is not the end of the world in a cultural or social sense, even if it is the end of the world for a specific individual (e.g, see the Darwin Awards.)

The fundamental issue isn't that the courts get it wrong. The fundamental problem is that everyone wants the people they like not to be on the wrong end of the error. Does anyone think this case would have made it this far if the mother and been a 16 year old unwed teenager on crack at the time. I don't believe so. The woman in this case is grandmother and that makes her more sympathetic in the same way that Casey Anthony's partying ways made her less sympathetic. Bill's real problem isn't that he lacks compassion. His real problem is that he just so happens to feel more compassion for dead little white girls than live middle-aged black women. That's his prerogative or his prejudice, whichever one prefers.

Posted by: Daniel | Oct 31, 2011 6:27:34 PM

Daniel --

"Bill's real problem isn't that he lacks compassion. His real problem is that he just so happens to feel more compassion for dead little white girls than live middle-aged black women."

Prove it or retract it.

After that, and only after that, I'll be happy to talk with you about my real "problem," that being that I think cases should be resolved on the basis of law rather than sentiment.

Posted by: Bill Otis | Oct 31, 2011 7:04:27 PM

Daniel, please don't prove it or retract it if it means Bill will shut up for a while.

Soronel, in TX at least it's inaccurate that "once a jury brings back a guilty verdict the convict must prove they did not commit the crime beyond reasonable doubt" to get relief. Here it's the case that the court must find "no reasonable juror" would have agreed with the verdict in light of new evidence, which is a MUCH more stringent standard than "beyond a reasonable doubt." Basically it's "beyond any doubt."

Posted by: Gritsforbreakfast | Oct 31, 2011 8:09:51 PM

Gritsforbreakfast --

"Daniel, please don't prove it or retract it if it means Bill will shut up for a while."

1. Learn to read, nitwit. What I said is that I would not continue the discussion WITH DANIEL until he proved his accusation of racism or retracted it.

2. If you want me to "shut up," I'll be happy to see how Your Highness enforces that. Should I wait?

Posted by: Bill Otis | Oct 31, 2011 8:18:50 PM

Bill, IT WAS NOT the defense bar who urged advisory guidelines, it was the BUSH SG/DOJ who urged that remedy (as Breyer states in his Booker remedy opinion). The defense urged the remedy you liked --- the one advocated by Stevens, Scalia, Thomas and Souter in dissent. Please do not let your anti-defense bias lead you to spout revisionist history.

Moreover, in the 7 years since Booker, DOJ has never urged (under either Bush or Obama) a mandatory system with Apprendi/Blakely rights. They did not seek this remedy in Booker or thereafter in Congress when the Rs controlled both houses, nor at any time thereafter. The defense bar has grown to like advisory guidelines, in part because it makes it easier for the best defense attorneys to develop strong mitigating arguments for the most sympathetic (and/or most well-to-do) clients. But the continued unwillingness of DOJ to get behind a mandatory system with Apprendi/Blakely rights is the main reason why the jury has never gotten respect in the federal system even after Blakely.

Posted by: Doug B. | Oct 31, 2011 8:40:45 PM

Doug --

I don't know that I'm permitted to respond, since Blogmeister Grits has decreed -- in his usual polite and businesslike way -- that it would be best for me to "shut up," but I'll risk his Awesome Wrath anyway.

You misconstrue what I said. I said that defendants got their remedy in Booker. I did NOT say they got the remedy they ASKED FOR in Booker. What I intended to convey is that the defendant(s) won the case and got a remedy. In that sense, it was "their" remedy -- they being the victors -- and that was the sense in which I used the word. I have acknowledged any number of times, after having been mistaken about it initially, that the ORGANIZED defense bar did not seek advisory guidelines. I am also on record many times as being opposed to advisory guidelines and in favor of the remedy that would have been imposed by Stevens, Scalia, Thomas and Souter. In my recent Congressional testimony, I noted that one of the things wrong with the advisory remedy the majority imposed was that it did not even fix the defect upon which the merits part of Booker was based -- the lack of a jury determination of Blakely-required sentencing factors.

"Please do not let your anti-defense bias lead you to spout revisionist history."

It's an odd "anti-defense bias" that leads me to advocate before Congress and in published articles the remedy the defense sought, no?

"The defense bar has grown to like advisory guidelines, in part because it makes it easier for the best defense attorneys to develop strong mitigating arguments for the most sympathetic (and/or most well-to-do) clients."

The main reason it likes them is that departures, whose incidence is substantial and increasing, are granted overwhelmingly in their direction. No wonder it likes them. And their advocacy of them is hardly limited to the most sympathetic or wealthy clients. They advocate for departures as a matter of course, knowing that they're getting them more and more often, and that, in the huge majority of cases when they do, the government will not appeal.

"But the continued unwillingness of DOJ to get behind a mandatory system with Apprendi/Blakely rights is the main reason why the jury has never gotten respect in the federal system even after Blakely."

I don't think it' the main reason, but I think it's an important reason. Perhaps Congress should call Eric Holder and ask him why the lassitude. If they do, I'll be happy to show up again and ask him myself.

(And no, it's not all Holder's fault, but he's the AG now and it's up to him).

Posted by: Bill Otis | Oct 31, 2011 9:55:54 PM

Bill.

In comparing this case with the Casey Anthony case there are only three possible positions.

(1) That neither case represents a legal injustice.
(2) That both cases represent a legal injustice.
(3) That one or the other case represents an injustice and the other doesn't.

Now, since you are on the record in this blog as stating that the Casey Anthony case represents a gross miscarriage of justice you cannot hold position (1). Since you are on the record in this very thread that the shaken-baby case does not represent a legal miscarriage of justice you cannot hold position (2). So that means that you must, by process of elimination, hold (3).

Far be it from me to say that your compassion for the dead little Anthony girl is driven by racism. Maybe it's driven by pedophilia as you just so happen to like little girls over mature women. Maybe your compassion is motivated by necrophilia. I have no clue.


Posted by: Daniel | Nov 1, 2011 1:17:43 AM

Daniel --

"Far be it from me to say that your compassion for the dead little Anthony girl is driven by racism."

Then you shouldn't have said it. Where's the apology?

"Maybe it's driven by pedophilia as you just so happen to like little girls over mature women."

I will let that speak for itself, noting no more than that it marks you as beneath even the extremely low standards of debate increasingly seen on this board. I wish I could say that I'm surprised that the pro-defense side would accuse me of pedophilia, but the utter slime thrown by that crowd is no longer surprising.

"Maybe your compassion is motivated by necrophilia."

Ditto.

"I have no clue."

Finally you get something right.

Posted by: Bill Otis | Nov 1, 2011 5:04:24 AM

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