Friday, November 4, 2011

Grandma Goes to Prison - 15 Years After the Fact

An astonishing reversal by the Supreme Court this week of a decision regarding the guilt of a grandma who allegedly killed her grandchild by shaking him. This does not directly relate to correctional policy, but it does bring to mind the question of the futility of incarceration in such cases. I figured our readers might find it interesting, so here's a summary by my colleague Rory Little, made for the ABA Criminal justice Section. 

Supreme Court Case Summaries: Professor Rory Little’s Perspective[1]

A Service from the ABA Criminal Justice Section,

Cavazos v. Smith (6-3 per curiam summary reversal, Oct. 31, 2011).

            Summary:  What would the opening of a new Supreme Court Term be without an early summary reversal of the Ninth Circuit?  After two prior GVRs (grant, vacate and remand) of the panel’s decision to grant habeas in a state infant-abuse-death prosecution, a majority of the Court rules (in an unsigned per curiam) that the Circuit improperly “substituted its judgment for that of a California jury” on a question of constitutional sufficiency of evidence under Jackson v. Virginia, 443 U.S. 307 (1979).
            In a dissent equal in length to the majority’s opinion, Justice Ginsburg (joined by Breyer and Sotomayor) rebukes the Court for using its discretionary review authority for mere “error correction” in a case the dissenters call “tragic” as well as questionable.  A notable irony here is that had the dissenters attracted Justice Kagan’s fourth vote, they could have granted plenary certiorari review, which Justice Ginsburg says would be better than summary reversal.  Meanwhile, the case was before the Justices for twelve conferences, starting last spring.  That must be close to a record.  So some interesting behind-the-scenes Court strategy and politics appear to be in play here.

            Per Curiam opinion:  Shirley Ree Smith was convicted for the 1996 death of her 7-week-old grandson, under a California statute specifically making it a crime to assaults a child under eight (resulting in death) with “force that to a reasonable person would be likely to produce great bodily injury.”  The prosecution theory was that Smith had shaken the infant, who then died of “shaken baby syndrome” (“SBS”).  The government’s evidence was that Smith had told a social worker that she had given the baby “a little shake, a jostle,” to awaken him, and when the social worker told Smith of the coroner’s SBS conclusion, Smith said “Oh my God.  Did I do it?  Did I do it?  Oh my God.”  Smith denied these statements (which are ambiguous in any case) and denied shaking the baby.  There was no evidence of prior violence, temper, or abuse, and the evidence was apparently undisputed that Smith was a loving grandmother watching her daughter’s children while the daughter was asleep in the next room.

            Thus the trial centered almost entirely on medical testimony, over seven days, with three experts for the prosecution and two for the defense.  All three prosecution experts testified that even though the medical evidence was not entirely consistent, the cause of death must have been SBS because other causes were eliminated or much less supported.  By contrast, one defense expert said the cause of death was “sudden infant death syndrome,” and while the other expert said “old brain trauma.”  (Tangentially, there is some hint that Smith’s lawyer was ineffective – Justice Ginsburg lays this out in her dissent.  The lawyer has since resigned from the Bar with disciplinary charges pending.)

        The jury returned a guilty verdict, and Smith was sentenced to 15 years to life.  The California state court affirmed the conviction, noting that “The expert opinion evidence … was conflicting.  It was for the jury to resolve the conflicts.  The credited evidence was substantial and sufficient….”  On federal habeas a Magistrate-Judge recommended denial and the district judge adopted that recommendation.  But a panel of the Ninth Circuit (Canby, Pregerson and Reed (DJ)) reversed, saying that there was “no evidence to permit an expert conclusion one way or the other” and that “Absence of evidence cannot constitute proof of reasonable doubt.”  Thus “no rational juror” could have found guilt here, and the state’s affirmance was an “unreasonable application” of Jackson v. Virginia.

            “That conclusion was plainly wrong,” the per curiam Court wrote yesterday.  A reviewing court “must presume” that the jury resolved conflicts in favor of the prosecution, “and must defer to that resolution.”  Jackson, at p. 326.  “A federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees.”

            Interestingly, it took five years of tussling to get to this point.  First the Circuit denied rehearing en banc over five dissenting votes.  Then the Supreme Court twice summarily granted the State’s cert petitions, vacated, and remanded (“GVR”) for reconsideration in light of two different Court opinions (Carey v. Musladin, 2006, and McDaniel v. Brown, 2010).  But (says the majority in a clear rebuke to CA9), “each time the panel persisted in its course, reinstating its judgment without seriously confronting … the cases called to its attention.”  [Ed. Note:  No doubt the panel would disagree with this characterization.  It did issue opinions addressing the new cases, expressly noted the “double” deference required under AEDPA, and called the case rare and “extraordinary.]  Thus, says the Court, “”the decision below cannot be allowed to stand.”

            Smith was released on bail in 2006 pending further appeal.  She will presumably now have to return to prison to serve at least the five years remaining on her minimum sentence, unless “clemency” is granted, an option the majority notes but says “it is not for the Judicial Branch” to consider.  [Ed. Note:  Interesting to consider what the new/old Calfornia Governor Jerry Brown will do with the case.]

            Ginsburg dissenting, joined by Breyer and Sotomayor:  “The Court’s summary disposition … is a misuse of discretion.”  This case is “as tragic as it is extraordinary and fact intensive.”  The Circuit undisputedly applied the “correct rule of law.”  This Court ought not engage in mere “error correction,” particularly since new scientific research since 1996 “casts grave doubt” on the prosecution’s expert testimony and theory of guilt.  [Justice Ginsburg goes over the new research and the trial evidence in some detail.]  “What does the Court achieve other than to prolong Smith’s suffering and her separation from her family?  Is this Court’s intervention really necessary?  Our routine practice counsels no.”  “The Court is bent on rebuking the Ninth Circuit….  I would not ignore Smith’s plight and choose her case as a fit opportunity to teach the Ninth Circuit a lesson.”

            Even if the Court is inclined to examine this decision, it ought not do that by a summary disposition.  “I would at least afford [Smith] a full opportunity to defend her release from a decade’s incarceration.”  [Ed. Note:  Since it takes only four Justices to grant full review, this point in a three-Justice dissent accentuates Justice Kagan’s silence here – although it is quite possible to imagine a “strategic” decision to not provide the fourth vote for plenary review in a case you feel certain you would “lose.”]  “Justice is not served by the Court’s exercise of discretion to take up this tragic, fact-bound case.”

[1]  These summaries are created by Professor Rory K. Little, U.C. Hastings College of the Law, San Francisco ( soon after the Supreme Court’s opinions are released.  They represent his quick, personal and unofficial reading of the Justices’ opinions.  Remarks in [brackets] are Professor Little’s own editorial comments.  Minor punctuation may be changed.  The original opinions should be consulted for authoritative content.

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