After being re-listed a dozen times (I have to assume that's a record), the Supreme Court finally issued a summary reversal in Cavazos v. Smith. It was a per curiam opinion with Ginsburg writing a dissent, which Breyer and Sotomayor joined.
Cavazos Smith was convicted of killing a 7-week old baby under a "shaken baby syndrome" theory.* Cavazos Smith was the baby's grandmother. That alone is pretty tragic, but it is quite clear from the opinion that pretty much every federal judge who reviewed the case had serious problems with the conviction. The main evidence against Cavazos Smith, outside of an ambiguous statement to a caseworker, was expert medical testimony, much of it focusing on "shaken baby syndrome." The defense presented experts to contest the shaken baby theory.
*Update: I mistakenly referred to petitioner as Cavazos, instead of Smith, throughout the post. A little embarrassing.
Right there, this case makes me uncomfortable. I will quote a 2008 court case from Wisconsin called Wisconsin v. Edmunds: "a significant and legitimate debate in the medical community has developed in the past ten years over whether infants can be fatally injured through shaking alone, whether an infant may suffer head trauma and yet experience a significant lucid interval prior to death, and whether other causes may mimic the symptoms traditionally viewed as indicating shaken baby or shaken impact syndrome." Since the conviction here was from 1997, that applies to Cavazos Smith. In fact, Justice Ginsburg mentions this in her dissent.
The Ninth Circuit had granted habeas relief to Cavazos Smith two prior times, but each was vacated by the Supreme Court. So this was number 3. And now the Supreme Court has summarily reversed the habeas grant. This time, the Court concluded that the Ninth Circuit misapplied the sufficiency of the evidence standard set forth in Jackson v. Virginia. Here are the first two paragraphs:
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 ofinsufficient evidence only if no rational trier of fact couldhave 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 decisionwas “objectively unreasonable.” Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 5) (internal quotation marksomitted).
Because rational people can sometimes disagree, theinevitable consequence of this settled law is that judgeswill sometimes encounter convictions that they believe tobe 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 theprosecution’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.
Skipping the rest of the majority opinion, what's remarkable to me is the core theory of Justice Ginsburg's dissent. She says that this was not the type of case for the Court to exercise its discretionary authority to review. She pointed out that the Court typically limits cert. to questions of law, and should not simply reach out to correct a misapplication of law, especially where the interest of justice do not support it. Here's what she says:
Beyond question, the Court today reviews a case as tragic as it is extraordinary and fact intensive. By takingup the case, one may ask, what does the Court achieve other than to prolong Smith’s suffering and her separationfrom her family. Is this Court’s intervention really necessary? Our routine practice counsels no.
This seems pretty novel to me. I don't remember a Justice ever framing the decision to grant cert. as a weighing of the different equitable interests. Certainly, they play a role. But I have never read it argued so explicitly by a Justice. Should litigants now be asserting these types of interest of justice factors in seeking cert. or asking that cert. be denied? Maybe.
But there is a lot more to say about this per curiam. And now I am going to pass the mic to reader Alexandr Satanovsky who provides the following analysis (from three separate e-mails -- I only edited a couple of typos):
[T]here is something about the candor in the opinion's introduction that I find enjoyable:
“[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. . . .[Under AEDPA] judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold.”
Cavazos v. Smith 565 US __ (Oct 31 2011) (slip op at 1) (per curiam).
[T]his is especially telling candor, I think, because of the issue: Jackson sufficiency of evidence. It is not like other garden-variety constitutional errors (e.g. IAC, miranda, voluntariness, Brady, various procedural due process claims), which already have a second layer of prejudice analyis (or "harmless error") built in on direct review. Or even better, like constitutional claims that do not even conduct prejudice analysis --(e.g., Batson, Double Jeopardiy (Renico v. Lett, 2010)). These can better be characterized as "technicalities," or at least attenuated from the important issue of guilt/innocence. But not so with sufficiency of evidence claims, which in a very real sense involve "judges [who] will sometimes encounter convictions that they believe to be mistaken".
Consider also Cavazos, slip op. at 7, where the Court expressly admits that "[d]oubts about whether Smith is in fact guilty are understandable." Honestly, I've read a lot of AEDPA decisions where the state prevails in the Supreme Court. But I don't recall a single majority opinion making this kind of gesture toward costs of AEDPA. See also slip op at 8 (an unusual gesture to the clemency process). (Compare with, e.g. Renico v. Lett (2010), which is cited frequently in this opinion, but makes no reservations about an innocent person being wrongly jailed; see also Renico (Stevens, J. dissenting) (protesting that an innocent person was in jail due to the extra-deferential AEDPA interpreatation)).
Another thing worth noting, not sure if others have commented (haven't read much commentary), is Kagan's absence from the dissent. An optimistic view would be that, perhaps, knowing the fate of the disposition, Kagan joined the PC opinion, perhaps even wrote it, so as to make this acknowledgment of the bitter costs of AEDPA. The cynical view, of course, is that Kagan is simply not Justice Stevens when it comes to AEDPA, etc.
I should also note that, putting all biases aside, I think any rational reader of the Cavazos majority and dissent can only conclude that Smith is probably wrongly imprisoned. I think this is largely due to the fact that Ginsburg marshalls a lot of facts, which the majority expressly refuses to do. The majority opinion's unusual equivolence toward a possibility of actual innocence, discussed earlier, is also a sure factor.
[Finally] Dissenting opinion's hint at IAC-type issues. It's really a phenomenal tangent, as it is totally irrelevant from the issue at hand. (See Ginsburg, J., dissenting op. at 8) Again, making this opinion quite unique: I've never encountered SCOTUS citing an attorney by name, and noting their bar discipline (maybe I havne't read some of the seminal IAC cases very closely) -- but this is anomolous, especially since Cavazos is not an even an IAC case. Coupling this problem with the evolving science on shaking baby syndrome, it seems to me, would make for an interesting argument in a "second or successive" petition which is justified due to actual innocence.
Thanks, Alex. UPDATE: Alex's section was edited for clarity. Alex also points out that petitioner Smith has already been released from prison, which could explain the majority's "equivolence" towards her plight.
[T]his is especially telling candor, I think, because of the issue: Jackson sufficiency of evidence. It is not like other garden-variety constitutional errors (e.g. IAC, miranda, voluntariness, Brady, various procedural due process claims), which already have a second layer of prejudice analyis (or "harmless error") built in on direct review. Or even better, like constitutional claims that do not even conduct prejudice analysis --(e.g., Batson, Double Jeopardiy (Renico v. Lett, 2010)). These can better be characterized as "technicalities," or at least attenuated from the important issue of guilt/innocence. But not so with sufficiency of evidence claims, which in a very real sense involve "judges [who] will sometimes encounter convictions that they believe to be mistaken".
Consider also Cavazos, slip op. at 7, where the Court expressly admits that "[d]oubts about whether Smith is in fact guilty are understandable." Honestly, I've read a lot of AEDPA decisions where the state prevails in the Supreme Court. But I don't recall a single majority opinion making this kind of gesture toward costs of AEDPA. See also slip op at 8 (an unusual gesture to the clemency process). (Compare with, e.g. Renico v. Lett (2010), which is cited frequently in this opinion, but makes no reservations about an innocent person being wrongly jailed; see also Renico (Stevens, J. dissenting) (protesting that an innocent person was in jail due to the extra-deferential AEDPA interpreatation)).
Another thing worth noting, not sure if others have commented (haven't read much commentary), is Kagan's absence from the dissent. An optimistic view would be that, perhaps, knowing the fate of the disposition, Kagan joined the PC opinion, perhaps even wrote it, so as to make this acknowledgment of the bitter costs of AEDPA. The cynical view, of course, is that Kagan is simply not Justice Stevens when it comes to AEDPA, etc.
I should also note that, putting all biases aside, I think any rational reader of the Cavazos majority and dissent can only conclude that Smith is probably wrongly imprisoned. I think this is largely due to the fact that Ginsburg marshalls a lot of facts, which the majority expressly refuses to do. The majority opinion's unusual equivolence toward a possibility of actual innocence, discussed earlier, is also a sure factor.
[Finally] Dissenting opinion's hint at IAC-type issues. It's really a phenomenal tangent, as it is totally irrelevant from the issue at hand. (See Ginsburg, J., dissenting op. at 8) Again, making this opinion quite unique: I've never encountered SCOTUS citing an attorney by name, and noting their bar discipline (maybe I havne't read some of the seminal IAC cases very closely) -- but this is anomolous, especially since Cavazos is not an even an IAC case. Coupling this problem with the evolving science on shaking baby syndrome, it seems to me, would make for an interesting argument in a "second or successive" petition which is justified due to actual innocence.
