Wednesday, March 5, 2008

Smith v. Mitchell/Patrick [lWarden] 130 S.Ct. 1134 (2010); 624 F.3d 1235 (2010)

The facts of Smith v. Mitchell (Warden), 437 F.3d 884 (9th Cir. 2006) are uncomplicated. The defendant Shirley Smith was convicted in state court of shaking her baby to death. Prosecution and defense expert witnesses disagreed on the cause of death but the jury accepted the prosecution version. The California Court of Appeal upheld the conviction, the California Supreme Court denied defendants petition for review, and the U.S. District Court denied habeas corpus. On appeal of the District Court decision, the defendant argued to the Ninth Circuit panel no rational trier of fact could have found the defendant committed the essential elements of the crime beyond a reasonable doubt. The Ninth Circuit panel reversed the conviction of Smith on this ground. The Ninth Circuit panel decision did not conclude the prosecution had failed to produce evidence on every essential element of the crime. In fact, three physicians testified to all the facts necessary to establish the elements of the crime charged against the defendant. Instead, the Ninth Circuit panel accepted the testimony of defense experts who disagreed with the cause of death. Citing the Supreme Court decision in Jackson v. Virginia, 443 U.S. 307 (1979), the panel reversed the conviction and issued a writ of habeas corpus. In Jackson, the Supreme Court explained the role of federal courts in habeas corpus review of a conviction of defendants in state courts. The Court said a federal court may review the sufficiency of the evidence [at trial] to support a criminal conviction . . . not to determine whether record evidence reasonably supports a finding of guilt beyond a reasonable doubt; the relevant question is whether, after viewing evidence in the light most favorable to the prosecution, any rational trier of fact could have found essential elements of the crime beyond a reasonable doubt. The State of California asked the Ninth Circuit panel (three judges) to reconsider their decision and simultaneously sought a review by a full panel (en banc) of Ninth Circuit judges. The panel and the court denied both requests; Smith v. Mitchell [Warden], 453 F.3d 1203 (9th Cir. 2006). Here is the dissenting opinion of several judges denying reconsideration of the panel decision in Smith: I [Judge Bea] write to make clear our court has, by its decision in this case, made a substantial departure from settled principles of review of jury determination of fact in criminal cases. In this case, our court decides the opinion of three Board certified physicians called by the prosecution that [defendants] shaking of the baby caused his death must be substituted with the contrary opinions of . . . non Board Certified physicians called by the defense. Why? Because the defenses doctors testified that a finding was absent on autopsy, and that finding was crucial and undermined the prosecution experts testimony. The three physicians called by the prosecution disagreed with the defense doctors and explained why such a finding was not crucial. Our court simply accepts the defense theory and rejects the prosecutions evidence. The jury was perfectly able to do just that. But when our court does it, it steps over the line dividing the province of the jury from that of the court . . . The State asked the Supreme Court to review the Ninth Circuit panel decision and the Justices did just that. Reversed and remanded on grounds the decision did not rest on Supreme Court jurisprudence. On remand, the Ninth Circuit panel reaffirmed their original decision, stating it did not conflict with Supreme Court precedent; Smith v. Patrick [Warden], 508 F.3d 1256 (9th Cir. 2007). The panel merely revised the language of its original case and came to the same conclusion. The State of California subsequently asked the Ninth Circuit to consider a more recent Supreme Court decision undermining the rationale of its decision in Smith v. Patrick. Unsurprisingly, the court refused the request; Smith v. Patrick, 519 F.3d 900 (9th Cir. 2008). On January 19, 2010 the Supreme Court vacated the judgment and remanded the case to the Ninth Circuit citing McDaniel v. Brown, 130 S.Ct. 665 (another reversal of the Ninth Circuit. On  remand the 9th Circuit recycled the case and refused to change its mine; 624 F.3d 15 (9th Cir. 2011).
Comment: The function of an appellate court is not to retry the case or believe one side or the other. Their role is: did the trial court commit legal error. If there is unquestionably no evidence of criminal conduct, the appellate court reverses a conviction on the ground a state court (or federal court) cannot convict an accused without factual support for the elements of the crime alleged. This is the Jackson rule. In Smith, the prosecutor established all the elements of the crime. Or as the Supreme Court wrote, the essential elements. This is not the first time the Ninth Circuit has engaged in second hand review of the evidence. In Juan H. [juvenile] v. Allen, 408 F.3d 1262 (2005) the defendant was convicted of murder in his e capacity as an accomplice. On appeal, the California Court of Appeal affirmed the conviction and the federal district court denied relief. The defendant filed habeas corpus on appeal from the District court. The Ninth Circuit panel summarized the testimony at trial, disagreed with the California Court of Appeal decision and substituted its own opinion. Again the court concocted several versions of the evidence to establish the defendant was not an accomplice-an argument the defense counsel would have probably made and rejected by the jury. An appellate court, unlike the jury, does not observe the witnesses and is unable to take into account their demeanor in determining their truthfulness or the accuracy of their testimony. An appellate court does not see the accused and similarly unable to observe demeanor under direct and cross examination. Appellate courts only read the written record, which is not the same as being there. Which is why we have juries. Paraphrasing a recent movie, There Will Be [Reversal] in the Supreme Court. A petitin for cert has been filed.

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