Tuesday, November 8, 2011

Cavazos v. Smith, 132 S.Ct. 2 (2011): 3d Reversal of 9th Circuit

A jury convicted Smith of violating a California statute known colloquially as "baby shaking."  Experts for prosecution and defense testified to the cause of death, obviously disagreeing.  The trial judge denied a motion for new trial, the California Court of Appeal affirmed the conviction, and the California Supreme Court denied review.  On federal habeas corpus, the district court denied the petition.  The 9th Circuit panel reversed, contending the evidence insufficient to warrant  a verdict of guilty. As one of the dissenting judges on the 9th Circuit panel noted, in effect, "why do we have juries?"

The Supreme Court reversed. On remand, without any further reasoning and ignoring the Supreme Court direction to consider other case law, the 9th Circuit reached the same result; on review of that decision in the Supreme Court for the third time, the Justices reversed the 9th Circuit 6-3.
 
This case is one of the most blatant examples of 9th Circuit manipulative jurisprudence. The Supreme Court agreed in this language: "The panel ignored AEDPA . . . Despite the plenitude of expert testimony in the trial record concluding that sudden shearing or tearing of the brainstem was the cause of [the child's] death, the Ninth Circuit determined that there was 'no evidence to permit an expert conclusion one way or the other on that question because there was no physical evidence of . . . tearing or shearing, and no other evidence supporting death by violent shaking . . . The [9th Circuit]  said that the State's experts 'reached [their] conclusion because there was no evidence in the brain itself of the cause of death.' The court concluded that because '[a]bsence of evidence cannot constitute proof beyond a reasonable doubt, the California Court of Appeal had unreasonably applied this Court's opinion in upholding Smith's conviction. That conclusion was plainly wrong."

The Ninth Circuit's assertion that these [State] experts “reached [their] conclusion because there was no evidence in the brain itself of the cause of death” is simply false  (italics added). There was (italics in original) evidence in the brain itself. The autopsy revealed indications of recent trauma to Etzel's brain (the dead child), such as subdural and subarachnoid hemorrhaging, hemorrhaging around the optic nerves, and the presence of a blood clot between the brain's hemispheres. The autopsy also revealed a bruise and abrasion on the lower back of Etzel's head. These affirmative indications of trauma formed the basis of the experts' opinion that Etzel died from shaking so severe that his brainstem tore."
And this by the Supreme Court: "When the deference to state court decisions required  [by AEDPA] applied to the state court's already deferential review, there can be no doubt of the Ninth Circuit's error below. In light of the evidence presented at trial, the Ninth Circuit plainly erred in concluding that the jury's verdict was irrational, let alone that it was unreasonable for the California Court of Appeal to think otherwise . . .  Doubts about whether Smith is in fact guilty are understandable. But it is not the job of this Court, and was not that of the Ninth Circuit, to decide whether the State's theory was correct. The jury decided that question, and its decision is supported by the record."

Bluntly stated, the Supreme Court told the 9th Circuit  panel it had misrepresented the evidence, intentionally  ignored the evidence, and abandoned its role as an appellate court.  This case is another verbal lashing the Supreme Court repeatedly administers to the 9th Circuit.

Note: except for the word "was" in the Supreme Court opinion, the italics were added.

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