Smith v. Mitchell, 624 F.3d 1235 (9th Cir.2010)

Federal appellate courts can review state court convictions on habeas corpus, deferring  to state appellate courts absent non compliance with Supreme Court decisions; 28 U.S.C. 2254 (d).  Congress, frustrated by federal court interference with state courts, attempted to limit its appellate authority under 28 U.S.C. 2254 (d) but the Ninth Circuit repeatedly ignores the statute, citing it and then distinguishing it.

No case illustrates this practice more vividly than Smith v. Mitchell (all citations omitted).  The state trial court jury convicted Smith; the California  Court of Appeal affirmed the conviction; the California Supreme Court denied review; the U.S. District Court denied the petition for habeas corpus.  On appeal, a three judge Ninth Circuit panel reversed alleging insufficient evidence of guilt.The Supreme Court reversed the Ninth Circuit and remanded.  The Ninth Circuit on remand reversed the conviction again; the Supreme Court reversed and remanded again.  On remand, the Ninth Circuit reversed again for the third time. Every court that has reviewed this case disagreed with the Ninth Circuit.

The facts, briefly stated are uncomplicated.  The jury convicted the defendant in a “baby shaking” case.  Expert witnesses for prosecution and defense had testified to the cause of death, obviously disagreeing.   The Ninth Circuit preferred the defense witnesses and granted the petition for habeas corpus; Smith v. Mitchell, 437 F.3d 884 (9th Cir. 2006).  On appeal (cert.) the Supreme Court reversed and remanded (citing as authority a different 9th Circuit case it had previously reversed). On remand, the Ninth Circuit panel reached the same result the second time on a different theory and reversed; 508 F.3d 1256 (9th Cir. 2007). Reversed again by the Supreme Court and remanded (citing another case reversing the 9th Cir.).  On remand, for the third time, the Ninth Circuit reversed again.

It never occurred to these appellate judges, particularly those who have never tried a case, that the jury did not believe the defense witnesses.  And the prosecution did produce evidence warranting a conviction. The basis for an erroneous conviction, aside from a unanimous verdict, apparently eluded the trial judge, the California Court of Appeal, the California Supreme Court and the U.S. District Court.  The Supreme Court will see this case again if the Ninth Circuit does not reverse its three judge panel en banc.