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.
The Ninth Circuit continues its ideological ways in another context. In a 2-1 decision written twenty three years after the conviction, Robinson v. Schriro/Ryan 595 F.3d 1086 (9th Cir. 2010, the evidence established that in 1987 Robinson and two cohorts loaded shotguns and shells into his truck, and all three drove from California to Arizona at his direction to locate a woman he sought. The two men forcibly entered the house of two elderly relatives of Robinson’s wife, ordered them to lie on the floor, bound their arms and legs, and shot both of them repeatedly in the back, killing the woman and seriously injuring the man who lost one eye.The jury convicted Robinson of murder and voted the death penalty. The Arizona Supreme Court affirmed the conviction, reciting significantly more evidence in its opinion than the Ninth Circuit; State v. Robinson, 796 P.2d 853 (1990).
The 9th Circuit panel engaged in a linguistic analysis over the definition of the words “cruel, heinous,and depraved, “aggravating factors required for imposition of the death penalty in Arizona state courts. The court wrote “[Robinson] has argued the ‘cruelty prong’ of the aggravating factors did not apply because the prosecution produced no evidence that the two victims actually suffered significant pain or distress The panel decided ‘[t]he cruelty prong of the aggravating factors relate to the physical and mental suffering of the crime during the murder, and accordingly “there is no evidence of significant pain or distress’ suffered by the two victims.
But one victim died while bound with tape on the floor and the other suffered serious injuries. According to the Ninth Circuit, forcibly entering a home, ordering the elderly occupants to lie on the floor, binding them, exhibiting shotguns, executing one and seriously injuring the other does not constitute “cruelty.”
The Supreme Court has vacated the judgments and remanded Patrick v. Smith, 130 S.Ct.1134 (2010) and McDaniel v. Brown, 130 S.Ct. 665 (2010). In both cases the Ninth Circuit used the wrong legal test. Patrick v. Smith was reviewed in this Blog on March 5, 2008. McDaniel was reviewed on February 3, 2009. The Supreme Court spared no mercy on the Ninth Circuit and severely criticized that court for ignoring the law.
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.