At the end of last month—in a case expertly analyzed by my Verdict colleague Professor Vikram Amar here—the U.S. Supreme granted review in Cavazos v. Smith and summarily reversed a decision of the U.S. Court of Appeals for the Ninth Circuit.
In this column, I will offer a perspective somewhat different from Professor Amar’s, regarding two matters that affected both the resolution of Smith’s case and the dissent’s rejection of that resolution: (1) the extreme deference to state courts demanded by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA); and (2) the Supreme Court’s limited role in reviewing decisions of the lower courts.
The Various Court Proceedings in Smith
This case arose when Shirley Ree Smith first challenged her California criminal conviction for assault leading to the 1996 death of her infant grandson, Etzel Glass. In her initial state court appeal, Smith claimed that the trial evidence was constitutionally insufficient to support a finding of guilt beyond a reasonable doubt. The state courts, however, rejected her argument and affirmed her conviction.
Smith then brought a petition for habeas corpus in federal court, arguing again that the evidence presented at trial had been insufficient. The federal district court denied her petition, but on appeal, the U.S. Court of Appeals for the Ninth Circuit reversed.
The Ninth Circuit ruled that the evidence did not support Smith’s conviction and that Smith was entitled to relief. The Supreme Court then summarily reversed the Ninth Circuit, over a dissent by Justice Ginsburg in which Justices Breyer and Sotomayor joined.
Genuine Doubts About Shirley Smith’s Guilt
Even the per curiam opinion of the Supreme Court acknowledges that there may be real doubts about the jury’s conclusion that Shirley Smith violently shook her grandson to death, as the prosecution had maintained. (A per curiam opinion is one authored anonymously and issued on behalf of the court rather than one particular Justice.) The dissent elaborates some reasons for these doubts.
Smith had been helping her daughter Tomeka raise Tomeka’s three children, ages 4 years, 14 months, and seven weeks old. There was no hint that Smith had ever been abusive or neglectful toward any of the children; rather, the evidence indicated that Smith was warm-hearted, sensitive, and gentle.
Moreover, the phenomenon of a caregiver’s violently shaking an infant is commonly associated with the frustration of caring for a crying baby who will not quiet down, whereas Etzel Glass had not been crying near the time of his death. Violent baby-shaking is also associated with circumstances of parents and guardians who feel trapped in an undesired caregiving role, yet Smith voluntarily helped her daughter with the children and exhibited no signs of feeling stuck or unable to cope with the work.
Expert testimony about the autopsy also did not strongly support the prosecution experts’ “Shaken Baby Syndrome” diagnosis of Etzel Glass’s cause of death, though the government’s experts found the evidence to be inconsistent with alternative, innocent explanations of the baby’s death, such as Sudden Infant Death Syndrome (SIDS). Significantly, medical knowledge in the years between the trial and today has cast doubt on the prosecution experts’ conclusions ruling out innocent explanations of the autopsy evidence.
The Legal Standards that a Prisoner Must Satisfy to Qualify for a Grant of Habeas Corpus
As the state courts observed on appeal, the prosecution experts’ testimony, if believed, could have persuaded a reasonable jury of Smith’s guilt. It is possible, after all, for a non-violent individual who has no known motive for harming a child nonetheless to kill that child. And experts did give testimony, based on prevailing scientific understandings, telling the jury that Smith had in fact killed the baby.
The jury, in other words, did not appear to have acted irresponsibly by concluding beyond a reasonable doubt that Smith was guilty. And, to overturn a conviction on “insufficiency of the evidence” grounds on direct appeal, Supreme Court doctrine requires the convicted party to show that no rational trier of fact could have found her guilty on the basis of the evidence introduced at trial.
Another important rule that applies here holds that once state courts have upheld a conviction on direct appeal, a federal court may grant a petition for habeas corpus only if the state court decision was objectively unreasonable. The Ninth Circuit was therefore required to give great deference to state court decisions that were, in turn, required to give great deference to the jury’s decision. In light of this two-layered deference, the Supreme Court appears to have accurately portrayed the Ninth Circuit as having “substituted its judgment for that of a California jury.” Put another way, though the Ninth Circuit articulated the correct legal standard for granting a petition for habeas corpus based on insufficiency of the evidence, it seems nonetheless to have given less deference to the jury’s and the state courts’ decisions than existing law required it to do. Thus, the Ninth Circuit appears to have erred in holding that Smith was entitled to a writ of habeas corpus.
How Our System Typically Gives the Jury the Last Word
It may seem odd to people outside the legal profession (and possibly to some within the profession as well) that a federal court can be said to have made a mistake in ruling that a woman who appears to have been innocent should be released from prison. Don’t innocent people have the right to freedom? Isn’t it appropriate for federal courts to guard against the incarceration of people whose guilt appears to be in serious doubt?
The answer is no, under existing law. The jury almost always has the last word on whether a defendant is guilty or innocent of the crime charged. As I discussed recently in passing, this means that a jury acquittal stands, no matter how compelling the evidence of guilt. And as the Supreme Court concluded in Jackson v. Virginia, a jury conviction that is even arguably plausible will stand as well, even if other judges who look at the evidence find themselves unconvinced of the defendant’s actual guilt.
Furthermore, once a convict brings a federal petition for habeas corpus, federal judges must defer not only to the jury verdict but also to the state courts’ disposition of the convict’s claims on appeal. The upshot of this “double deference” is that once state courts have affirmed a conviction, even an actually innocent prisoner seeking release will face an uphill battle.
The Dissent’s Elegant Critique of the Majority’s Summary Reversal
Given what I have said above, it may seem that the U.S. Supreme Court did the right thing in summarily reversing the Ninth Circuit’s decision. Why, then, does Justice Ginsburg (joined by Justices Breyer and Sotomayor) dissent?
The dissent’s argument against the Supreme Court’s summary reversal rests on a plea that the Justices in the majority honor the Supreme Court’s own rules regarding the decision whether to review cases that make their way up from the lower courts.
The Court grants review in a very small percentage of the numerous cases that the lower courts decide, despite the fact that the losing parties regularly seek such review. As Justice Ginsburg observes, one of the Supreme Court’s own rules provides that “[a] petition for a writ of certiorari is rarely granted when the asserted error [is] . . . the misapplication of a properly stated rule of law.” And as the dissent notes, the Ninth Circuit correctly described the applicable rules under both Jackson v. Virginia and AEDPA.
The dissent’s reasoning here is especially cutting because of its subtle similarity to the Court’s own basis for criticizing the Ninth Circuit’s ruling. The Court correctly points out to the Ninth Circuit that the latter must let stand a jury’s verdict that has undergone review by state appellate courts, even if the Ninth Circuit believes that the jury reached the wrong factual conclusion about the defendant’s guilt. The dissent then points out to the majority that the Supreme Court customarily denies review in cases that correctly articulate the applicable law but reach the wrong result in applying that law to the specific facts at issue.
Both lower federal courts and the Supreme Court must ordinarily live with errors previously made by other actors within the judicial system, and both the Ninth Circuit and the Supreme Court failed to abide by this principle in the case of Shirley Ree Smith. In that sense, the Justices in the majority are hoisted by their own petard.
What most disturbs the dissent, however, is not the Supreme Court’s failure to exercise the same sort of restraint (in leaving a prior court’s errors alone) that it asks of the Ninth Circuit. The dissent’s main complaint is that the Court’s “reached out”—going beyond its customarily limited sphere of intervention—to undo what was, in the end, a just and humane decision. And it did so, as Justice Ginsburg suggests, “to teach the Ninth Circuit a lesson.”
The Ninth Circuit’s Defiance: Should Shirley Ree Smith Suffer Because the Supreme Court Is Angry?
This is not the first time the U.S. Supreme Court has had occasion to chide the Ninth Circuit for stepping out of line. Perhaps the most noteworthy in a long line of such occasions was when, in 1992, as Professor Amar described in his column, after reversing several stays of Robert Alton Harris’s execution, the U.S. Supreme Court ordered that no federal court could enter a stay of execution except upon its own—that is, the U.S. Supreme Court’s—order. The Justices apparently viewed the Ninth Circuit’s stays as thinly veiled defiance of the Supreme Court, and the Court accordingly called out and punished the perceived defiance with an order to the lower federal courts to fall into line.
In Smith’s case, as well, the Ninth Circuit may, indeed, have acted in defiance of the Supreme Court’s earlier rulings. This was the third time the Ninth Circuit had ruled in favor of granting Smith’s petition for habeas corpus (on sufficiency-of-the-evidence grounds). Each time, the U.S. Supreme Court granted review in the case, vacated the Ninth Circuit’s ruling, and remanded for its reconsideration in light of a U.S. Supreme Court precedent emphasizing the strong deference that federal courts must accord to state courts in reviewing petitions for habeas corpus.
After each of the two prior remands, the Ninth Circuit had reconsidered and once again ruled in favor of Smith. On the third round, the Court stopped sending the case down for reconsideration and instead simply reversed the ruling of the Ninth Circuit. In doing so, the High Court found explicitly what it had previously implied—that the Ninth Circuit had erred in paying too little deference to state courts. The Court, it seems, had finally grown tired of the Ninth Circuit’s difficulty with authority.
Who Is Right, the Majority or the Dissent?
It is difficult to assess precisely what the Ninth Circuit is up to. There are two possibilities: Judges there may sincerely disagree with the state courts on the application of undisputed law to fact. Or, the Ninth Circuit may instead find current avenues for habeas corpus unconscionably stingy.
If the latter is true, and the Ninth Circuit is indeed attempting to expand habeas corpus beyond the lines drawn by statutes construed by the Supreme Court—as a majority of the Supreme Court apparently suspects—then the Justices understandably find insulting the implication that they (the Justices) are making such egregiously unjust decisions that subordinate federal judges feel compelled to make things right. To a majority of the High Court, the Ninth Circuit may seem like a child who insists on disregarding the rules, a defiance that many parents find hard to take and that sometimes—ironically in this case—triggers abusive behavior by those embattled parents.
In cases of child abuse, the understandable frustration of a parent in no way excuses his resorting to violence. By analogy, while the Justices on the Supreme Court may be frustrated with the Ninth Circuit and wish to exert power over what they view as disobedience, that does not excuse their losing sight of the serious injustice occurring in this case: A grandmother who appears to have been innocent of harming her grandson was convicted and sentenced to fifteen-years-to-life in prison.
It was not, strictly speaking, the Ninth Circuit’s “place” to remedy this injustice. As the Court suggests in its per curiam opinion, seeking an executive grant of clemency from California’s Governor might be the more appropriate route for Smith. But the Ninth Circuit may have recognized the reality that clemency is rarely granted, and may have thus chosen, at the risk of infuriating the Justices, to try to protect Smith from an undeserved return to incarceration.
Understanding that it cannot do this very often, the Ninth Circuit described the case as “most unusual,” acknowledging “the very strict limits that the [Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)] places on our collateral review of state criminal convictions.” The Ninth Circuit knows that AEDPA stands in the way of routinely granting relief whenever state courts appear to misapply the federal constitution. At worst, then, it here stretched its authority to rectify what it viewed as a profound miscarriage of justice.
The Supreme Court, however, was apparently unmoved by the injustice of Smith’s circumstances. The Ninth Circuit had violated the chain of command, and the Court was unwilling to let stand that violation, which it saw as a challenge to its own authority. Though the Supreme Court ordinarily avoids taking cases just to correct errors made in the lower courts, it made an exception here, and thereby treated a woman’s unjust incarceration as a mere instrument to slap down the Ninth Circuit. The High Court’s decision thus raises an ugly irony: Like the parent who can no longer control his violent impulses, a majority of the Supreme Court Justices lost the capacity to empathize, a capacity on which the very lives of both children and accused innocents depends.