Supreme Court Update: Cavazos v. Smith (10-1115)

November 4, 2011 Supreme Court Update

Greetings, Court fans!

The Court issued its first decision this week, a per curiam opinion in the habeas case Cavazos v. Smith (10-1115). A sad case from any perspective, it features the collision of the Court's strict standards for habeas review, the Court's standards for granting certiorari, and the changing science around shaken baby syndrome (SBS). Smith was convicted in 1997 for the death of her 7-week-old grandson by SBS. Smith had gone to sleep with the baby and his older siblings in one room, while the children's mother slept in the next room. The baby was found to be unresponsive several hours later. Doctors initially attributed the death to sudden infant death syndrome (SIDS), but the coroner concluded that the cause of death was SBS. At trial, the prosecution called three experts who testified that the baby died due to SBS, notwithstanding that there was little bleeding in his brain and no retinal hemorrhaging, which are present in a majority of SBS cases. The defense called two experts, who offered competing theories: one opined that the baby died of SIDS, while the other opined that the baby died of an old trauma. A California jury found Smith guilty of assault of a child resulting in death, and she was sentenced to 15 years to life. On direct appeal, the California Court of Appeals rejected Smith's argument that there was insufficient evidence to establish SBS, and the California Supreme Court denied review. On petition for a federal writ of habeas corpus, the Magistrate Judge to whom the case was assigned acknowledged that the evidence against Smith "raises many questions," but nevertheless recommended that the writ be denied because the evidence was sufficient to support a conviction. The district court adopted the Magistrate Judge's recommendation and denied the petition, but the Ninth Circuit reversed. The Ninth Circuit held that there was no evidence to permit an expert conclusion about the cause of the baby's death.

From there, California took the case to the Court three times. The first two times, the Court vacated and remanded the Ninth Circuit's judgment, calling that court's attention to the Court's opinions "highlighting the necessity of deference to state courts in §2254(d) habeas cases." The Ninth Circuit reinstated its judgment both times. The Justices took a sterner approach upon the case's third appearance before them. In a per curiam decision, the Court granted California's petition for cert and summarily reversed the Ninth Circuit. The Court reiterated that a reviewing court may set aside a jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury. "Because rational people can sometimes disagree, the inevitable consequence of this settled law is that judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold." Arguments that Smith has been punished enough and that she poses no danger to society might be grounds for seeking clemency from the executive branch, but are not grounds for review by the judicial branch.

Justice Ginsburg, joined by Breyer and Sotomayor, dissented. In their view, the Court should not have accepted California's petition for cert at all. The Ninth Circuit correctly described the relevant legal standards for federal habeas and appellate review. The Court might believe that the Ninth Circuit misapplied those standards, but the Court's own Rule 10 provides that cert petitions are "rarely granted when the asserted error [is] . . . the misapplication of a properly stated rule of law." The dissenting justices considered cert followed by summary adjudication particularly inappropriate in this intensely fact-bound case. Medical studies published after Smith's trial in 1997 have increasingly questioned diagnoses of SBS, particularly in cases with symptoms (or lack of symptoms) like those in this case. The non-medical evidence in Smith's case also did not fit the profile of an SBS case: Smith had no history of abuse, she was not the primary caregiver, and there was no evidence of any motive or precipitating event. Moreover, the record showed that Smith had received poor representation -- indeed, her lawyer has since resigned from the bar with discipline charges pending. Although the majority seemed "bent on rebuking the Ninth Circuit for what it conceive[d] to be defiance of our prior remands," the dissenters "would not ignore Smith's plight and choose her case as a fit opportunity to teach the Ninth Circuit a lesson."

There were no cert grants on this week's Order List, but Justice Thomas did dissent from the denial of cert in Utah Highway Patrol Assoc. v. American Atheists, Inc. (10-1297). That case dealt with the constitutionality of a private association's displays of white roadside crosses memorializing police officers who were killed while on duty. The crosses generally were placed on public land, close to the location of each officer's death, and displayed the symbol of the Utah Highway Patrol and the officer's name, rank and badge number. The Tenth Circuit found that the display violated the Establishment Clause because, under the Lemon/endorsement test, a reasonable observer would perceive the displays as government endorsement of the Christian religion. Justice Thomas would have granted cert to allow the Court to clean up its messy Establishment Clause jurisprudence. The Court has applied different tests to religious displays on government property and has cast doubt on the ongoing validity of the Lemon test, yet, according to Justice Thomas, "like some ghoul in a late-night horror movie," the Lemon test continues to "stalk our Establishment Clause jurisprudence." The Court's tests "are so utterly indeterminate that they permit different courts to reach inconsistent results" on similar facts. Justice Thomas would grant cert to provide guidance to lower courts, which are in disarray, on how to handle these challenges going forward.

That's all from us for now. As always, thanks for reading!

Kim & Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400