SUPREME COURT OF THE UNITED STATES
JAVIER CAVAZOS, ACTING WARDEN
v.
SHIRLEY REE SMITH
on petition for writ of certiorari to the
united states court of appeals for the ninth circuit
No. 10–1115. Decided October 31, 2011
Justice Ginsburg, with whom Justice Breyer and
Justice Sotomayor join, dissenting.
The Court’s summary disposition of this case, in
my judgment, is a misuse of discretion. I set out below my reasons
for concluding that discretion, soundly exercised, would have
occasioned denial of California’s petition for review.
The Magistrate Judge who reviewed respondent
Shirley Ree Smith’s habeas corpus petition in the first instance
concluded, as the Court does today, that relief was unwarranted. He
observed, however, that the evidence, “though clearly sufficient to
support a conviction, raises many questions”:
“Grandmothers, especially those not
serving as the primary caretakers, are not the typical perpetrators
[in shaken baby cases]. Further, [Smith] was helping her daughter
raise her other children (a [4-year-old] and a 14-month-old) and
there was no hint of [Smith] abusing or neglecting these other
children, who were in the room with Etzel when he died. Still
further, there was no evidence of any precipitating event that
might have caused [Smith] to snap and assault her grandson. She was
not trapped in a hopeless situation with a child she did not want
or love. Nor was she forced to single-handedly care for a baby that
had been crying all day and all night. In fact, there is no
evidence that Etzel was doing anything other than sleeping the
night he died. In addition, [Smith’s] daughter [Tomeka], Etzel’s
mother, was in the room next door when Etzel died. The medical
evidence was not typical either, in that some of the telltale signs
usually found in shaken baby cases did not exist in this case.”
Smith v.
Mitchell, Case No. CV 01–4484–ABC (CD Cal.,
Mar. 22, 2004), p. 10, App. I to Pet. for Cert. 65.
The District Court adopted the Magistrate
Judge’s recommendation to deny Smith’s petition, but granted a
certificate of appealability, recognizing that “reasonable jurists
would find the [court’s] assessment of [Smith’s] claims debatable.”
Order in No. CV 01–4484–ABC (CD Cal., Apr. 29, 2004), Doc. 36, p.
1.
After full briefing and argument, the Ninth
Circuit reversed the District Court’s judgment. The Court of
Appeals acknowledged the limitations on its authority. “We approach
this case,” the court said, “with a firm awareness of the very
strict limits that the [Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA)] places on our collateral review of state
criminal convictions.”
Smith v.
Mitchell,
437 F.3d 884, 888–889 (CA9 2006). Accurately describing the
standards applicable under AEDPA and
Jackson v.
Virginia,
443 U.S.
307 (1979), and reviewing the evidence in some detail, the
court concluded that “[i]n this most unusual case,. . .
the [California] Court of Appeal unreasonably applied
Jackson.” 437 F. 3d, at 889.
Beyond question, the Court today reviews a case
as tragic as it is extraordinary and fact intensive. By taking up
the case, one may ask, what does the Court achieve other than to
prolong Smith’s suffering and her separation from her family. Is
this Court’s intervention really necessary? Our routine practice
counsels no.
Error correction is “outside the mainstream of
the Court’s functions.” E. Gressman, K. Geller,
S. Shapiro, T. Bishop, & E. Hartnett, Supreme
Court Practice §5.12(c)(3), p. 351 (9th ed. 2007). As this Court’s
Rule 10 informs, “[a] petition for a writ of certiorari is rarely
granted when the asserted error [is] . . . the
misapplication of a properly stated rule of law.” The Ninth Circuit
correctly described the relevant legal rules under AEDPA and
Jackson v.
Virginia. This Court, therefore, has no
law-clarifying role to play. Its summary adjudication seems to me
all the more untoward for these reasons: What is now known about
shaken baby syndrome (SBS) casts grave doubt on the charge leveled
against Smith; and uncontradicted evidence shows that she poses no
danger whatever to her family or anyone else in society.
I turn first to the medical evidence presented
at trial. Dr. Carpenter, the autopsy supervisor, testified that the
following symptoms are consistent with, but not required for, a
diagnosis of SBS: cerebral edema, subdural hemorrhage, retinal
hemorrhage, bleeding at the joints of the back of the neck, bruises
on the arms, fractures of the ribs, and internal injuries to the
buttocks, abdominal organs, and chest organs. Tr. 575. Few of these
signs of SBS were present here. Etzel’s subdural hemorrhage and
subarachnoid hemorrhage were “minimal,” insufficient to cause
death.
Id., at 540–541, 557–558, 675, 693, 700, 729,
1484–1485. There was no brain swelling and no retinal hemorrhage in
either eye.
Id., at 580, 693, 802, 1274.[
1] Similarly absent were any fractures, sprains,
bleeding in the joints, or displacement of joints.
Id., at
682. A “tiny” abrasion on the skin and a corresponding bruise under
the scalp did not produce brain trauma.
Id., at 555, 562,
576, 712–713.
These findings led Dr. Carpenter, the autopsy
supervisor, and Dr. Erlich, who performed Etzel’s autopsy, to rule
out two commonly proffered causes of death in SBS cases: massive
bleeding and massive swelling that create pressure and push the
brain downward.
Id., at 541, 551–552, 729–730, 801. Instead,
they opined, Etzel’s death was caused by direct injury—shearing or
tearing of the brainstem or the brain itself.
Id., at
694–696, 729–730, 801, 1298. The autopsy revealed no physical
evidence of such injury, either grossly or microscopically.
Id., at 730, 763, 803–804, 1298–1299. Dr. Carpenter was
unable to state which particular areas of the brain were injured,
and the neuropathologist found no evidence of specific brain
injury.
Id., at 696, 1475. No doctor located any tear.
Indeed, the examining physicians did not cut open Etzel’s
brainstem, or submit it to neuropathology, because, in their own
estimation, “[w]e wouldn’t have seen anything anyway.”
Id.,
at 803, 1299.[
2]
Neither doctor testified to ever having
performed an autopsy on an infant in which a similar conclusion was
reached. Nor did either physician point to any medical literature
supporting their belief that shearing or tearing of the brainstem
or the brain itself caused Etzel’s death.
Id., at 694–696,
801–802. Dr. Carpenter nevertheless maintained that when there is
subdural hemorrhage without signs of external trauma to the head or
skull, the injury is necessarily caused by violent shaking.
Id., at 576–577, 660–661. Smith’s conviction thus turned on,
as Dr. Erlich put it, “direct trauma which we don’t see to the
brainstem.”
Id., at 801. That this gave the Ninth Circuit
pause is understandable. Dr. Erlich herself conceded that “[i]t is
a difficult concept to absorb.”
Id., at 1298.
Reason to suspect the Carpenter-Erlich thesis
has grown in the years following Smith’s 1997 trial. Doubt has
increased in the medical community “over whether infants can be
fatally injured through shaking alone.”
State v.
Edmunds, 2008 WI App. 33, ¶15, 308 Wis. 2d 374, 385, 746
N.W.2d 590, 596. See,
e.g., Donohoe, Evidence-Based Medicine
and Shaken Baby Syndrome, Part I: Literature Review, 1966–1998, 24
Am. J. Forensic Med. & Pathology 239, 241 (2003) (By the end of
1998, it had become apparent that “there was inadequate scientific
evidence to come to a firm conclusion on most aspects of causation,
diagnosis, treatment, or any other matters pertaining to SBS,” and
that “the commonly held opinion that the finding of [subdural
hemorrhage] and [retinal hemorrhage] in an infant was strong
evidence of SBS was unsustainable.”); Bandak, Shaken Baby Syndrome:
A Biomechanics Analysis of Injury Mechanisms, 151 Forensic Sci.
Int’l 71, 78 (2005) (“Head acceleration and velocity levels
commonly reported for SBS generate forces that are far too great
for the infant neck to withstand without
injury. . . . [A]n SBS diagnosis in an infant
. . . without cervical spine or brain stem injury is
questionable and other causes of the intracerebral injury must be
considered.”); Minns, Shaken Baby Syndrome: Theoretical and
Evidential Controversies, 35 J. Royal College of Physicians of
Edinburgh 5, 10 (2005) (“[D]iagnosing ‘shaking’ as a mechanism of
injury . . . is not possible, because these are
unwitnessed injuries that may be incurred by a whole variety of
mechanisms solely or in combination.”); Uscinski, Shaken Baby
Syndrome: An Odyssey, 46 Neurol. Med. Chir. (Tokyo) 57, 59 (2006)
(“[T]he hypothetical mechanism of manually shaking infants in such
a way as to cause intracranial injury is based on a
misinterpretation of an experiment done for a different purpose,
and contrary to the laws of injury biomechanics as they apply
specifically to the infant anatomy.”); Leestma, Case Analysis of
Brain-Injured Admittedly Shaken Infants, 54 Cases, 1969–2001, 26
Am. J. Forensic Med. & Pathology 199, 211 (2005) (“[M]ost of
the pathologies in allegedly shaken babies are due to impact
injuries to the head and body.”); Squier, Shaken Baby Syndrome: The
Quest for Evidence, 50 Developmental Med. & Child Neurology 10,
13 (2008) (“[H]ead impacts onto carpeted floors and steps from
heights in the 1 to 3 feet range result in far greater
. . . forces and accelerations than shaking and slamming
onto either a sofa or a bed.”).
In light of current information, it is unlikely
that the prosecution’s experts would today testify as adamantly as
they did in 1997. Noteworthy in this regard, prosecution witnesses
Carpenter and Erlich testified that the belated diagnosis of old
(
i.e., chronic) blood in Etzel’s brain and around his optic
nerves did not change their initial cause-of-death findings,
because rebleeding of old subdural blood does not occur in infants.
Tr. 608–609, 672–673, 721–722, 771, 776, 1269–1270, 1283. Recent
scientific opinion undermines this testimony. See Miller &
Miller, Over-representation of Males in Traumatic Brain Injury of
Infancy and in Infants with Macrocephaly, 31 Am. J. Forensic Med.
& Pathology 165, 170 (2010) (“Small, asymptomatic [subdural
hematomas] from the normal trauma of the birth process can
spontaneously rebleed or rebleed with minimal forces, enlarge, and
then present with clinical symptoms and [subdural hematoma, retinal
hemorrhages, and neurologic dysfunction] in the first year of
life. . . . [This situation] mimic[s] child abuse,
and we believe many such infants in the past have been mistakenly
diagnosed as victims of child abuse, when they were likely not.”).
What is now known about SBS hypotheses seems to me worthy of
considerable weight in the discretionary decision whether to take
up this tragic case.
I consider next the State’s meager nonmedical
evidence. There was no evidence whatever that Smith abused her
grandchildren in the past or acted with any malicious intent on the
night in question. Instead, the evidence indicated that Smith was
warm hearted, sensitive, and gentle. Tr. 1086. As earlier observed,
see
supra, at 1, the Magistrate Judge noted the absence of
any motive or precipitating event that might have led Smith to
shake Etzel violently. Although shaking may quiet a crying child,
Tr. 601, no evidence showed that Etzel was crying in the hours
before he died,
id., at 444. To the contrary: Any loud
crying likely would have woken Etzel’s siblings, Yondale, age 14
months, and Yolanda, age 4, asleep only feet away, even Etzel’s
mother, Tomeka, asleep in the neighboring room.
Id., at 335,
358–361. Yet no one’s slumber was disturbed.
Id., at
358–361.
The prosecution relied on the testimony of a
social worker, who asserted that Smith, after hearing that the
cause of Etzel’s death had been changed from Sudden Infant Death
Syndrome (SIDS) to shaken baby syndrome,
id., at 840, and
after stating that she had given Etzel “a little shake, a jostle to
awaken him” when she found him unresponsive, asked “something like
‘Oh, my God. Did I do it? Did I do it? Oh, my God.’ ”
Id., at 842, 847.[
3]
Etzel’s mother, Tomeka, contradicted this account. According to
Tomeka, after the social worker accused Smith of killing Etzel,
Smith started crying,
id., at 429–430, and responded, “No, I
didn’t,”
id., at 387. Taking the social worker’s version of
events as true, Smith’s distraught and equivocal question fairly
cannot be equated to a confession of guilt. Giving a baby “a little
shake, a jostle to wake him,”
ante, at 2 (internal quotation
marks omitted), after finding him unexpectedly unresponsive, surely
is not an admission to shaking a child violently, causing his
brainstem to tear.
Moreover, Smith’s counsel, Ubiwe Eriye,[
4] represented her poorly at trial. In
a case as trying as this one, competent counsel might have
persuaded the jury to disbelieve the prosecution’s case. A few
examples from the record are illustrative. At the suppression
hearing, the presiding judge was so disturbed about Eriye’s
preparation for trial that he remarked to the defendant, “Miss
Smith, I’m scared.” Tr. A52. Eriye badly misportrayed the burden of
proof when he declared, both at the suppression hearing and in his
opening remarks, that he would prove, beyond a shadow of a doubt,
that Smith was not guilty.
Id., at A58–A59, 213. The two
experts Eriye called presented testimony that hardly
meshed.[
5]
In sum, this is a notably fact-bound case in
which the Court of Appeals unquestionably stated the correct rule
of law. It is thus “the type of case in which we are
most
inclined to deny certiorari.”
Kyles v.
Whitley,
514 U.S.
419, 460 (1995) (Scalia, J., dissenting). Nevertheless, the
Court is bent on rebuking the Ninth Circuit for what it conceives
to be defiance of our prior remands. See
ante, at 8. I would
not ignore Smith’s plight and choose her case as a fit opportunity
to teach the Ninth Circuit a lesson.
But even if granting review qualified as a
proper exercise of our discretionary authority, I would resist
summary reversal of the Court of Appeals’ decision. The
fact-intensive character of the case calls for attentive review of
the record, including a trial transcript that runs over 1,500
pages. Careful inspection of the record would be aided by the
adversarial presentation that full briefing and argument afford.
See,
e.g., R. Fallon, J. Manning, D. Meltzer, D. Shapiro,
Hart and Wechsler’s The Federal Courts and the Federal System 1480
(6th ed. 2009) (posing question whether summary reversal would
“smack of unfairness to the losing party unless an opportunity were
afforded for the filing of briefs on the merits”); Gressman,
Supreme Court Practice §6.12(c), p. 417, and n. 46 (questioning the
Court’s reliance on its own examination of the record in summarily
reversing, without at least affording the parties, “particularly
the respondent,” an opportunity to brief the critical issue and
identify the relevant portions of the record). Peremptory
disposition, in my judgment, is all the more inappropriate given
the grave consequences of upsetting the judgment below: Smith, who
has already served ten years, will be returned to prison to
complete a sentence of fifteen years to life. Before depriving
Smith of the liberty she currently enjoys, and her family of her
care, I would at least afford her a full opportunity to defend her
release from a decade’s incarceration.
* * *
For the reasons stated, justice is not served
by the Court’s exercise of discretion to take up this tragic,
fact-bound case. I would therefore deny the petition for
review.
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