Cavazos v. Smith

Cite as: 565 U. S. ____ (2011) 1

Per Curiam

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

PER CURIAM.

The opinion of the Court in Jackson v. Virginia, 443

U. S. 307 (1979), makes clear that it is the responsibility of

the jury—not the court—to decide what conclusions should

be drawn from evidence admitted at trial. A reviewing

court may set aside the jury’s verdict on the ground of

insufficient evidence only if no rational trier of fact could

have agreed with the jury. What is more, a federal court

may not overturn a state court decision rejecting a suf-

ficiency of the evidence challenge simply because the fed-

eral court disagrees with the state court. The federal

court instead may do so only if the state court decision

was “objectively unreasonable.” Renico v. Lett, 559 U. S.

___, ___ (2010) (slip op., at 5) (internal quotation marks

omitted).

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. The

Court of Appeals in this case substituted its judgment for

that of a California jury on the question whether the

prosecution’s or the defense’s expert witnesses more per-

suasively explained the cause of a death. For this reason,

certiorari is granted and the judgment of the Court of

Appeals is reversed.

* * *

This case concerns the death of 7-week-old Etzel Glass.

2 CAVAZOS v. SMITH

Per Curiam

On November 29, 1996, Etzel’s mother, Tomeka, put

Etzel to sleep on a sofa before going to sleep herself in

another room. Respondent Shirley Ree Smith—Tomeka’s

mother—slept on the floor next to Etzel. Several hours later,

Smith ran into Tomeka’s room, holding Etzel, who was

limp, and told her that “[s]omething [was] wrong with

Etzel.” Tr. 416. By the time emergency officials arrived,

Etzel was not breathing and had no heartbeat. Smith

reported that she thought Etzel had fallen off the sofa.

The officials’ efforts to resuscitate Etzel failed.

Doctors initially attributed Etzel’s death to sudden

infant death syndrome (SIDS), the customary diagnosis

when an infant shows no outward signs of trauma. But

after an autopsy, the coroner concluded that the cause of

death was instead shaken baby syndrome (SBS). When a

social worker informed Smith of that finding, Smith told

her that Etzel had not responded to her touch while sleep-

ing, so she had picked him up and given him “a little

shake, a jostle” to wake him. Id., at 842. According to the

social worker, Smith then said something to the effect of,

“Oh, my God. Did I do it? Did I do it? Oh, my God.” Id.,

at 847 (internal quotation marks omitted). In an inter-

view with the police a few days later, Smith said that she

had shaken Etzel, but then she corrected herself and said

that she had twisted him to try to elicit a reaction. Smith

was arrested and charged with assault on a child resulting

in death. See Cal. Penal Code Ann. §273ab (West 2008)

(“Any person who, having the care or custody of a child

who is under eight years of age, assaults the child by

means of force that to a reasonable person would be likely

to produce great bodily injury, resulting in the child’s

death, shall be punished by imprisonment . . .”).

At trial, the jury heard seven days of expert medical

testimony on the cause of Etzel’s death. The prosecution

offered three experts, each of whom attested that Etzel’s

death was the result of SBS—not SIDS, as the defense

Cite as: 565 U. S. ____ (2011) 3

Per Curiam

contended. The first expert, Dr. Eugene Carpenter, was

the medical examiner for the Los Angeles County Coroner

who had supervised Etzel’s autopsy. Dr. Carpenter is

board certified in forensic, anatomic, and clinical pathol-

ogy. He testified that Etzel’s autopsy revealed recent hem-

orrhages in the brain, and he opined that the bleeding and

other features of Etzel’s pathology, including a bruise and

abrasion on the lower back of the baby’s head, were con-

sistent with violent shaking. Dr. Carpenter identified two

means by which shaking can result in a baby’s death: The

first is that the shaking causes blood vessels in the brain

to tear, creating a pool of blood that pushes the brain

downward into the spinal canal, resulting in death but

little direct damage to the brain. The second is that the

shaking itself is sufficiently severe that the brain directly

tears in vital areas, causing death with very little bleed-

ing. Dr. Carpenter testified that Etzel’s injuries were

consistent with the latter pathology. He also explained

that the injuries could not be attributed to either a fall

from the sofa or the administration of cardiopulmonary

resuscitation. Nor, according to Dr. Carpenter, was it

possible that Etzel perished from SIDS, given the signs of

internal trauma. Dr. Carpenter did testify, however, that

while SBS victims often suffer retinal hemorrhaging,

Etzel’s autopsy revealed no such injury.

The prosecution’s second expert, Dr. Stephanie Erlich,

was the associate deputy medical examiner who actually

performed Etzel’s autopsy. She is board certified in ana-

tomic pathology and neuropathology. She corroborated

Dr. Carpenter’s testimony about the autopsy findings, and

added that a followup neuropathological examination of

Etzel’s brain confirmed the existence of recent hemorrhag-

ing. Noting only a minimal amount of new blood in Etzel’s

brain, she testified that the cause of death was direct

trauma to the brainstem. On cross-examination, she

agreed with defense counsel that retinal hemorrhaging

4 CAVAZOS v. SMITH

Per Curiam

(absent in Etzel’s case) is present in 75 to 80 percent of

SBS cases.

The third prosecution expert, Dr. David Chadwick, is

board certified in pediatrics and the author of articles on

childhood death by abusive trauma. He testified that

Etzel’s injuries were consistent with SBS and that old

trauma could not have been the cause of the child’s death.

The defense called two experts to dispute these conclu-

sions. The first, pathologist Dr. Richard Siegler, testified

that Etzel died from brain trauma, but that it was not the

result of SBS, given the lack of retinal hemorrhaging. He

admitted on cross-examination, however, that an absence

of retinal hemorrhaging does not exclude a finding of SBS.

He also acknowledged that he did not believe the cause

of Etzel’s death was SIDS. According to Dr. Siegler,

Etzel died from old trauma, an opinion he reached on the

basis of studying photographs of the neuropathological

examination.

The other defense expert, pediatric neurologist Dr.

William Goldie, testified that Etzel’s death was due to

SIDS. He noted that Etzel was born with jaundice, a

heart murmur, and low birth weight—making him more

susceptible to SIDS. Dr. Goldie testified that pathologists

had not been able to determine the cause of Etzel’s death

and that the bleeding could be attributed to the resuscita-

tion efforts.

The jury found Smith guilty. Concluding that the jury

“carefully weighed” the “tremendous amount of evidence”

supporting the verdict, Tr. 1649, the trial judge denied

Smith’s motion for a new trial and sentenced her to an

indeterminate term of 15 years to life in prison.

On direct review, Smith contended that the evidence

was not sufficient to establish that Etzel died from SBS.

After thoroughly reviewing the competing medical testi-

mony, the California Court of Appeal rejected this claim,

concluding:

Cite as: 565 U. S. ____ (2011) 5

Per Curiam

“The expert opinion evidence we have summarized

was conflicting. It was for the jury to resolve the con-

flicts. The credited evidence was substantial and suf-

ficient to support the jury’s conclusions that Etzel died

from shaken baby syndrome. The conviction is sup-

ported by substantial evidence.” People v. Smith, No.

B118869 (Feb. 10, 2000), App. K to Pet. for Cert. 86.

The California Supreme Court denied review. App. J, id.,

at 74.

Smith then filed this petition for a writ of habeas corpus

with the United States District Court for the Central

District of California, renewing her claim that the evi-

dence was insufficient to prove that Etzel died of SBS.

Under the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), 110 Stat. 1214, that court had no power

to afford relief unless Smith could show either that the

California Court of Appeal’s decision affirming the convic-

tion “was contrary to, or involved an unreasonable appli-

cation of,” clearly established federal law as reflected in

the holdings of this Court’s cases, 28 U. S. C. §2254(d)(1),

or that it “was based on an unreasonable determination of

the facts” in light of the state court record, §2254(d)(2).

Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op.,

at 10).

The Magistrate Judge to whom the case was assigned

issued a report acknowledging that “[t]his is not the typi-

cal shaken baby case” and that the evidence against Smith

“raises many questions.” App. I to Pet. for Cert. 65. But

the Magistrate Judge nevertheless concluded that the

evidence was “clearly sufficient to support a conviction.”

Ibid. The District Court adopted the Magistrate Judge’s

report and denied the petition. App. G, id., at 52.

On appeal, the Ninth Circuit reversed with instructions

to grant the writ. Smith v. Mitchell, 437 F. 3d 884 (2006).

Despite the plentitude of expert testimony in the trial

6 CAVAZOS v. SMITH

Per Curiam

record concluding that sudden shearing or tearing of the

brainstem was the cause of Etzel’s death, the Ninth Cir-

cuit 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.” Id., at 890. The court said that the

State’s experts “reached [their] conclusion because there

was no evidence in the brain itself of the cause of death.”

Ibid. (emphasis in original). The court concluded that

because “[a]bsence of evidence cannot constitute proof

beyond a reasonable doubt,” ibid., the California Court of

Appeal had “unreasonably applied” this Court’s opinion in

Jackson v. Virginia in upholding Smith’s conviction, 437

F. 3d, at 890.

That conclusion was plainly wrong. Jackson says that

evidence is sufficient to support a conviction so long as

“after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable

doubt.” 443 U. S., at 319. It also unambiguously instructs

that a reviewing court “faced with a record of historical

facts that supports conflicting inferences must presume—

even if it does not affirmatively appear in the record—that

the trier of fact resolved any such conflicts in favor of the

prosecution, and must defer to that resolution.” Id., at

326. When the deference to state court decisions required

by §2254(d) is applied to the state court’s already deferen-

tial review, see Renico, 559 U. S., at ___ (slip op., at 11),

there can be no doubt of the Ninth Circuit’s error below.

The jury was presented with competing views of how

Etzel died. It was made aware of the various experts’

qualifications and their familiarity with both the subject

of SBS and the physical condition of Etzel’s body. It ob-

served the attorneys for each party cross-examine the

experts and elicit concessions from them. The State’s

Cite as: 565 U. S. ____ (2011) 7

Per Curiam

experts, whom the jury was entitled to believe, opined that

the physical evidence was consistent with, and best ex-

plained by, death from sudden tearing of the brainstem

caused by shaking. The Ninth Circuit’s assertion that

these experts “reached [their] conclusion because there

was no evidence in the brain itself of the cause of death” is

simply false. There was “evidence in the brain itself.” The

autopsy revealed indications of recent trauma to Etzel’s

brain, 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.

Defense counsel made certain that the jury understood

that the prosecution’s experts were unable to identify the

precise point of tearing itself. But as Judge Bea noted in

his dissent from the Ninth Circuit’s denial of rehearing en

banc, the experts explained why the location of the tear

was undetectable: “Etzel’s death happened so quickly that

the effects of the trauma did not have time to develop.”

Smith v. Mitchell, 453 F. 3d 1203, 1207 (2006). According

to the prosecutions’ experts, there was simply no oppor-

tunity for swelling to occur around the brainstem before

Etzel died.

In light of the evidence presented at trial, the Ninth

Circuit plainly erred in concluding that the jury’s ver-

dict was irrational, let alone that it was unreasonable for

the California Court of Appeal to think otherwise. See

§2254(d). 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,

8 CAVAZOS v. SMITH

Per Curiam

and its decision is supported by the record.*

It is said that Smith, who already has served years in

prison, has been punished enough, and that she poses no

danger to society. These or other considerations perhaps

would be grounds to seek clemency, a prerogative granted

to executive authorities to help ensure that justice is

tempered by mercy. It is not clear to the Court whether

this process has been invoked, or, if so, what its course has

been. It is not for the Judicial Branch to determine the

standards for this discretion. If the clemency power is

exercised in either too generous or too stingy a way, that

calls for political correctives, not judicial intervention.

The decision below cannot be allowed to stand. This

Court vacated and remanded this judgment twice before,

calling the panel’s attention to this Court’s opinions high-

lighting the necessity of deference to state courts in

§2254(d) habeas cases. Each time the panel persisted in

its course, reinstating its judgment without seriously

confronting the significance of the cases called to its atten-

tion. See Patrick v. Smith, 550 U. S. 915 (vacating and

remanding in light of Carey v. Musladin, 549 U. S. 70

(2006)), reinstated on remand, 508 F. 3d 1256 (2007)

(per curiam); 558 U. S. ___ (2010) (vacating and remand-

ing in light of McDaniel v. Brown, 558 U. S. ___ (2010) (per

curiam)), reinstated on remand sub nom. Smith v. Mitch-

ell, 624 F. 3d 1235 (2010) (per curiam). Its refusal to do so

necessitates this Court’s action today.

The petition for a writ of certiorari and respondent’s

——————

* The dissent’s review of the evidence presented to the jury over seven

days is precisely the sort of reweighing of facts that is precluded by

Jackson v. Virginia, 443 U. S. 307, 324 (1979), and precisely the sort of

second-guessing of a state court decision applying Jackson that is

precluded by AEDPA, §2254(d). The dissent’s views on how “adamant-

ly” experts would testify today as opposed to at the time of trial, post, at

6 (opinion of GINSBURG, J.), are of course pure speculation, as would be

any views on how a jury would react to less adamant testimony.

Cite as: 565 U. S. ____ (2011) 9

Per Curiam

motion to proceed in forma pauperis are granted. The

judgment of the Court of Appeals for the Ninth Circuit is

reversed, and the case is remanded for further proceedings

consistent with this opinion.

It is so ordered.

Cite as: 565 U. S. ____ (2011) 1

GINSBURG, J., dissenting

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 unwar­

ranted. 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 situa­

tion 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

2 CAVAZOS v. SMITH

GINSBURG, J., dissenting

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 rec­

ommendation 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 neces­

sary? Our routine practice counsels no.

Error correction is “outside the mainstream of the

Cite as: 565 U. S. ____ (2011) 3

GINSBURG, J., dissenting

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 cor­

rectly 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 uncontra­

dicted 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 hemor­

rhage, 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 subarach­

noid 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 hemor­

rhage 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 supervi­

——————

1 The State’s third expert, Dr. Chadwick, who was not present at

Etzel’s autopsy, testified that there may have been some swelling. But

he conceded that any swelling could not have caused death. Tr. 1478.

4 CAVAZOS v. SMITH

GINSBURG, J., dissenting

sor, 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 pres­

sure 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 brain­

stem 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 inju­

ry. Id., at 696, 1475. No doctor located any tear. Indeed,

the examining physicians did not cut open Etzel’s brain­

stem, 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

——————

2 Dr. Chadwick mentioned new methods, not then standard in medi­

cal examiners’ offices and not used here, which may reveal this type of

brainstem damage. Id., at 1448, 1481–1482.

Cite as: 565 U. S. ____ (2011) 5

GINSBURG, J., dissenting

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 Foren­

sic 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 consid­

ered.”); 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.”); Uscin­

ski, Shaken Baby Syndrome: An Odyssey, 46 Neurol. Med.

Chir. (Tokyo) 57, 59 (2006) (“[T]he hypothetical mecha­

nism 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 contra­

ry to the laws of injury biomechanics as they apply specifi­

cally to the infant anatomy.”); Leestma, Case Analysis of

Brain-Injured Admittedly Shaken Infants, 54 Cases,

6 CAVAZOS v. SMITH

GINSBURG, J., dissenting

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 mistaken­

ly 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 discre­

tionary 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

Cite as: 565 U. S. ____ (2011) 7

GINSBURG, J., dissenting

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 respond­

ed, “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.

——————

3 The social worker also testified that Etzel’s mother, Tomeka, told

Smith: “If it wasn’t for you this wouldn’t have happened.” Id., at 847.

Tomeka denied making any statement to that effect. Id., at 389.

8 CAVAZOS v. SMITH

GINSBURG, J., dissenting

Moreover, Smith’s counsel, Ubiwe Eriye,4 represented

her poorly at trial. In a case as trying as this one, compe­

tent 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 testi­

mony 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 exer­

cise 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

——————

4 Eriye has since resigned from the California Bar with discipline

charges pending.

5 Dr. Goldie testified that the old blood in Etzel’s brain did not con­

tribute to his death, and Etzel died of SIDS. Id., at 994–995, 1403. In

contrast, Dr. Siegler testified that the old blood provided the basis for

his conclusion that Etzel died of an earlier brain trauma, id., at 1152–

1153, 1166–1167, not SIDS, id., at 1193–1194.

Cite as: 565 U. S. ____ (2011) 9

GINSBURG, J., dissenting

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 (ques­

tioning 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 de­

fend 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.