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.