Innocence vs. Procedure

Wednesday, November 30th, 2011

Emily Bazelon has the terrible story of another shaken baby case in which the woman convicted—the grandmother—is likely innocent. The Supreme Court says it doesn’t matter, thanks to the Anti-terrorism and Effective Death Penalty Act, which put restrictions on habeas appeals.

The majority’s brief and unsigned opinion concedes that “doubts about whether Smith is in fact guilty are understandable.” But according to six justices, it’s not the 9th Circuit’s job to do anything about that.

Justice Ruth Bader Ginsburg dissented, with Stephen Breyer and Sonia Sotomayor. Ginsburg gives all the reasons to doubt the medical testimony against Smith. She does a great service by laying out the growing skepticism among a minority of doctors about the validity of diagnosing shaken-baby syndrome without any evidence at all of external injury. “What is now known about the SBS hypotheses seems to me worthy of considerable weight in the discretionary decision whether to take up this tragic case,” Ginsburg writes.

The piece includes a decision by Judge Richard Posner about another shaken baby case involving a coerced and false confession.

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11 Responses to “Innocence vs. Procedure”

  1. #1 |  Aresen | 

    Anti-terrorism and Effective Death Penalty Act

    What? No cute acronym? No “Baby Susie Act”.

    Closest I can come is “A Death Pact.”

  2. #2 |  lunchstealer | 

    It seems to me that the coroner should be sued for malpractice. The triad alone as determination of homicide is suspect enough, but to make that determination based on a minimal version of just one of the symptoms is incompetent verging on criminal negligence.

    The proper outcome of this case is to make a factual determination that no crime was committed, and vacate the coroner’s findings. Preferably, the coroner would be injoined from performing autopsies or from criminal justice work related to autopsies or forensic science. This is just inexcusable.

  3. #3 |  lunchstealer | 

    Aresen – nice. Might I suggest “An Effective Death Pact”?

  4. #4 |  Wonks Anonymous | 

    I tend to be skeptical of the executive pardon power, but I agree with Bazelon that if courts are restricted than it makes sense for the governor to pick up the slack.

  5. #5 |  Meyer | 

    I’m skeptical of the executive pardon power too. Much like the Tooth Fairy and Santa Claus, there’s never been a confirmed sighting.

  6. #6 |  Ariel | 

    I either saw a pig fly over my head or it was the executive pardon power, then it let loose in a shower, but I’m still not sure which it was.

  7. #7 |  Burgers Allday | 

    One passage in Judge Posner’s opinion amazed me:

    “So clear is the absence of probable cause that Carlson cannot take shelter in the doctrine of qualified immunity, which provides a defense if a reasonable officer could have mistakenly believed that probable cause existed. . . . A reasonable officer knowing what Carlson knew would not have thought that Aleman was probably Joshua’s killer.”

    This may not seem amazing to the non-lawyers, but he is violating a taboo with this framing of what probable cause is. Good for him!

  8. #8 |  Mike T | 

    This is what stood out to me the most:

    Smith’s case is truly an outlier. Since Etzel didn’t have the typical symptoms, the prosecution’s medical witnesses went out on a limb, testifying that the death was caused by a shearing or tearing of the brain stem even though no doctor located any such shearing or tear.

    There was no medical evidence–none–other than the simple fact of death having happened that could be used to even start a homicide investigation. The poor woman was put away because so credentialed jackass made a speculation.

    Someone please remind me how this is different, in practice, from how Sharia is judged and enforced in third world countries…

  9. #9 |  Rob Lyman | 

    The thing is, it isn’t the federal courts’ job to wander around free range and “do justice” whenever they feel like it. Federal courts are not appeals courts for state court systems. They are, and should be, constrained in their ability to overturn state court decisions on matters of state law. Their job is to enforce federal law, including constitutional law, not to sit in judgement of the facts of criminal cases. Heck, federal appeals courts have a limited ability to review the facts of federal cases (which is as it should be).

    This woman may well be innocent (I don’t exactly trust one-sided articles any more than I trust the words of an attorney for one side or the other), but even if she is, the mandate of the 9th Circuit is not to retry every single criminal conviction in California, and there’s no reason to think that outcomes would be better if they did.

  10. #10 |  albatross | 


    The thing that strikes me, as a non-lawyer, is how often the question of someone’s guilt or innocence of the crime they’re charged with seems to be irrelevant to the working of the justice system. This ties in with all the death row cases where the convict had a couple of appeals after his jury trial, and then DNA evidence shows up that makes it pretty clear he didn’t do it, and plea bargaining done under the threat of piled-on charges with a super harsh sentence if you lose.

    Now, this may well be the way the system is designed. It may even be that there’s not anything we can do to get much better at actually determining guilt or innocence. But the whole point of criminal courts is to decide if someone committed the crime they’ve been accused of. If they can’t do that very well, then it seems like some changes are in order–perhaps not in terms of widening the scope of what appeals courts look at in their cases, but somewhere, we need to get better at making sure the folks we send to prison or put on death row actually did the thing they were convicted of.

  11. #11 |  Rob Lyman | 

    how often the question of someone’s guilt or innocence of the crime they’re charged with seems to be irrelevant to the working of the justice system.

    It’s not irrelevant; that’s what the trial was for. It can last for weeks, the defense can summon large numbers of witnesses, argue with the prosecution’s witnesses, etc. The appeals and/or habeas process can’t be a repeat of that because there simply isn’t time or money to try everyone three or four times and see what happens (although death penalty cases do get a more serious second look).

    The appeals courts, because they cannot and do not review all the evidence at the same level of detail as the jury, presume your guilt (as is appropriate in light of your conviction) and search for procedural and legal flaws rather than try to make an independent determination. They do the same thing in civil trials.

    Almost every person incarcerated for more than a year or two is going to try to get out by petitioning the courts and claiming some kind of problem. They have nothing better to do, after all. So the vast, vast majority of these claims are inevitably bogus.

    I don’t know exactly how to make this process better, but having some insight into the workings of the 9th Circuit, I can tell you that having them spend even more of their time analyzing each and every case in which a prisoner wants out of prison is not going to result in increased accuracy. They’re just as likely to fall for a slick lawyer’s presentation of the facts as you or I am.