"THE GOVERNING STANDARD ON APPEAL IS "WHETHER, CONSIDERING THE EVIDENCE IN A LIGHT MOST FAVORABLE TO THE PROSECUTION, ANY RATIONAL TRIER OF FACT COULD HAVE FOUND THE ESSENTIAL ELEMENTS OF THE OFFENSE CHARGED BEYOND A REASONABLE DOUBT."
IT IS THUS TO BE EXPECTED THAT DEFENDANTS RARELY PERSUADE COURTS TO OVERTURN SBS-BASED CONVICTIONS ON SUFFICIENCY GROUNDS.
SHIRLEY REE SMITH MAY BE THE ONLY DEFENDANT TO SUCCEED IN DOING SO."
PROF. DEBORAH TUERKHEIMER;
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Professor Deborah Tuerkheimer,of the University of Maine School of Law, has written a definitive article on Shaken Baby Syndrome for the Washington University Law Review; (March 6, 2009: Vol. 87, 2009;)
The article is aptly titled: "The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts."
An abstract of the article reads:
Every year in this country, (The U.S.A) hundreds of people are convicted of having shaken a baby, most often to death. In a prosecution paradigm without precedent, expert medical testimony is used to establish that a crime occurred, that the defendant caused the infant's death by shaking, and that the shaking was sufficiently forceful to constitute depraved indifference to human life. Shaken Baby Syndrome (SBS) is, in essence, a medical diagnosis of murder, one based solely on the presence of a diagnostic triad: retinal bleeding, bleeding in the protective layer of the brain, and brain swelling. New scientific research has cast doubt on the forensic significance of this triad, thereby undermining the foundations of thousands of SBS convictions. Outside the United States, this scientific evolution has prompted systemic reevaluations of the prosecutorial paradigm. In contrast, our criminal justice system has failed to absorb the latest scientific knowledge. This is beginning to change, yet the response has been halting and inconsistent. To this day, triad-based convictions continue to be affirmed, and new prosecutions commenced, as a matter of course. This Article identifies a criminal justice crisis and begins a conversation about its proper resolution. The conceptual implications of the inquiry - for scientific engagement in law's shadow, for future systemic reform, and for the notion of innocence in a post-DNA world - should assist in the task of righting past wrongs and averting further injustice.;
This article is so refreshing, insightful and compelling that I have chosen to run it in its entirety in seven installments - beginning today with Part One: The introduction. (I have chosen to run the article without the incredibly useful footnotes. Readers who wish to consult them will find the entire article on line with footnotes at: http://ssrn.com/abstract=135465;
D. Insufficiency Claims:
Defendants challenging the sufficiency of the evidence against them in SBS cases238 focus on two areas of arguably deficient proof: mens rea,239 and causation/identity.2
While many prosecutions involve physical evidence of other abuse (i.e., beyond Shaking) apart from the triad,241 a substantial number rests solely on the presence of retinal hemorrhaging and subdural hematoma.242
Even in this latter subcategory, courts are invariably affirming convictions.243
Deference to the fact-finding functions of juries translates into a legal regime
generally hostile to insufficiency arguments.244
(In the evidentiary context, this judicial deference is exercised at the front-end of the trial process; here it comes at the back-end, after prosecution has rested, after the defense has rested, and/or after the jury has returned its guilty verdict.
The governing standard on appeal is "whether, considering the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt."246
It is thus to be expected that defendants rarely persuade courts to overturn SBS-based convictions on sufficiency grounds.247
Shirley Ree Smith may be the only defendant to succeed in doing so.248
Her case is extraordinary, particularly because the procedural context in which the claim arose – an appeal of a denial of Smith’s federal habeas petition – makes the result exceedingly unlikely.
In certain respects, the facts of Smith diverge from the paradigmatic SBS pattern.
The defendant was the child’s grandmother.249
The medical evidence showed an absence of retinal bleeding.”250
Most significantly, pathologists found “no swelling,” and “only a small, non-fatal amount” of subdural and subarachnoid bleeding.”251\
But in other ways, the facts share important similarities with the typical triad-only
SBS prosecution. No bruises on the body, fractures, or grip marks were present.252
The accused claimed to have discovered the infant in a non-responsive state.253
The “discrepant history” was considered evidence of guilt.254
The prosecution experts’ testimony was “absolutely critical to its case.”255
Even under the highly deferential standard mandated on federal habeas review,256 a three-judge panel of the Ninth Circuit concluded that this evidence was insufficient to sustain a guilty verdict: “[t]here was simply no demonstrable support for shaking as the cause of death… [T]here has very likely been a miscarriage of justice in this case.”257
The court’s reasoning in this regard is instructive on when a deficiency in proof
rises to the level requiring reversal: All of the prosecution witnesses based their opinion of Shaken Baby Syndrome on their hypothesis that violent shaking had torn or sheared the brain stem in an undetectable way[258]….and they reached this conclusion because there was no evidence in the brain itself of the cause of death.
Thus …the tearing might have occurred or it might not have occurred; there simply was no evidence to permit an expert conclusion one way or the other on the point.
This is simply not the stuff from which guilt beyond a reasonable doubt can be established...259
The improbability of a court substituting its view of the sufficiency of the evidence for the jury’s in this manner – and of that ruling being left intact – is indicated by Smith’s highly unusual procedural path.
The defendant’s conviction was affirmed by the state appellate court.260 The California Supreme Court denied review.261
The federal magistrate judge recommended that the habeas petition be denied and the district court denied the petition.262
After the three-judge panel reversed this denial and the full court voted to deny a petition for rehearing en banc, a number of judges wrote to dissent bitterly.263
The United States Supreme Court then granted certiorari, vacated the judgment, and remanded the case for further consideration264 in light of a recent decision elaborating on the standard applicable to federal habeas review of a state court affirmance of convictions.265
After the Ninth Circuit reinstated its earlier judgment and opinion,266 the state once again petitioned the Supreme Court for review.267
This petition is currently pending.268
Now compare Smith to the far more typical case of Drancy Deshann Jackson, whose conviction was recently affirmed on direct appeal by a California court.269
Jackson is currently serving a prison term of thirteen years for felony child abuse.
The medical evidence consisted of subdural hemorrhaging and diffuse brain swelling – no retinal hemorrhages, no other injuries – which prosecution experts diagnosed as SBS.271
The defendant’s account – that the baby fell from the couch where he had been propped with a bottle – was dismissed as “inconsistent” with the observed symptoms.
The defense presented evidence that Jackson was an “excellent parent who never abused or hit his children or any other child for whom [he] was the caretaker.”273
The baby’s pediatrician testified that “there was no evidence [the baby] had been abused” prior to the incident in question.274
The sole defense expert, a biomechanical engineer, questioned the scientific basis for SBS.275
Citing research showing that short-distance falls can cause subdural hematomas, he also noted “that it was an open question whether an earlier injury could make the child more susceptible to injury from a second fall.”276
Applying the familiar standard of review,277 the appellate court determined that:
[it] the conflict among the experts' opinions . . . did not render the evidence insufficient. . . . In finding [against the defendant], the jury necessarily
rejected his experts' contention . . . . The credibility and weight of the expert testimony was for the jury to determine, and it is not up to us to reevaluate it.
The jury "could reasonably believe the evidence of the prosecution witnesses and reject that of the defense witness."278
As the reasoning of the Jackson court evinces, the legal framework governing
sufficiency challenges seems to virtually preordain this result. 279
Credibility determinations are within the province of the jury; when the testimony of defense experts is rejected, that rejection must be afforded deference by the appeals court.
Provided that the prosecution experts testify in a manner that reasonably justifies a finding of guilt, the conviction is affirmed.280
In short, a conflict in expert opinions is functionally irrelevant to the disposition
of sufficiency challenges.
Given this, the legal landscape will not be appreciably altered by a louder chorus of SBS skeptics, but by continued movement in this direction on the part of the SBS faithful.
If the testimony of prosecution experts comes to reflect the scientific limitations of a triad-based diagnosis of abuse, a court may well conclude that evidence of SBS is “not the stuff from which guilt beyond a reasonable doubt can be established.”281
Even in the midst of continued scientific controversy, this judicial shift may yet
occur.282
Despite deep tensions within the competing opinions,283 Smith suggests that the
trial record must contain evidence of a sufficient quantum and caliber.
According to the Ninth Circuit, habeas relief was warranted because “[a]n expert's testimony as to a theoretical conclusion or inference does not rescue a case that suffers from an underlying insufficiency of evidence to convict beyond a reasonable doubt.284
But the “absence of evidence”285 cited by the court – an absence which “cannot constitute proof beyond a reasonable doubt”286 – is, more precisely, an absence of evidence worthy of conviction.
Identifying the qualitative judgment embodied in this determination is not to indict it.
After all, even the “rational trier of fact” to whom courts are deferring must have certain standards.
In triad-only SBS cases, judges willing to assess the value of the state’s
evidence, as the court did in Smith, may conclude that an absence of evidence has
convicted others.
Next section: 4E: Post-Conviction Proceedings;
Harold Levy...hlevy15@gmail.com;
