On Point

City of Sheboygan v. Kathy L. Reindl-Knaak, 2011AP1090, District 2, 11/2/11

court of appeals decision (1-judge, not for publication); for Reindl-Knaal: Casey J. Hoff; case activity

¶7        The parties do not dispute that Reindl-Knaak’s vehicle had an expired front license plate, that the temporary plate affixed to the rear of the vehicle was later determined to be valid, and that Jaeger had probable cause to continue Reindl-Knaak’s detention based on the odor of alcohol and her “slow” speech.  The narrow issue on appeal is whether Jaeger had reasonable suspicion to initiate a lawful traffic stop of Reindl-Knaak’s vehicle.  Based on our review of the record, we conclude that he did.

…

¶13      Given Jaeger’s testimony and the circuit court’s findings, we reject Reindl-Knaak’s attempt to liken this case to State v. Longcore, 2001 WI App 15, 240 Wis. 2d 429, 623 N.W.2d 201, and State v. Lord, 2006 WI 122, 297 Wis. 2d 592, 723 N.W.2d 425.  Unlike the investigatory stop in Longcore, Jaeger’s initial stop of Reindl-Knaak’s vehicle was not based on a mistake of law.  See Longcore, 240 Wis. 2d 429, ¶3 (“an officer who erroneously applies the law to the facts does not have probable cause to believe the law was violated”).  And, consistent with the holding in Lord, Jaeger did not initiate an investigatory stop of Reindl-Knaak’s vehicle for the purpose of verifying registration based solely on the display of temporary license plates.  See Lord, 297 Wis. 2d 592, ¶7.  Rather, Jaeger initiated the stop based on his confirmation that Reindl-Knaak’s vehicle had an expired registration contrary to Wis. Stat. § 341.04(1).  Jaeger did not know at that point that the vehicle was subject to a valid temporary operation plate.

The fact that the temporary plate may have been valid didn’t prevent the officer from conducting the stop, given the officer’s “confirmation that, based on the front license plate, the vehicle registration was expired,” ¶14.

Chester B. v. Larry D., 2011AP926, District 2, 11/2/11

court of appeals decision (1-judge, not for publication); for Larry D.: Suzanne L. Hagopian, SPD, Madison Appellate; case activity

Entry of default against parent imprisoned out of state violated his right to due process under the circumstances. On receipt of the petition and summons, Larry contacted the petitioner’s attorney and said he wanted representation. The attorney then contacted the SPD. Larry thought the SPD would contact him, but the SPD thought Larry would contact it. The trial court, on posttermination motion, denied relief on the theory that, even though Larry had wanted to contest the matter, he should have sought help from his prison case worker to call the SPD. The court of appeals holds that this might amount to inexcusable neglect in a typical civil case, but not this one.

¶9        But this is not an ordinary civil action.  This is a TPR.  Termination of parental rights proceedings “work a unique kind of deprivation” as they “involve the awesome authority of the state to destroy permanently all legal recognition of the parental relationship.”  M.L.B. v. S.L.J., 519 U.S. 102, 118, 128 (1996) (internal quotations omitted).  Therefore, “heightened legal safeguards” are provided both by statute and by due process, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, §§ 1 and 8 of the Wisconsin Constitution.  Evelyn C.R. v. Tykila S., 2001 WI 110, ¶21, 246 Wis. 2d 1, 629 N.W.2d 768.

The test for determining “whether the parent has met he high threshold of excusable neglect [is] whether the parent has shown that he or she honestly wanted and diligently sought the opportunity to participate in the proceedings,” ¶14, citing State v. Shirley E., 2006 WI 129, ¶49, 298 Wis. 2d 1, 724 N.W.2d 623. “(I)t appears that Larry really wants to contest the termination of his parental rights.  He is not one of those parents who waves blandly at the proceedings and then, only after termination has been adjudged, suddenly wants to avail himself of the statutory ‘rights’ found in our TPR law.  Larry should get his chance,” ¶15.

Moreover, Larry filed his notice of intent to pursue postdisposition relief late, something that ordinarily would bar jurisdiction over the appeal. But the same circumstances that lead the court to find excusable neglect lead it to conclude that applying a jurisdictional bar to review under § 808.04(7m) would make that provision unconstitutional as applied (not on its face), ¶¶16-19.

State v. Frank Plum, 2011AP956-CR, District 3, 11/1/11

court of appeals decision (1-judge, not for publication); for Plum: Martha K. Askins, SPD, Madison Appellate; case activity

The officer who stopped Plum for suspected drunk driving testified that Plum refused to answer questions about the type or amount of medication he had consumed: this amounted to an impermissible comment on Plum’s right to silence, notwithstanding that questioning occurred before custodial interrogation (thus, before Miranda rights were given) and that Plum had answered earlier questions, ¶¶15-17, citing State v. Fencl, 109 Wis. 2d 224, 236-38, 325 N.W.2d 703 (1982).

The error, however, was harmless; the reference occurred but once and evidence of guilt was overwhelming, ¶21. The court rejects a separate challenge to the State’s closing argument, which reminded jurors that they hadn’t heard any evidence that drugs found in Plum’s system had been prescribed for him: these comments didn’t refer to Plum’s refusal to answer questions, hence weren’t comments on silence, ¶20.

Matthew Steffes v. Thurmer, 7th Cir No. 09-3317, 11/4/11

seventh circuit decision, denying habeas relief on review of 2006AP1633-CR

The “concurrent sentence doctrine” – which “allows appellate courts to decline to review a conviction carrying a concurrent sentence when one ‘concurrent’ conviction has been found valid,” Cheeks v. Gaetz, 571 F.3d 680, 684-85 (7th Cir.2009) – doesn’t apply here in view of a separate assessment and the potential to affect parolability:

… Here, Steffes received a $95 assessment for his first degree sexual assault conviction. As far as we can tell that has not been paid, and that fact alone probably precludes application of the concurrent sentence doctrine. See id.; United States v. Spirk, 503 F.3d 619, 622 (7th Cir. 2007). In addition, Steffes is eligible for discretionary parole in January, and a vacatur of the first degree sexual assault conviction could affect the parole determination. Cf. Cheeks, 571 F.3d at 689 (applying concurrent sentence doctrine to sentence where there were no potential parole consequences). In this case, we decline the warden’s invitation to apply the concurrent sentence doctrine.

Habeas – Ineffective Assistance – Sexual Assault, Jury Instructions 

Steffes was convicted of first-degree sexual assault, § 948.02(1)(b) (1999), for an act of fellatio committed on him by A.W. (Steffes was 15 at the time, and A.W. 12; the statute has since been amended slightly and renumbered.) Steffes argues that counsel was ineffective because the instructions didn’t include language from the statutory definition of sexual assault, namely that the act must have been “either by the defendant or upon the defendant’s instruction.” The court assumes that trial counsel had no strategic basis for not objecting to this omission, but concludes that Steffes wasn’t prejudiced.

Deferential review.

If “the state court made a prejudice determination,” then AEDPA review is deferential, Malinowski  v.  Smith, 509 F.3d 328, 333 (7th Cir. 2007); if not, then review is de novo, Porter v. McCollum, 130 S. Ct. 447, 452 (2009). Here, although the warden asserts that the Wisconsin court of appeals reached only deficient performance, not prejudice, the court determines otherwise:

… The Wisconsin Court of Appeals wrote that based on Strickland’s standard for establishing ineffective assistance of counsel, it “[could] not conclude that Steffes has demonstrated that counsel’s failure to object to this instruction was prejudicial to the outcome of this case.” We read that language as a determination by the state appellate court that Steffes did not establish the requisite prejudice necessary to satisfy Strickland. That the court did not expand on its reasoning is not determinative. … AEDPA review therefore applies. …

Prejudice analysis.

The court notes that “the import of the words ‘by the defendant or upon the defendant’s instruction’ in the Wisconsin ‘sexual intercourse’ definition, and specifically their application when the act at issue is fellatio, is not entirely clear in Wisconsin law.” Does this language modify only “other intrusion” language? If so, Steffes couldn’t have suffered prejudice, because that isn’t the form the alleged assault. And, if the language broadly applies, it is perhaps limited to instances where the defendant asserts that he or she was actually the victim: State v. Lackershire, 2007 WI 74, ¶ 33, 301 Wis.2d 418, 734 N.W.2d 23; State v. Olson, 2000 WI App 158, 238 Wis. 2d 74, 616 N.W.2d 144? In the end, it doesn’t matter:

To the extent the “by the defendant” language applies to fellatio given by a twelve-year-old and willingly received by a defendant, it must mean that the recipient cannot defend himself by arguing that the act was not “by” him. Fellatio can well be said to be “by” both involved persons, including the recipient. To conclude otherwise in this context would run counter to the very reason for the crime of sexual intercourse with a person under thirteen with which Steffes was charged: “The statutes are designed to impose the risk of criminal penalty on the adult, when the adult engages in sexual behavior with a minor.” State v. Jadowski, 680 N.W.2d 810, 817 (Wis. 2004). The statutes are premised on Wisconsin’s determination that minors under a certain age cannot consent to sexual intercourse, and to conclude otherwise would contravene that determination. See id. (“The statute [948.02(2)] is based on a policy determination by the legislature that persons under the age of sixteen are not competent to consent to sexual contact or sexual intercourse. The statute is intended to protect children. The state has a strong interest in the ethical and moral development of its children, and this state has a long tradition of honoring its obligation to protect its children from predators and from themselves.”). Under Wisconsin law, a twelve-year-old cannot consent to sexual intercourse and therefore cannot engage in sexual intercourse “voluntarily.” See State v. Kummer, 301 N.W.2d 240, 246 (Wis. 1981) (statute providing that minors under a certain age cannot consent “continues the state’s policy of penalizing sexual intercourse or sexual contact with a person under a legislatively prescribed age without regard to the consent of the victim”).

Dryly, prosaically, the habeas court consigns Steffes and his technical argument to the dustbin of history; what else is new? Not quite. Here’s the court’s remarkable coda:

We conclude that under any interpretation of “by the defendant or upon the defendant’s instruction,” Steffes was not prejudiced from the fact that the jury did not receive the language he now seeks. Therefore, he has not made out a successful ineffective assistance of counsel claim. Although we reach that conclusion, we are not unmindful of the circumstances by which Steffes became involved in the conduct that led to his charges in this case. We trust that the parole board will take them into account when it makes its parole decision.

The horrific details, recited in the opening pages of the opinion, won’t be repeated here, except to convey the court’s thinly veiled bewilderment at Steffes’ treatment:

In this habeas corpus proceeding, Steffes challenges his conviction for first degree sexual assault for having sexual intercourse with a person who had not attained the age of thirteen years. See Wis. Stat. § 948.02(1)(b) (1999).¹ This charge was based on fellatio that Steffes received from A.W. when Steffes was fifteen years old and A.W. was twelve. Some might wonder about some of the charges brought against Steffes in this case as it is clear that Howard was the ringleader. Howard enlisted Steffes to serve as a prostitute in exchange for clothing and a place to live, and Howard was the one who asked the girls if they would engage in acts of prostitution for money. In the charge at issue in particular, based on the oral sex A.W. performed on Steffes, only three years separated the two. The charging decision was not ours to make, however, and it is not an issue for our consideration.

And now, something of a tangent. What if Steffes at the time had himself been the same age as A.W.; what if, in other words, both given actors are 12 at the time they engage in sexual activity but only one is charged? (Remove force or any other arguable form of coercion as a variable.) You would then have an argument that the statute has been unconstitutionally applied to the charged defendant: In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671 (cert. petition: here;  docket, 11-277: here). Cynics among you will point out that the DA will eliminate the problem simply by charging both actors – and you might well be right. But if the choice is both (or all) or none, it quite possibly will be “none.”

State v. David W. Domke, 2011 WI 95, reversing unpublished decision; for Domke: Martha K. Askins, SPD, Madison Appellate; case activity

Although Domke establishes deficient performance in several different respects, he fails to satisfy his burden of showing prejudice.

• Failure to object to hearsay testimony / medical treatment and diagnosis exception inapplicable to counselors and social workers.

Domke was charged with repeated-acts sexual assault of Alicia S.,  his stepdaughter. A therapist (Rusch) testified without objection about their sessions, including an assertion that her “intake form” reflected that Alicia “had been sexually assaulted.”  Rusch’s report, which was admitted into evidence, recorded Alicia’s “whole story” about the alleged assaults. Counsel didn’t object to any of Alicia’s hearsay statements thus conveyed by Rusch, because he thought they were at least arguably admissible under the medical diagnosis and treatment exception. However, counsel wasn’t familiar with State v. Huntington, 216 Wis. 2d 671, 695 ¶42, 575 N.W.2d 268 (1998), which held: “We decline, however, to apply the hearsay exception for statements made for medical diagnosis or treatment, Wis. Stat. § 908.03(4), to statements made to counselors or social workers. Such an expansive application of the doctrine would strain the traditional grounds for the exception.” And this lack of familiarity with relevant caselaw made counsel’s failure to object a function of deficient performance:

¶45  Huntington provides a clear basis upon which Woods could have objected to Rusch’s hearsay testimony.  While the State advocates an alternative reading of Huntington, the well-settled interpretation of Huntington——that it excludes statements made to counselors and social workers from the medical diagnosis and treatment hearsay exception——would have been grounds for Woods’ objection.  216 Wis. 2d at 695; see also Wis. Stat. Ann. § 908.03 (West 2007-08).  From Woods’ perspective as defense counsel, and with no strategic reason to allow Rusch to present this hearsay testimony, he should have objected.  The circuit court noted in its decision on Domke’s postconviction motion that it would have sustained an objection on that basis.

¶46  Under all the circumstances set forth herein, Woods performed deficiently by failing to object to Rusch’s hearsay testimony, not because allowing the testimony was part of his trial strategy, but because he was unfamiliar with Huntington‘s limitation on the medical diagnosis or treatment hearsay exception.

State v. Carter, 2010 WI 40, 324 Wis. 2d 640, 782 N.W.2d 695 “is instructive regarding the extent to which counsel is required to know or investigate the relevant law,” ¶40. There, counsel made a reasonable, strategic decision not to investigate whether certain evidence was admissible. notwithstanding his lack of familiarity with relevant caselaw. Domke’s case is distinguishable:

¶41  In Carter we explained that “[s]trategic decisions made after less than complete investigation of law and facts may still be adjudged reasonable.”  Id., ¶34.  Counsel must either reasonably investigate the law and facts or make a reasonable strategic decision that makes any further investigation unnecessary.  Id., ¶23 (quoting Strickland, 466 U.S. at 691).  Woods did neither.  Woods did not articulate any valid strategic reason for not objecting to Rusch’s hearsay testimony.  Having no strategic reason to allow the presentation of Rusch’s testimony, a reasonable attorney should have investigated whether it was admissible under one of the hearsay exceptions and, if not, objected to that testimony.

The court rejects the idea that the Huntington principle is “obscure or unsettled,” ¶44 (citing, it should be noted, the two leading Wisconsin evidence treatises, Daniel D. Blinka, Wisconsin Practice Series: Wisconsin Evidence § 803.4, at 611-12 (2d ed. 2001), and Ralph Adam Fine, Fine’s WisconsinEvidence, § 908.03(4), at 908-45 (2007)).

• Cross-examination of witness Rusch.

Counsel twice asked Rusch if Alicia’s allegation might have been a “dream,” something Rusch denied, in her “professional opinion.”

¶49  This court will not second-guess a reasonable trial strategy, but this court may conclude that an attorney’s performance was deficient if it was based on an “irrational trial tactic” or “based upon caprice rather than upon judgment.” State v. Felton, 110 Wis. 2d 485, 503, 329 N.W.2d 161 (1983).  Woods asserted that his theory of the case would have been supported if Rusch had conceded that the first assault could have been just a bad dream.  However, Woods could not provide any information that he had to suggest that Rusch might concede that possibility.  When Rusch responded with a fairly emphatic “no” the first time, Woods asked Rusch this question again, which allowed Rusch to highlight that “[i]n [her] professional opinion, it was not a dream.”  While it may have been reasonable to ask once, it was incautious and inconsistent with any rational trial strategy for Woods to ask Rusch a second time whether she thought the first assault might be the result of a bad dream.  We agree with the court of appeals that Woods’ error in this regard constituted deficient performance.

• Decision to call Domke’s wife as a witness.

Tina, Domke’s wife and Alicia’s mother, testified she had initially told an investigator she didn’t believe Alicia’s allegations. However, on cross-examination, she testified that she now believed Alicia “100 percent,” Alicia was the bravest girl she knew, and she no longer had any doubt Alicia was telling the truth. Counsel’s decision to have Tina testify was made on the basis of a police report, without first speaking with her; moreover, Domke told counsel she was “vacillating regarding whom she believed” –

¶52  …  A reasonable attorney, knowing that a witness had been vacillating regarding whom she believed, would have done some investigation when faced with the risk of calling a witness who may provide either extremely useful or extremely damaging testimony.  If Woods had talked with Tina Domke he would have discovered that at the time of trial she completely believed Alicia S. and would have realized that the harm from her testimony to that effect likely outweighed any benefit from her testimony that she originally doubted Alicia S.

¶53  Woods’ decision to call Tina Domke as a witness without doing any reasonable investigation into what she might say, even after Domke told him that Tina Domke was vacillating regarding whether she believed Alicia S. or Domke, constitutes deficient performance.  We now turn to whether this error along with Woods’ errors regarding Rusch’s testimony prejudiced the defendant.  We conclude they did not.

• Prejudice.

¶57  We are convinced, based on our review of the totality of the evidence, that Domke received a fair trial.  This case boiled down to a credibility contest between Alicia S. and Domke.  Woods’ errors may have strengthened the State’s case against Domke by providing additional corroboration for Alicia S.’s testimony and bolstering her credibility.  However, even excluding the evidence admitted due to his errors, the State had a very strong case.  Upon examining the totality of the circumstances we are not persuaded that, but for Woods’ errors, the result would have been any different.  See Strickland, 466 U.S. at 694-95.  Thus, Woods’ errors did not prejudice Domke, and he is not entitled to a new trial.

…

¶61  Even excluding the testimony of Rusch and Tina Domke that was admitted as a result of Woods’ errors, it is clear that the State had a very strong case against Domke.  There were errors on the part of trial counsel, but under the totality of the circumstances, we cannot say that there is a reasonable probability that but for Woods’ deficient performance the result would have been different.[12]

State v. Thiel, 2003 WI 111, ¶¶63-80, 264 Wis. 2d 571, 665 N.W.2d 305, distinguished, ¶60 n. 11: “Thiel was prejudiced by his counsel’s errors, which kept significant evidence from the jury that would have undermined the complainant’s credibility. Id.  In this case, Domke does not allege that Woods’ errors precluded him from presenting evidence that would have impeached Alicia S.’s credibility, and we conclude that, under the totality of the circumstances in this case, the cumulative effect of Woods’ errors did not prejudice Domke.”

In the Matter of Sanctions in: State v. Gregory K. Nielsen, 2011 WI 94, remanding sanctions order; for State Public Defender: Joseph N. Ehmann; case activity; subsequent history: sanction re-imposed on remand

Monetary sanction summarily ordered by court of appeals against appellate counsel for allegedly violating appendix-content rule reversed, with following “suggestion” for procedure to be followed in such situations:

¶5   Considering the interests of the court of appeals, the interests of counsel, the interests of litigants, and the effective and efficient administration of justice, we suggest that hereafter when the court of appeals is considering imposing a sanction on an attorney for filing a brief with a deficient appendix, an order should be issued (separate from the court’s opinion on the merits of the appeal) directing counsel to show cause why a violation of the rules governing appendix content and certification, Wis. Stat. § (Rule) 809.19(2)(a) and (b) (2009-10),[5] should not be found and why the attorney should not pay a stated amount of money to the clerk of the court of appeals as a sanction for failing to include in the appendix portions of the record that may have been essential to an understanding of the issue on appeal and for filing an incorrect certification.  The order to show cause should also state that alternatively, the attorney may pay the amount of money set in the order within 30 days of the order without showing cause why the attorney should not be relieved of this obligation.[6]

…

¶33  We suggest that hereafter when the court of appeals is considering imposing a sanction on an attorney for filing a brief with a deficient appendix, an order to show cause should be issued directing counsel to explain why a violation of Wis. Stat. § (Rule) 809.19(2)(a) and (b) should not be found and why the attorney should not pay a stated amount of money to the clerk of the court of appeals as a sanction for failing to include in the appendix portions of the record that may have been essential to an understanding of the issue in the case and for filing a false certification.^[20]  We also suggest that the order to show cause should state that alternatively,the attorney may pay the amount of money stated in the order within 30 days of the date of the order without showing cause why the attorney should not be relieved of this obligation.

Background, very briefly: The appeal raised a challenge to sentencing discretion, and counsel’s appendix included 3 of the total of 8 transcript pages devoted to sentencing remarks. The relevant rule, § 809.19(2), requires “a short appendix containing, at a minimum, the findings or opinion of the circuit court, limited portions of the record essential to an understanding of the issues raised.” The court of appeals here thought the appendix too short and in its decision affirming the sentence also summarily sanctioned the Office of the State Public Defender $150 for violating the appendix rule. (Nielsen was represented by SPD staff counsel; the court of appeals didn’t indicate why the order ran against the office institutionally rather than against the individual attorney.)

This – summary sanction by the court of appeals – is a recurrent problem. The supreme court presently notes that “costs have been imposed in less than 1% of the appeals where appendices are filed” since 2005, ¶23. Two points. First, to take the most recent compilation, in 2010, over 3,000 appeals were filed, which could mean as many as 30 such sanction orders in that year alone. Over time, then, the number is probably in the 100s. Second, the reference is, seemingly, limited to violations of the appendix rule. No telling, in other words, how many sanctions have been meted out for other violations, such as the “no-cite” rule, § 809.23(3). And that raises a question as to whether the reach of the present opinion is limited precisely to the appendix rule. Take a look at ¶¶34-44, where the court marshals policy reasons for favoring the order to show cause over summary procedure; those reasons apply outside the particular context of appendix. Note, as well, the court’s ringing endorsement of “counsel’s interests, especially counsel’s reputational interests,” in not being branded a “liar” for filing a false certification when counsel had actually made a good-faith effort at compliance, ¶32. Fine. But will that passage be read narrowly, to apply only to allegations of signing a false certification? We’ll see.

The court explicitly declines to address the propriety of imposing a monetary penalty on the Office of the State Public Defender, ¶44 n. 25. Not clear why the court of appeals did that in the first place. If the idea is to deter intentional violations – and a sanction would surely be misplaced if applied to an inadvertent violation – then what purpose is served by penalizing the institution rather than the individual? A nice question might be raised, as well, about whether the Office of the State Public Defender has sovereign immunity against such a penalty (which probably would turn on whether the penalty is considered the result of a “suit”; perhaps not, but you never know). Questions for another day that, with any luck, will never dawn.

Cavazos v. Shirley Ree Smith, USSC No. 10-1115, 10/31/11 (per curiam); prior history: Smith v. Mitchell, 437 F.3d 884 (9th Cir. 2006), vacated and remanded in light of Carey v. Musladin, 549 U. S. 70 (2006) by Patrick v. Smith, 550 U. S. 915, reinstated on remand, 508 F. 3d 1256 (2007); vacated and remanded in light of McDaniel v. Brown, 558 U. S. ___ (2010) by Patrick v. Smith, 558 U. S. ___ (2010), reinstated on remand sub nom. Smith v. Mitchell, 624 F. 3d 1235 (2010)

State court conviction for assault of 7-week-old child resulting in death upheld, reversing court of appeals’ habeas-review conclusion of insufficient proof of cause of death. Prosecution experts ascribed death to shaken baby syndrome, defense experts either to old trauma or sudden infant death syndrome. Resolution of the experts’ disagreements was, the Court holds, for the jury and not the habeas court:

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 sufficiency of the evidence challenge simply because the federal 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 persuasively explained the cause of a death. For this reason, certiorari is granted and the judgment of the Court of Appeals is reversed.

…

In light of the evidence presented at trial, the Ninth Circuit plainly erred in concluding that the jury’s verdict 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, and its decision is supported by the record.*

Category tag: Ninth Circuit Beat Down. The conclusion reached by the 9th in its original decision was, the majority now says, “plainly wrong.” A subsequent reversal apparently didn’t convey the intended message, so the Court ratchets up the rhetoric: “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.” More: stressing the two prior reversals, the majority accuses the 9th of “persist(ing) its course … without seriously confronting the significance of the cases called to its attention. … Its refusal to do so necessitates this Court’s action today.” The 3 dissenters, for their part, accuse the majority of improperly assuming an error-correcting rather than law-clarifying function. A recurrent theme, not unfamiliar to the Wisconsin practitioner.

The dissent also compiles a useful list of recent authorities, medical and legal, challenging the assumptions employed in this 1997 trial. One such cite will be familiar: “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.” (Edmunds granted relief on a theory of newly discovered, rather than insufficient, evidence; the theory of the litigation very much matters.) Also see this op-ed by legal scholar Deborah Tuerkheimer: “Anatomy of a Misdiagnosis,” NYT, 9/20/10 (“Troublingly, though, Ms. Edmunds’s case has been a rare exception. Most shaken baby convictions have yet to be revisited. New cases are still being prosecuted based on the outdated science.”). Ms. Tuerkheimer pursues that thought in much more detail in a recent Alabama Law Review article, “Science-Dependent Prosecution and the Problem of Epistemic Contingency: A Study of Shaken Baby Syndrome” (“Because it is fully constructed by and dependent on medical expertise, Shaken Baby Syndrome (SBS) raises in stark form the problems that arise when science outpaces law—most troublingly, the prospect that we are imprisoning people who have committed no crime.”) More, as well, in this NYT Magazine piece. Another category tag, then: Not the Last Word.

Update: Not the last word, indeed – Smith subsequently received a commutation of sentence; not, to be sure, a pardon based on innocence, but it does come close (“it is clear that significant doubts surround Ms. Smith’s conviction”).