Emily Bazelon has a terrific piece about a recent Supreme Court order that has received very little attention. The case concerned Shirley Ree Smith, a grandmother given 15 years-to-life for the death of her granddaughter. The conviction was based on "shaken baby syndrome," although the most current evidence suggests that it's extremely unlikely that Smith caused her granddaughter's death. Taking this evidence into account, the 9th Circuit Court of Appeals freed Smith in 2006. Last month, as the culmination of a lengthy back-and-forth between the Court and 9CA, the higher court by a 6-3 majority reinstated the jury verdict, requiring Smith to return to prison although she is almost certainly innocent and does not pose any
threat to society.
Taken in isolation, the Court's order is by no means outrageous. Generally, appellate courts only permitted to assess legal errors by lower courts, not to second-guess how juries evaluate evidence. It should be noted, however, that the evolution of scientific evidence makes this case somewhat different, in that the appellate courts knew things that the jury could not have. Also, the Supreme Court's own actions are not exactly a model of judicial restraint, as Ginsburg noted in her dissent:
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 necessary? Our routine practice counsels no…
[…]
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 uncontradicted evidence shows that she poses no danger whatever to her family or anyone else in society.
In the abstract, one can understand the majority's response that the injustice in this case should be addressed by the governor granting clemency rather than by the appellate courts. But in practice, preventing federal appellate courts from acting is likely to lead to many cases to situations in which nobody is willing to be accountable and redress obvious injustices. Take, for example, the case Cameron Todd Willingham, who was executed based on forensic evidence that was known before his execution to be utterly worthless. The appellate courts didn't act, the commission charged with evaluating death sentences didn't act, and the governor not only didn't act but acted to suppress an inquiry. It's hard to see how requiring appellate courts ignore what is effectively new evidence suggesting innocence serves the interests of either justice or the rule of law.
One final point about this case: as Dahlia Lithwick quietly mentioned in her profile of the Court's newest justice, the Court's five Republican appointees were joined by Elena Kagan. In this context, Kagan's vote wasn't just window dressing, as it prevented the Court from giving the case a full hearing. There's a lot to like in Kagan's first term on the Court, but for those of us who were skeptical of Kagan's appointment this is something to be concerned about.
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