I'm as concerned about convictions of innocent people as the next person. Perhaps even more so. That said, my (admittedly weak) sense is that Judge Canby may go too far in this one.
This is a habeas case in which Smith was convicted of shaking her seven-week grandson to death. Smith's habeas petition says, quite simply, that she's innocent, and that the evidence against her wasn't sufficient.
The opinion is not that long: around ten pages. Judge Canby does a good job therein explaining that the evidence that was presented here didn't include a lot of the typical stuff that you often see in Shaken Baby Syndrome cases -- frustrated parents, a history of abuse, etc. And when you read the opinion -- or at least when I did -- I was definitely left with an impression that Smith might well be innocent.
But the thing is, I wasn't at the trial. And neither was Judge Canby. Yes, we can read a stale record, and we can review the medical evidence. But my strong sense is that this stuff isn't dispositive. Several different medical experts testified for the prosecution that the child's death was caused by Shaken Baby Syndrome. They also testified that there was evidence of old subdural bleeding (implying past abuse), as well as both old and new bleeding around the optic nerves (a classic sign of Shaken Baby Syndrome). Yes, here, there wasn't the type of huge bleeding in the skull that accompanies 80% of Shaken Baby Syndrome deaths, and you can't prove one way or the other -- since science apparantly can't detect it -- that the death here resulted from an instant shake-induced tear in the brain stem. But when the experts testify that, look, this is a Shaken Baby Syndrome case, and when there's at least some evidence to support their conclusions, even if my own view (on a stale record) is to conclude that the medical experts on the defense side seem more persuasive, it is difficult for me to conclude that no rational person anywhere could disagree with me.
That'd be my view, by the way, even without the evidence that Judge Canby somewhat hides in footnote 11, which is where we learn that when a social worker told Smith that the baby had died of Shaken Baby Syndrome, Smith's immediate response was to say: "Oh my God. Did I do it?" That's a pretty troubling statement. Yes, Judge Canby may be right that perhaps this statement was a spontaneous exclamation of a distraught grandparent. But isn't it still some evidence that Smith did, in fact, shake the child, and think that she might accordingly be responsible for his (otherwise entirely unexplainable) death? At a minimum, isn't it possible that a reasonable jury could so conclude?
So this opinion is troubling. It troubles me because I'm worried that an innocent person might have been convicted of killing a child. But it also troubles me because I don't think that the evidence here is so one-sided that any rational factfinder must have concluded that the evidence was insufficient -- much less that the state court's holding to the contrary was an obviously unreasonable application of federal law (as is required for federal habeas relief). And it troubles me a little bit when appellate judges may believe in their own position so strongly that they potentially displace the proper role of the jury (and, parenthetically, of state courts) and find any position contrary to their own to be entirely unreasonable. Sometimes you have to realize your own potential limitations, as well as potentially place faith on the institutions that we have created. Including the reality that the unanimous judgment of twelve different people is sometimes potentially more accurate than your own assessment of the evidence. Not always, of couse. But, very potentially, here.
P.S. - One final note. If the evidence was so crystal clear, I'm a bit surprised that it took Judge Canby (whom, by the way, I very much respect) over a full year after oral argument to write the opinion. Particularly since I assume that Smith was rotting in prison the entire time, if I were Judge Canby -- and hence convinced that Smith was innocent -- I'd have tried my very hardest to get my opinion out ASAP. And would certainly not have taken over a full year to do so.
