The Ninth Circuit is confident. The Supreme Court is clearly skeptical.
Shirley Smith gets convicted in California for assault on a child resulting in death. The California appellate courts were fine with the conviction, as was the federal district court when Smith filed a habeas petition. But in 2006, the Ninth Circuit held that no reasonable jury anywhere -- even after applying massive deference -- could have found Smith guilty beyond a reasonable doubt, and accordingly reversed her conviction.
The Supreme Court, however, GVR'd the case in 2007, asking the Ninth Circuit to take a second look. Which the Ninth Circuit did, concluding that, yeah, it was sure it was right, and that nothing in the interim decided by the Supreme Court changed that conclusion.
At which point California again returned to the Supreme Court. Which, earlier this year, yet again GVR'd the case. "How about taking a third look at the case, Ninth Circuit?"
"Whatever you say, oh Supreme Court." But today, the Ninth Circuit yet again reaffirms its opinion. Writing an opinion that's clearly designed to mollify the Court, repeatedly reiterating that the panel is keenly aware of the required deference, that this is a truly unusual case, and that this is not a case of the Ninth Circuit doing the kind of thing that the Supreme Court doesn't like.
The opinion is very well written. We'll see if the third time's a charm, and whether the Supreme Court finally lets this one stick.
