Gimenez
v. Ochoa, No. 14-55681 (5-9-16)(Kozinski with Ikuta and
Owens). The summary is editorializing.
In the late 80's, doctors seeing infants presenting
with a subdural hematoma, brain swelling, and retina hemorrhage suspected child
abuse by shaking. At that time, this
triad of symptoms supposedly conclusively proved Shaken Baby Syndrome
(SBS). In the decades since, pediatric
and forensic experts have shown that it is not a conclusive finding, and the
triad no longer can be said to absolutely show SBS and child abuse. And yet, what about the many defendants who
were convicted on such questionable conclusions? Surely the Great Writ, surely habeas, can
provide a means of relief for injustice?
Sadly, no.
The 9th recognizes that flawed or undermined
scientific forensics can provide a basis for habeas relief. The 9th joins the 3rd Circuit in recognizing
that habeas petitioners can allege a constitutional violation from the
introduction of flawed expert testimony if such evidence undermined the fundamental
fairness of trial. That would be true
here, right?
Sadly, no.
It seems that the 9th will only recognize that there
is a controversy in the field; that experts may differ. The 9th acknowledges the many affidavits and
evidence that calls the triad only diagnosis questionable, but also points out
that the defendant had been quarreling with the mother, and he gave
inconsistent statements. The petitioner’s
evidence seemingly, to the 9th, only bolsters his side of the case, where he
had expert testimony. The jury had rejected
this two decades ago. He cannot show by
clear and convincing evidence that a jury would have found differently. The 9th further concludes that in the era of
AEDPA, exposing flawed science is hard.
The 9th thus affirmed the district court.
Was justice done?
No, sadly.
The decision is here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/05/09/14-55681.pdf
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