Monday, May 09, 2016

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:


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