Teaching criminal law at Fordham Law School, John Pfaff posts at  PrawfsBlawg about the Supreme Court’s recent decision in Cavazos v. Shirley Ree Smith, dealing with two critical and troubling issues arising from the case.

The question at the heart of Cavazos is whether a 7-week old boy, Etzel Glass, died one night from SIDS or due to shaken baby syndrome (SBS) at the hands of his grandmother, Shirley Smith. At trial, the jurors heard from dueling pathologists about the likely cause of death, and they ultimately accepted the story of the prosecution’s doctors and convicted Smith.

The evidence in the case was ambiguous. Many (though not all) of the “tell-tale” signs of SBS were missing, and the state’s experts concluded that death resulted from an undetected—and perhaps undetectable—shearing of the brainstem. Smith’s pathologists noted that Etzel was a low birth-weight child born with jaundice and a heart murmur, all of which are risk factors for SIDS. A classic dueling-experts situation.

The forensic diagnosis of Shaken Baby Syndrome, a diagnosis that exists only for the purpose of prosecution and to give an ugly, criminal name to what was previously an otherwise inexplicable cause of death, has come under increasing attack.  At its creation, courts took for granted that such a thing was real and had a basis in medical science. 

As is too frequently the case, its existence failed to bear up to scrutiny, and medicine is coming around to acknowledge that it’s a purely manufactured creature, used to give the impression of proof of a crime for deaths that can’t be otherwise explained or which weren’t the result of any crime or violence. But when a baby dies, someone has to be blamed, and so a crime was created.

Pfaff confronts the problem of fighting the “dueling experts” dilemma:

The [9th] CCA adopts the conventional view on jury fact-finding in complex scientific cases: “The expert opinion evidence … was conflicting. It was for the jury to resolve the conflicts. The evidence was substantial and sufficient to support the jury’s conclusions….” The Ninth Circuit, on the other hand, argues that the scientific uncertainty here bars a beyond-a-reasonable-doubt conclusion about guilt as a matter of law.

This is fascinating stuff, where two witnesses, both accepted as experts and qualified to render opinions, clash, the 9th Circuit held that the prosecution’s expert, as a matter of law, cannot meet the threshold for conviction. Pfaff questions whether this is an example of the 9th Circuit’s “judicial activism,” or conceptual logic in the face of precedent.

But there is a different, broader way to read the Circuit court opinion that in some ways avoids the AEDPA problem (but introduces a host of other problems): what if we have a blanket rule that when both the state and the defense introduce plausible, reliable and contradictory scientific evidence  about an essential element of a crime, the state automatically loses?

Think of it this way: when both sides introduce credible expert testimony on an element of a crime, perhaps there is no uncertain fact for a jury to “find.” What we have is a “known unknown”: we know that we do not know the answer.† And not knowing seems to be reasonable doubt; or, phrased more carefully, in the presence of a “known unknown” it is unreasonable to say that you know one way or the other. And at least in criminal cases, that should tip the balance automatically in favor of the defense.

† It is unfortunate that Donald Rumsfeld has been mocked for using this term, and it is unfortunate that the term now often elicits a snide laugh because of its association with Rumsfeld. The concept is a profoundly important one, and whatever your impression of Rumsfeld he used it completely correctly in his speech.

What comes off as rather obvious given Pfaff”s explanation is, indeed, a profound notion. When experts, by definition acknowledged as they’ve been allowed to offer scientific evidence and opinion, conflict, is there any rational basis for an ultimate determination that one wins and the other loses beyond a reasonable doubt? We can accept that there’s a real question, but that doesn’t mean a real answer follows.

And yet, the analysis doesn’t stop, but goes to the next level, where real world decisions are made.

Even if you’re not convinced by this argument—and I’m still trying to decide if I am—the jurors’ lack of epistemic competence may still play a role: while perhaps in theory there is some fact to be “found” here, the people we are asking to find it are effectively blind. Jury pools are not well-educated: at best about half are college graduates (and this from a study set in Connecticut, the sixth-best educated state in the country), and few college graduates have real math/science training. So if dueling experts do not theoretically demand a non-finding, does the clear inability of the jury pool to make the necessary finding along rational lines do so pragmatically?

Think about it (and think hard, now that the question is staring you in the face), the practical absurdity of asking a jury, a bunch of nice folks with utterly no qualification to determine which of dueling experts is conceivably better, no less correct to the exclusion of the other, reaching a verdict.  There is no rational basis for them to do so; whether they have some magical quality that permits them to decide truth from lies is one thing, but to decide scientific merit when they may not be able to spell “scientific”?  It’s nuts.

Pfaff goes on to proffer a “radical” theory, that given the absence of a rational basis upon which a jury could reach a verdict, the statute could be changed to reduce the prosecution’s burden from proving commission to showing that commission was “plausible.”

Forcing us to rewrite statutes along these lines lays bare the implications of the legal fiction of “jury factfinding” in situations of scientific complexity and “known unknowns.” They are not finding that x caused y; at best they are finding that x perhaps caused y, or that it is not completely impossible that x caused y, or something along those lines. The revised statute may be unpopular—how can we convict someone for possibly causing a death?—but again, stripping away the legal fiction of “jury factfinding” here, that is what we are doing.

While this would be extremely unpopular, essentially eviscerating the standard of proof via the backdoor in criminal convictions, Pfaff’s point is that it would at least be honest, ridding us of the legal fiction that juries find facts rather than reach verdicts.

Whether you agree with Pfaff’s ideas, he’s managed to mix in doctrine and theory with some extremely controversial, and very real-world, issues that we confront regularly in the trenches, providing quite a bit to think about and, more importantly, so great points around which argument can be crafted in the trenches that will inure to the benefit of real people and real cases.  An exceptional post that proves scholarship can, and is, useful to the legal profession, and clarifies and advances thought and argument in the trenches, where real people dwell.