Shirley Ree Smith v. Gwendolyn Mitchell, Warden

ORDER

The panel voted to deny the petition for panel rehearing. Judge Pregerson has voted to deny the petition for rehearing en banc, and Judges Canby and Reed have so recommended.

The petition for en banc rehearing has been circulated to the full court. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed RApp. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are denied.

I write to make clear our court has, by its decision in this case, made a substantial departure from settled principles of review of jury determinations of fact in criminal cases.

In this case, our court decides the opinions of three Board-certified physicians called by the prosecution that Smith’s shaking of baby Etzel caused his death must be substituted with the contrary opinions of non-Board-certified physicians called by the defense. Why? Because the defense’s doctors testified that a finding was absent on autopsy, and that finding was crucial and undermined the prosecution experts’ testimony. The three physicians called by the prosecution…