O\'Laughlin v. O\'Brien , 577 F.3d 1 ( 2009 )

United States Court of Appeals
For the First Circuit
No. 08-1010
MICHAEL O'LAUGHLIN,
Petitioner, Appellant,
v.
STEVEN O'BRIEN,
Superintendent, Old Colony Correctional Center,
Respondent, Appellee.
Before
Lynch, Chief Judge,
Torruella, Baldock,* Boudin, Lipez and Howard,
Circuit Judges.
ORDER OF COURT
Entered: August 7, 2009
The petition for rehearing having been denied by the
panel of judges who decided the case, and the petition for
rehearing en banc having been submitted to the active judges of
this court and a majority of the judges not having voted that the
case be heard en banc, it is ordered that the petition for
rehearing and the petition for rehearing en banc be denied.
By the Court:
/s/ Richard Cushing Donovan,
Clerk
cc: Hon. William G. Young, Ms. Sarah Thornton, Clerk, United States
District Court for the District of Massachusetts, Mr. Katz, Mr.
Seiger, Ms. Barnett & Mr. Arguin.
*
Of the Tenth Circuit, sitting by designation.
LYNCH, Chief Judge, dissenting from the denial of en banc
review. Through AEDPA, Congress has narrowly limited federal court
review of state criminal convictions. Specifically, federal habeas
relief is now unavailable to state prisoners unless the state court
adjudication of the prisoner's claim "resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States." 28 U.S.C. § 2254(d)(1).
Here, a Massachusetts jury convicted petitioner Michael
O'Laughlin of several charges relating to the gruesome nighttime
beating of his neighbor, Annmarie Kotowski, which left her near
death. The Supreme Judicial Court of Massachusetts ("SJC")
unanimously upheld that conviction, see Commonwealth v. O'Laughlin
(O'Laughlin II), 843 N.E.2d 617 (Mass. 2006), reversing the
intermediate state appellate court's holding that the evidence was
insufficient, see Commonwealth v. O'Laughlin (O'Laughlin I), 830
N.E.2d 222 (Mass. App. Ct. 2005). The federal district court
denied O'Laughlin's habeas petition.
Nonetheless, a panel of this court on federal habeas
review found that the evidence against O'Laughlin was insufficient
to support the conviction and held that the SJC's contrary
determination was an unreasonable application of clearly
established federal law. See O'Laughlin v. O'Brien (O'Laughlin
III), 568 F.3d 287 (1st Cir. 2009).
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To reach this result, the panel opinion applied a
sufficiency standard that is materially different from the Supreme
Court's clearly established law under Jackson v. Virginia, 443 U.S.
307 (1979), and exceeded its narrowly defined power to review state
court criminal convictions under AEDPA. Because the sufficiency
standard applied by the panel has consequences well beyond this
case and the panel's application of that standard to this case
upsets the congressionally defined role of federal habeas review in
our federal system, I respectfully dissent from the denial of en
banc review.
I.
Around 2:00 a.m. on November 17, 2000, Kotowski was
severely beaten in her apartment by an assailant whom she could not
later identify because of the memory loss she suffered as a result
of the attack. The assailant nearly killed Kotowski, breaking
almost every bone in her skull, as well as several in her hands.
The evidence supported the prosecution's theory that Kotowski had
awakened to find her assailant in the apartment and had been beaten
to prevent her from identifying her assailant. Kotowski knew
O'Laughlin; indeed, she had been cool to his interest in her.
O'Laughlin had the means to perpetrate this attack. He
lived only two doors down from Kotowski and, as a maintenance
worker in the apartment complex, had a key to Kotowski's apartment,
had been there, and knew the apartment's layout. That level of
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access was necessary to commit the crime because the police found
no signs of forced entry into Kotowski's apartment. Additionally,
the police found a weapon that could have been used in the attack
-- a baseball bat with O'Laughlin's name inscribed on the barrel --
hidden under some leaves in the woods behind the apartment complex.
Moreover, the police encountered O'Laughlin near the scene of the
crime just minutes after the attack and noticed the next day that
he had a cut on his face and a bruise below his left ear, which
were consistent with being involved in a struggle.
O'Laughlin also had a motive. He had smoked crack
cocaine in the hours before the attack and had called several drug
dealers from the telephone in his apartment only minutes before the
attack, desperately seeking more drugs. O'Laughlin had no money to
buy more drugs that night, and he thought that Kotowski was well
off from seeing her apartment. Although Kotowski's attacker took
nothing from the apartment, police found her purse on the floor
near the bathroom. Kotowski testified that she typically kept her
purse on the inside handle of her bedroom door. The prosecution
argued that Kotowski's attacker left without taking anything
because, during the attack, he had heard Kotowski's upstairs
neighbor get to the phone and speak, and feared that the police
were on the way. The police reenacted the upstairs neighbor's
telephone call and determined that a person in Kotowski's apartment
could hear that the upstairs neighbor was speaking on the phone.
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O'Laughlin also demonstrated a consciousness of guilt.
He appeared "uneasy and distant" when the police encountered him
outside shortly after 2:00 a.m. in near-freezing temperatures
wearing nothing but his boxer shorts. O'Laughlin told the police
a series of lies and repeatedly shifted his story as to what he was
doing on the night of the attack. When O'Laughlin encountered the
police shortly after the attack, they told him they had been unable
to locate unit 202, the apartment of the upstairs neighbor who had
called the police. O'Laughlin, who knew that the units had
recently been renumbered and that unit 202 was now unit 16, did not
disclose that information to the officers. Rather, he misdirected
them by changing their focus to purported animal noises he had
heard coming from the dumpster, where the police then went.
Finding nothing of interest in the dumpster, the police decided to
leave. When the police returned to the apartment complex the next
day, O'Laughlin refused to let the police swab what appeared to be
a blood stain in his apartment and cleaned up the stain before
allowing the police to return. And he gave a number of
inconsistent, and sometimes inherently incredible, statements about
the events of that night.
A primary defense theory was that Kotowski's estranged
husband, not the defendant, had committed the assault. The husband
testified, and the jury rejected that theory.
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II.
The state's petition for rehearing en banc presents what
is essentially a three part argument: (1) that the panel has
articulated and applied a new sufficiency of evidence test, which
is not clearly established law from the Supreme Court and is, in
fact, inconsistent with Jackson; (2) that the panel decision
otherwise violates AEDPA's strictures that relief may be granted
only where the state court engages in an "unreasonable application"
of clearly established federal law; and (3) that the panel has,
contrary to Jackson, failed to look to the totality of the evidence
and has failed to draw all inferences in favor of the verdict as
required. All three aspects of the state's petition raise
significant issues of law, which in my view warrant rehearing en
banc.
Before addressing the merits of the state's arguments, it
is important to set forth the basic framework for our review. We
owe deference to the state court proceedings on two levels. First,
because O'Laughlin's core argument is to the sufficiency of the
evidence, we must uphold the jury's verdict unless "it can be said
that no rational trier of fact could find guilt beyond a reasonable
doubt." Jackson, 443 U.S. at 317. In making this determination,
we view the evidence in the light most favorable to the
prosecution. Id. at 319.
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Second, we review O'Laughlin's sufficiency challenge
through the lens of federal habeas review. Under the federal
habeas statute, we must presume the correctness of all factual
determinations made by the state court, see 28 U.S.C. § 2254(e)(1),
and may grant the writ only if the state court's decision was
"contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States," id. § 2254(d)(1). Under this standard, we must
uphold even state court decisions that are incorrect so long as
they are reasonable. See Williams v. Taylor, 529 U.S. 362, 410
(2000) ("For purposes of today's opinion, the most important point
is that an unreasonable application of federal law is different
from an incorrect application of federal law." (emphasis in
original)); see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007)
("The question under AEDPA is not whether a federal court believes
the state court's determination was incorrect but whether that
determination was unreasonable -- a substantially higher
threshold.").
Thus, to prevail, O'Laughlin must make a two-fold
showing: (1) that no reasonable juror could have voted to convict;
and (2) that the contrary view of the state court was not only
wrong but unreasonable.
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A. The Proper Test for Assessing a Sufficiency Challenge
The panel's opinion applied the Sixth Circuit's test for
sufficiency, which holds that if the jury's verdict rested on
"circumstantial evidence . . . [that] amounts to only a reasonable
speculation," it must be vacated. See O'Laughlin III, 568 F.3d at
302 (quoting Newman v. Metrish, 543 F.3d 793, 796 (6th Cir. 2008),
petition for cert. filed, 77 U.S.L.W. 3645 (U.S. May 12, 2009) (No.
08-1401)). The panel opinion opened its evaluation of the SJC's
opinion by quoting from and implicitly adopting the Newman test.
It then said that test was met in this case, repeated the term
"reasonable speculation," and drew heavily on Newman, giving it
four pages of discussion.
"Reasonable speculation" is not the standard the Supreme
Court has articulated to assess evidentiary sufficiency under
Jackson. Instead, the Jackson standard asks "whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." 443
U.S. at 319 (emphasis in original). The term "reasonable
speculation" appears nowhere in Jackson or in any of the Supreme
Court's sufficiency jurisprudence. Indeed, until the panel's
opinion in this case, the Sixth Circuit was the only circuit to use
that standard.
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The "reasonable speculation" standard is materially
different from the Jackson standard in that it prohibits
convictions from resting on reasonable inferences drawn from the
evidence.1 This new standard strongly disfavors circumstantial
evidence,2 contrary to our long-standing recognition that a
criminal conviction may rest on circumstantial evidence alone. See
United States v. Rodríguez-Durán, 507 F.3d 749, 758 (1st Cir. 2007)
("[C]ircumstantial evidence alone may be sufficient to provide a
basis for conviction."); see also United States v. Downs-Moses, 329
F.3d 253, 261 (1st Cir. 2003) ("[W]e do not favor direct evidence
over circumstantial evidence, as either type of evidence may
satisfactorily support a conviction.").
This devaluation of circumstantial evidence by a federal
habeas court has sweeping implications. The government relies
heavily on circumstantial evidence to prove cases where direct
witness testimony about the commission of a crime is unavailable.
This is particularly true in domestic and acquaintance violence
prosecutions, where the victims, who often have the only direct
evidence of their abusers' guilt, are left unable to testify or
1
The term "reasonable speculation" contains an inherent
conflict. Recognizing that a conclusion rests on speculation
suggests that the inferences upon which it is based are
unreasonable.
2
The dichotomy drawn by the panel between circumstantial and
direct evidence is questionable. Convictions often rest on
inferences which are drawn from direct testimony, as well as
circumstantial evidence.
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they recant or refuse to cooperate. See T. Linger, Prosecuting
Batterers After Crawford, 91 Va. L. Rev. 747, 768 (2005) ("Recent
evidence suggests that 80 to 85 percent of battered women will
recant at some point."). The panel's "reasonable speculation"
rule, which substantially discounts the power of circumstantial
evidence, jeopardizes these and other prosecutions where the only
evidence of the defendant's guilt is circumstantial.
In addition to the infirmities in the substance of the
"reasonable speculation" rule, the panel's use of another circuit
court's precedent to grant habeas relief is troubling given AEDPA's
requirement that the state court's error be measured against
"clearly established Federal law, as determined by the Supreme
Court of the United States." 28 U.S.C. § 2254(d)(1) (emphasis
added). Indeed, the Supreme Court has repeatedly cautioned that if
it has not recognized a particular circuit court legal standard, a
state court's failure to follow that standard cannot compel the
grant of habeas relief. See, e.g., Knowles v. Mirzayance, 129 S.
Ct. 1411, 1419 (2009) (holding that federal habeas relief is
unavailable based upon the application of "a specific legal rule
that has not been squarely established by this Court."); Carey v.
Musladin, 549 U.S. 70, 76-77 (2006) (same).
B. Limitations Under AEDPA
The panel opinion's analysis of the reasonableness of the
SJC's opinion substantially departed from the level of deference
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for the determinations of the state courts that Congress and the
Supreme Court have provided the federal courts under AEDPA.3 The
panel opinion states that the SJC's sufficiency determination was
unreasonable because: (1) O'Laughlin's prior contacts with Kotowski
were minimal; (2) the facts here "do[] not align" with a robbery
motive; (3) the prosecution's weapon was "merely 'consistent'" with
Kotowski's injuries; (4) the motive evidence here was "mere
conjecture"; (5) O'Laughlin was not caught in a lie and did not
flee the scene; and (6) the evidence of consciousness of guilt was
"bare conjecture." O'Laughlin III, 568 F.3d at 306-08. At most,
these examples amount to a disagreement as to the weight particular
pieces of evidence should receive and the inferences to be drawn
from them. But a state prisoner is not entitled to habeas relief
under AEDPA merely because a federal court disagrees with the state
court's assessment of the evidence. See Williams, 529 U.S. at 410(recognizing that a state court's determination is not an
unreasonable application of law merely because it is erroneous).
The state court's determination must be so incorrect as to be an
3
The result of this case -- a federal appeals court
reversing the state's highest court on the question of evidentiary
sufficiency in a criminal prosecution -- is also surprising given
the SJC's historically favorable treatment of criminal defendants.
Indeed, the SJC often extends criminal defendants greater
protections than those required under the federal Constitution.
See, e.g., Commonwealth v. Gomes, 903 N.E.2d 567 (Mass. 2009)
(limiting the police's power to pat frisk suspected drug dealers
for weapons); Commonwealth v. Mavredakis, 725 N.E.2d 169 (Mass.
2000) (holding that the police have a duty to inform a criminal
defendant of his lawyer's efforts to contact him).
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unreasonable application of law, which is "a substantially higher
threshold." Schriro, 550 U.S. at 473.
The state's petition for rehearing argues that en banc
review should be granted in this case because it is part of an
emerging pattern of non-compliance with AEDPA where the federal
courts of appeals have been granting habeas relief in
circumstantial evidence cases. See Newman, 543 F.3d at 796; see
also Brown v. Farwell, 525 F.3d 787 (9th Cir. 2008), cert. granted
sub nom, McDaniel v. Brown, 129 S. Ct. 1038 (2009).
Having read the record before the federal court, I am
convinced that the SJC's holding on the sufficiency issue was not
only a reasonable application of Jackson but also entirely correct
under the Jackson standard. The SJC's seventeen-page opinion shows
there was a detailed review of the trial record by the justices and
articulates and applies the correct constitutional standard for
sufficiency of the evidence.
I start with the SJC's finding that O'Laughlin had a
financial motive for breaking into the unit, which led to the
attack on Kotowski. The SJC explained: "The defendant had
purchased crack cocaine on two different occasions on the evening
of November 16 and had been ingesting drugs and beer all night. He
had run out of both drugs and money later in the evening and was
desperately seeking to obtain more drugs." O'Laughlin II, 843
N.E.2d at 627. In short, O'Laughlin needed money, and the
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prosecution put on evidence that O'Laughlin suspected Kotowski was
well off and a potential source of funding.
The panel opinion, however, dismissed robbery as a motive
because Kotowski's assailant took nothing from the apartment. See
O'Laughlin III, 568 F.3d at 306. But as the SJC explained, this
motive was not negated by the fact that the assailant ultimately
took nothing. It held that the attacker could well have been
frightened off before he took anything by the sounds of the
upstairs neighbor speaking with the police on the phone as the
attack took place. See O'Laughlin II, 843 N.E.2d at 627 n.11.
This explanation is quite reasonable and has evidentiary support.
Indeed, a reenactment of the police phone call demonstrated that a
person in Kotowski's apartment could hear the neighbor walking
around upstairs and speaking on the phone. And the location where
the police found Kotowski's purse also supports this theory.
The panel opinion also attempts to dismiss the SJC's
finding that O'Laughlin had the means to commit the crime because
he had a master key and there were no signs of forced entry by
saying that others had a master key and that the victim could have
let her assailant into the apartment. See O'Laughlin III, 568 F.3d
at 302. These alternative explanations are, of course, possible.
But to credit them requires that the court draw inferences against
the jury's verdict, which it may not do under Jackson. And in any
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event, these alternative theories in no way diminish the SJC's
finding that O'Laughlin had the means to commit the crime.
There is no need to catalog the entire array of the panel
opinion's disagreements with the SJC's rational inferences.
Instead, I will focus on the panel opinion's primary disagreement
with the SJC, which relates to the appropriate weight to give the
evidence of O'Laughlin's consciousness of guilt. The SJC
characterized this as the strongest evidence of O'Laughlin's guilt.
See O'Laughlin II, 843 N.E.2d at 627-28. The panel opinion,
however, found this evidence "minimally probative." O'Laughlin
III, 568 F.3d at 303.
The SJC's conclusion that there was strong evidence of
consciousness of guilt is both correct and entirely supported by a
reasonable application of Jackson. O'Laughlin gave the police a
series of differing accounts as to his activities that night, which
a jury could easily conclude were untrue and implausible. The jury
could reasonably infer the following. When the police first
encountered O'Laughlin after 2:00 a.m. outside in his boxer shorts
in near-freezing weather,4 O'Laughlin appeared "uneasy and distant"
and lied to the police by saying that he was asleep and had been
4
The prosecution argued that O'Laughlin came outside wearing
only boxer shorts on such a cold night because he had stripped off
his bloody clothes just before the police arrived. After the
police left that night, O'Laughlin had several hours during which
he could have disposed of any bloody clothing and any weapon before
the police returned the next morning.
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awakened by the sound of screaming. When O'Laughlin was asked
where the screaming was coming from after the police were unable to
locate unit 202, O'Laughlin altered his position and said he
thought the screaming might have been a racoon that had gotten
stuck in the dumpster and explained that he had placed a stick in
the dumpster to allow the animal to escape. This misdirection,
along with O'Laughlin's failure to inform the police of the
apartment complex's new unit numbering, distracted the police away
from the victim's apartment.
The next day, O'Laughlin gave the police a different
account, saying that he had been asleep but was awakened by the
sound of the police cruisers arriving (not screaming) and so went
out in the freezing cold nearly unclothed. He later again
recharacterized his actions, claiming again to have been sleeping
until he was awakened by screaming from animals (foxes or racoons)
fighting.
In fact, O'Laughlin's telephone records indicated that he
had been on the phone frequently just minutes before the police
arrived. His accounts that he had been sleeping were a lie.
O'Laughlin later also lied in order to explain away those phone
calls in a letter he sent to the building manager, saying that an
intruder into his unit had placed those calls from his apartment
while he slept. A jury could reasonable conclude that O'Laughlin's
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shifting stories and overt lies demonstrated a strong consciousness
of guilt.
Also damning are O'Laughlin's efforts to remove what he
described as a blood stain from the door of his closet. When
police noticed the stain and requested to take a sample, O'Laughlin
withdrew his consent to have his apartment searched. After the
police left, O'Laughlin wiped up the stain with his finger and
saliva.
It was only when the police returned to his apartment and
threatened to get a search warrant that he consented to allow the
police to search his apartment again. By then, he had wiped away
the stain.
O'Laughlin's explanation that his behavior was motivated
by a concern that the police would discover his drug paraphernalia
could be rationally rejected as entirely inconsistent with the fact
of both consents. Moreover, the police assured O'Laughlin that he
would not be prosecuted for any drug crimes if he voluntarily
surrendered any contraband to the police, further reducing the
credibility of O'Laughlin's explanation for his reluctance.
Whether a state court decision represents an unreasonable
application of clearly established federal law is a difficult
judgment for a federal court to make. The need for better
articulation of the legal standards for making that judgment,
particularly where the record is largely circumstantial, in my
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view, constitutes an appropriate basis on which to grant en banc
review.
C. The Panel Opinion's Method of Analysis
More fundamentally, the panel opinion's method of
analysis sets a dangerous precedent because it draws inferences
against the jury's verdict and it takes a piecemeal approach to
analyzing the evidence. That is, the panel opinion's approach to
the sufficiency question in operation amounts to a de novo
assessment of the record through which the court substitutes its
own independent assessment of the record for the jury's evaluation.
This sort of analysis should be foreign to an appellate court,
which has access only to a cold record. And it is a particularly
dangerous exercise in a case like this, where much of the
prosecution's case depended on the testimony of witnesses and an
assessment of the credibility of those witnesses.
Under Jackson, an appellate court considering a
sufficiency challenge is not on an equal footing with the jury.
Instead, "the factfinder's role as weigher of the evidence is
preserved through a legal conclusion that upon judicial review all
of the evidence is to be considered in the light most favorable to
the prosecution." Jackson, 443 U.S. at 319 (emphasis in original).
The panel opinion, however, fails to respect the role of
the jury in deciding which evidence to credit and what reasonable
inferences to draw from that evidence. For example, the panel
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opinion rejected the reasonable inference that Kotowski's assailant
fled before taking anything of value from the apartment because he
heard her upstairs neighbor on the telephone with the police.
Instead, the panel held that "no rational juror could conclude that
the placement of this phone call frightened him off given the
volume and duration of Mrs. Kotowski's screams." O'Laughlin III,
568 F.3d at 302. Although it would be entirely permissible for a
jury to resist drawing this inference, an appellate court applying
the Jackson standard does not have the freedom to pick between
competing reasonable inferences in this manner. See, e.g., United
States v. Ortiz, 447 F.3d 28, 34 (1st Cir. 2006) (recognizing that
"competing inferences are not enough to disturb the jury's
verdict," even in a case where the evidence of the defendant's
guilt was "entirely circumstantial").
The panel opinion's method of analysis suffers from a
related defect to the extent that it dismisses pieces of evidence
by treating them in isolation, instead of considering the totality
of the evidence together. For example, the panel opinion resisted
concluding that a reasonable jury could consider that the aluminum
baseball bat that the police found in the woods twenty-five yards
from Kotowski's apartment was evidence of O'Laughlin's guilt. The
panel dismissed this because "any bat likely would have been
consistent with her injuries" and because the upstairs neighbor had
described sounds like wood hitting on wood. O'Laughlin III, 568
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F.3d at 302. But the fact that Kotowski's injuries were consistent
with being beaten with a baseball bat is only one of the facts that
would have permitted a rational juror to conclude that the bat
which the police found was the assailant's weapon. The panel's
analysis ignores several other key facts relating to the bat, which
had been found in close proximity to the scene of the crime.
O'Laughlin's name was inscribed on it, and O'Laughlin was closely
tied to the crime by the prosecution's other evidence of his
motive, means, and consciousness of guilt. The bat was hidden
under some leaves and debris as though someone had tried to
carefully conceal it. And the bat was otherwise clean, suggesting
that it had not been in the woods for long and had been cleaned
off.
This model of effectively performing de novo review
rather than drawing inferences in favor of the verdict, if widely
adopted, would have unfortunate consequences. It calls for
appellate courts to make determinations that are well beyond the
institutional capacity of a court to do working from a cold record.
And it conflicts with the usual rules of finality, effectively
giving criminal defendants multiple opportunities to make their
case in the first instance. Indeed, the government is particularly
prejudiced when we overreach to decide these cases on sufficiency
grounds because principles of double jeopardy prevent the habeas
petitioner from being retried. See Evans v. Thompson, 518 F.3d 1,
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7 (1st Cir. 2008) ("Sometimes double jeopardy principles mean the
habeas petitioner is simply released, as is done when the evidence
of guilt is insufficient.").
III.
Sufficiency questions are inherently fact-bound, and so
my disagreement with the panel opinion may appear, at first glance,
to be a dispute over these facts with few implications beyond this
case. But my concerns with the panel opinion run far deeper than
that. In my view, the panel's implicit adoption of the "reasonable
speculation" standard impermissibly alters our circuit's approach
to sufficiency questions, substantially disadvantaging whole
categories of cases -- like domestic and acquaintance violence
prosecutions -- where the government's evidence is largely
circumstantial. And the panel's approach sets a dangerous
precedent to the extent that it deviates from the narrow role
Congress envisioned for federal habeas review under AEDPA by
substituting the federal court's own independent assessment of the
facts for the state court's.
We have previously granted en banc review to address
similarly important questions relating to the contours of federal
habeas review, see, e.g., McCambridge v. Hall, 303 F.3d 24 (1st
Cir. 2002) (en banc), and I would do so again here. Thus, with the
greatest respect for my colleagues, I dissent from the denial of en
banc review. See United States v. Rivera, No. 95-2186, 1996 WL
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338379 (1st Cir. June 18, 1996) (Lynch, J., dissenting from the
denial of en banc review).
"Concurring Opinion Follows"
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TORRUELLA, Circuit Judge, with LIPEZ, Circuit Judge,
Concurring in the denial of en banc review. I am forced to comment
on the dissent from the denial of en banc review because it
mischaracterizes the reasoning of the unanimous panel opinion, an
opinion which neither articulates nor applies a sufficiency of the
evidence test inconsistent with the Supreme Court's clearly
established law under Jackson v. Virginia, 443 U.S. 307 (1979). To
suggest that the panel opinion adopts "reasonable speculation" as
some sort of binding "legal rule" is incorrect. We do not even
mention the term in the section where we discuss the constitutional
right asserted -- a section entitled "The Jackson Standard,"
O'Laughlin v. O'Brien, 568 F.3d 287, 300-02 (1st Cir. 2009) -- and
we consistently apply the Jackson standard to the facts of this
case. When read in context, our use of the term "reasonable
speculation" merely frowns upon speculative evidentiary
interpretations and in no way suggests that we disfavor the use of
circumstantial evidence. In fact, with respect to this latter
point, we explicitly state that "direct evidence of identification
is not necessary," id. at 301 n.17, and quote our prior precedent
affirming the use of circumstantial evidence, id.In addition, the dissent mistakenly contends that the
panel opinion engages in a piecemeal examination of the evidence.
Our approach to deciding whether a jury could conclude that the
evidence was sufficient to identify O'Laughlin as the assailant
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under Jackson is based on looking at the evidence as a whole. We
begin and end our discussion of this evidence by stating that we
consider the evidence in its totality. See id. at 302 ("Taken
together, the circumstantial evidence in this case, even when
drawing all reasonable inferences in favor of the prosecution, does
not permit any rational jury to conclude that O'Laughlin was the
assailant beyond a reasonable doubt."); id. at 304 ("Given the
insufficiency of the evidence, circumstantial or otherwise, tying
O'Laughlin to the attack, we conclude that a rational jury could
not find O'Laughlin's guilt beyond a reasonable doubt."). In order
to arrive at our conclusion that the evidence in its totality is
not sufficient to permit a rational jury to find O'Laughlin's guilt
beyond a reasonable doubt, we necessarily had to consider the
factors the SJC weighed, namely evidence supporting O'Laughlin's
motive, opportunity, means, and consciousness of guilt. This is
consistent with how we have dealt with sufficiency issues in the
past. See, e.g., Leftwich v. Maloney, 532 F.3d 20, 25-27 (1st Cir.
2008).
Finally, the dissent's contention that the panel opinion
engages in a de novo review of the record is plainly wrong. The
opinion recounts the facts as presented by the SJC and holds,
drawing all reasonable inferences in favor of the prosecution, that
the SJC was objectively unreasonable in concluding that O'Laughlin
was the assailant beyond a reasonable doubt. This approach was not
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legal error. The bottom line is that we read the record
differently than the dissent, not that we apply the wrong legal
standard.
As we state in the panel opinion, we fully appreciate
"the great degree of deference state court judgments are due,
especially those that uphold jury verdicts," O'Laughlin, 568 F.3d
at 300, and "the extremely high bar that must be overcome on habeas
review," id. at 304. Despite this hurdle, however, in rare
instances there are fact-intensive cases where a state court's
determination as to guilt beyond a reasonable doubt is so incorrect
as to be objectively unreasonable. A unanimous panel agreed that
this is such a case.1 With the utmost respect to our dissenting
colleague, the en banc court is correct in its decision to deny the
petition for rehearing.
1
We also note that the Massachusetts Appeals Court, while
admittedly applying a different standard on direct review,
overturned O'Laughlin's conviction, concluding that there was
insufficient evidence to support the jury's verdict.
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