Issues: (1) Must intermediate appellate courts apply the circumstantial evidence instruction to their weight of the evidence analysis? (2) Did the Second Department fail to do that here? (3) Is it humanly possible to read the four opinions in this case without falling asleep?

Held: (1) Yes. (2) No. (3) I was just resting my eyes what time is it where’d everybody go?

CAL Observes: A majority of the Court, led by Judge Halligan, agreed held that the appellate division, when conducting a weight of the evidence review of a conviction based upon purely circumstantial evidence must “satisfy itself” that “the inference of guilt is the only one that can be fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence.”

That was a good start, but things when downhill from there. The majority then concluded that the Second Department’s decision did not manifest a failure to correctly apply that principle even though the decision stated that “it was reasonable” for a jury presented with only circumstantial evidence to conclude the defendant was guilty.

As Judge Wilson pointed out in dissent, that seems like a pretty darn clear manifestation that the court did not apply the rigorous “moral certainty” analysis applicable in circumstantial evidence cases. At best, in a case where the parties fiercely litigated question 1 above, the appellate division should have been clearer about what it was doing.

Judge Garcia agreed that the appellate division didn’t expressly apply the circumstantial evidence test but concurred because he doesn’t think judges need “guardrail[s]” of that sort. He criticized the majority’s use of the phrase “satisfy itself,” more “colorful but inaccurate” language (like “second jury” and “thirteenth juror.”) that mucks up the “precise” approach of a “unique” review power. “Today’s guidance to intermediate appellate courts,” he concludes, “may just be ‘the less said the better.’ With that, everyone will be satisfied.”

It’s a cute turn of phrase, but we’re not sure what he means by “everyone.” Criminal defendants and their advocates, who are already often deeply skeptical that our overburdened intermediate appellate courts are not diligently conducting careful review of the facts, surely won’t be satisfied with opinions that say less about that process.