UPDATE, April 9, 2012: Governor Jerry Brown commuted the sentence for Shirley Ree Smith, at left, given 15 years to life for felony child endangerment in the controversial "shaken baby" case, to the time she has already served behind bars — almost ten years, according to her lawyers, who now will try to get the conviction overturned, reports the SCOTUS blog.
Last month, ProPublica Communications, along with National Public Radio, uncovered a new analysis of the evidence by a senior pathologist in the Los Angeles County coroner’s office, finding repeated errors in the original coroner’s report on the death of 7 week-old Etzel Glass, Ms. Smith’s grandson. That news report also referred to the spreading national debate over whether some forms of illness in infants can mimic signs of “shaken baby syndrome” in cases in which the child was not treated violently.
Read below for previous reports:
UPDATE, March 30, 2012: Medical authorities continue to disagree over the direct cause of an infant's death in 1996, as new reports are filed in Sacramento for the governor's clemency hearing. As reported by Carol J. Williams in today's Los Angeles Times:
A review of the evidence against Shirley Ree Smith was ordered to assist Gov. Jerry Brown as he weighs whether to commute Smith's sentence of 15 years to life. Smith has already spent 10 years in prison for the death of baby Etzel Glass at a Van Nuys apartment on Nov. 30, 1996.
Smith, 51, has been free since the U.S. 9th Circuit Court of Appeals threw out her conviction in 2006, saying there was "no demonstrable support" for the prosecution's theory that she shook the baby to death.... Los Angeles County Dist. Atty. Steve Cooley asked two senior deputy medical examiners and Harbor-UCLA Medical Center pediatrics Vice Chair Carol Berkowitz to review all evidence and testimony from Smith's 1997 trial.
All three physicians offered new theories on the potential cause of death that Smith's attorneys contend "gravely undermines the prosecution's theory at trial" that Smith must have shaken the infant violently, perhaps to stop him from crying. Two of the three doctors, however, cited support for the prosecution's position that a small head injury was the result of abuse at some time during the infant's short life.
Smith's attorneys, Michael J. Brennan and Dennis Riordan, cited the report by Senior Deputy Medical Examiner Dr. James Ribe that raised eight challenges to the 1996 autopsy findings and concluded that the cause of death should have been listed as "undetermined."
Ribe pointed out "the complete absence of bodily trauma" on the infant and the presence of blood spots in the infant's lungs now linked to sudden infant death syndrome, according to his report. He also suggested that a small scar on the baby's head was probably incurred at birth rather than as a result of an abusive blow.
The other deputy medical examiner asked to review the case, Eugene Carpenter, was one of the two coroner's officials who testified for the prosecution at Smith's trial. Carpenter said there was "no reasonable doubt as to the cause of death" from a violently inflicted brain injury but offered an opinion not mentioned at trial that "blunt head trauma to a hard padded surface can't be ruled out."
Smith told investigators that on the night of the baby's death, he had slipped off the couch where he had been sleeping, but that he appeared to be uninjured and she set him back on the cushion. Carpenter and other prosecution witnesses testified at Smith's trial that such a short fall onto a carpeted living room floor couldn't have been fatal....
Previously reported on this story:
October 31, 2011: In what Bill Mears of CNN called a "final, stinging rebuke," the US Supreme Court today issues an unsigned opinion (6-3) stating that the 9th Circuit U.S. Court of Appeals (California) "plainly erred in concluding the jury's verdict [that the then-37-year-old grandmother, Shirley Ree Smith, at left, was guilty of "assault on a child resulting in death'] was irrational." In today's announcement, Justices Ginsburg, Breyer, and Sotomayor opposed the majority's opinion.
Prosecutors alleged Smith lost her temper and violently shook [7-week-old] Etzel Dean Glass III when he woke up crying and in need of a diaper change in Van Nuys, California, in 1996. The boy's mother had put him to sleep on a sofa, and the grandmother was sleeping on the floor next to Etzel.
...the boy, his mother, grandmother and two siblings were spending the night at the Van Nuys apartment of the baby’s great aunt. The prosecution relied upon three medical analysts’ conclusion that the baby had died from “shaken baby syndrome,” while two medical analysts for the defense argued that the medical evidence about how the baby had died was inconclusive. The prosecution theory was that the grandmother had shaken the baby so violently that it caused his death.
Again, from CNN: An initial diagnosis of sudden infant death syndrome (SIDS) was changed to shaken baby syndrome (SBS) after an autopsy. That conclusion formed the basis of the government's case, but was strongly challenged by the defense... Smith...was sentenced to 15 years to life.
After subsequently losing in state courts, Smith's lawyers asked for a federal appellate review. The San Francisco-based 9th Circuit overturned the conviction, saying her case was probably a "miscarriage of justice." In one opinion, the judges ruled government experts "reached [their] conclusion because there was no evidence in the brain itself of the cause of death."
That assessment, said the [Supreme Court] "is simply false. There was evidence in the brain itself ... these affirmative indications of trauma formed the basis of the experts' opinion that Etzel died from shaking so severe that his brainstem tore."
A key government witness, Dr. David Chadwick of the San Diego Children's Hospital and Medical Center, testified the child suffered brain contusions that bled into his optic nerves, a result of a "violent shaking," and that death occurred quickly after the trauma began.
Smith, released after 10 years in prison after the appellate court decision five years ago, has been living at the Russ Hotel on LA's skid row. In December, the Los Angeles Times did a feature story on the case; it can be read here. Smith will now be returned to prison to complete her sentence.