Tag Archives: Shirley Ree Smith

“Dissent Into Confusion:” The Supreme Court, Denialism, and Shaken Baby

Atlanta, Georgia, September 2010

Atlanta, Georgia
Site of the 11th International Conference on Shaken Baby Syndrome/Abusive Head Trauma
September 2010

bold article in the Utah Law Review by Prof. Joëlle Anne Moreno at the Florida International University College of Law and prosecutor Brian Holmgren in Tennessee not only dismisses the debate about shaken baby syndrome as a “false controversy” but also labels SBS defense experts as “mercenaries” and roasts Supreme Court Justice Ruth Bader Ginsburg for her dissenting opinion when the court reinstated the vacated conviction of grandmother Shirley Ree Smith in 2011.

Dissent Into Confusion:  The Supreme Court, Denialism, and the False ‘Scientific’ Controversy Over Shaken Baby Syndrome” explores a couple of topics I’ve heard Holmgren address in the past, and it reminds me of his rollicking presentation in Atlanta in 2010, which I will get to later in this posting.

The Dissent paper correctly identifies the 1997 trial of British au pair Louise Woodward as a  milestone in the arena, achieving far more than just bringing the syndrome into the headlines:

“The hotly contested trial also brought national attention to the use of highly paid defense medical witnesses to challenge the accuracy of a child abuse diagnosis and to advance outlier and highly controversial ‘alternative theories’ of causation… Woodward marks the origin of the false AHT/SBS controversy—at least in part because the defendant, who was convicted of second-degree murder by a jury, was later freed by the judge.  This fact alone could explain the resulting public uncertainty regarding the weight of the prosecution’s medical evidence. Irresponsible journalists, however, including Mike Wallace of 60 Minutes, exacerbated the confusion.”

scalesI agree that the Woodward trial brought a new kind of medical evidence to the courtroom. The au pair agency that had placed the nanny paid for first-rate attorneys, who brought in experts with impeccable credentials. In his decision to set Woodward’s sentence at time served, Judge Hiller Zobel cited the nanny’s confusion, inexperience, and immaturity. I have to wonder if he wasn’t also influenced by the testimony of witnesses like biomechanics pioneer Lawrence Thibault, ScD, who had designed the experimental mannequins for the Duhaime research that raised the first scientific questions about shaking theory in the 1980s. The televised trial featured a better organized and articulated defense than the 1997 trial that drew me into this arena, or any  of the others I’ve researched from that era, including Shirley Ree Smith’s.

As in Woodward, the prosecution prevailed in Smith, only to see the defendant released after all, amid media coverage that seemed to imply innocence. Smith was convicted in 1997 but released in 2006, after the Ninth Circuit  Court of Appeals vacated the jury’s decision. The Supreme Court reinstated her conviction in 2011, but the following spring California Gov. Jerry Brown issued a pardon, so Smith was not required to return to prison and finish her sentence.

Moreno and Holmgren promise to set the record straight by dispelling what they see as two fundamental errors in the dissenting opinion to the Supreme Court decision:  that Smith’s grandson Etzel Glass showed “few signs of SBS” and that “doubt has increased within the medical community regarding SBS.”

“Few signs of SBS”

-photo by Julia Catron

-photo by Julia Catron

I found nothing in the Dissent paper to contradict Etzel’s autopsy report, which documented fresh and old subdural blood and fresh subarachnoid blood, but no brain swelling and no retinal hemorrhages. Doctors also found blood in the optic nerve sheaths, most of it “recent in origin” but with “occasional hemosiderin pigment deposits” that implied decomposed blood.

Only one of these signs—subdural hematoma—is technically on the short list of defining SBS symptoms, although the optic-nerve-sheath and subarachnoid bleeding are certainly signs of something.

Forensic pathologist Dr. Stephanie Ehrich; her supervisor Dr. Eugene Carpenter; and child-abuse pediatrician Dr. David Chadwick, namesake of the Chadwick Center for Children and Families at Rady Children’s Hospital of San Diego, all testified that Etzel had died of a shaking assault that tore his brainstem, causing death so immediate that there was no time for the usual signs of SBS to develop.

Autopsy revealed no evidence of any tears, which apparently Erlich believed to be within the brainstem. Moreno and Holmgren write:

“Dr. Erlich noted that she did not submit sections of Etzel’s brainstem for microscopic examination because injury would not be evident on microscopic examination if the child died quickly, and this would not have assisted in her diagnosis because the examiners ‘wouldn’t have found anything anyway.’”

The authors note that the “medical construct” of AHT “can include subdural hemorrhage, retinal hemorrhage, encephalopathy, and often evidence of previous trauma or other bodily injury.” Granted that Etzel had two items on this list, subdural hematoma and evidence of previous trauma, the overall picture is still short two out of three defining features for SBS. The authors do convince me that they and the prosecution experts all sincerely believe Etzel was shaken to death, but I can identify only one leg of the triad and no reason to conclude that Shirley Smith was responsible for her grandson’s collapse. Did Etzel really cry long and hard enough that his grandmother snapped and shook him to death while his mother, asleep in the next room, never heard a thing?

“Doubt Has Increased”

The Dissent paper also blasts the Edmunds decision, which triggered the 2009 critique of shaken baby in the courtroom by law professor Deborah Tuerkheimer and appears in articles like the 2012 paper by Keith Findley et al. The authors explain:

“Justice Ginsburg notably did not cite any of these law review articles. However, because her opinion closely mirrors these works, she grants an unwarranted imprimatur of legitimacy to legal academic arguments that SBS ‘quite possibly does not exist,’ may be ‘junk science,’ that ‘SBS science in its current conflicted state . . . does not support criminal convictions,’ and that the medical community has ‘deliberately discarded a diagnosis defined by shaking.’”

Moreno and Holmgren attribute the imaginary debate about shaken baby syndrome to a small cadre of “self-interested and highly-paid defense witnesses” who “fundamentally misconstrue and misstate the basic science involved in the medical diagnosis of child abuse” and whose views are then parroted by academics:

“The academics cite the same handful of defense medical witnesses, the media cites both, the defense medical witnesses benefit from the publicity and are hired in more cases, and the cycle begins anew.”

Holmgren elaborated on this theme at the 2010 NCSBS conference, in a multimedia presentation that illustrated how effective he must be in front of a jury. He projected a series of quotes from defense expert testimony while Pinnochio’s nose grew on a larger screen behind him. He charged the witnesses with giving conflicting opinions at different times, misrepresenting their qualifications, misquoting the literature, publishing case studies without revealing their roles as defense witnesses, publishing cases of alleged mimics without revealing that abuse was confirmed by a conviction, and “making blatantly false statements.”

scarecrowThe session ended with a sing-along, led by guitar-playing child-abuse pediatrician Dr. John Stirling from Santa Clara County. The song was “If I Only Get Ten Grand” sung to the tune of “If I Only Had a Brain,” with the message that defense experts are in it only for the money.

I can speak only from my own experience, but the professionals I know who defend against shaking allegations could  be earning more money and taking a lot less flack by applying their skills in a less hostile arena. And most defendants are having trouble paying the rent in the face of lost income and unexpected legal costs, let alone coughing up money for expensive experts.

Holmgren also foreshadowed parts of the Disssent paper in his presentation on the Smith case at the 2012 NCSBS conference, “SBS and the Supreme Court,” in conjunction with child-abuse pediatrician Dr. Randell Alexander.

Holmgren opened his segment with a review of the appeals:  Smith was convicted in 1997, and her first appeal was rejected in 2000. Her 2006 habeas petition was denied by a district court, but the Ninth Circuit Court of Appeals reversed that decision. “This always bothers me,” Holmgren said about multiple appeals, “as if the jurors are too stupid to get it right, as if the district attorney is too stupid to get it right.” The Supreme Court reversed the Ninth Circuit twice, in 2007 and 2010, but the Ninth Circuit stuck by its decision. “The Supreme Court keeps slapping them down like an unruly child,” Holmgren noted.

Finally, in 2011, the Supreme Court definitively reversed the Ninth Court’s 2006 ruling, and Smith’s conviction was reinstated, but with the problematic minority opinion. Holmgren stepped through the literature cited in the footnotes—Donohoe 2001, Bandak 2005, Leestma 2006, and so on—dismissing each in turn, and indignant that a justice of the supreme court would be getting her information from defense experts.

His conclusion with Moreno in the Dissent paper confirms that Holmgren is holding strong to that position:

“The Smith dissenters’ myopic view of the evidence muddies their analysis of the legal and scientific questions and raises real concerns about the message sent to future courts, the media, and the public.”

I’m guessing that the critics of shaken baby syndrome will write a rebuttal, as happened with the 2012  Daubert Analysis  by physician and attorney Dr. Sandeep Narang and the response from attorney Keith Findley et al.

I don’t see how the Dissent paper is gong to enhance either understanding or justice in these cases, as I think we need to be learning more about infant head injury, not setting up barricades against further discussion.

©2014 Sue Luttner

If you are not familiar with the debate surrounding shaken baby syndrome, please see the home page of this site.

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Arizona Father Freed: Dawn of a Sunnier Era?

Drayton Witt and his wife
Courtesy Arizona Justice Project

After four years of hard work by a team of pro bono attorneys and physicians, the state of Arizona agreed last week to vacate the second-degree murder conviction of Drayton Witt, a young father whose 5-month-old son Steven had suffered a lifetime of medical problems before his final, catastrophic seizure in June of 2000.

Witt’s case was way beyond a triad-only conviction:  Not only did the autopsy reveal no abrasions, grip marks, fractures, or other signs of assault, but the child had been born in respiratory and neurological distress, with the umbilical cord wrapped tightly around his neck, followed by a relentless series of infections, fevers, and bouts of vomiting. A month before his meltdown, Steven spent 6 days in the hospital because of seizures that were never explained, and incompletely controlled with medication.

Prosecution doctors at Witt’s 2002 trial rejected the importance of Steven’s medical history, however, and testified that the presence of the triad proved he had been shaken immediately before he fell unconscious while in the care of his father.

Last year the Arizona Justice Project showed Steven’s medical records to other experts,* who unanimously rejected the shaking diagnosis. Several of them independently noted evidence of venous thrombosis.

Then the attorneys showed these reports to the medical examiner who conducted the original autopsy, and asked him to reconsider his 2002 testimony. In a declaration submitted in February of 2012, Dr. A.L. Mosley noted that medical thinking has changed about the significance of the triad and concluded:

Steven had a complicated medical history, including unexplained neurological problems. He had no outward signs of abuse. If I were to testify today, I would state that I believe Steven’s death was likely the result of a natural disease process, not SBS.

Prosecutors could still recharge Witt, but he has been released from prison for now, with no bail, house arrest, or electronic monitoring.

The vacation of Witt’s conviction joins a handful of other victories for the doctors and lawyers who are fighting for justice in SBS cases, beginning with the reversal of the Audrey Edmunds conviction in 2008 and including the commutation of Shirley Smith’s sentence earlier this year. Witt’s case was pressed by the Arizona Justice Project, a member chapter of the Innocence Network, which has started looking at child-death cases within the past few years. I look forward to more successes.

Emily Bazelon published this article in Slate about Drayton Witt while the case was still under appeal. The Wrongful Convictions Blog posted this item that names the attorneys.

*Forensic pathologist Dr. John Plunkett, pediatric radiologist Dr. Patrick Barnes, neuropathologist Dr. Waney Squier, pediatric opthalmologist Dr. Horace Gardner, biomechanic John Lloyd, PhD, and retired pediatric neurosurgeon Dr. A. Norman Guthkelch, the first person to suggest in writing that shaking an infant could produce subdural hematoma, in a 1971 article in the British Medical Journal. The Witt case is the one Dr. Guthkelch was talking about in the interview on NPR a year ago, when he said, “I wouldn’t hang a cat on the evidence of shaking as presented.”

If you are not familiar with the debate surrounding shaken baby syndrome, please see the home page of this site.

-Sue Luttner

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Surfing the Web With Shirley Smith

Governor Jerry Brown’s decision earlier this month to commute the sentence of Shirley Ree Smith has given shaken baby syndrome another run in the news, where the coverage shows a new awareness of the changing landscape.

The day after the announcement, for example, NPR reporter  Joe Shapiro said on a segment of All Things Considered,  “now doctors and scientists  have a better understanding of other causes . . . that can mimic the signs of child abuse.”

In an excellent piece on ProPublica, reporter A.C. Thompson found room in the second paragraph to mention the new, conflicting analyses of the medical evidence released a few days before the clemency announcement.  Los Angeles District Attorney Steve Cooley had asked for expert reviews of the evidence in Smith’s case, and he received three quite different reports, two of them raising questions about the conviction.

From the District Attorney's letter to Governor Brown

The ProPublica web site has also posted a fascinating document, the letter from District Attorney Steve Cooley to Governor Jerry Brown, sent in January while Brown was considering the request to commute Smith’s sentence. The main point of the letter is not Smith’s guilt or innocence, but, as the letter puts it, “the current state of the science that forms the foundation for Abusive Head Trauma (AHT, which was formerly, colloquially referred to as Shaken Baby Syndrome (SBS)).” Cooley cites informational materials from the U.S. Department of Health and Human Services, a journal article, and a legal decision to support his point that “AHT is widely accepted by both the medical and legal communities as a diagnosis and cause of death.”

Which strikes me as irrelevant to both Shirley Smith’s case and the debate surrounding shaken baby syndrome. The question at hand is is:  Does the evidence prove that Etzel Glass died from a shaking assault? The larger question is:  Does intracranial injury prove abuse without other signs of violence?

Presumably the letter to Governor Brown was drafted in response to the statement in support of clemency  submitted by Ms. Smith’s attorneys in December. Although that document does quote from Supreme Court Justice Ruth Bader Ginsburg’s minority opinion in the Supreme Court decision, the bulk of the document addresses the evidence in Smith’s case. I have to conclude that the main goal of Mr. Cooley’s letter was to head off any reference by Governor Brown to the debate surrounding a diagnosis of shaking.

Brown’s commutation order did not in fact reference the wider debate, although it did quote Justice Bader’s minority opinion in the Supreme Court decision that “there has very likely been a miscarriage of justice in this case.”

Los Angeles Times reporter Carol J. Williams quoted from both Cooley’s letter and the new, conflicting reviews of the evidence in her follow-up story that ran the day after the governor’s announcement. That treatment also reveals a little bit more about Smith, who found herself homeless in Los Angeles for a time after her release from prison, because she was not allowed to leave the state and therefore could not rejoin her daughter and grandchildren in Illinois.

The day of the announcement, Emily Bazelon at Slate wrote a quick but thorough piece concluding that  Smith’s case could give other innocent people in prison “a shot at getting their lives back.” Bazelon reiterated her position from the  winter 2011 article  in The New York Times Magazine, that “the science underlying shaken-baby prosecutions is shifting, with critics arguing that alternative explanations are not adequately explored. But a new concensus—legal or scientific—hasn’t yet emerged from the bitter fight, in some cases, over the diagnosis.”

In the on-line ABA Journal coverage, reporter Martha Neil wrote, “Smith’s case is one of a number of convictions in which evidence once thought to be determinative concerning shaken-baby deaths is now being questioned.” The two reader comments that made it past the moderator have both been in support of the commutation.

Shirley Smith is now living with her daughter in Minnesota, where CBS News in Minneapolis ran a touching interview that did not address the medical issues, and a CBS/Fox station prepared a feature segment that was even briefer. Neither posting on the internet seems to have received reader comments.

The Associated Press syndicated a story, picked up at least by USA Today, that did not refer to the larger debate but did cite a number of statements in Smith’s favor.

SFGate in San Francisco posted the Chronicle’s coverage, which evoked both positive and negative reactions from readers. The piece was short, but reporter Bob Egelko summarized the situation surrounding both Smith’s case and the larger question in one accurate paragraph:

Recently, however, a pathologist in the coroner’s office reviewed the case and found little evidence of traumatic injury. Some researchers have also questioned the validity of shaken-baby syndrome, a term doctors have used for 40 years to describe often-fatal head injuries suffered by small children with no outward signs of abuse.

A site called The Inquisitr pulled together an article of its own from a number of sources. For whatever reason, maybe the unfortunate headline, reader comments on that site have been 100 percent negative.

Blogger Kate Jane posted a short piece asking for reader comments, which hasn’t received much response.

I doubt I’ve found them all.  Please let us know if you come across something interesting I’ve missed.  Thanks.

-Sue Luttner

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Clemency Granted for Shirley Smith

Governor Jerry Brown commuted the sentence this morning of Shirley Ree Smith, whose case will remain a landmark in the arena. Shirley and her family are jubilant, of course, even though her conviction stands.

“I’ve been waiting so long for this day,” she said on the telephone this afternoon, “I can’t believe it’s finally here.”

Shirley said she was especially grateful to the people who helped her, directly and indirectly. “I would like to thank everyone who stood in my corner and fought for justice with me all these years,” she said, “I did not have to stand alone.”

Justice is not complete, Smith conceded, as she still has a criminal record, “but I can get on with my life now, and the story will help people find out what’s going on with shaken baby syndrome.”

In an interview in January, while waiting for the results of the clemency petition, Shirley’s daughter Tomeka Smith reflected, “In a way we don’t want the clemency, because that means she’s done something wrong and she needs to be pardoned. That’s sad. That’s not what she wants.”

This morning, though, when the phone call came from the attorney, “We were all clapping and jumping and shouting and hugging, the whole family,” Tomeka said, adding, “Still, we’d like to see something official, a piece of paper, to let us know it’s really over.”

As followers of this blog know, Shirley Smith was convicted in 1997 for assault on a child resulting in death. The child was Etzel Glass, Tomeka’s youngest, 7 weeks old at the time. The family was staying with relatives and Shirley was sleeping in the living room with her grandchildren, while Tomeka slept in the bedroom a few feet away. Shirley says she found Etzel unresponsive at about 3 am and brought him in to Tomeka, who called 911.

At the hospital, doctors found only one of the three signs usually used to diagnose infant shaking:  subdural hematoma. At Smith’s trial, Dr. Eugene Carpenter and Dr. Stephanie Ehrlich from the Los Angeles County coroner’s office testified that Etzel had died instantly when his brainstem was torn during a shaking assault, leaving no time for the other symptoms to develop.

Smith has had the full support of her family, from the moment a social worker first raised the question of abuse. “Of course my mom is innocent,” Tomeka said in January. “She would never hurt one of her grandkids.”

Smith served a decade in prison before the Ninth Circuit Court vacated her conviction on appeal in 2006, declaring the evidence against her constitutionally inadequate. Since then she has been out of prison but constrained in her movements while the state appealed the circuit court’s decision.

That appeal reached the Supreme Court this past fall. The high court reinstated her conviction, but in a ruling that didn’t address her guilt or innocence: their argument was that the appeals court should not override a jury’s decision. The written opinion even recognized that doubts about her guilt are “understandable,” and it contained a potent dissenting opinion from Justice Ruth Bader Ginsburg that outlined the substantial medical evidence against the traditional model of shaken baby syndrome. (The full opinion is available at this link.)

Through it all, Shirley Smith has kept her faith and her spirit, proving the value of a supportive family. DePaul University law professor Deborah Tuerkheimer, a critic of convictions based solely on the triad (see her op ed from fall 2010), recently called Shirley one of the “incredible figures in this saga.”

The LA Times report about today’s clemency announcement contains only the bare facts, but the news is good.

Shirley says she’s already been called by both national and local news teams, so look for more news stories on her case. Her first television interview is this evening.

If you’re not familiar with shaken baby syndrome and the arguments surrounding it, please see the home page of this blog.

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Shirley Ree Smith Update and More

While Governor Jerry Brown considers the clemency request for Shirley Smith, two new physicians have registered conflicting opinions about the cause of her grandson’s death, after Los Angeles District Attorney Steve Cooley requested  a review of the evidence.

The article in the Los Angeles Times about the new developments, by reporter Carol J. Williams,  includes this fascinating paragraph:

In a letter to the governor that Cooley’s office made available, the district attorney said he was mindful of Smith’s lack of criminal history, age and good behavior in prison, indicating that he wasn’t opposed to clemency on “equitable grounds.” But he cautioned Brown against rejecting “the well-documented and widely accepted medical diagnosis, AHT,” saying that would undermine public confidence in diagnoses of child abuse.

I might be starting to understand why the district attorney won’t just admit that the medical facts don’t support a diagnosis of shaking in Smith’s case:  If he concedes that she might be innocent, her trial demonstrates how easy it is for a jury to convict on the basis of sincere but unproven medical opinion.

Williams also posted a blog on the subject at  http://www.latimes.com/news/local/la-me-shaken-baby-evidence-20120330,0,6785859.story

Meanwhile, the Huffington Post has published a poignant update on a tragic case of mistaken child-abuse diagnosis:  Much too late for the parents, victims of an apparent murder-suicide, doctors now acknowledge that the couple’s 3-month-old daughter was suffering from a debilitating genetic disorder.

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Shirley Smith’s Case: NPR, ProPublica, and FrontLine Still Covering SBS

Morning Edition aired a story about Shirley Smith this morning, at http://www.npr.org/2012/03/29/149576627/new-evidence-in-high-profile-shaken-baby-case

ProPublica also has a story posted, with excerpts from the FrontLine interviews:  http://www.propublica.org/article/video-shirley-ree-smith-in-her-own-words

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Can We Help Win a Pardon for Shirley Ree Smith?

christmas cactus blossom

April 6 update:  Governor Jerry Brown has commuted Shirley Smith’s sentence.  Shirley thanks everyone who wrote on her behalf, and I add congratulations to that.

I was expecting to hear by now from California Governor Jerry Brown about a possible pardon for Shirley Ree Smith (case summary), but there’s been no word yet.

Over the weekend, Shirley’s daughter Tomeka Smith told me they’re hoping to hear soon, because in a few weeks her mother will be taken back into custody—-but there’s still time for individuals to contact the governor’s office encouraging the pardon, as detailed below.

The Smith case continues to pop up in the press.  On the bright side:

Distressingly, a bereaved grandmother in Fresno, California, has launched a campaign against the pardon, on the theory that Ms. Smith is guilty. You can read the press coverage here.

Meanwhile, the governor’s office makes it easy for individuals to voice their opinions on these questions.  One click takes you to the contact page, at http://gov.ca.gov/m_contact.php

To make sure your comment is received in time, use the electronic form, which first asks for four pieces of information:  Your first and last name, your email address, and the subject of your comment.  Open the drop-down subject menu and select the “Pardon” item.  The user interface is odd, because you then have to click the “Submit” button before you’re given a text box for comments, but if you soldier on, you can get there.

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Pardon Possible in Smith Case

It’s too early to celebrate, but the Sacramento Bee reports that Governor Jerry Brown is expected to pardon Shirley Ree Smith, the grandmother whose conviction in a shaking case was recently reaffirmed by the Supreme Court:

http://www.sacbee.com/2011/12/29/4150363/calif-gov-brown-weighs-clemency.html

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