Supreme Court Disappoints

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The Supreme Court this week reinstated the 1997 conviction of grandmother Shirley Ree Smith, in the first shaken baby case I’m aware of to have reached the high court.

After following the Smith case for some years, I’m discouraged. The conviction has never made sense to me, logically, medically, or legally.

First, the argument for a motive was especially thin. Shirley Smith was not an isolated caretaker alone with a fussy infant: She was a grandmother on a trip from Illinois with her daughter and grandchildren, staying at her sister’s apartment in Van Nuys, California. Smith was sleeping in the living room with her grandson Etzel, 7 weeks old, and two other children. She claimed she found Etzel limp and unresponsive at 3:20 am, after she was awakened by another child’s nightmare. Panicked, she carried the baby to the next room, where her daughter dialed 911. Everyone in the apartment that night said that Etzel had gone to sleep peacefully on the couch the previous evening. No one remembers hearing him cry during the night.

At autopsy, though, doctors found fresh subdural and subarachnoid bleeding. The boy’s brain was not swollen, his retinas showed no hemorrhages, and everyone agreed the amount of blood was very small. Still, presenting a model of SBS I’ve never heard outside of this case, Dr. Eugene Carpenter and Dr. Stephanie Ehrlich from the Los Angeles County coroner’s office testified that the child’s instant death—caused by the tearing of his brainstem during the assault—had left no time for the other symptoms to develop. The brainstem was not autopsied for signs of shearing because, Dr. Ehrlich explained, “we wouldn’t have seen anything anyway.” Aging subdural blood was also present, but the doctors said that old subdural collections would not rebleed, so the old injury was not relevant.

Shirley Ree Smith was described by her family as a devoted mother and grandmother, always patient with children. Still, she was convicted on only one leg of the triad. One.

Smith was released from prison in 2006, after the Ninth Circuit Court of Appeals reversed her conviction, declaring the evidence against her “constitutionally insufficient.” A few days ago, the Supreme Court reversed that reversal, with the message that the Ninth Circuit had overstepped its bounds. “It is the responsibility of the jury—not the court—to decide what conclusions should be drawn from evidence admitted at trial,” the justices wrote.

Still, there’s some reason for hope, as the text of the decision includes an insightful minority opinion written by Justice Ruth Bader Ginsburg, who quoted papers by Ferris Bandak, Jan Leestma, Waney Squier, and others to support her observation,  “It is unlikely that the prosecution’s experts would today testify as adamantly as they did in 1997.” Before returning Smith to prison, Ginsburg wrote, “I would at least afford her a full opportunity to defend her release from a decade’s incarceration.”

A New York Times blog post presents the decision in its political context—as a slapping down of the Ninth Circuit Court, which is perceived as activist—at The Loyal Opposition.

The Christian Science Monitor has a balanced treatment, of course, at Supreme Court Rebukes Ninth Circuit.

To see the full written opinion, including the minority opinion at the end, go to The Decision.

I’m hoping there will be more to post on this case. If you see or hear coverage in your local media, please consider posting a comment or writing a letter to the editor.

Meanwhile, her attorneys have filed a clemency petition with Governor Jerry Brown.

April 6, 2012 update:  Governor Brown has commuted Shirley Smith’s sentence.  See the April 6 posting.

-Sue Luttner


Filed under abusive head trauma, shaken baby syndrome

12 responses to “Supreme Court Disappoints

  1. Pingback: Finding a Voice, and a Community | On SBS

  2. Pingback: Appeals All Over the Map, as Usual | On SBS

  3. Mindy

    We can’t give up. You would think medical science would try to come up with a cause as to why subdural bleeding with no other signs of injury is so common, and run tests and come up with a better way to monitor, control, and prevent these things as law enforcement making convictions without the whole “triad”. Below is a link to wikipedia’s page on sbs where the “founder of the syndrome discredits himself saying “I don’t think that the famous triad, however well some people think it’s defined, can ever be so well-defined that you can say that and nothing else cause it — that meaning shaking.” The united kingdom, where Guthkelch the founder is actually from, has thrown the diagnosis out the window when there are no other obvious sings of abuse, the reason also being the the theory is discredited on biomechanics as well, also citing wikipedia’s page:

    There has been controversy regarding the amount of force required to produce the brain damage seen in shaken baby syndrome. A biomechanical experiment in 2005 demonstrated that “forceful shaking can severely injure or kill an infant, this is because the cervical spine would be severely injured and not because subdural hematomas would be caused by high head rotational accelerations… an infant head subjected to the levels of rotational velocity and acceleration called for in the SBS literature, would experience forces on the infant neck far exceeding the limits for structural failure of the cervical spine. Furthermore, shaking cervical spine injury can occur at much lower levels of head velocity and acceleration than those reported for SBS.”[39][40] A detailed explanation of the calculations was provided in a letter to the editor published in Forensic Science International in February 2006.[41]

    The BBC has made a documentary in 3 parts that covers arguments for and against the diagnosis of SBS.[42][43][44]

    My baby has made a full recovery from her subdural hematoma, and I have done my research extensively and WILL get my children back, and probably dedicate the rest of my life to disproving so called professionals and helping others to keep their families together… and pray, pray, pray. Please see wikipedia’s page below.

  4. Pingback: “Dissent Into Confusion:” The Supreme Court, Denialism, and Shaken Baby | On SBS

  5. Pingback: Separating the Sheep From the Wolves | On SBS

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  7. joseph luttner

    Lots of ground to cover. Your pioneering work is sure to promote increased justice for some.

  8. Pingback: Shaken Baby Syndrome: My Front-Row Seat at a Bitter Professional Debate | Reporting on Health

  9. Pingback: Can We Help Win a Pardon for Shirley Ree Smith? | On SBS

  10. john fryer

    Interesting case and one that needs going back to ZERO and redoing the work on why only one of the triad was found but led to conviction.

    Also why older signs of abuse were ruled not abuse.

    I note David Chadwick was the prosecution witness. His unswerving and continual support for MSBP allows me to think he is a witness biased to the degree that if a fake case was given to him he would CONVICT.

  11. Pingback: Ripples Follow Smith Decision | On SBS

  12. This is SO REDICULOUS. All you have to do is put FALSELY ACCUSED OF SHAKEN BABY in the search bar and you find plenty of evidence that this diagnosis is actually VACCINE REACTIONS. It states on the vaccine package insert that vaccines cause brain hemorrhaging. Doctors never blame vaccines cause their lucrative business is from damage caused by all vaccines. Its so hard to win when your up against doctors who are hiding facts. Wake Up Supreme Court, ITS VACCINES….

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