Tag Archives: abusive head trauma

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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Surviving Justice

IMG_4464Among the stream of new accusations and disappointing appeals comes an encouraging piece of news:  A Vermont jury has found 29-year-old Russ Van Vleck innocent of manslaughter in the 2009 death of his 5-week-old son Colin.

The press reports are already archived, so I’ll have to summarize here from the Bennington Banner and Manchester Journal coverage:

Van Vleck called 911 at about 10 pm on October 2, 2009, for help with his son Colin, who he said had stopped breathing while lying next to him on the couch. Van Vleck attempted CPR while waiting for the ambulance, following the instructions of the operator. He later told police the technique was different from what he’d learned in the National Guard. “I felt like I ate up 10 minutes of his life by not being able to do the CPR right for him,” Van Vleck said in a taped interview played at his trial, “I just wanted to get him to somebody who knew what they were doing.”

Colin had no bruises, fractures, or other signs of battering, and he’d been sick in the days before the incident—the doctor had diagnosed flu. Colin’s birth five weeks earlier had been complicated by a prematurely fused skull suture, a congenital defect that gave his head an odd shape. Still, State Medical Examiner Steven Shapiro, who performed the autopsy,  and his colleague at the ME’s office, neuropathologist Elizabeth Bundock, testified that the boy’s death could only have been caused by abusive shaking shortly before he stopped breathing. In opening remarks at the trial, Deputy State’s Attorney Christina Rainville was quoted:

“The evidence is going to show that Russ caused Colin’s death in a moment’s rage, a moment’s loss of control, and that Colin died of massive internal injuries consistent with being violently shaken, or being thrown into a soft object like a couch, a crib mattress, a bassinet, or a padded chair.”

Van Vleck enjoyed the support of friends and family throughout the 2-year ordeal. Attorneys William D. Wright and Joyce Brenner brought in neurosurgeon Ron Uscinski—a veteran of the Louise Woodward trial—and two Florida pathologists, who argued that the combination of birth trauma and skull defect had spawned the deadly bleeding and swelling.

The jury found Van Vleck innocent, but supporters report that social services has now targeted him as an abuse threat: He is allowed only supervised contact with his baby daughter, born in March of this year.

And of course he and his family are left with the cost of the defense and their new, notorious status in a community exposed to years of news coverage that assumed the father was guilty. Van Vleck’s National Guard deployment was delayed in 2009 because of his son’s death—I’ve seen no word yet on whether he will be heading out now.

The good news is that Van Vleck was able to fight the charges, with the support of his family and friends and help from a few doctors willing to weather the scorn that comes with testifying for the defense in a child abuse case. My next posting will tell a different, more common story.

March 2012.  More good news:  The State of Vermont has dropped family court proceedings against the Van Vleck family.

If you are not familiar with the debate surrounding the diagnosis of shaken baby syndrome, please see the home page of this site, at https://onsbs.com/

-Sue Luttner

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Ripples Follow Smith Decision

Emily Bazelon, the author of last winter’s New York Times Magazine piece questioning SBS, has published a gratifying criticism of the recent, unfortunate Supreme Court decision in the Shirley Ree Smith case. Her new article is on slate.com, at:

A Vindictive Decision

As usual, the posted comments are especially interesting:  Most responders are focused on the legal issues, especially whether or not the Ninth Circuit Court of Appeals should be allowed to reverse a jury’s decision.

For those with personal experience in the arena, following Ms. Bazelon’s link to the November 2011 Posner decision is well worth the time.

A number of attorneys have also posted what read to me like critical analyses of the Smith decision, including:

Sherry F. Colb, The Supreme Court Preserves the Chain of Command by Returning a Grandmother to Prison

and

Vikram David Amar, The First Supreme Court Ruling of the Year.

I’m encouraged by the overall feeling I get of discomfort with the Smith decision.  Please do let me know if you have a different take on it.

-Sue Luttner

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Supreme Court Disappoints

For the Good News,
Start With the Dissent

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

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Can Hospitals Be Held Accountable?

MarkFreeman

Attorney Mark Freeman

Like so many of us, attorney Mark Freeman in Pennsylvania was drawn into the shaken baby arena by chance. A close friend was accused of shaking his own child, and Freeman saw a quick and inaccurate diagnosis turn into a personal nightmare for an innocent family.

Freeman was not a litigating attorney.  He still specializes in elder law: estate planning, wills, long-term care provisions. After working on his friend’s defense, however, he’s not only become a courtroom resource for criminal attorneys faced with shaking cases, but he’s started fighting the battle on a new front. He’s filing civil rights suits against hospitals and their child protection teams, counties and their social service agencies, and individuals at these institutions on behalf of innocent families accused of infant abuse.

As those who follow this blog know, accused parents routinely miss out on their children’s infancies and can lose their jobs, their life’s savings, their freedom, and any semblance of a normal family life. Freeman’s suits ask the hospitals and counties to change their policies, or, in some cases, to enforce the policies ostensibly in place, to protect against hasty prosecutions and vindictive foster placement.

In two of Freeman’s civil-rights cases, prominent child-abuse specialists attributed multiple anterior rib fractures to abuse, but without ordering the blood tests that would have revealed vitamin D deficiencies—rickets—in both patients. One doctor at Penn State Hershey Medical Center testified inaccurately that the child’s fractures were posterior: Posterior rib fractures in an infant are believed by some experts to result almost exclusively from abuse, while anterior rib fractures are known to result from bone diseases, like rickets.

Even though exonerating medical evidence was available early on, the infants in both rickets cases spent months of their young lives in the care of strangers. Even with the accused fathers out of the house, the mothers were denied custody because they refused to believe that their husbands were guilty. One father spent a year in jail before being exonerated. Social services and police were depending entirely on the reports from the hospitals’ child protection teams.

Another commonality in the two rickets suits is a discriminatory policy at the Penn State Hershey Medical Center regarding expert testimony by faculty members. Hershey doctors testifying for the prosecution in child abuse cases are free to reference their faculty affiliations and conduct their correspondence on Penn State letterhead, and their activities are covered by the school’s liability insurance. At the same time, the school prohibits doctors testifying for child-abuse defendants from citing their faculty affiliations or corresponding on Penn State letterhead, and excludes their legal activities from coverage by the school’s liability insurance.

The most recent suit also questions the objectivity of both Hershey Medical Center and pediatric neurosurgeon Dr. Mark Dias, a leading proponent of shaking theory who has brought to his institution millions of dollars in federal grant money, to educate parents about the dangers of shaking.

For a news story about Freeman’s recent filing, see

http://www.courthousenews.com/2011/10/03/40229.htm

For the text of that suit, which includes an entertaining sequence for anyone who’s ever tried to get an answer from a prestigious specialist at a children’s hospital, go to

http://www.courthousenews.com/2011/10/03/rickets.pdf

2015 update:  Mark Freeman helped an accused family win compensation from the county that pressed their case.

copyright 2011, Sue Luttner

If you are unfamiliar with the debate surrounding shaken baby syndrome in the courtroom, please see the home page of this blog.

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The Distant Sound of Presses Turning

The shaken-baby story is breaking, but the public is reluctant to believe.

This week the San Antonio Express-News published a balanced and thoughtful piece by reporter Melissa Fletcher Stoeltje, under the provocative title Does ‘shaken-baby’ syndrome exist?  The article examines the case of infant-care provider Aritzaid Santiago, who remains in prison.

When I emailed my praise to Ms. Stoeltje, she replied with thanks for my words of support, adding, “I am being otherwise excoriated.”

After joining the on-line conversation about the article, I’ve gotten a glimpse of what she’s talking about.

The Express-News ranks its on-line comments by their popularity with readers, who can push little thumbs-up and thumbs-down buttons on each posting.  The three top vote-getters are displayed with the story, the others on a jump page. I just took this unsettling screen shot:

I take comfort that my own comment has received four thumbs-ups and only one thumbs-down, for a total popularity of 3—still behind, alas, “She should face the death penalty and nothing less,” which was at 5 until it occurred to me I could give it a thumbs-down, so now it’s at 4.

All of which reminds me of a recent quote from radiologist David M. Ayoub, MD, who received a chilly response to his presentation “Congenital Rickets Misdiagnosed as Child Abuse” at last month’s Pediatric Abusive Head Trauma conference in San Francisco. When a member of the audience asked whether it bothered him that most people think he’s wrong, he answered, “The truth is not a popularity contest.”

But public relations is. If you have the time, and are willing to create an account with a random media outlet, please consider joining the conversation that accompanies the San Antonio article, which you can get to by clicking here.

September 2011 update:

Thanks to those of you who took action.  The tone of the comments page changed dramatically over the few days after I posted this entry.  For details see “Texas Update” at the end of a different the post, An Evolving Theory, A Tragic Tale.

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