Tag Archives: SBS

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


Filed under abusive head trauma, shaken baby syndrome

Can Hospitals Be Held Accountable?


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


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


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.


Filed under abusive head trauma, shaken baby syndrome

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.


Filed under shaken baby syndrome

To the Battlements

Exciting times for those of us following the ongoing controversy around SBS.

NPR, Frontline, and Pro Publica have completed their investigation into infant deaths, and yesterday they reported “an alarming pattern of people accused of killing children based on flawed medical evidence.”

You can find the story in a variety of media and versions:

  • Pro Publica has published its story on-line, with many clickable links to supporting documents: Pro Publica story
  • The full Frontline episode is still available on video: The Child Cases
    (for a handy transcript, click Transcript at the bottom of the page, or click here: transcript)
  • NPR offers both a print version of the story and urls to the Morning Edition and All Things Considered clips: NPR story page

Heather Kirkwood, working instead of eating after a long conference day in Atlanta

If you missed the stories, please check out the sites, and consider leaving a message of your own.

If you’ve ever met Heather Kirkwood (the pro bono attorney in one of the cases covered), you will know the kind of thorough, focused commitment that went into finding the evidence, recruiting the medical experts, and pushing Ernie Lopez’s case with the courts. Heather is also rumored to have opened the doors to today’s broadcast interview with Norman Gulthkelch on Morning Edition.

Alas, I didn’t quite know about it in time to participate in this morning’s on-line chat on the subject.

Here’s to finding a path to justice through careful thought about difficult subjects.


Filed under shaken baby syndrome