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“Shaken baby” case — An update

UPDATE:  Gov. Brown’s commutation order is here.  A statement by Shirley Smith’s counsel is here.   The blog thanks two people who took the time to share copies of these documents.


The Supreme Court’s first ruling of this Term — a controversial decision in which a majority simply ran out of patience with a lower court — had threatened to send a grandmother back to prison in a highly contested “shaken baby’ case.  Now, the woman will remain free.  On Friday, California Governor Jerry Brown commuted the sentence of Shirley Ree Smith to the time she had already served behind bars — almost ten years, according to her lawyers, who now will try to get the conviction overturned.

Ms. Smith has been at the center of a broad debate in legal and medical circles over the entire phenomenon of the “shaken baby syndrome” — a theory that a child’s death can be caused by violent shaking that severely damages the brain or the brain stem.  Evaluating the prosecution’s case against Ms. Smith, her lawyers, some experts and three Justices of the Supreme Court argued that the usual signs of this phenomenon were not present.

Just last month, an online investigative news source, ProPublica Communications, along with National Public Radio, uncovered a new analysis of the evidence in this case 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 seven-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.

But while that medical debate has gone on, the Smith case has been moving back and forth between the Ninth Circuit Court and the Supreme Court.  Twice before the current Term, the Supreme Court had sent the case back to the Circuit Court to consider its original ruling finding that Ms. Smith was wrongly convicted.  Each time, the lower court reinstated its initial conclusion.

The case reached the Supreme Court last March, and it was actually referred to the Justices’ Conference 12 times, and the Justices ran out of time last Term and could not finish before the summer recess.  The decision finally emerged in a divided decision on October 31.   The majority, in an unsigned opinion, conceded that there might have been “understandable doubts” about guilt, but said the resolution of those doubts was for the jury, not for the Circuit Court.  Ms. Smith’s conviction was ordered reinstated.

Justice Ruth Bader Ginsburg, in a dissent joined by Justices Stephen G. Breyer and Sonia Sotomayor, sharply criticized the majority for taking on the case, and accused the majority of having been “bent on rebuking the Ninth Circuit for what it conceives to be defiance of our prior demands.”   The case, the dissenters argued, should not have been taken up as a “fit opportunity to teach the Ninth Circuit a lesson.”

At a minimum, though, the dissenters argued that the Court should at least have granted full review, rather than acting summarily, in order to explore more carefully “a trial transcript that runs over 1,500 pages.”

The majority had mentioned the prospect that Ms. Smith could seek relief from California state officials, but said that was not for the Court to ponder.   Ms. Smith’s lawyers did pursue a clemency plea with Gov. Brown, and he granted it, citing doubts about the case, the time she had already served in prison, and indications that the grandmother “has been law-abiding since her release from prison” six years ago.

In a statement by her defense lawyers, they repeated her claim of innocence, and argued that “new medical evidence” emerging in the last two months supported her claim.  “We are now in the process of evaluating a renewed judicial challenger to her conviction based on this new evidence,” the lawyers said.  “While the specter of her return to prison has now been lifted by the Governor’s action, Ms. Smith deserves to be completely exonerated.”

(This blog’s prior coverage of the Supreme Court ruling can be read here.  That post includes a link to the Court’s summary ruling and the dissent.)

Recommended Citation: Lyle Denniston, “Shaken baby” case — An update, SCOTUSblog (Apr. 7, 2012, 8:15 AM),