New Evidence In High-Profile Shaken Baby Case

Mar 29, 2012
Originally published on April 17, 2012 2:31 pm

A senior pathologist in the Los Angeles County coroner's office has sharply questioned the forensic evidence used to convict a 51-year-old woman of shaking her 7-week-old grandson to death, identifying a host of flaws in the case.

The new report by the pathologist, James Ribe, details eight "diagnostic problems" with the coroner's 1996 ruling that the child had died from violent shaking or a forceful blow to the head. Ribe wrote that he saw little evidence that the infant had been attacked, noting "the complete absence of bodily trauma, such as face trauma, grab marks, bruises, rib fractures or neck trauma."

Shirley Ree Smith was convicted of felony child endangerment — a charge equivalent to second degree murder --­ in the case, and she's garnered national attention over the course of a long legal campaign to clear her name. Smith insists that she never harmed the infant, Etzel Glass, who died in an apartment in Van Nuys, Calif.

After watching her legal appeals bounce from court to court for the past 15 years, Smith is currently out of custody, but is facing a possible return to state prison. She has petitioned California Gov. Jerry Brown for clemency, asking him to commute her sentence.

Ribe's review, which reveals a deep divide within the Los Angeles County Department of Coroner, could influence the governor's decision. Other doctors in the office reassessed the case and stood by the homicide ruling.

Los Angeles prosecutors constructed the case against Smith largely on the findings of medical experts working for the county coroner. During an autopsy, forensic pathologists discovered a small amount of bleeding on the infant's brain and in his optic nerves. They concluded the death was a homicide.

Documents obtained by ProPublica, NPR and PBS Frontline show the coroner's office in January asked several staff doctors to take a second look at Glass' death. As part of that effort, Ribe examined the autopsy report, tissue slides and other forensic evidence.

In Ribe's view, the injuries to the child's brain were relatively minor and could have been caused by the birth process. He also noted the baby's lungs were speckled with tiny blood spots called petechiae, which are often linked to sudden infant death syndrome and suffocation, and pointed out that Glass had been sleeping face down on an "unsafe sleep surface" — a couch cushion — on the night of his death.

The "bottom line," Ribe wrote, is that "there was head trauma, but we don't know when it happened or how it happened. We don't know if it's related to the cause of death. The conservative approach would be to acknowledge these unknowns. The cause of death should be diagnosed as undetermined."

Reached by phone, Ribe declined to comment.

Smith's advocates said Ribe's review strikes at the foundation of the case against her.

"This case wouldn't go to trial today," said Michael Brennan, a law professor at the University of Southern California and one of Smith's attorneys. "I am confident that the DA's office would never try this case again."

Conflict In The Coroner's Office

Eugene Carpenter, who supervised the original autopsy, remains certain that Glass' death was a homicide. As part of the recent review, Carpenter went through autopsy case files again. He stood by his original assessment, stating that Glass died as a result of abuse.

"Death is not due to natural causes and certainly not due to sudden infant death syndrome," Carpenter wrote in his report. "There is no reasonable doubt as to the cause of death."

Lakshmanan Sathyavagiswaran, the chief medical examiner-coroner, largely concurred, writing that the baby was the victim of abuse that injured his brain and may also have been intentionally suffocated.

The coroner's office would not address the conflicting views about the case.

"The cause and manner of death of any person is an opinion, and those opinions are based on multiple criteria," Craig Harvey, the chief investigator and head of operations for the agency, wrote in an email. "The Department of Coroner will not be making any further comment on this case."

Los Angeles District Attorney Steve Cooley recently sent a letter to the governor saying medical evidence presented during Smith's trial was valid. Granting her clemency due to concerns about the soundness of that evidence, Cooley wrote, would have a "chilling effect," making it more difficult to prosecute child abusers.

Sandi Gibbons, Cooley's spokeswoman, declined to comment on the case, as did the governor.

On the night of Glass' death, Smith says, she was sleeping on the floor as the baby and another grandchild slept on a nearby couch. Smith's daughter, Tomeka, and other family members were in the next room.

In a recent interview, Smith vehemently and tearfully denied ever hurting her grandson. "I didn't do it," she said. "There's no way I could possibly do that. Why would I do that? I mean why? Why would I shake him?"

A Unique Theory

In the decade and a half since Smith was convicted, much has changed in the world of forensics. The National Academy of Sciences in 2009 issued a lengthy report highlighting flaws in the country's coroner and medical examiner system and criticizing the techniques used in law enforcement crime labs.

Among doctors, there's an increasing awareness of ailments and conditions that can mimic the typical symptoms of child abuse — bleeding and bruising. The leading textbook on pediatric head injuries now includes two chapters on these mimics; they range from sickle cell anemia to congenital brain malformations to unintentional damage caused by the use of forceps or vacuums during birth.

Ribe's analysis notes that Glass' death doesn't fit the usual pattern for shaken baby syndrome cases, which are typically marked by a triad of symptoms: bleeding on the brain and in the retinas, and swelling of the brain.

Glass had only one of these symptoms — a tablespoon or two of blood, pooled on top of his brain.

During Smith's trial, Carpenter testified the bleeding wasn't severe enough to kill the baby.

But on the witness stand, Carpenter voiced a novel theory about the death, telling jurors that Glass was shaken or slammed so forcefully that his brainstem was fatally — but invisibly — damaged, shutting his whole body down instantly. "There is no evidence" of the brain stem injury, Carpenter testified, "and there is no evidence expected to be found in a shaken infant that dies quickly, because the body does not have time to react to the injury."

The jury convicted Smith of felony child endangerment and she spent the next decade dwelling in a California women's prison. "The hardest part of being locked up was knowing that I didn't belong there," Smith said, "and being away from my daughter and grandkids."

While Carpenter's testimony convinced the jury, it didn't sway the 9th U.S. Circuit Court of Appeals, which in 2006 overturned Smith's conviction. The court found "there was simply no demonstrable support for shaking as the cause of death." Smith's incarceration, added the court, had "very likely been a miscarriage of justice."

The ruling freed Smith from prison after 10 years. "I felt a sense of relief. I couldn't believe it was happening," she recalled.

A 'Lost' Freedom

But when the initial joy wore off, Smith had difficulty resuming her life in the free world. Her collision with the criminal justice system carried lingering psychological effects, leaving her feeling "lost" and fearful, she said. After a stint in a cheap hotel on Los Angeles' skid row and a bout of homelessness, Smith eventually moved to the Midwest, where Tomeka and her surviving grandchildren were living.

Her legal struggle, however, continued. The California attorney general appealed the case, and late last year, a divided U.S. Supreme Court reversed the 9th Circuit. "The Court of Appeals in this case substituted its judgment for that of a California jury on the question whether the prosecution's or the defense's expert witnesses more per­suasively explained the cause of a death," wrote the court in an unsigned opinion.

At the high court's direction, the 9th Circuit reinstated Smith's conviction in February of this year.

That move prompted Brennan and his co-counsel, Dennis Riordan, to petition Brown to commute Smith's sentence to the 10 years she has served, rather than returning her to a prison cell.

In a letter to the governor, the attorneys note that prosecutors recently asked pediatrician Carol Berkowitz to review the evidence. The doctor's report contradicts Carpenter's theory that Glass died nearly instantly after someone abused him — and highlights the lack of scientific consensus among medical experts when it comes to sudden infant fatalities.

Though Berkowitz believes Glass suffered head injuries due to abuse, she is uncertain about when the trauma occurred. "I think that one cannot say with medical certainty the precise time when these injuries were inflicted (e.g., whether immediate or within a specified number of hours)," wrote Berkowitz, a UCLA pediatrics professor and executive vice chair of the pediatrics department at Harbor-UCLA Medical Center.

Tomeka Smith is adamant that nobody abused her child. "Our family is so loving it's ridiculous," she said in an interview, adding that she has complete faith in her mother.

"My mother never spanked me, she never cursed me, she never yelled at me," Tomeka Smith recalled. "There's no possible way she could've done what they say. If I had any doubt about that, I would've wanted her prosecuted to the fullest extent of the law."

Today, Tomeka and Shirley Smith are living together in Alexandria, Minn., a quaint town of approximately 11,000 people located about midway between Fargo and Minneapolis. They share a small, tidy apartment with Tomeka's children, Marquis and Yondale, both teenagers. Tomeka's daughter, Yolanda, is attending college in Nevada.

On a recent afternoon, Shirley Smith greeted Yondale as he came home from school carrying a battered skateboard. She cooks for the boys, helps them with their homework, and generally keeps an eye out for them while Tomeka is away at work.

She knows the family reunion could end at any moment.

"I'm not free. ... I can't go anywhere without permission," Smith said. "They're trying to send me back to prison."

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A woman named Shirley Ree Smith had spent a decade in prison by the time her conviction was overturned. She had been charged with killing her grandson, shaking him to death, but the facts in the case were murky and she always claimed her innocence. Smith walked out of prison in 2006. But last fall, the U.S. Supreme Court ordered her conviction reinstated. Now NPR, Pro Publica and PBS "Frontline" have obtained documents that raise new questions about the original evidence that led to her conviction. From NPR's investigative unit, correspondent Joseph Shapiro reports.

JOSEPH SHAPIRO, BYLINE: It's after school and Shirley Ree Smith waits for her grandsons to come home.

YONDALE: Hey, grandma.

SHIRLEY REE SMITH: (Unintelligible). Ooh, you're cold.

YONDALE: It ain't that cold.

SMITH: Yeah, you cold.

YONDALE: It's hot. I'm burning up.

SHAPIRO: Yondale(ph), a high school junior, carries a battered skateboard. He tells his grandmother about the skateboard trick he pulled off this afternoon - a fakie varial heelflip.

YONDALE: Fakie varial heel, it's like when a board go like this and I land on it like that.

SHAPIRO: Shirley Ree Smith moved here to Alexandria, Minnesota, a town on the edge of the prairie where visitors are greeted by a 28-foot-high statue of Big Ole, the Viking. She came because her daughter, who's always believed in her innocence, is away temporarily, working in the oil fields of North Dakota. And Smith came for moments just like this, to live with and to look after her two teenage grandsons. Fifteen years ago, Smith was convicted of shaking another grandson to death. She says she never harmed the boy, a seven-week-old baby named Etzel, who she says she adored.

SMITH: Oh my God. He was so handsome. He was so handsome, so handsome, Etzel, yeah. He had really pretty curly hair, he had a cute little smile. He was such a beautiful baby, such a beautiful baby. He would have been such a beautiful young man, and I know he would have. Wow.

SHAPIRO: The court rulings that supported Smith have said hers was never a typical case of someone accused of shaking a baby. Family said she was a patient and loving woman. She left Illinois and moved to a crowded apartment in Los Angeles to look after her grandchildren. Etzel was asleep that night. He had not been crying. And when Smith found her grandson limp on the living room couch, there were other children, and Etzel's mother, just a few feet away. Smith called 911. She tried CPR.

SMITH: You don't always have the skills. You know, I couldn't save him that night. Such a strong guilt, such a strong guilt. 'Cause I'm supposed to be a protector, you know, to keep the world safe. Such a guilt.

SHAPIRO: Smith was convicted largely on the results of an autopsy by the Los Angeles County Coroner's Office. It concluded that the baby died from Shaken Baby Syndrome, but there was no brain swelling or blood behind the retinas, no bruises on the body, all symptoms associated with shaking. Michael Brennan is Smith's current attorney.

MICHAEL BRENNAN: They came up with this theory that the infant had been shaken so violently that there was instantaneous death. And because the death was so instantaneous, the brain, the brain stem, did not have time to react physically in the sense that there was observable damage to the brain or the brain stem.

SHAPIRO: In other words, a kind of Catch-22 for Smith's defense. The injury happened so fast that the medical examiner couldn't find physical evidence of it.

BRENNAN: So you have this theory of violent shaking, instant death, no physical findings. There is no medical literature that supports that theory. It's fantasy.

SHAPIRO: That was the kind of evidence that led the 9th Circuit Court of Appeals to order Smith released after 10 years in prison, in 2006. But last fall the case reached the U.S. Supreme Court, which said there was not enough question about the case for a federal court to overturn a state court's decision. The Supreme Court ordered Smith's conviction reinstated. Smith knows she could go back to prison at any moment. NPR, working with Pro Publica and PBS "Frontline," has obtained new evidence that strengthens the case for Smith's innocence. We showed it to her.

SMITH: It's number five right here. You know (unintelligible) number five - that says that it's right there.

SHAPIRO: She read it at her small kitchen table.

SMITH: So I wonder if the United States Supreme Court justices know that. I wonder do they know that.

SHAPIRO: The new evidence is in a report from the Los Angeles County Coroner's Department. Remember, it was that department's autopsy that led to the conviction of Shirley Ree Smith. The Los Angeles district attorney asked the Coroner's Department to go back and review the old evidence. One who looked was the medical examiner who supervised the autopsy in 1996. His finding is the same as back then - that the infant most likely died from violent shaking that resulted in a severe head injury. But a second medical examiner in the same office came to a very different conclusion. He says there was no brain injury, just a small amount of bleeding, no grab marks, bruises or rib fractures. In other words, not the kind of evidence to call the child's death a homicide. Smith says the conviction, the 10 years in prison, and now the uncertainty about going back, have all taken a toll on her family.

SMITH: We all have been hurt. They don't know how much they took from us. How do you do that and just walk away and leave us just in shattered pieces? How do you do that?

SHAPIRO: There probably never will be certainty about what killed Etzel. But if, as Smith claims, it wasn't shaking - it might have been an injury at birth, the short fall he took from the couch, or that he was sleeping face down. Officials in the Los Angeles Coroner's Office and the county district attorney declined our request to comment on air. Smith has asked for clemency, and California Governor Jerry Brown is considering that. Smith's attorney, Michael Brennan, says it's her best chance for staying out of prison.

BRENNAN: This case wouldn't go to trial today if she was represented by competent counsel. Given the advancement in medical literature concerning Shaken Baby Syndrome, I am confident that the DA's office would never try this case again.

SHAPIRO: Brennan's point is that, as an early NPR/Pro Publica/"Frontline" series noted, many child deaths once attributed to Shaken Baby Syndrome are now known to be the result of natural causes, like disease and blood-clotting disorders. The Los Angeles district attorney in a letter asked the governor to stay out of the controversy over Shaken Baby Syndrome. The DA says it's an important diagnosis to use in some prosecutions. But the district attorney's letter said if the governor decides to grant Shirley Ree Smith clemency, it should be for humanitarian reasons, based on the fact that Smith has already served 10 years, her lack of criminal history and the circumstances of the charges against her. Joseph Shapiro, NPR News.

GREENE: And to see photos and more reporting on the story of Shirley Ree Smith, you can go to our website, NPR.org. Transcript provided by NPR, Copyright NPR.