A joint investigation withNPRProPublica

New Questions About Evidence Used to Convict Grandmother in Shaken Baby Case

by ProPublica, and Joseph Shapiro, NPR

Shirley Ree Smith lives with her daughter Tomeka 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, attends college in Nevada.

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

She knows their time together could end at any moment.

Smith moved to Alexandria while in the midst of an extraordinary legal struggle. Fifteen years ago a jury convicted her of shaking another grandson, 7-week-old Etzel Glass, to death.  At the time, Smith and her family were living in Van Nuys, Calif.

From the beginning, Smith has maintained her innocence. In 2006, after a decade in prison, a federal appellate court overturned Smith’s conviction and freed her. Late last year, however, the U.S. Supreme Court moved to reinstate the conviction, and today, she faces a possible return to state prison. She has petitioned California Gov. Jerry Brown for clemency, asking him to commute her sentence.

For now, she lives in a kind of legal limbo. We spoke to her last week, and ProPublica’s A.C. Thompson asked her what it was like to live each day without knowing whether she’ll be returned to a cell to continue serving a term of 15 years to life.

But a deep divide exists within the Los Angeles County Department of Coroner that could influence the governor’s decision. A senior pathologist in the coroner’s office has sharply questioned the forensic evidence used to convict Smith, identifying what he says are a host of flaws in the case.

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.

But documents obtained by ProPublica, FRONTLINE and NPR show that in January, the coroner’s office asked several staff doctors to take a second look at the infant’s death.

The new report by the pathologist, Dr. 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.” Other doctors in the office reassessed the case and stood by the homicide ruling.

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 that 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,” wrote Ribe, is “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.

Dr. Eugene Carpenter, who supervised the original autopsy, remains certain that Glass’s death was a homicide. He stood by his original assessment, stating that Glass died as a result of abuse. Dr. 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 Los Angeles Department of Coroner would not address the conflicting views about the case.

Smith told us that if the coroner’s office took a more thorough look at the case back in 1996 it’s possible that she would never have gone to prison.

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.

Smith’s conviction was always based on a novel theory outside the usual pattern of 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 the trial, Carpenter told jurors that while the bleeding wasn’t enough to kill the baby, Glass was shaken or slammed so forcefully that his brain stem 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 — a form of second-degree murder – and she spent the next decade of her life dwelling in a California women’s prison.

But Carpenter’s testimony 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.”

Smith told us she greeted the decision with relief.

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’s 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 [PDF].  “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 Smith’s lawyers Michael Brennan, a law professor at the University of Southern California, 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.

Tomeka Smith — Glass’s mother — 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.”

Video Editor: Michael H. Amundson; Camera: Michael H. Amundson; Megan McGough
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