News and Politics

Jurisprudence

A Vindictive Decision
The Supreme Court sends a grandmother back to prison to teach the 9th Circuit a lesson.
By Emily Bazelon
Updated Monday, Nov. 28, 2011, at 4:58 PM ET

The Supreme Court released a decision last month that will easily be the most vindictive of the term. And hardly anyone noticed. Thats because the case didnt go through the full treatment of oral argument and a signed majority opinion. Instead, the court quietly went about sending a grandmother back to prison for a crime she probably did not commit, to bring a lower court to heel. Its a decision that treats the technicalities of appellate review as paramount, and the task of doing justice as beside the point.

In 1996, when he was seven weeks old, Etzel Glass died during the night. His mother, Tomeka, had put him to sleep on a sofa in a room with Shirley Ree Smith, Etzels grandmother. Smith was helping Tomeka raise Etzel and two other children, who were also sleeping in the room with her. There was no indication that shed been anything but loving toward the kids at any time. When Smith woke up and found Etzel limp, she ran with him to his mothers room next door, saying she thought hed fallen off the sofa. At first, the doctors who examined Etzel said hed died of sudden infant death syndromeno ones fault. But the coroner found the cause of death to be shaken-baby syndrome, and prosecutors decided that Shirley Ree Smith had done the shaking. This was not a typical shaken-baby case. The standard diagnosis for shaken-baby syndrome includes subdural bleeding, retinal bleeding, and brain swelling. In the cases that are easier to classify, there is also injury to the neck from shaking, or there are fractures, bruises, or cuts. In the harder cases, there are no external signs of injury. Etzels case involved onlyminimal subdural hemorrhaging. There was no retinal bleeding and no brain swelling, and no fractures or abrasions. But there was one more supposed piece of evidence against Shirley Ree Smith. According to the social worker who interviewed her, Smith said that when Etzel didnt respond to

her touch when she thought he was sleeping, she gave him a little shake, a little jostle. Smith then said something like Oh my God. Did I do it? Did I do it? Oh my God. This was enough for the prosecutors and the jury. She was convicted and sentenced to 15 years to life. Id like to think that Shirley Ree Smith would not be prosecuted today, though Im not certain of it. The science underlying shaken-baby prosecutions is shifting, with critics questioning whether alternate explanations for a babys death are always adequately explored. But a new consensuslegal or scientifichasnt yet emerged yet from the bitter fight, in some cases, over the diagnosis. Smiths case is truly an outlier. Since Etzel didnt have the typical symptoms, the prosecutions medical witnesses went out on a limb, testifying that the death was caused by a shearing or tearing of the brain stem even though no doctor located any such shearing or tear. On appeal, Smith argued that there wasnt enough evidence for a jury to find her guilty. But shaken-baby convictions arent easy to undo. For the California appeals court, it was enough that the prosecutors had medical experts on their side. The California Supreme Court declined to review the case. So Smith turned to the federal courts. At this point, the Anti-terrorism and Effective Death Penalty Act kicks in. This is perhaps my leastfavorite law. AEDPA tells federal courts that they cant

overturn state courts except in a narrow set of circumstances: If a conviction is contrary to or unreasonably applies clearly established federal law, or if its based on an unreasonable determination of the facts. AEDPA is a straitjacket. The federal courts are supposed to put it on and quit worrying about whether innocent people have been put in prison. A panel of judges for the U.S. Court of Appeals for the 9th Circuit refused to do that. They looked at the medical testimony against Shirley Ree Smith and how badly it holds up to the light of current knowledge, and they said that Smith had spent enough years in prison. Normally, that would be that. AEDPA or no AEDPA, the Supreme Court doesnt usually reach out and grab sad, factbound cases like this one. But liberal 9th Circuit judges are a thorn in the side of the Supreme Courts conservative justices. Last month, after twice sending the 9th Circuit pointed warnings about this case, the Supreme Court reversed the circuit courts decision. The majoritys brief and unsigned opinion concedes that doubts about whether Smith is in fact guilty are understandable. But according to six justices, its not the 9th Circuits job to do anything about that. Justice Ruth Bader Ginsburg dissented, with Stephen Breyer and Sonia Sotomayor. Ginsburg gives all the reasons to

doubt the medical testimony against Smith. She does a great service by laying out the growing skepticism among a minority of doctors about the validity of diagnosing shakenbaby syndrome without any evidence at all of external injury. What is now known about the SBS hypotheses seems to me worthy of considerable weight in the discretionary decision whether to take up this tragic case, Ginsburg writes. As for the weight to accord Smiths supposed confession, I defer to an amazing opinion published last week by Judge Richard Posner. In this case, a daycare provider named Rick Aleman was charged for shaking an 11-month-old baby who collapsed in his care. When the police told him that three doctors said that Alemans shaking must have caused the injury, he said I know in my heart that if the only way to cause [the injuries] is to shake that baby, then, when I shook that baby, I hurt that baby. It turned out that the police were lying. And that the babys mother had a record of violence and crime. And that the cop who lied apparently wanted to date her. And that the baby had been sluggish and lethargic for days before he came to Alemans house. The case against Aleman unraveled before trial. It came to Posner and his fellow judges on the 7th Circuit as a suit, brought by Aleman, for false arrest and malicious prosecution. In sustaining those claims, Posner explains how easily an innocent person can implicate himself. The police told Aleman that the only possible explanation for Joshuas

injuries was that the baby had been shaken right before he collapsed. Aleman was the only person to have shaken Joshua just before he stopped breathing. And so it was a logical necessity that he had been responsible for the childs death. Q.E.D., Posner says. A confession so induced is worthless as evidence, and as a premise for an arrest. That is exactly right. It also perfectly illustrates a serious problem in shaken-baby cases, where the accused often held or handled a baby before the awful moment of collapse, and may be easily led to blame himself. In Shirley Ree Smiths case, Justice Ginsburg concludes, I would not ignore Smiths plight and choose her case as a fit opportunity to teach the 9th Circuit a lesson. Thats exactly right, too. There is only one lesson worth learning from this case, and it is about the power of mercy. California Gov. Jerry Brown has the authority to pardon Shirley Ree Smith. She has suffered more than enough for the death of her grandson. Brown should do for her what no judge now can.

Accessed at http://www.slate.com/articles/news_and_politics/jurisprudence/2011/11/shaken_baby_syndrome_and _the_supreme_court_.html on 11/29/2011