Jerry Brown Shows Mercy to Shirley Ree Smith

The governor does the right thing in a doubly tragic shaken baby case.

Shirley Ree Smith
Shirley Ree Smith spent a decade in prison after being convicted of shaking her infant grandson to death

Courtney Perry/NPR.

Gov. Jerry Brown of California picked today—Good Friday and the eve of Passover—to do the right thing. He commuted the sentence of Shirley Ree Smith, a grandmother who spent a decade in prison for a crime she probably did not commit, involving the death of her grandson.

Last November I wrote about the case for Slate: Smith had been helping her daughter Tomeka raise the infant boy, Etzel Glass, and when he was seven weeks old he died during the night. His mother had put him to sleep on a sofa with Smith in the room. When Smith woke up and found the baby limp, she ran to Tomeka with him in her arms. There was no evidence that she had ever been anything but loving toward him. Still, when the coroner pronounced shaken baby syndrome as the cause of death, prosecutors decided Smith must have done the shaking.

The standard diagnosis for shaken baby syndrome includes subdural bleeding, retinal bleeding, and brain swelling. In the easier cases, there is also external injury to the neck, or there are fractures, bruises, or cuts. Etzel’s case, however, involved only “minimal” subdural hemorrhaging. There was no retinal bleeding and no brain swelling, and no neck injury, fractures, or abrasions.

There was one other piece of evidence against Smith: According to the social worker who interviewed her, Smith said that when Etzel didn’t respond to her touch, 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.”

Smith was convicted and sentenced to 15 years to life. Her case is truly an outlier, since Etzel had only one of the three symptoms traditionally treated as hallmarks of shaken baby syndrome. Last week, Joseph Shapiro and A.C. Thompson of NPR reported that a senior pathologist in the coroner’s office in Los Angeles was questioning the medical evidence behind Smith’s conviction. They wrote:

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.”

Ribe also said, according to NPR, that Etzel’s “lungs were speckled with tiny blood spots called petechiae, which are often linked to sudden infant death syndrome and suffocation.”

Smith was freed from prison in 2006 by the U.S. Court of Appeals for the Ninth Circuit, which found that there was not enough evidence to support her conviction. But in a ruling that had more to do with reprimanding the Ninth Circuit judges than the merits of the case, the Supreme Court struck down the appeals court’s ruling in October. That’s when the calls for clemency for Smith began, mine among them. Today, Gov. Brown noted “significant doubts” about Smith’s guilt in commuting her sentence to time served. (His office felt the need to stress that this is Brown’s one and only grant of clemency in his current term, and to compare this to the 17 commutations Ronald Reagan issued when he was governor. Apparently mercy is just never a political selling point.)

One of Smith’s lawyers, Dennis Riordan, told me this afternoon that he would continue to press her case in the courts, asking for a full exoneration in light of the new evidence from Ribe and the changing understanding of shaken baby syndrome. As I wrote in my earlier story: “The science underlying shaken-baby prosecutions is shifting, with critics questioning whether alternate explanations for a baby’s death are always adequately explored. But a new consensus—legal or scientific—hasn’t yet emerged yet from the bitter fight, in some cases, over the diagnosis.”

Today’s news won’t end that fight—it runs too deep, and it’s more complex than any one case can show. But a court decision exonerating Smith would help other people convicted of shaken baby crimes based on evidence that looks weak by today’s standards: People like Drayton Witt, who is doing 20 years in Arizona because he was found guilty of shaking his son to death in 2000. If we are lucky, Smith’s case could help people who are probably innocent a shot at getting their lives back.