Commutation Order Brings Shaken Baby Syndrome into the News

Governor Jerry Brown's decision earlier this month to commute the sentence of Shirley Ree Smith has given shaken baby syndrome another run in the news, where the coverage shows a new awareness of the changing landscape.

Smith was convicted in Los Angeles in 1997 of shaking her grandson Etzel to death. She was freed in 2006, when the Ninth Circuit Court of Appeals overturned the conviction, calling the evidence against her "constitutionally insufficient."

This past fall, however, the U.S. Supreme Court reversed the Ninth Circuit Court's decision, reinstating Smith's conviction. The high court did not consider Smith's guilt or innocence, but based its decision on the argument that the circuit court did not have the authority to overrule a jury verdict.

While legal pundits argued the merits of that position, The New York Times urged Governor Brown to pardon Smith, in an editorial headlined "A Very Likely Miscarriage of Justice," a quote from Justice Ruth Bader Ginsburg's strongly worded minority opinion. Then the Los Angeles Times ran an op ed piece by ProPublica reporter A.C. Thompson, who not only supported a pardon for Smith but urged a look at other cases as well. Thompson was one of the reporters whose critical series on child-death investigations brought shaken baby syndrome into the news last summer.

In December Smith's attorneys, Michael Brennen and Daniel Riordan, filed a formal application for a commutation of Smith's sentence, submitting a letter of support (available if you create an account with google.com) that focused primarily on the facts in Smith's case. As a number of observers have articulated, Smith's grandson did not fit the classic mold of a shaken infant, as he showed only one of the three intracranial symptoms that ordinarily define the syndrome.

Then Los Angeles District Attorney Steven Cooley asked experts to review the evidence in Smith's case, and received three very different reports. Los Angeles Times reporter Caroline J. Williams noted in her excellent coverage that the conflicting reports and the medical examiner's decision to stand by the homicide ruling "revealed a rift among experts on how to evaluate forensic evidence in some infant deaths."

Cooley sent the reports to the governor's office with a letter to Governor Brown, which was posted on the web by ProPublica. Like the Supreme Court, Cooley gave very little attention to the evidence in Smith's case, but focused instead on what he called "the current state of the science that forms the foundation for Abusive Head Trauma (AHT, which was formerly, colloquially referred to as Shaken Baby Syndrome (SBS))."

The letter cites informational materials from the U.S. Department of Health and Human Services, a journal article, and a legal decision to support the main point that "AHT is widely accepted by both the medical and legal communities as a diagnosis and cause of death."

My conclusion is that the goal of Mr. Cooley's letter was not to argue against the pardon but to head off any reference by Governor Brown to the debate that now swirls around a diagnosis of shaking. Brown's commutation order did not in fact reference the wider debate, although it did quote both the Ninth Circuit Court's observation that the evidence in this case "is simply not the stuff from which guilt beyond a reasonable doubt can be established" and the Supreme Court's acknowledgement that "[d]oubts about whether Smith is in fact guilty are understandable."

The debate has been a subtext in the media coverage, however. The day after the announcement, for example, NPR reporter Joe Shapiro said on a segment of All Things Considered, "now doctors and scientists have a better understanding of other causes . . . that can mimic the signs of child abuse."

In his thorough piece on ProPublica, reporter A.C. Thompson found room in the second paragraph to mention the conflicting analyses, and he obviously understood the import of District Attorney Cooley's letter to Governor Brown.

Williams at the Los Angeles Times quoted both Cooley's letter and the conflicting medical opinions in her follow-up story that ran the day after the governor's announcement. That treatment also reveals a little bit more about Smith, who found herself homeless in Los Angeles for a time after her release from prison, because she was not allowed to leave the state and therefore could not rejoin her daughter and grandchildren in Illinois.

The day the commutation was announced, Emily Bazelon at Slate wrote a quick but accurate piece concluding that Smith's case could give other innocent people in prison "a shot at getting their lives back." Bazelon reiterated her position from the winter 2011 article in The New York Times Magazine, that "the science underlying shaken-baby prosecutions is shifting, with critics arguing that alternative explanations are not adequately explored. But a new concensus-legal or scientific-hasn't yet emerged from the bitter fight."

The Associated Press syndicated a story, picked up at least by USA Today, that did not refer to the larger debate.

In the on-line ABA Journal coverage, reporter Martha Neil wrote, "Smith's case is one of a number of convictions in which evidence once thought to be determinative concerning shaken-baby deaths is now being questioned." The two reader comments that made it past the moderator have both been in support of the commutation.

SFGate in San Francisco posted the Chronicle's coverage, which evoked both positive and negative reactions from readers. The piece was short, but reporter Bob Egelko summarized the situation surrounding both Smith's case and the larger question in one paragraph:

Recently, however, a pathologist in the coroner's office reviewed the case and found little evidence of traumatic injury. Some researchers have also questioned the validity of shaken-baby syndrome, a term doctors have used for 40 years to describe often-fatal head injuries suffered by small children with no outward signs of abuse.

Shirley Smith is now living with her daughter in Minnesota, where CBS News in Minneapolis ran a touching interview that did not address the medical issues, and a CBS/Fox station prepared a feature segment that was even briefer. Neither posting on the internet seems to have received reader comments.

Blogger Kate Jane posted a short piece asking for reader comments, which hasn't received much response.

For my own blog on the day of the announcement, with Smith's words of thanks to her supporters, see Clemency Granted for Shirley Smith.