Supreme Court Shaken-Baby Decision Disappoints

The Supreme Court last month reinstated the 1997 conviction of grandmother Shirley Ree Smith, in the first shaken baby case I'm aware of to have reached the high court.

After following the Smith case for some years, I'm discouraged. The conviction has never made sense to me, logically, medically, or legally.

First, the argument for a motive was especially thin. Shirley Smith was not an isolated caretaker alone with a fussy infant: She was a grandmother on a trip from Ohio with her daughter and grandchildren, staying at her sister's apartment in Van Nuys, California. Smith was sleeping in the living room with her grandson Etzel, 7 weeks old, and two other children. She claimed she found Etzel limp and unresponsive at 3:20 am, after she was awakened by another child's nightmare. Panicked, she carried the baby to the next room, where her daughter dialed 911. Everyone in the apartment that night said that Etzel had gone to sleep peacefully on the couch the previous evening. No one remembers hearing him cry during the night.

At autopsy, though, doctors found fresh subdural and subarachnoid bleeding. The boy's brain was not swollen, his retinas showed no hemorrhages, and everyone agreed the amount of blood was very small. Still, presenting a model of SBS I've never heard outside of this case, Dr. Eugene Carpenter and Dr. Stephanie Ehrlich from the Los Angeles County coroner's office testified that the child's instant death-caused by the tearing of his brainstem during the assault-had left no time for the other symptoms to develop. The brainstem was not autopsied for signs of shearing because, Dr. Ehrlich explained, "we wouldn't have seen anything anyway." Aging subdural blood was discovered later, but the doctors did not change their opinion because, they said, old subdural collections would not rebleed, so the old injury was not relevant.

Shirley Ree Smith was described by her family as a devoted mother and grandmother, always patient with children. Still, she was convicted on only one leg of the triad. One.

Smith was released from prison in 2006, after the Ninth Circuit Court of Appeals reversed her conviction, declaring the evidence against her "constitutionally insufficient." A few days ago, the Supreme Court reversed that reversal, with the message that the Ninth Circuit had overstepped its bounds. "It is the responsibility of the jury-not the court-to decide what conclusions should be drawn from evidence admitted at trial," the justices wrote.

Still, there's some reason for hope, as the text of the decision includes an insightful minority opinion written by Justice Ruth Bader Ginsburg, who quoted papers by Ferris Bandak, Jan Leestma, Waney Squier, and others to support her observation, "It is unlikely that the prosecution's experts would today testify as adamantly as they did in 1997." Before returning Smith to prison, Ginsburg wrote, "I would at least afford her a full opportunity to defend her release from a decade's incarceration."

A New York Times blog post presents the decision in its political context-as a slapping down of the Ninth Circuit Court, which is perceived as activist-at The Loyal Opposition.

The Christian Science Monitor has a balanced treatment, of course, at Supreme Court Rebukes Ninth Circuit.

In the aftermath Emily Bazelon, the author of last winter's New York Times Magazine piece questioning SBS, published a gratifying criticism of the decision on slate.com, at A Vindictive Decision

To see the full written opinion, including the minority opinion at the end, go to The Decision.

For an article that reviews the issues under debate about SBS, see A Parent's Worst Nightmare.