Keith Findley: Mounting Evidence Questions the Justice in Shirley Smith Case

Written and submitted by Keith Findley, Wisconsin Innocence Project director and President, Innocence Network Board of Directors:

NPR disclosed last week that a senior pathologist in the Los Angeles County coroner’s office has sharply questioned the forensic evidence used to convict Shirley Smith, a 51-year-old grandmother, of shaking her 7-week-old grandson to death.  The disclosure comes three months after the U.S. Supreme Court reinstated Shirley Smith’s conviction and sentence for felony child endangerment by summarily reversing the 9^th Circuit’s grant of habeas relief in Cavasos v. Smith.

According to NPR, the newly disclosed 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’s report notes that there was no evidence of abuse, and that the child’s brain injuries were relatively minor and could have been caused by suffocation from sleeping face down on a couch cushion or even from the birth process.

These revelations make the Supreme Court’s summary reversal in Smith’s case all-the-more troubling.  The Court’s per curiam majority treated this as a routine decision mandated by established principles requiring deference to juries in sufficiency-of-the-evidence claims under the due process clause.  But this decision was not routine.

The majority seemed to acknowledge the potential for injustice from its judgment, conceding that “[d]oubts about whether Smith is in fact guilty are understandable.” But the majority was unmoved because, it said, “the inevitable consequence of this settled law [of deference to juries] is that judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold.”

But inflicting that injustice on Smith was hardly compelled here.  Cases like this are routinely ignored by the Supreme Court, which has discretion to decide which cases to review and the capacity to accept only a relative few.  This one broke no new legal ground.  The Court’s action here was not compelled, or even routine, but unusual and unnecessary.

Hence, the three-justice dissent, led by Justice Ginsburg, chastised the majority for taking the case at all, and for then reversing without full briefing and argument.  Justice Ginsburg queried, “By taking up the case, one may ask, what does the Court achieve other than to prolong Smith’s suffering and her separation from her family.”  Perhaps avoiding cruel and unnecessary actions like this was what President Obama meant when he said he wanted to appoint justices who possess empathy.

In the end, the only thing the majority appeared to aim for was a rebuke of the Ninth Circuit for having refused to yield to the Court’s directives in two prior remands of the case.  Shirley Smith was just unfortunate collateral damage in the crossfire between the courts.

Troublingly, the decision also reflects erosion of the Court’s commitment to assuring substantive justice—that is, to ensuring accuracy of judgments about guilt and innocence—and an increasing focus on process or formalism as a means of preserving convictions.

Despite these problems, however, the decision more hopefully signals an important shift in the way that the legal system understands so-called shaken baby syndrome (SBS) cases. The case is the first in which members of the Court acknowledged that medical opinion evidence about SBS is increasingly coming under scrutiny for its lack of solid scientific foundation.  The three-justice dissent, authored by Justice Ginsburg, observed that “[d]oubt has increased in the medical community ‘over whether infants can be fatally injured through shaking alone.’”  Noting new scientific research, Justice Ginsburg observed that “[w]hat is now known about shaken baby syndrome (SBS) casts grave doubt on the charge leveled  against Smith.”

As shaky as typical SBS evidence can be, this case was not even the typical shaken baby case.  The standard SBS hypothesis was, at least until recently, that shaking causes shearing of bridging veins and axons around the brain.  Typically, diagnostic injuries include bleeding around the brain, retinal hemorrhages, and brain swelling, although not all three are always present.

In this case, there was only minimal blood on the brain, and no retinal hemorrhages or brain swelling.  Accordingly, the state’s experts did not rely on traditional SBS hypotheses, but rather on an even more untested hypothesis that the shaking in this case caused tearing of the brain itself in vital areas.  They offered no scientific or medical literature, however, to support this, and the autopsy revealed no evidence of such tearing.

Almost all of the other evidence in the case was inconsistent with guilt.

There were no eyewitnesses to abuse.  There was no confession (although Smith said she jostled her grandchild to try to wake him when she found him unresponsive).  There were no external signs of abuse.  Smith was a loving grandmother with no history of abuse.  And while the injuries were allegedly inflicted in the night, no one sleeping near the infant heard him cry.

Despite upholding this conviction, the majority also implicitly acknowledged the weakness of the science when it conceded that Smith might indeed be innocent.  In the end, that recognition of the unraveling scientific basis for the SBS hypothesis is the real significance of this case.  One can hope, at least, that this emerging understanding of SBS, rather than the majority’s insensitivity to Shirley Smith’s claim to justice, is the case’s legacy.