The Supreme Court released a decision last month that will easily be the most vindictive of the term. And hardly anyone noticed.
That’s because the case didn’t 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. It’s 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, Etzel’s 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 she’d been anything but loving toward the kids at any time. When Smith woke up and found Etzel limp, she ran with him to his mother’s room next door, saying she thought he’d fallen off the sofa. At first, the doctors who examined Etzel said he’d died of sudden infant death syndrome—no one’s 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. Etzel’s case involved only “minimal” 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 didn’t 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.
I’d like to think that Shirley Ree Smith would not be prosecuted today, though I’m not certain of it. 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.
Smith’s case is truly an outlier. Since Etzel didn’t have the typical symptoms, the prosecution’s 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 wasn’t enough evidence for a jury to find her guilty. But shaken-baby convictions aren’t 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 least-favorite law. AEDPA tells federal courts that they can’t 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 it’s 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.
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