Normally, that would be that. AEDPA or no AEDPA, the Supreme Court doesn’t usually reach out and grab sad, fact-bound cases like this one. But liberal 9th Circuit judges are a thorn in the side of the Supreme Court’s conservative justices. Last month, after twice sending the 9th Circuit pointed warnings about this case, the Supreme Court reversed the circuit court’s decision. The majority’s brief and unsigned opinion concedes that “doubts about whether Smith is in fact guilty are understandable.” But according to six justices, it’s not the 9th Circuit’s job to do anything about that.
Justice Ruth Bader Ginsburg dissented, with Stephen Breyer and Sonia Sotomayor. Ginsburg gives all the reasons to doubt the medical testimony against Smith. She does a great service by laying out the growing skepticism among a minority of doctors about the validity of diagnosing shaken-baby syndrome without any evidence at all of external injury. “What is now known about the SBS hypotheses seems to me worthy of considerable weight in the discretionary decision whether to take up this tragic case,” Ginsburg writes.
As for the weight to accord Smith’s supposed confession, I defer to an amazing opinion published last week by Judge Richard Posner. In this case, a daycare provider named Rick Aleman was charged for shaking an 11-month-old baby who collapsed in his care. When the police told him that three doctors said that Aleman’s shaking must have caused the injury, he said “I know in my heart that if the only way to cause [the injuries] is to shake that baby, then, when I shook that baby, I hurt that baby.” It turned out that the police were lying. And that the baby’s mother had a record of violence and crime. And that the cop who lied apparently wanted to date her. And that the baby had been sluggish and lethargic for days before he came to Aleman’s house.
The case against Aleman unraveled before trial. It came to Posner and his fellow judges on the 7th Circuit as a suit, brought by Aleman, for false arrest and malicious prosecution. In sustaining those claims, Posner explains how easily an innocent person can implicate himself. The police told Aleman that the only possible explanation for Joshua’s injuries was that the baby had been shaken right before he collapsed. Aleman was the only person to have shaken Joshua just before he stopped breathing. “And so it was a logical necessity that he had been responsible for the child’s death. Q.E.D.,” Posner says. “A confession so induced is worthless as evidence, and as a premise for an arrest.”
That is exactly right. It also perfectly illustrates a serious problem in shaken-baby cases, where the accused often held or handled a baby before the awful moment of collapse, and may be easily led to blame himself.
In Shirley Ree Smith’s case, Justice Ginsburg concludes, “I would not ignore Smith’s plight and choose her case as a fit opportunity to teach the 9th Circuit a lesson.” That’s exactly right, too. There is only one lesson worth learning from this case, and it is about the power of mercy. California Gov. Jerry Brown has the authority to pardon Shirley Ree Smith. She has suffered more than enough for the death of her grandson. Brown should do for her what no judge now can.