A 51-year-old woman convicted of fatally shaking her 7-week-old grandson - a conviction overturned three times by a federal appeals court, and reinstated by the U.S. Supreme Court - has asked Gov. Jerry Brown for clemency.
In its Oct. 31 ruling, the high court said doubts about Shirley Ree Smith's guilt were "understandable," but that federal judges had no authority to second-guess the jury that convicted the Los Angeles woman in 1997 or the state courts that upheld the verdict.
The majority in the 6-3 ruling said Smith's only recourse was to seek executive clemency. In papers sent to Brown on Friday, her lawyers asked the governor to commute her sentence to the 10 years she has already spent behind bars, and spare her from returning to prison for the rest of a 15-to-life sentence.
Clemency is justified by "the paucity of evidence supporting Ms. Smith's finding of guilt, the fact that she has been a law-abiding citizen for more than 50 years" apart from this conviction, and the Supreme Court's apparent qualms about her case, defense lawyers said.
The Los Angeles County district attorney's office, which prosecuted Smith, has not seen the clemency petition and has no comment, spokeswoman Jane Robinson said.
The filing comes amid debate among scientists about 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.
A minority of researchers have questioned whether violent shaking of a child can cause such severe injuries. A state appeals court in Wisconsin cited those researchers' findings in a 2008 ruling overturning a woman's homicide conviction, a ruling cited by the dissenting Supreme Court justices in Smith's case.
"Doubt has increased in the medical community over whether infants can be fatally injured through shaking alone," said Justice Ruth Bader Ginsburg, quoting the Wisconsin court.
Smith's grandson, Etzel Dean Glass, went to sleep on a couch at Smith's brother's apartment the evening of his death in November 1996 with his mother and grandmother sleeping nearby.
Smith said she awoke at one point, found the child on the floor, and put him back on the couch without noticing anything unusual. She said she awoke again around 3:20 a.m. and saw him lying motionless, with blood on one nostril. Attempts to revive him failed, and he was pronounced dead at a hospital.
Prosecutors said Smith shook the baby to stop him from crying. Smith denied it, and defense witnesses described her as a loving grandmother who had never shown anger toward Etzel.
But county medical examiners said the blood was evidence that the child had been violently shaken. Although there was no sign of the bleeding or swelling of brain tissue normally present in such cases, the medical witnesses said the shaking must have been so severe that it tore away parts of the brain.
Reversal in 2006
After unsuccessful appeals in state courts, Smith won a reversal in 2006 from the Ninth U.S. Circuit Court of Appeals in San Francisco, which said there was no credible evidence that the child was intentionally killed.
She has remained free for four years while the appeals court reaffirmed its conclusion twice, after Supreme Court orders to reconsider the case under recent precedents limiting federal court review of state convictions. The high court ended the duel with its latest ruling.
"It is not the job of this court, and was not that of the Ninth Circuit, to decide whether the state's theory was correct," the majority said. "The jury decided that question, and its decision is supported by the record."