Los Angeles Times

A pawn in a legal chess match

Shirley Ree Smith spent 10 years behind bars for the death of her grandson before her conviction was overturned. Now she waits on skid row as the courts sort out whether a jury's verdict — even if wrong — must prevail.

By Carol J. Williams, Los Angeles Times

December 16, 2010

From a second-floor room in skid row's Russ Hotel, Shirley Ree Smith spends sleepless nights listening to the knife fights and profanity-laced taunts of the drug dealers, pimps and brawlers who populate South San Julian Street.

She ventures out after dark only as far as she needs to get cellphone reception for the nightly call from her daughter, Tomeka, in Kankakee, Ill. It is the emotional high point of each day spent looking for work no one will give her.

Smith has been separated from her daughter and grandchildren for 14 years, since her arrest in the 1996 death of her 7-week-old grandson. After a Van Nuys jury accepted a prosecution theory that Smith must have shaken the baby violently to stop him from crying, she spent 10 years behind bars. Then in 2006, an appeals court ruled the evidence against her was so flimsy it violated her constitutional right to a fair trial. She was ordered freed.

But a long-running legal dispute among the nation's most influential judges has continued to put restraints on Smith. She has been confined to Southern California while the U.S. Supreme Court and the 9th Circuit Court of Appeals exchange contradictory musings, not about her guilt or innocence, but on whether a jury verdict should be respected — right or wrong.
Shirley Smith
Shirley Ree Smith spent 10 years behind bars in the death of her infant grandson before a court ordered her freed. The 9th Circuit Court of Appeals and the U.S. Supreme Court are waging a legal fight over whether a jury's verdict must stand, right or wrong. (Michael Robinson Chavez / Los Angeles Times)

Smith still could be locked up in prison for the rest of her life, if the high court justices take another look at the 9th Circuit's release order and conclude it failed to respect the jury's guilty finding.

Smith says she was dozing on her sister's living room carpet, the TV tuned to the western she'd been watching. She recalls being awakened by "a little cry," and found her two baby grandsons had slipped off the sofa cushions onto the floor.

She put 14-month-old Yondale and 7-week-old Etzel back on the sofa. Their 3-year-old sister, Yolanda, was asleep on the nearby love seat, Smith said. "They were fine," she insists, despite the short tumble.

She woke again a couple of hours later to use the bathroom. On her way back to the living room, she checked on Etzel, thinking he needed a diaper change. In the flickering light from the TV screen, she saw blood trickling from the infant's nostril and something white and foamy at his mouth.

"His head just flopped back," Smith said, her eyes widening in terror at the recollection.

She raced the infant to Tomeka, who had fallen asleep in a bedroom. Mother and daughter called 911 and took turns giving the baby CPR, guided over the telephone by paramedics as an ambulance rushed to the Van Nuys home and emergency dispatchers recorded the women's anguished pleas for help. Etzel was pronounced dead on arrival at Mission Community Hospital about 4 a.m., Nov. 30, 1996. The attending physician listed the cause of death as suspected sudden infant death syndrome.

Within a few days, though, a preliminary autopsy finding would quash that diagnosis and compound the family's grief. The death was ruled a homicide and Smith was the suspect.

A tiny patch of blood found under the skull and a scrape the size of a match head prompted the autopsy doctor to call Los Angeles County's child abuse hotline. A social worker with the Department of Children and Family Services showed up at Smith's sister's apartment two days later to take Yondale and Yolanda into protective custody, commenting disparagingly on Tomeka's having borne three children by the age of 18.

Two months later, before the cause of death was made final or all postmortem test results had been received, Smith was arrested and accused of causing her grandson's death by shaken baby syndrome.

None of the usual signs of violent shaking were present, experts for the prosecution and defense testified at her 1997 trial. The blood on the brain wasn't enough to have caused the death, nor could the small abrasion have been fatal, jurors were told. There was no telltale blood in the baby's retinas, nor was there hemorrhaging around the brain stem or the bruising and fractures that usually speak to abuse.

Associate Deputy Medical Examiner Stephanie Erlich was four months into a two-year forensic training program when she discovered the small brain bleed — the first autopsy she performed that raised suspicion of child abuse. She testified that other indicators of shaken baby syndrome may have been missing because the shaking was so violent that tiny blood vessels in the brain stem suffered "shearing," causing instantaneous death without bleeding because the heart had stopped.

Deputy Dist. Atty. Falomi Pierson objected every time a witness referred to Smith's loving and patient nature, as well as all accounts by paramedics, police and emergency room doctors of her shock and grief. The trial transcript records Superior Court Judge Darlene Schempp, clearly irritated by the rambling, inarticulate questioning of witnesses by defense lawyer Ubiwe K. Eriye, sustaining most of Pierson's objections and offering many of her own.

Just weeks after the headline-grabbing trial of British nanny Louise Woodward brought shaken baby syndrome to the nation's attention, the jury convicted Smith of causing her grandson's death. She was sentenced to 15 years to life in prison. Jurors apparently gave more credence to Erlich and her supervisor, Eugene Carpenter, than to the two pathologists called by the defense who disputed the abuse conclusions and said the baby, born with jaundice, a heart murmur and low birth weight, was probably a victim of sudden infant death syndrome.

"I never thought I could be convicted because I knew there couldn't be evidence of something I didn't do," says Smith, still baffled by the verdict. "You can't send a person to prison on a theory."

The 9th Circuit panel agreed when it ordered her release in 2006. But since then, the appeals court has been engaged in a legal chess match with the U.S. Supreme Court in which Smith isn't a player but a pawn. The high court has twice sent her case back for the 9th Circuit to reconsider in light of Supreme Court rulings that recognize a jury verdict as beyond question.

"My attorney says it's not about me. But who is it about, if not me? It's my life that is being ruined day after day. I'm the one living through all this," she says with a gesture sweeping in the skid row squalor.

The 1996 Anti-Terrorism and Effective Death Penalty Act prohibits an appeals court from second-guessing a jury's evaluation of the evidence except when it constitutes a clear violation or unreasonable application of the law. Smith's conviction was one of those rare but patently wrong judgments, insisted the 9th Circuit panel comprising three appointees of President Carter — Circuit Judges Harry Pregerson and William C. Canby Jr., and U.S. District Judge Edward C. Reed of Nevada.

Another round of legal jousting is already under way. Attorneys for the state have petitioned the 9th Circuit for a full 11-judge hearing and are expected to appeal again to the Supreme Court if they don't get it. In a Nov. 10 filing, the office of Atty. Gen. Jerry Brown scolded the three-judge panel for a decision that "once again failed to follow an implied directive from the United States Supreme Court to change the outcome in this case" by restoring the jury's conviction.

"The sad part is that the science used in her defense has been validated in the intervening years," said Jeff Chinn, associate director of the California Innocence Project, a law student project dedicated to winning release of the wrongly convicted. "With the current research, I don't think she would have been convicted."


After her release from the Central California Women's Facility at Chowchilla, Smith bounced between the homes of her brother and sister. But her brother has a new girlfriend, and her sister wanted some space. A few weeks ago she moved to "emergency housing" arranged by agents of the court to whom she must report.

In the four years since being freed from prison, Smith had been forbidden to leave the state because appeals of her release are pending. But earlier this month, a state court relented and told Smith she could go to Illinois to live with Tomeka and her grandchildren while the judges ponder the validity of her conviction. She has been asking relatives for bus or airfare in hopes of being home by Christmas.

Tomeka Smith works nights packing candy at a warehouse south of Chicago, eagerly awaiting her mother's help raising her two teenagers and 12-year-old Marquis, whom Shirley met just once, a year ago, when she was allowed to leave Los Angeles to attend her mother's funeral.

"It's just been terrible, terrible, terrible," Tomeka says of the criminal case that has branded her mother a baby-killer. "She isn't capable of doing this. She never even hollered at me when I was growing up....I miss my mother dearly. All we ever wanted was to be together and make a life."

Citing her faith and her confidence that "there are people with consciences on the Supreme Court," Smith says she firmly believes her ordeal is nearing an end and the high court won't step in again to question the 9th Circuit judgment.

On other days, she is haunted by the darker scenario.

"I won't go back to prison," she vows, shaking her head with conviction. "I'll take my own life first, but I won't go back there."


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