Brown commutes sentence of woman convicted of killing grandson

Gov. Jerry Brown on Friday commuted the potential life sentence of a woman convicted of killing her infant grandson 15 years ago, saying “it is clear significant doubts surround” her guilt.

Shirley Ree Smith, 51, who was freed in 2006 after nearly a decade in prison but was destined to be reincarcerated after a U.S. Supreme Court decision last year, said it “hasn’t sunk in yet” that the threat of more prison time has been lifted.

“I just can’t believe this is finally over with,” said Smith, choked with tears of relief, when reached at her daughter’s home in Alexandria, Minn. “Everybody’s so excited, but I just can’t believe it.”

Smith, who has always maintained her innocence, was convicted by a Van Nuys jury in 1997 of causing the death of 7-week-old Etzel Glass after testimony by coroner’s officials that the infant died of a blow to the head. She was sentenced to 15 years to life in prison.

Smith’s clemency petition had been bolstered by new findings disclosed last week by the Los Angeles County coroner’s office and a prominent UCLA pediatrician.

Deputy Medical Examiner Dr. James Ribe raised eight challenges to the 1996 autopsy, which concluded that the baby died from violent shaking, then called shaken baby syndrome and now diagnosed as abusive head trauma. Ribe asserted that the cause of death should have been ruled “inconclusive.”

“In light of the unusual circumstances in this particular case, the length of time Ms. Smith has served in prison, and the evidence before me that Ms. Smith has been law-abiding since her release from prison, I conclude that reducing her sentence to time served is appropriate,” Brown said in his order.

Smith was the subject of a five-year legal jousting match between the U.S. Supreme Court and the U.S. 9th Circuit Court of Appeals, which struck down her conviction in 2006, saying there was “no demonstrable support” for the prosecution’s theory that she must have shaken the baby to death. She was released from prison after that ruling.

But tough times followed her release, as she wore out her welcome at friends’ and relatives’ homes and ended up living on downtown Los Angeles’ skid row.

The Times detailed her plight in a front-page story in December 2010, while she waited for the Supreme Court to settle its dispute with the 9th Circuit over whether a jury’s verdict — right or wrong — must be respected by appeals courts. Dozens of readers responded, contributing money and frequent-flier points to get her reunited with her daughter and grandchildren, then living in Illinois, in time for Christmas.

In October, the Supreme Court ruled 6 to 3 that Smith’s conviction should be reinstated, setting in motion her potential extradition to California and return to prison. In the divided opinion, even the six justices in the majority observed that “doubts about whether Smith is in fact guilty are understandable” and that clemency might be appropriate “to help ensure that justice is tempered with mercy.”

Her lawyers filed the clemency petition in December.

The case against Smith was circumstantial, and even the baby’s mother never wavered in her insistence that her patient and loving mother was innocent.

Etzel, the third child of Smith’s daughter Tomeka, had been put to bed on a couch cushion on the night before he was found lifeless in the early hours of Sept. 30, 1996. Smith had been sleeping on the living room floor of her sister’s Van Nuys apartment, where she, Tomeka and the three children were staying after moving from Illinois a few weeks earlier.

Smith told investigators on the night of the baby’s death that he had slipped off the couch onto the living room floor but that he appeared to be uninjured and that she set him back on the cushion to sleep.

At her trial, Deputy Medical Examiner Dr. Eugene Carpenter and other prosecution witnesses testified that such a short fall onto a carpeted floor couldn’t have been fatal and cited a small pool of blood on the baby’s brain as evidence of abuse.

As part of the clemency process, Los Angeles Dist. Atty. Steve Cooley asked the medical examiner’s office to review the evidence against Smith in light of more recent scientific reports on infant deaths.

Carpenter reiterated his view that there was no doubt the baby died from a violently inflicted brain injury. But he offered an opinion not mentioned at trial that “blunt head trauma to a hard padded surface can’t be ruled out.”

Harbor-UCLA Medical Center pediatrics Vice Chairwoman Carol Berkowitz also reviewed the evidence, finding support for a determination of abusive head trauma but stating that it was impossible to pinpoint when the injury occurred.

Ribe, Carpenter and Berkowitz all noted a possibility that the baby suffocated because of having been settled on the couch face-down.

Cooley said in a letter to Brown in January that he didn’t oppose clemency for Smith on “equitable considerations” but said the state stood by the forensic evidence that the baby died from abuse.

“A decision to grant Ms. Smith clemency based upon a misunderstanding of the validity of the medical evidence presented at Smith’s trial would undermine the public confidence in well-established medical diagnoses of child abuse,” Cooley warned.

Asked about the governor’s action, Cooley said only: “This is well within Gov. Brown’s commutation powers.”

Michael J. Brennan, Smith’s attorney, said that Brown’s order still left the second-degree murder conviction on her record and that he and Smith were consulting on how they might get a court to expunge it.

“There are still substantial questions about her underlying guilt and we may still try to challenge the underlying conviction itself,” Brennan said.

Gil Duran, a spokesman for the governor, said the action to spare Smith a return to prison was the first commutation by Brown in this term and that he issued only one other during his first two terms. Gov. Ronald Reagan, by contrast, issued 17 commutations while in office, Duran said.