Review of evidence challenges conviction in baby’s death

New findings by the Los Angeles County coroner’s office and a prominent UCLA pediatrician “undermine and contradict” the evidence and expert testimony used to convict a woman of shaking her 7-week-old grandson to death 15 years ago, her attorneys have argued in a recent clemency petition to the governor.

A review of the evidence against Shirley Ree Smith was ordered to assist Gov. Jerry Brown as he weighs whether to commute Smith’s sentence of 15 years to life. Smith has already spent 10 years in prison for the death of baby Etzel Glass at a Van Nuys apartment on Nov. 30, 1996.

Smith, 51, has been free since the U.S. 9th Circuit Court of Appeals threw out her conviction in 2006, saying there was “no demonstrable support” for the prosecution’s theory that she shook the baby to death. The U.S. Supreme Court twice urged the 9th Circuit to reconsider its ruling and then in December reversed the lower court and ordered Smith’s conviction reinstated. The justices noted, however, that state officials might want to consider clemency for Smith.

Smith has been living in Minnesota in recent months as she awaits Brown’s decision on whether to commute her sentence or send her back to prison.

As part of the clemency process, Los Angeles County Dist. Atty. Steve Cooley asked two senior deputy medical examiners and Harbor-UCLA Medical Center pediatrics Vice Chair Carol Berkowitz to review all evidence and testimony from Smith’s 1997 trial.

All three physicians offered new theories on the potential cause of death that Smith’s attorneys contend “gravely undermines the prosecution’s theory at trial” that Smith must have shaken the infant violently, perhaps to stop him from crying. Two of the three doctors, however, cited support for the prosecution’s position that a small head injury was the result of abuse at some time during the infant’s short life.

Smith’s attorneys, Michael J. Brennan and Dennis Riordan, cited the report by Senior Deputy Medical Examiner Dr. James Ribe that raised eight challenges to the 1996 autopsy findings and concluded that the cause of death should have been listed as “undetermined.”

Ribe pointed out “the complete absence of bodily trauma” on the infant and the presence of blood spots in the infant’s lungs now linked to sudden infant death syndrome, according to his report. He also suggested that a small scar on the baby’s head was probably incurred at birth rather than as a result of an abusive blow.

The other deputy medical examiner asked to review the case, Eugene Carpenter, was one of the two coroner’s officials who testified for the prosecution at Smith’s trial. Carpenter said there was “no reasonable doubt as to the cause of death” from a violently inflicted brain injury but offered an opinion not mentioned at trial that “blunt head trauma to a hard padded surface can’t be ruled out.”

Smith told investigators that on the night of the baby’s death, he had slipped off the couch where he had been sleeping, but that he appeared to be uninjured and she set him back on the cushion. Carpenter and other prosecution witnesses testified at Smith’s trial that such a short fall onto a carpeted living room floor couldn’t have been fatal.

Berkowitz, a professor of clinical pediatrics at UCLA, said the pathology reports contained indications of abusive head trauma, or AHT, the name now applied to what was previously called shaken baby syndrome. But it was impossible to pinpoint when the injury occurred, Berkowitz wrote. Like Carpenter and Ribe, she also noted that the baby was sleeping face-down on the couch and might have suffocated.

The conflicting reports by Carpenter and Ribe and an assertion by Chief Medical Examiner Lakshmanan Sathyavagiswaran that his office stood by the homicide ruling revealed a rift among the experts on how to evaluate forensic evidence in some infant deaths.

In a letter to the governor that Cooley’s office made available, the district attorney said he was mindful of Smith’s lack of criminal history, age and good behavior in prison, indicating that he wasn’t opposed to clemency on “equitable grounds.” But he cautioned Brown against rejecting “the well-documented and widely accepted medical diagnosis, AHT,” saying that would undermine public confidence in diagnoses of child abuse.

The new medical analysis was first revealed in a Thursday report by ProPublica, National Public Radio and PBS’ “Frontline.” The Times, which has reported on Smith’s case since discovering her marooned and penniless on skid row two years ago, obtained copies of the experts’ reports Thursday.

Smith has maintained her innocence and has been unwaveringly supported by the baby’s mother, who is her only child. Smith, daughter Tomeka and two other young grandchildren had just moved to the San Fernando Valley from Illinois a few weeks before Etzel’s birth and were staying with Smith’s sister while both mother and grandmother looked for work. On the night of his death, Etzel and his then-14-month-old brother Yondale had been put to bed on the living room sofa, and Smith slept on the floor nearby.

Smith said she found the baby on the floor when she woke up about midnight and resettled him to sleep after checking that he wasn’t hurt. A couple of hours later, she got up to find the infant unresponsive with blood trickling from a nostril, she told investigators.

Reached at her daughter’s home in Alexandria, Minn., Smith said she has been vacillating between faith and despair in the months since her lawyers petitioned Brown to commute her sentence.

“I didn’t kill my grandson. I don’t know why they insist that I did,” said Smith, adding that she was living “one day at a time” waiting for an end of the legal ordeal.

Gil Duran, a spokesman for the governor, said Smith’s clemency petition was “pending” and that he didn’t know when a decision would be made.

carol.williams@latimes.com