In November we wrote about Shirley Ree Smith. She was convicted of killing her grandchild. The death was credited to shaken baby syndrome (SBS). It was alleged that she shook her grandchild to death.

The Supreme Court denied her appeal, showing deference to the jury’s verdict and state court decision uphonding her conviction it reversed a Ninth Circuit Court of Appeal’s ruling granting her habeas. The issue was the suffficiency of the evidence. While all agree that the evidence against Smith was weak, the Supreme Court set the standard for reversal in Jackson v. Virginia. In that case it said that it would not reverse a jury’s finding of guilt if any reasonable jury could have fournd the defendant guilty. Using this standard and considering what we knew about SBS at the time of the trial in 1997 a reasonable jury could have found Smith guilty. Five experts testified at trial, three for the prosecution and two for the defense. The prosecution witnesses testified that the baby died from SBS, the defense witness testified that the baby died from other causes. If the jury believed the prosecution experts, as they apparently did, they could have reasonably found Smith guilty. In all likelihood the defense experts were right.

The child probably died from Sudden Infant Death Syndrome (SIDS). When Smith discovered that the child was not breathing she shook the child slightly. But the child was already dead.

But the problem is that we now know a lot more about SBS. There is a real question whether SBS exists and if so whether it is fatal. As Justice Ginsburg wrote in the dissent it is unlikely that if the trial was held now that the state’s experts would have testified in the same manner and Smith may not have been convicted.

Smith was sentenced to fifteen years to life. The Ninth Circuit after reversing her conviction released her from prison. But now she will have to go back to prison unless California Governor Jerry Brown grants her clemency. The Supreme Court suggested that she apply for clemency and she filed a request with the governor’s office to commute her sentence to time served.

I rarely ask my readers to take any action, but I’m asking that you read the linked Supreme Court decision, as well as the New York Times editorial, and the Sacramento Bee article, both of which are also linked. Then I ask that you write a letter to California Governor Jerry Brown asking him to commute the sentence of Shirley Ree Smith. His address is:

Governor Jerry Brown
c/o State Capitol, Suite 1173
Sacramento, CA 95814


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  1. abby ovitsky says:

    COMMUTE SMITH’S SENTENCE. Stop punishing parents.

  2. Sue Luttner says:

    Thank you covering this important and chilling case, and encouraging action of behalf of Ms. Smith.

    Unsettling but true: Even at the time of Ms. Smith’s conviction, the evidence did not really support a diagnosis of infant shaking, as young Ezra exhibited only one of the three symptoms that define the syndrome. The fact that the jury believed the prosecution experts points to the emotional nature of the trial and the built-in human urge to protect the children, which can apparently trump logic.

    Ms. Smith’s case, alas, is only an especially egregious example of an ongoing tragedy. For the rare story of a family eventually exonerated of shaking allegations, please see

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