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New reports suggest wrongful conviction in 'Shaken Baby' case

March 29, 2012 |  4:06 pm

New reports from the Los Angeles County coroner's office and a prominent UCLA pediatrician have cast doubt on the reliability of forensic evidence used to convict a grandmother of shaking her 7-week-old grandson to death in Van Nuys 15 years ago.

The reports have emerged as Gov. Jerry Brown weighs whether to grant clemency to Shirley Ree Smith, who spent 10 years in a California prison for the mysterious death of baby Etzel Glass on Nov. 30, 1996.

As part of the clemency process, Los Angeles Dist. Atty. Steve Cooley asked for a fresh review by three experts of autopsy reports, evidence and testimony given at Smith's 1997 trial. While Cooley said his office remained persuaded that the forensic evidence was reliable, the two senior deputy medical examiners and Harbor-UCLA Medical Center pediatrics vice chairwoman Carol Berkowitz offered new theories on the possible cause of death that Smith's attorneys contend "clearly undermine and contradict the medical evidence which was presented at trial."

Smith, now 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 Smith must have shaken the baby to death to silence his crying.

The U.S. Supreme Court twice urged the 9th Circuit to reconsider its ruling with respect for the jury's verdict, and in December ordered the lower court to reinstate Smith's conviction. The justices noted, however, that clemency might be appropriate for Smith, in view of doubts about her guilt and the fact that she has already been deprived of her liberty for a decade.

In his application for clemency, Smith's attorney, Michael J. Brennan, cited the report by Senior Deputy Medical Examiner James Ribe that raised eight challenges to the 1996 autopsy diagnostics 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, the presence of blood spots in the infant’s lungs that is now linked to sudden infant death syndrome and suggested the baby's tiny head injury was probably incurred at birth.

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

Berkowitz, a professor of clinical pediatrics at UCLA, said the pathology reports indicated a head injury that suggested abuse but said it was impossible to pinpoint when the injury occurred. Like Carpenter and Ribe, Berkowitz also noted that the baby was sleeping prone on the couch with his toddler brother and might have suffocated.

The physicians' reports were first disclosed in a report by ProPublica, National Public Radio and PBS' "Frontline" early Thursday. The documents were later obtained by The Times, which has reported on Smith's plight and protracted battle with the U.S. Supreme Court over the validity of her conviction.

Smith, who is living with her daughter and other grandchildren in Alexandria, Minn., has been on tenterhooks waiting for Brown's decision on whether she will have to return to prison and serve out the rest of her 15-years-to-life 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 to the legal limbo in which she has been living for six years.

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

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-- Carol J. Williams

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