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December 29, 2011

Is there any good reason for Governor Jerry Brown NOT to grant clemency to Shirley Ree Smith?

Shirley-smithThe question in the title to this post is prompted by this new article in the Los Angeles Times, which is headlined "Gov. Jerry Brown weighs clemency petition for a grandmother."  Here are the basics: 

Gov. Jerry Brown is giving strong consideration to a clemency petition for a grandmother whose conviction for shaking her infant grandson to death was overturned by an appeals court and reinstated by the U.S. Supreme Court, lawyers close to the case said.

The governor, who received the petition Wednesday, is being asked to commute the life sentence of Shirley Ree Smith, a 51-year-old grandmother who was sentenced to 15 years to life in 1997 for causing the death of a child.

Although Brown is notoriously unpredictable, a longtime advisor said he would be "very surprised" if Brown did not grant clemency to Smith, who has spent 10 years in prison for a death she has maintained was a tragic case of Sudden Infant Death Syndrome, not a crime against a beloved child.

A federal appeals court found "no demonstrable support" for the prosecution's claim that Smith shook 7-week-old Etzel Glass to death in 1996 and granted her release from prison in 2006 after striking her conviction by a Van Nuys jury.  But the U.S. Supreme Court in October reinstated the conviction on the grounds that courts should not second-guess verdicts "supported by the record."

The high court admitted that doubts about Smith's guilt were "understandable," and three justices penned a dissent criticizing the majority in the 6-3 decision for intervening to assert a procedural point.

A growing number of medical experts have questioned the science behind so-called "shaken baby" cases, especially those decided in decades past. Smith's trial took place only weeks after the headline-grabbing case of British nanny Louise Woodward brought the fatal act of child abuse to the nation's attention.

Clemency petitions are generally futile, granted mostly when governors are leaving office. But Smith's case so concerned some federal judges that they privately reached out to ensure that the petition got Brown's close attention, lawyers said.

Three weeks ago, a clerk from the 9th Circuit called Michael Brennan, Smith's attorney, asking if he was going to file a clemency petition.   Brennan said he told her he would but considered it futile.  "All the clerk said was, 'You might be mistaken. A petition might be well received,' " Brennan said. "Clearly, she was sort of saying, 'File the petition.' "

Smith, reached at her home in Kankakee, Ill, said she has been living on tenterhooks waiting for word on whether she must go back to prison to serve the remainder of her sentence.   "I've been trying to find someone who can explain to me what's going on," said Smith, who was hoping to follow her daughter to Minnesota so she could continue babysitting her younger grandchildren.  "The lawyers keep saying this isn't about me, it's about the courts and the law on decisions.  But how can it not be about me when I'm the one who may have to go back to prison?"

In the fall of 1996, Smith moved to Van Nuys from Illinois to help her daughter Tomeka care for newborn Etzel, 14-month-old Yondale and 3-year-old Yolanda. On the night of Etzel's death, Smith was sleeping in the living room of her sister's apartment with the three grandchildren. When she got up to use the bathroom, she found him lifeless and summoned paramedics. An emergency room physician listed the cause of death as SIDS.

An autopsy revealed a small pool of blood on the baby's brain, which two officials in the medical examiner's office testified at Smith's trial was the result of violent shaking. Neither defense expert testimony that the baby probably died of SIDS nor Tomeka's assertions that her mother had never raised a hand against her or her children dissuaded jurors from the prosecution's theory that Smith had become irritated by the infant's crying and shook him to make him stop.

Given that the majority opinion in the Supreme Court ruling that reinstated Sirley Ree Smith's conviction make express reference to the clemency process (noted here), I find it disturbing — and perhaps a telling indication of the sorry state of modern clemency politics and practice — that her lawyer considered a clemency petition to be likely futile.  Moreover, as the title of this post suggests, I have a hard time coming up with a reason why Governor Brown should not commute Smith's sentence to time served.

Smith claims she is innocent, and there seems little dispute that the evidence she committed any crime is less than lock solid.  If she is indeed innocent (and Governor Brown is convinced of this fact), a mere sentence commutation is really an insufficient clemency response, but still justified and justifiable.  And, based on what I have read, it does not seem that the prosecution ever claimed Smith meant to kill her grandchild.  Thus, even if she was involved in the child's death, the decade Smith has spent in prison surely strikes me as more than enough prison time to punish someone for accidentally causing an infact's death.  Finally, California surely cannot afford "wasting" scarce prison monies and space on a person who would seem to pose no threat to the public and whose own daughter apparently still wants her involved in the care of her grandchildren.

I suppose one could urge resisting the arguments for clemency here by taking the view that a Governor should never grant clemency for any reason in any case. (My understanding is that Mitt Romney has express such a view in the past.)  But unless you are absolutely against the exercise of clemency in every case, I wonder if there is any reason not to support clemency in this case.

December 29, 2011 at 11:18 AM | Permalink


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"...taking the view that a Governor should never grant clemency for any reason in any case. (My understanding is that Mitt Romney has express such a view in the past.)"

I don't think his view is that extreme. What I found on the subject was this:

By contrast, Romney has a zero-tolerance approach. "I didn't pardon anybody as governor because I didn't want to overturn a jury," he said during a June 2007 debate.

When he was asked about his policy in December 2007, Romney replied "We looked at the cases one by one and I did not want to provide commutations to people who had weapons violations that were going to be asking to use weapons in their new capacity." He told reporters that the only reasons he would have issued a pardon or commutation would have been if he found evidence that proved a wrongful conviction, prosecutorial misconduct or errors in the judicial process.

The first statement could be interpreted as "never" if taken in isolation, but I think it is a mistake to characterize a person's position on a complex issue based on one impromptu statement. His position as reflected in the latter statement is restrictive, but not "never." Also, it's important to keep in mind that there is less need for the exercise of clemency in a state where the legislature and judiciary are both much friendlier to defendants than other states. Comparing Romney's record with Perry's is worse than comparing apples with oranges. It's comparing cranberries with jalapenos.

Posted by: Kent Scheidegger | Dec 29, 2011 1:27:35 PM

Gov Brown may or may not grant clemency in this case of course, but I fail to see why as the title of this post ststes, that there is no good reason not to grant clemency. A jury heard the case and found her guilty of killing a baby. She had her appeals and her conviction stands.
She got a 15 year to life sentence which does not seem unduly harsh for the death of a seven week old. Again Gov Brown may well grant clemency but it would hardly be unreasonable not to.

Dennis Skayhan ADA

Posted by: Dennis J. Skayhan | Dec 29, 2011 3:50:16 PM


Given that you generally cannot request clemency until you have exhausted judicial remedies, it will *always* be the case that the requester will have been convicted by a jury (or judge, having waived the jury) and had his or her appeals heard and denied. So, it can't be that those facts are, by themselves, sufficient to justify or require denial of the petition; otherwise, all petitions would be denied.

Of course, arguably I have just described the actual status quo, so maybe I am the one with the flawed understanding. But I am generally with Doug B. on this -- what is the point of *having* a clemency process (which the Founders at the federal and state levels all thought was a necessary part of a multi-branch democracy) if it is never used, even in the most compelling cases?

Posted by: Anon | Dec 29, 2011 4:59:42 PM

I don't know enough about the underlying facts to make an informed opinion, but didn't the evidence show that the brain stem was sheared? That doesn't sound like SIDS to me. We see a lot of snow jobs from the defense side.

Posted by: federalist | Dec 29, 2011 8:07:03 PM

Clemency should be exercised (contrary to Mitt Romney's opinion-apparently) but with great care and concern.

Posted by: Attorney George E. Bourguignon, Jr. | Dec 29, 2011 8:48:54 PM

It appears that the sole evidence against Ms. Smith was the opinion of government experts that the baby's death was caused by from "shaken baby syndrome" (SBS). Researchers are now determining that SBS is based on tenuous evidence and flimsy theories, and that many other, non-criminal, causes can produce the symptoms attributed to SBS. Governor Brown should pardon Ms. Smith.

Posted by: C.E. | Dec 30, 2011 3:35:14 AM

"Researchers are now determining that SBS is based on tenuous evidence and flimsy theories, and that many other, non-criminal, causes can produce the symptoms attributed to SBS. Governor Brown should pardon Ms. Smith."

The injuries in this case were particularly severe. Like I said, I am no expert, but it seems to me that there is a very strong possibility that this woman killed that baby.

Posted by: federalist | Dec 30, 2011 8:59:25 AM

My mother Shirley Ree Smith did not commit this crime that she was accused of and that was killing my seven week old son Etzel Dean Glass 111. If people would just read my mother whole case then they would understand and see that there is NO way possible that she could have did this unthinkable act.

Posted by: Tomeka Smith | Dec 30, 2011 9:23:15 AM

You have clearly not been affected by a loved one of Shaking Baby Syndrome. I personally have. My name is Maria Alvarez-Garcia. I am the maternal grandmother of Adam Carbajal. My precious grandson was a victim of Shaking baby Syndrome at the age of one, 7 years ago.. I don't understand how anyone would consider giving clemency to someone, no matter what relationship they have to a child, for killing him. The baby had bleeding in the brain for gods sake, the coroners ruled it was not consistent with SIDS. I am outraged that this lady is out inspite of the Supreme Court overturning the appeal. I am speaking on behalf of that innocent baby since obviously noone from his family is. Etzel Glass deserves justice even if it's from someone that should of loved him and protected him.. Please, I am begging to please think of Etzels right for justice. Ms. Smith chose to do what she did to her precious grandson, so why should she not pay the consequences for that? Alot of "phony" doctors dispute Shaking Baby Syndrome and it's beyond me why... My grandson and other precious innocent children are proof that it exist. Ms. Smith deserve the sentence she was originally given..15 years to life and no mercy, sympathy nor clemency!!!10 yeras is NOT nearly enough for what she CHOSE to do to her grandson!!! I am going to fight this clemency petition until the end, with media support and all the support I have been getting!!! Everyone that agrees with me, please contact Gov. Brown and tell him so!! I have all the links on my facebook wall-Gracias and have a great day!! FB Maria Alvarez Garcia-Adam Carbajal

Posted by: Adam's Grama | Jan 4, 2012 11:41:50 AM

I do not serve an Elohiym of no mercy.

From Isaiah 61:
61:1 The Spirit of the Master YHWH is upon me; because YHWH hath anointed me to preach good tidings unto the meek; he hath sent me to bind up the brokenhearted, to proclaim liberty to the captives, and the opening of the prison to them that are bound;

61:2 To proclaim the acceptable year of YHWH, and the day of vengeance of our Elohim; to comfort all that mourn;

61:3 To appoint unto them that mourn in Zion, to give unto them beauty for ashes, the oil of joy for mourning, the garment of praise for the spirit of heaviness; that they might be called trees of righteousness, the planting of YHWH, that he might be glorified.

61:4 And they shall build the old wastes, they shall raise up the former desolations, and they shall repair the waste cities, the desolations of many generations.

Posted by: Darla Anderson | Jan 19, 2012 9:44:08 PM

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