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January 4, 2012

New York Times editorial urges commutation for Shirley Ree Smith

Regular readers are familiar with the Shirley Ree Smith case from California, and today New York Times' readers are seeing this pitch from the paper's editorial board for Smith to receive clemency. Here are excerpts of the pitch:

The power to pardon is an essential means of justice, allowing a governor to right what the law got wrong.  Gov. Jerry Brown of California has been asked to commute to time served the sentence of Shirley Ree Smith, who was convicted in 1997 of killing her grandson and has already served 10 years of a 15-years-to-life sentence.  We urge the governor to commute her sentence so she does not now have to return to prison as a result of a misguided Supreme Court ruling.

Ms. Smith was convicted of shaking her grandson to death.  When the United States Court of Appeals for the Ninth Circuit overturned her conviction in 2006, it found “no demonstrable support” for it.  There was “no physical evidence” and “no other evidence” of the severe bleeding or swelling that are the most common signs of shaken baby syndrome.  The court concluded “there has very likely been a miscarriage of justice in this case.”

This fall, however, five years after Ms. Smith was released, the Supreme Court overruled the Ninth Circuit, which means that she must complete her sentence unless it is commuted....

Ms. Smith has already served 10 years for a crime she likely did not commit.  She should not now be made a victim of the Supreme Court’s pique.

I am not certain that the Supreme Court's ruling in Smith was "misguided," but I am certain that Gov. Brown would be wise and astute to commute Smith's sentence.  Indeed, as I explained in this post, I have a very hard time coming up with any sound reason for not commuting her sentence at this point.

January 4, 2012 at 10:35 AM | Permalink


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Doug, the brain shearing is hard to explain. I haven't dug all that deeply into the case, so I am not saying one way or the other, but it seems to me that the supposed issues with diagnoses of SBS really are besides the point in this particular case. The Ninth Circuit's view is to be seriously discounted, as it is patently clear that it botched the case badly (even Ginsburg defend the Ninth in her dissent from the granting of cert.)

Posted by: federalist | Jan 4, 2012 10:43:40 AM

But it does not seem as though there is ANY evidence that this was an intentional cold-blooded killing, federalist. So even if she did kill the kid via shaking, isn't the 10 years she has already served for that crime sufficient? Do you think she poses any risk to the public? And, in light of all the uncertainty, isn't the "best bet" for a kind of cosmic justice is to just allow her to stay out?

Posted by: Doug B. | Jan 4, 2012 12:00:14 PM

First off, that something wasn't a "cold-blooded" murder doesn't mean 10 years is an appropriate sentence. The evidence, such as it is, suggests that Etzel was killed by a sudden, violent assault. Etzel was a helpless baby. He is dead. He seems to be an afterthought in your analysis.

Posted by: federalist | Jan 4, 2012 1:38:29 PM

Is your assertion, federalist, that anyone who violently strikes a young child and that child then dies must always be punished through a prison term of more than 10 years. In many jurisdictions, even intentional killings of kids do not result in prison terms of a decade. Do you find those laws unjust?

More to the point, my understanding is that the trauma to the child could have come from a fall or some other accident. Thus, you have to assume the worst and even if you do I still stuggle with the basis for asserting that a decade in prison is insufficient punishment under these circumstances.

Do you think Etzel would want Smith to sit in prison more than a decade? That seems the implication of what you are saying....

Posted by: Doug B. | Jan 4, 2012 2:04:21 PM

Doug: I feel 10 yrs is more than adequete sentence... BUT, BUT, if this was Federal, she would have Life...Anytime a death occurs, its Life....

The federal system is broken, there is not a pipe wrench large enough to turn it downwards....Their supervised Release is beyond challenging, for roughly 60-70% of the crew....One doesn't receive any credit for the period you make it thru, even though there is no parole....Once they get you, intend on keeping so many for an extended period...They have the wrong goal....They warehouse people,simply put....Almost all MM were put in place during election years...

Smith should not have to sit in prison any longer...

Posted by: Josh2 | Jan 4, 2012 2:19:10 PM

"Is your assertion, federalist, that anyone who violently strikes a young child and that child then dies must always be punished through a prison term of more than 10 years. In many jurisdictions, even intentional killings of kids do not result in prison terms of a decade. Do you find those laws unjust?"

I don't know that I made the assertion that each violent assault on a child that results in death deserves more than 10 years in jail--please explain how I did that. I did note that this assault on a seven-month child (helpless and fragile) was violent (if the evidence supporting the conviction is to be believed)--something which seems relevant to the punishment of Mrs. Smith (once again, as I have stressed, if the evidence is to be believed).

As for intentional killings getting less than 10 years, well, I haven't seen too many cases of that outrage, but that some people get a wrist-slap for murder doesn't mean other killers are entitled to a discount.

"More to the point, my understanding is that the trauma to the child could have come from a fall or some other accident. Thus, you have to assume the worst and even if you do I still stuggle with the basis for asserting that a decade in prison is insufficient punishment under these circumstances."

I am not really assuming anything. Criticism of your reasoning does not mean that I necessarily think that your ultimate conclusion is incorrect. I'd like to know how solid the evidence is that this wasn't SBS. I suspect Jerry Brown is going to take a look at that, and Mrs. Smith is free while that is going on. But if you think that people who violently shake a baby enough to cause the second form of SBS syndrome (mentioned in the SCOTUS case) are unjustly imprisoned if their sentences run past 10 years, then we'll just have to disagree about that. The only reason we're talking about Mrs. Smith, by the way, is that she got the benefit of a couple of rogue judges (no one seriously argues that the Ninth Circuit was legally correct here).

"Do you think Etzel would want Smith to sit in prison more than a decade? That seems the implication of what you are saying...."

The idea that trying to imaginatively reconstruct what a dead infant would want is, on its face, ridiculous, and nothing in my posts suggests that I take such a view. The point about remembering a victim is that we remember why murder is such an awful crime. Etzel never got a chance at life. The person who deprived him of that chance (if the evidence is to be believed) by extreme violence somehow would be the victim of an injustice because, quelle horreur, she has to serve more than 10 years for the murder? That's hard for me to get my head around. I believe in punishing murder, and I am not willing to give much of a discount because the person otherwise doesnt pose a threat to public safety.

Posted by: federalist | Jan 4, 2012 3:24:39 PM

federalist: you call Smith a murderer, but she was convicted of such a crime and that crime was not even alleged by prosecutors (or anyone else, to my knowledge). Smith was charged and convicted of "assault on a child resulting in death" --- even assuming Smith violently shook her grandchild, nobody has ever claimed she intended to hurt Etzel, let alone kill him. That's why I posed the initial question because it seems that all the prosecution (or anyone else) ever claimed was that Smith violently shook/struck Etzel and then he died.

Given that Smith, to my knowledge, had no significant criminal history and that the amount of alleged violent shaking here was not considerable or extended, I take your assertion about 10 years being potentially insufficient as implying that anyone who violently strikes a ("helpless and fragile") young child and that child then dies must always be punished through a prison term of more than 10 years.

Perhaps you are aware of aggravating facts/factors that do not appear in the SCOTUS discussion But Smith is, in a formal legal terms, not a murderer -- she was found guilty of assault with the aggravating factors that the child she assaulted died. Under these circumstances, a decade in prison seems enough to serve justice unless/until your view of justice demands that any/every unintended death of a young child following an assault requires 10 years. That is what I am trying to explore, especially given that many states do not even respond to some intentional killings of children and others with a decade or more prison time.

Posted by: Doug B.. | Jan 4, 2012 4:42:30 PM

"The power to pardon is an essential means of justice, allowing a governor to right what the law got wrong."

It is annoying that the NY Times felt the need to begin with this premise. There are cases in which a governor may conclude that clemency is warranted because it seems clear that the defendant is factually innocent, even though the defendant cannot satisfy the "no reasonable juror" sufficiency standard and that the conviction therefore represents a severe system malfunction. But I thought that the clemency power typically was simply about tempering legally correct but harsh applications of the law with mercy.

It would have been an easier (and shorter) editorial to write: "the case is troubling, but even if the courts ultimately arrived at the legally correct outcome, this is compelling case for an exercise of the executive clemency powers that the Court itself suggested might produce the most just outcome here." But that would have denied the editorial writer the opportunity to take sides with the Ninth Circuit and to bash the Supreme Court majority as a bunch of meanies who care more about teaching the Ninth Circuit judges a lesson than in whether this woman stays in prison forever or kills herself rather than go back to prison (even though the majority opinion was obviously deliberately written to be a fertile source or language that defense counsel can use to help with a clemency application).

(Wonder whether the editorial writer actually read the majority Supreme Court opinion or just read the headnotes/stuff on the internet about what it said or whether the editorial writer simply didn't want to let a little bit of nuance and facts get in the way of the advocacy.)

Posted by: guest | Jan 4, 2012 5:45:12 PM

Doug, I'm not really trying to explore anything. Etzel was an afterthought to your analysis, and I was commenting on that.

As for what I think about people who assault kids, and the kids wind up dead--well, I am sure there are factual scenarios that one could come up with that would show a ten year sentence to be harsh--but this particular case does not appear to be one of them (assuming, of course, that the evidence is what the state says it is). Nothing in anything I've written suggests that I have taken the position that all assaults resulting in death deserve 10 years. But here, if the evidence is to be believed, this woman shook this baby so hard that it killed the baby on the spot. The focus on her "plight" is a bit odd.

Posted by: federalist | Jan 4, 2012 10:20:59 PM

Federalist: The focus on Smith's "plight" by others is driven, it seems, by her plausible claims of innocence. But my point throughout has been that, even if she were guilty of extreme baby shaking as the state claimed, the child's death was still apparently an accident, and a 10-year prison term seems a sufficient response to this tragedy even if one remains deeply saddened by Etzel's untimely demise.

Especially because sentencing law cannot bring back the dead, it is somewhat inevitable that the deceased becomes an afterthought. And you have still yet to explain to me, federalist, why or how making Etzel a "first thought" in the clemency analysis alters my consistent contention that I have a hard time conjuring up a good argument for sending Smith back to prison after she has already served 10 years for a crime she may not have committed.

Posted by: Doug B.. | Jan 5, 2012 9:42:21 AM

Doug, there's an awful lot of sophistry in the term, accident. And last I checked, the facts of the crime weighed in the clemency decision. If the state's evidence is to believed (and I suspect the clemency process will get that sorted, which I support), then "accident" doesn't exactly do justice to what Mrs. Smith did. We can't bring back the dead, but we certainly can make it so that those who made them dead don't get to lever the physical fact that resurrection isn't in the criminal justice toolbox into mercy.

You can think a decade is enough, and that's fine, or you can think that the uncertainty should mean clemency. I don't particularly care. What I was addressing was that you seemed to give the brutal nature of the assault (once again, if the state's evidence is to be believed) very short shrift. And that's a clear weakness in your argument.

Posted by: federalist | Jan 5, 2012 1:42:01 PM

I think our disconnect, federalist, comes from our understanding/interpretation of the state's evidence. Here is what the LA Times reported about the evidence presented at trial:

"None of the usual signs of violent shaking were present, experts for the prosecution and defense testified at her 1997 trial. The blood on the brain wasn't enough to have caused the death, nor could the small abrasion have been fatal, jurors were told. There was no telltale blood in the baby's retinas, nor was there hemorrhaging around the brain stem or the bruising and fractures that usually speak to abuse.

"Associate Deputy Medical Examiner Stephanie Erlich was four months into a two-year forensic training program when she discovered the small brain bleed — the first autopsy she performed that raised suspicion of child abuse. She testified that other indicators of shaken baby syndrome may have been missing because the shaking was so violent that tiny blood vessels in the brain stem suffered 'shearing,' causing instantaneous death without bleeding because the heart had stopped."

federalist, you call the evidence here of very violent shaking to be a "brutal" assault; I still think it is fair to call an unintended death that may have resulted from such shaking to be an "accident" unless you believe that Smith, in her heart or in a rage, really wanted her grandson dead. If you are not really questioning Smith's claim that she did not mean to kill her grandson, then perhaps our dispute is just a variation of tomato/tomatoe.

Meanwhile, I am still struggling to understand just what you think is potentially achieved by sending Smith back to prison after she served 10 years even if she did, in fact, very violently shake her grandson --- is it your view of the demands of retributivist justice in light of the state's claims about the evidence OR is it a view that she rolled the dice with a trial and should have to endure all the California consequences of the guilty verdict OR is it some kind of commitment to finality based in the jury verdict and original sentencing OR is it a sense she might be a threat to babies and others if not confined for the additional 5 years to life on her term? I am not asking to goad, but really just to try to better understand precisely what benefits reasonable people might think would be served by sending her back to prison after she has already been there a decade.

Posted by: Doug B. | Jan 5, 2012 7:09:25 PM

I don't think the disconnect is over the evidence issues. I am fine with the evidence being re-examined as part of the clemency process. Where I think the disconnect is, is the the use of the term "accident." Drunk drivers get into accidents too. But calling a "drunk driving accident" an "accident" obscures some of the reality. Same here--if the evidence is to be believed, Mrs. Smith killed a helpless baby in a brutal fashion. I don't think giving her mercy, in part because resurrection is not part of the criminal justice toolbox, is at all compelled here (obviously putting aside the evidence issues.)

In another context, the Supreme Court has said that a criminal is not entitled to the luck of a lawless decisionmaker. In a very real sense, because you have framed the issue as to whether she should go back to prison, you are giving effect to a lawless decision.

Posted by: federalist | Jan 6, 2012 12:18:22 PM

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