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A pawn in a legal chess match

Shirley Ree Smith spent 10 years behind bars for the death of her grandson before her conviction was overturned. Now she waits on skid row as the courts sort out whether a jury's verdict — even if wrong — must prevail.

December 16, 2010|By Carol J. Williams, Los Angeles Times

From a second-floor room in skid row's Russ Hotel, Shirley Ree Smith spends sleepless nights listening to the knife fights and profanity-laced taunts of the drug dealers, pimps and brawlers who populate South San Julian Street.

She ventures out after dark only as far as she needs to get cellphone reception for the nightly call from her daughter, Tomeka, in Kankakee, Ill. It is the emotional high point of each day spent looking for work no one will give her.

Smith has been separated from her daughter and grandchildren for 14 years, since her arrest in the 1996 death of her 7-week-old grandson. After a Van Nuys jury accepted a prosecution theory that Smith must have shaken the baby violently to stop him from crying, she spent 10 years behind bars. Then in 2006, an appeals court ruled the evidence against her was so flimsy it violated her constitutional right to a fair trial. She was ordered freed.

But a long-running legal dispute among the nation's most influential judges has continued to put restraints on Smith. She has been confined to Southern California while the U.S. Supreme Court and the 9th Circuit Court of Appeals exchange contradictory musings, not about her guilt or innocence, but on whether a jury verdict should be respected — right or wrong.

Smith still could be locked up in prison for the rest of her life, if the high court justices take another look at the 9th Circuit's release order and conclude it failed to respect the jury's guilty finding.

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Smith says she was dozing on her sister's living room carpet, the TV tuned to the western she'd been watching. She recalls being awakened by "a little cry," and found her two baby grandsons had slipped off the sofa cushions onto the floor.

She put 14-month-old Yondale and 7-week-old Etzel back on the sofa. Their 3-year-old sister, Yolanda, was asleep on the nearby love seat, Smith said. "They were fine," she insists, despite the short tumble.

She woke again a couple of hours later to use the bathroom. On her way back to the living room, she checked on Etzel, thinking he needed a diaper change. In the flickering light from the TV screen, she saw blood trickling from the infant's nostril and something white and foamy at his mouth.

"His head just flopped back," Smith said, her eyes widening in terror at the recollection.

She raced the infant to Tomeka, who had fallen asleep in a bedroom. Mother and daughter called 911 and took turns giving the baby CPR, guided over the telephone by paramedics as an ambulance rushed to the Van Nuys home and emergency dispatchers recorded the women's anguished pleas for help. Etzel was pronounced dead on arrival at Mission Community Hospital about 4 a.m., Nov. 30, 1996. The attending physician listed the cause of death as suspected sudden infant death syndrome.

Within a few days, though, a preliminary autopsy finding would quash that diagnosis and compound the family's grief. The death was ruled a homicide and Smith was the suspect.

A tiny patch of blood found under the skull and a scrape the size of a match head prompted the autopsy doctor to call Los Angeles County's child abuse hotline. A social worker with the Department of Children and Family Services showed up at Smith's sister's apartment two days later to take Yondale and Yolanda into protective custody, commenting disparagingly on Tomeka's having borne three children by the age of 18.

Two months later, before the cause of death was made final or all postmortem test results had been received, Smith was arrested and accused of causing her grandson's death by shaken baby syndrome.

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.

Deputy Dist. Atty. Falomi Pierson objected every time a witness referred to Smith's loving and patient nature, as well as all accounts by paramedics, police and emergency room doctors of her shock and grief. The trial transcript records Superior Court Judge Darlene Schempp, clearly irritated by the rambling, inarticulate questioning of witnesses by defense lawyer Ubiwe K. Eriye, sustaining most of Pierson's objections and offering many of her own.

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