Shaken Baby Syndrome and the AEDPA: A Lethal Combination

By all accounts, Shirley Ree Smith was a loving mother and grandmother, just trying to help her daughter raise her young children.  Now, she is the latest victim of the junk science associated with shaken baby syndrome, in combination with the United States Supreme Court’s worship of procedure over substance, or legal technicality over true factual innocence. The result? Another innocent person sits in a jail cell, convicted of a crime that she likely did not commit.

On October 31, the Supreme Court pulled off quite a Halloween trick, twisting a legal technicality on its head in issuing a per curium reversal of the 9^th Circuit grant of a Writ of Habeas Corpus in the case of CAVAZOS v. SMITH, No. 10–1115. (October 31, 2011).

The facts of Cavazos are that of the classic shaken baby syndrome, junk science, prosecution – including poor representation by a defense lawyer unqualified to handle a SBS case (“Moreover, Smith’s counsel . . . . represented her poorly at trial. In a case as trying as this one, competent counsel might have persuaded the jury to disbelieve the prosecution’s case.” Slip opinion, p 8; J. Ginsburg dissenting.)

On November 29, 1996, Tomeka put her son Etzel to bed on a sofa, and went to sleep in another room.  The defendant, Shirley Ree Smith (Tomeka’s mother and Etzel’s grandmother) slept on the floor next to Etzel. Several hours later, Smith ran into Tomeka’s room with Etzel, who was unresponsive. When theEMT’s arrived, Etzel was not breathing and had no heartbeat. Smith told medical personnel that she thought Etzel fell from the sofa to the floor.

Etzel’s death was initially diagnosed as sudden infant death syndrome (SIDS).  However, after the autopsy the coroner concluded that the cause of death was shaken baby syndrome (SBS). When a hospital social worker informed Smith of that finding, Smith told her that Etzel had not responded to her touch while sleep­ing, so she had picked him up and given him “a little shake, a jostle” to wake him. According to the social worker, Smith then said something to the effect of, “Oh, my God. Did I do it? Did I do it? Oh, my God.” In an inter­view with the police a few days later, Smith said that she had shaken Etzel, but then she corrected herself and said that she had twisted him to try to elicit a reaction.

Smith was arrested and charged with assault on a child resulting in death. At trial, the jury heard several days of expert medical testimony – mainly focusing on the cause of Etzel’s death. The prosecution offered three experts: the medical examiner who performed the autopsy, the head medical examiner that reviewed the autopsy, and an expert in pediatrics.  All three testified that Etzel’s death was the result ofSBS, and not SIDS, a short distance fall from the sofa, an old injury, or CPR.  However, while Etzel suffered subdural hematomas and edema, the third injury in theSBStrial (retinal hemorrhages) was missing.

The defense called two experts to refute the diagnosis of shaken baby syndrome.  First the defense called a pathologist, who testified that Etzel died from brain trauma related to an old injury, but given the lack of retinal hemorrhaging it was not the result of SBS. Then a pediatric neurologist testified that Etzel’s death was due to SIDS. The jury found Smith guilty.

Smith filed a motion for a new trial, attackingSBSand making a sufficiency of the evidence claim. The trial judge denied that motion, and sentenced her to 15 years to life in prison.

In her direct appeal, Smith again argued that the evidence was not sufficient to establish that Etzel died from shaken baby syndrome. The California Court of Appeal rejected this claim, concluding that “The conviction is sup­ported by substantial evidence.” The California Supreme Court denied review.

Smith then filed a petition for a writ of habeas corpus (28 U.S.C. § 2254) in the federal district court.  The district court denied the petition, finding that the evidence at trial was “clearly sufficient to support a conviction.” On appeal, the Ninth Circuit reversed and ordered the district court to grant the writ.  Smith v. Mitchell, 437 F. 3d 884 (2006).  The Ninth Cir­cuit held that there was “no evidence to permit an expert conclusion one way or the other” on the issue of the cause of Ezel’s death, and that because “[a]bsence of evidence cannot constitute proof beyond a reasonable doubt,” the state court of appeals had “unreasonably applied” federal law.

In a 6 to 3 per curium opinion, the United States Supreme Court reversed the 9^th Circuit and denied the writ. Justices Breyer, Sotomayor and Ginsburg dissented. The Supreme Court cited to the 1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”) and the Supreme Court’s precedent in habeas cases, and reasoned that a federal court may not overturn a state court decision rejecting a suf­ficiency of the evidence challenge simply because the fed­eral court disagrees with the state court. The federal court instead may do so only if the state court decision is “objectively unreasonable.”

The problem is that the Supreme Court does not practice what it preaches. The high court receives thousands of cert petitions every year, and grants a small handful for review.  The cases it accepts are supposed to involve a novel constitutional question, or a split among the Circuit Courts of Appeal across the country.  This case involved neither – as noted by the Supreme Court itself this is a factually intensive case involving dueling experts over the much criticized shaken baby syndrome phenomenon.  As Justice Ginsburg correctly observed:

Beyond question, the Court today reviews a case as tragic as it is extraordinary and fact intensive. By taking up the case, one may ask, what does the Court achieve other than to prolong Smith’s suffering and her separation from her family. Is this Court’s intervention really necessary? Our routine practice counsels no.

In a truly chilling observation of the Supreme Court’s true motivation behind its decision, Justice Ginsburg noted in her dissent the significant chance that Smith was innocent, and went on to explain:

In sum, this is a notably fact-bound case in which the Court of Appeals unquestionably stated the correct rule of law. It is thus “the type of case in which we are most inclined to deny certiorari.” . . . . Nevertheless, the Court is bent on rebuking the Ninth Circuit for what it conceives to be defiance of our prior remands.  I would not ignore Smith’s plight and choose her case as a fit opportunity to teach the Ninth Circuit a lesson.

Some observers of Shaken Baby cases have voiced concerns that this could cast serious doubt into the viability of Daubert challenges to the junk science behind SBS.  However, this concern appears unwarranted.  Daubert challenges toSBS remain very viable, and lawyers must continue to bring them based on the continually evolving science involved (an evolution discussed in detail in Justice Ginsburg’s dissent).  The Supreme Court’s decision was a purely procedural ruling, holding that the Ninth Circuit erred under the AEDPA in reaching the merits of Smith’s claim of innocence.  Regrettably, the Supreme Court once again refused to establish a federal/constitutional claim of actual innocence in Habeas cases, and ignored the increasingly important issues related to introducing new evidence, or the admissibility of scientific evidence, in motions for new trial or collateral post-conviction motions.

Mark A. Satawa practices in the area of criminal defense, specializing in forensic evidence and shaken baby cases.  He is a member of the board of directors of the National Association of Criminal Defense Lawyers and the Criminal Defense Lawyers of Michigan, and is a frequent continuing legal education speaker on shaken baby cases, most recently on April 3, 2009, at the NACDL annual forensic science seminar in Las Vegas.