Copyright ©2012 NPR. For personal, noncommercial use only. See Terms of Use. For other uses, prior permission required.

DAVID GREENE, HOST:

A woman named Shirley Ree Smith had spent a decade in prison by the time her conviction was overturned. She had been charged with killing her grandson, shaking him to death, but the facts in the case were murky and she always claimed her innocence. Smith walked out of prison in 2006. But last fall, the U.S. Supreme Court ordered her conviction reinstated. Now NPR, Pro Publica and PBS "Frontline" have obtained documents that raise new questions about the original evidence that led to her conviction. From NPR's investigative unit, correspondent Joseph Shapiro reports.

JOSEPH SHAPIRO, BYLINE: It's after school and Shirley Ree Smith waits for her grandsons to come home.

YONDALE: Hey, grandma.

SHIRLEY REE SMITH: (Unintelligible). Ooh, you're cold.

YONDALE: It ain't that cold.

SMITH: Yeah, you cold.

YONDALE: It's hot. I'm burning up.

SHAPIRO: Yondale(ph), a high school junior, carries a battered skateboard. He tells his grandmother about the skateboard trick he pulled off this afternoon - a fakie varial heelflip.

YONDALE: Fakie varial heel, it's like when a board go like this and I land on it like that.

SHAPIRO: Shirley Ree Smith moved here to Alexandria, Minnesota, a town on the edge of the prairie where visitors are greeted by a 28-foot-high statue of Big Ole, the Viking. She came because her daughter, who's always believed in her innocence, is away temporarily, working in the oil fields of North Dakota. And Smith came for moments just like this, to live with and to look after her two teenage grandsons. Fifteen years ago, Smith was convicted of shaking another grandson to death. She says she never harmed the boy, a seven-week-old baby named Etzel, who she says she adored.

SMITH: Oh my God. He was so handsome. He was so handsome, so handsome, Etzel, yeah. He had really pretty curly hair, he had a cute little smile. He was such a beautiful baby, such a beautiful baby. He would have been such a beautiful young man, and I know he would have. Wow.

SHAPIRO: The court rulings that supported Smith have said hers was never a typical case of someone accused of shaking a baby. Family said she was a patient and loving woman. She left Illinois and moved to a crowded apartment in Los Angeles to look after her grandchildren. Etzel was asleep that night. He had not been crying. And when Smith found her grandson limp on the living room couch, there were other children, and Etzel's mother, just a few feet away. Smith called 911. She tried CPR.

SMITH: You don't always have the skills. You know, I couldn't save him that night. Such a strong guilt, such a strong guilt. 'Cause I'm supposed to be a protector, you know, to keep the world safe. Such a guilt.

SHAPIRO: Smith was convicted largely on the results of an autopsy by the Los Angeles County Coroner's Office. It concluded that the baby died from Shaken Baby Syndrome, but there was no brain swelling or blood behind the retinas, no bruises on the body, all symptoms associated with shaking. Michael Brennan is Smith's current attorney.

MICHAEL BRENNAN: They came up with this theory that the infant had been shaken so violently that there was instantaneous death. And because the death was so instantaneous, the brain, the brain stem, did not have time to react physically in the sense that there was observable damage to the brain or the brain stem.

SHAPIRO: In other words, a kind of Catch-22 for Smith's defense. The injury happened so fast that the medical examiner couldn't find physical evidence of it.

BRENNAN: So you have this theory of violent shaking, instant death, no physical findings. There is no medical literature that supports that theory. It's fantasy.

SHAPIRO: That was the kind of evidence that led the 9th Circuit Court of Appeals to order Smith released after 10 years in prison, in 2006. But last fall the case reached the U.S. Supreme Court, which said there was not enough question about the case for a federal court to overturn a state court's decision. The Supreme Court ordered Smith's conviction reinstated. Smith knows she could go back to prison at any moment. NPR, working with Pro Publica and PBS "Frontline," has obtained new evidence that strengthens the case for Smith's innocence. We showed it to her.

SMITH: It's number five right here. You know (unintelligible) number five - that says that it's right there.

SHAPIRO: She read it at her small kitchen table.

SMITH: So I wonder if the United States Supreme Court justices know that. I wonder do they know that.

SHAPIRO: The new evidence is in a report from the Los Angeles County Coroner's Department. Remember, it was that department's autopsy that led to the conviction of Shirley Ree Smith. The Los Angeles district attorney asked the Coroner's Department to go back and review the old evidence. One who looked was the medical examiner who supervised the autopsy in 1996. His finding is the same as back then - that the infant most likely died from violent shaking that resulted in a severe head injury. But a second medical examiner in the same office came to a very different conclusion. He says there was no brain injury, just a small amount of bleeding, no grab marks, bruises or rib fractures. In other words, not the kind of evidence to call the child's death a homicide. Smith says the conviction, the 10 years in prison, and now the uncertainty about going back, have all taken a toll on her family.

SMITH: We all have been hurt. They don't know how much they took from us. How do you do that and just walk away and leave us just in shattered pieces? How do you do that?

SHAPIRO: There probably never will be certainty about what killed Etzel. But if, as Smith claims, it wasn't shaking - it might have been an injury at birth, the short fall he took from the couch, or that he was sleeping face down. Officials in the Los Angeles Coroner's Office and the county district attorney declined our request to comment on air. Smith has asked for clemency, and California Governor Jerry Brown is considering that. Smith's attorney, Michael Brennan, says it's her best chance for staying out of prison.

BRENNAN: This case wouldn't go to trial today if she was represented by competent counsel. Given the advancement in medical literature concerning Shaken Baby Syndrome, I am confident that the DA's office would never try this case again.

SHAPIRO: Brennan's point is that, as an early NPR/Pro Publica/"Frontline" series noted, many child deaths once attributed to Shaken Baby Syndrome are now known to be the result of natural causes, like disease and blood-clotting disorders. The Los Angeles district attorney in a letter asked the governor to stay out of the controversy over Shaken Baby Syndrome. The DA says it's an important diagnosis to use in some prosecutions. But the district attorney's letter said if the governor decides to grant Shirley Ree Smith clemency, it should be for humanitarian reasons, based on the fact that Smith has already served 10 years, her lack of criminal history and the circumstances of the charges against her. Joseph Shapiro, NPR News.

GREENE: And to see photos and more reporting on the story of Shirley Ree Smith, you can go to our website, NPR.org.

Copyright © 2012 NPR. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to NPR. This transcript is provided for personal, noncommercial use only, pursuant to our Terms of Use. Any other use requires NPR's prior permission. Visit our permissions page for further information.

NPR transcripts are created on a rush deadline by a contractor for NPR, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of NPR's programming is the audio.

Comments

 

Please keep your community civil. All comments must follow the NPR.org Community rules and terms of use, and will be moderated prior to posting. NPR reserves the right to use the comments we receive, in whole or in part, and to use the commenter's name and location, in any medium. See also the Terms of Use, Privacy Policy and Community FAQ.