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A Far Cry From ‘CSI’

The fate of Shirley Ree Smith, convicted of shaking to death her 7-week-old grandson, is in the hands of California’s governor. Child deaths can pose special problems for forensic pathologists. Unfortunately, many forensic pathologists aren’t prepared to deal with the complexity of such cases.

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Shirley Ree Smith has spent the past 14 years in prison or virtual house arrest while the nation's two most influential courts have engaged in legal bickering over whether her conviction in the 1996 death of her seven-week-old grandson was grounded in facts, not speculation. (Michael Robinson Chavez, Copyright, 2011, Los Angeles Times. Reprinted with permission.)

This story was co-published with the Los Angeles Times.

California Gov. Jerry Brown is considering granting clemency to Shirley Ree Smith, a grandmother convicted in 1997 of shaking to death her 7-week-old grandson, Etzel Glass. Sentenced to 15 years to life in prison, Smith insists she's innocent.

Prosecutors built their case against Smith almost entirely on the findings of forensic pathologists at the Los Angeles County Department of Coroner. During an autopsy, doctors discovered a small amount of bleeding on the infant's brain and in his optic nerves. Based on this bleeding, the forensic pathologists concluded that somebody had violently shaken Etzel's body, killing him.

They ruled the death a homicide. Others, however, aren't so sure.

Etzel's body exhibited few of the signs typically associated with fatal head injuries. One doctor testifying on Smith's behalf dismissed the notion that Etzel was murdered as "fantasy." In a 2006 opinion, the U.S. 9th Circuit Court of Appeals expressed a similar skepticism, saying there was "simply no demonstrable support for shaking as the cause of death."

Whether or not Smith is ultimately pardoned, her story provides a window into the increasingly rancorous scientific debate about shaken baby syndrome, a once-widely accepted theory that violent jostling can cause fatal head injuries in infants. Based on studies dating back to the 1960s, many doctors came to believe that a signature trio of symptoms — bleeding and swelling of the brain, and hemorrhaging of the retinas — provided conclusive proof that someone had shaken a child to death.

But now a growing number of experts have doubts about the diagnosis. Official reviews in Canada and Britain have uncovered cases in which people were wrongly convicted based on the shaken baby theory.

As a journalist for ProPublica, I've spent more than a year scrutinizing the inner workings of the nation's system of coroner and medical examiner offices responsible for probing sudden and suspicious fatalities. In the course of that research, my colleagues and I analyzed roughly two dozen instances in which people were wrongly accused of killing babies or small children.

Questionable autopsy findings played a central role in each of these cases. Some experts, like Dr. Michael Laposata, the chief pathologist at Vanderbilt University Medical Center, think there are more innocent people still serving time in prison. "I don't think it's a handful," Laposata told me last year. "I think it's far more."

When children die unexpectedly, the authorities often look for unnatural causes, and rightly so; in recent decades our society has become far more vigilant about detecting and prosecuting child abuse, an admirable accomplishment.

But child deaths can pose special problems for forensic pathologists. When babies and small children die, the clues can be quite subtle. Oftentimes, doctors are hunting for microscopic indicators that a child has suffered head trauma or has been asphyxiated. Such cases require a high degree of expertise.

A key concern is that forensic pathologists may confuse the symptoms of a natural ailment for a sign of abuse. That could well be what happened with baby Etzel. There are dozens of afflictions that cause bleeding and bruising and can easily be mistaken for child abuse. One of the leading textbooks on child abuse now includes two chapters on these mimics, which range from certain forms of cancer to sickle cell anemia to trauma suffered during the birthing process.

Unfortunately, many forensic pathologists aren't prepared to deal with the complexity of child death cases. According to a 2009 report by the National Academy of Sciences, only a third of the coroner and medical examiner offices in the U.S. had the equipment to do a microscopic tissue analysis. The report painted a dismal portrait of the profession, citing poor funding, a lack of decent facilities and a severe shortage of qualified doctors.

Reality, it turns out, bears very little resemblance to "CSI."

My colleagues and I surveyed the nation's 69 busiest coroner and medical examiner offices. More than 1 in 5 of the physicians working in these morgues — including the chief medical examiner of Washington, D.C. — were not board certified in forensic pathology, the branch of medicine focused on the mechanics of death. Experts say such certification ensures that doctors have at least a basic grasp of the science, and should be a requirement for anyone performing autopsies in a possible homicide case.

Located at the intersection of science and the law, coroners and medical examiners are subject to little regulation in most states and, as the National Academy pointed out, there are no national standards for the field. By contrast, nursing homes, hospitals, dialysis centers, clinical laboratories and many other medical facilities receive oversight at both the state and federal level, and can be fined if they fail to operate properly.

So as Gov. Brown considers Smith's request to commute her sentence, he might consider another question, as well:

Are there any other criminal convictions he should be taking a close look at?

Given that doctors have been nothing more than drug dealing scum, how can any testimony given by them can be considered truthful.  It wouldn’t surprise me if this bleeding is caused by a vaccine or something…

Well done on a great series of articles. 

The issue of “shaken baby syndrome” is highly complex, and our understanding of it is still evolving.  Although tragically children are abused, and some of them are shaken resulting in severe brain damage, proving this from a pathological perspective is controversial and one of the most difficult areas of forensic pathology practise.  As with all criminal matters, the autopsy/medical examination is an adjunct to the police investigation - once medical personnel take over that prosecutorial role, they set themselves up for being to blame for miscarriages of justice.

There was a television show from the 70s that chronicled this problem.  The lovavle “Quincy” the coroner delved into a wrongfully charged couple in a SIDS case.  This has been known to be a problem for decades, going on 40 years.

The real problem is that this is essentially normal.  I don’t mean to say that the falsely-convicted shouldn’t get help, by any means, but if it wasn’t fictional shaken babies, it’d be repressed memories or hexes or any number of other things that a “consensus” said was a crime and couldn’t be natural.

Our understanding evolves over time and, especially with such delicate “evidence” as a child’s corpse (which, in addition to fragility, needs to be handled delicately to avoid looking like Dr. Frankenstein’s idiot cousin), it’s going to take a long time to get medical science to a point where it can tell the difference.

That makes articles like this extremely important, because drawing attention to the problem is the only way to break the cycle of “if the science wasn’t solid, they wouldn’t be using it to convict people” and “it can’t be used to convict unless there’s a consensus the science is sound.”

The missing element in this article is how an allegedly innocent person can be convicted of a crime when the case against them is limited to nonspecific autopsy findings.  No witnesses, including experts, are infallible.  The weak link in the US system of justice is the trier of fact, namely the jury (12 random citizens of varying levels of education, intelligence, life experience, and personal beliefs and prejudices, under pressure to reach a unanimous verdict so they can be dismissed), or a single judge with varying levels of knowledge, experience, and political pressure.  Because the side that presents the most convincing argument usually prevails, the one with the most resources and authoritative witnesses has a huge advantage, steamrolling the jury or judge to reach an inaccurate verdict.  We do not have a system of impartial justice, but rather one that is heavily biased toward the side willing and able to pay for the best testimony. 

Many Americans brag about their system of justice, yet there is no scientific analysis of its fairness, accuracy, or efficiency compared with alternative systems.  One study estimated a 15% error rate in jury verdicts.  If this is true there are thousands of innocent people unjustly imprisoned.  We can and should do better.

Lee Bellavance

Jan. 9, 2012, 12:29 p.m.

Thanks for your investigating this topic—to be wrongly accused and then convicted of such a horrid crime has to be living torment!  Another possible cause of accidental,  involuntary and maybe even unwitting head trauma to babies may be what I call “jamb” head: babies are often slung over a hip and it is certainly possible to suffer a heavy hit by accident simply by going through a doorway!  I’ve done it to myself (looking back to answer a question as I was walking through a doorway) so I think it certainly can happen to a baby…
I also want to mention that many doctors are hardworking and caring so casting such a general net as “drug-dealing scum” seems a bit harsh, abusive and better reserved for those who do deserve the title.

Since 2009, OMSJ’s HIV Innocence Group has forced prosecutors to dismiss or significantly plea-bargain dozens of criminal cases.  Their success stems from their independent review of medical records and their ability to distinguish between the medical and scientific literature and what the healthcare industry perversely calls the “medical standard of care.”

The “medical standard of care” means that if 99 physicians prescribe rat poison to sick babies and one doctor prescribes vitamines, clean water and good nutrition, the maverick has violated the “medical standard of care.”  This deviation means that insurance carriers and medical bureaucrats could withold treatment claims and, in worse cases, the the maverick could lose his medical license and career.

This medical standard of care is not likely to change until:

1. Doctors who now complete and sign their own patients’ death certificants are replaced by politically-INDEPENDENT and knowledgeable homicide investigators, and;

2. Healthcare and pharmaceutical companies, lobbyists and politicians no longer profit from killing and injuring patients.

Timothy Williams

Jan. 9, 2012, 1:34 p.m.

I investigated several of these cases in South Florida, always difficult.  The Rights of Adults seemed protected but child victims forgotten.  Some did confess at the hospital.  Every case really affected us who investigated.

I think the fact that Jerry Brown is considering granting clemency to Shirley Ree Smith, is a good idea, even if he decides against it, because it draws attention to something worth noticing. This is a grandmother with a seven-week-old baby, being accused of overreacting to such an extent as to kill her grandson! And convicted of it, based primarily on forensic evidence! Now, I don’t know all the facts of this case, only what was in this article, but if it’s turning a governor’s head, it’s worth a closer look.

Det. Mark J. Welling

Jan. 10, 2012, 11:51 a.m.

The job is made more difficult when “Caring” EMS crews / Firefighters / Police Officers transport and aggressively attempt resuscitation on a child that is obviously dead in order to “Spare the feelings” of the parents giving them a false scene of hope that something is being done. It makes the job of identifying a crime 1000 times harder than if they acted professional and left the body “as is” undisturbed.

Mike McDermott

Jan. 17, 2012, 3:26 p.m.

The Nebraska Supreme Court recently ruled that a Medical Examiner cannot be sued.  The case dealt with the death of a child at a daycare.  Ironically, the Chief Nebraska Supreme Court Justice, voting with the ruling, was the former U.S. Attorney for the state of Nebraska.  While he was U.S. Attorney, I asked his office to investigate my kidney surgery that I have maintained was unnecessary and caused permanent, progressive damage, to no avail.  I then publicly stated that upon my death, I wanted a public autopsy.  Wouldn’t this ruling have the effect of politicizing the office of Medical Examiner?  In other words, a medical examiner could be charged to find specific results without personal consequence?  In fact, could this ruling have been in anticipation of my future request?

Mike, don’t forget, you can move out of Nebraska.

This article is part of an ongoing investigation:
Post Mortem

Post Mortem: Death Investigation in America

A year-long investigation into the nation’s 2,300 coroner and medical examiner offices uncovered a deeply dysfunctional system that quite literally buries its mistakes.

The Story So Far

In TV crime dramas and detective novels, every suspicious death is investigated by a highly trained medical professional, equipped with sophisticated 21st century technology.

The reality in America’s morgues is quite different. ProPublica, in collaboration with PBS “Frontline”  and NPR, took an in-depth look at the nation’s 2,300 coroner and medical examiner offices and found a deeply dysfunctional system that quite literally buries its mistakes.

More »

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