Yesterday, Governor Brown granted clemency to a 51 year old woman, who had been convicted of the murder of her 7 week old grandson in 1997. Shirley Smith was prosecuted under the "shaken baby syndrome" theory, which was based primarily on the testimony of two coroner's officials, and offered to the jury as scientific. The 9th Circuit Court of Appeals struck down her conviction three separate times because it found that there was simply not enough evidence to support proof beyond a reasonable doubt. Not surprisingly, the conservative majority on the U.S. Supreme Court continued their assault on the Bill of Rights and found a basis to return an innocent woman to prison. Governor Brown acted in the interests of justice and compassion in granting clemency to free somebody from a life term based on now disapproved voodoo science.
This case is an unsettling reminder of the role bad science plays in our legal system. The shaken baby syndrome theory has been largely dismissed because of its lack of medical support. In fact, most medical experts will tell you that a baby cannot be shaken to death, rather, there must be some type of striking or blunt force trauma to cause a death. For the past 40 years, politicians intent on being elected have used fear to justify eliminating due process protections for those accused of crimes. The same reactionary forces have been at work in the courts. Science used to have to pass rigorous standards before it could be admitted in court. Things have gone from bad to worse and new forms of junk science are pushed by the prosecution and ignored by a complicit court in the haste to convict. It is upsetting that as much positive spin is put on these new ideas, nobody talks about them when they are proven useless, misleading, or downright dishonest. Nobody is trying to fix the problems of people serving life in prison based on things like Shaken Baby Syndrome, Satanic Child Molestation Rings, or even various Syndrome evidence. True science requires complete objectivity. This rarely happens when the government calls its own "expert" witnesses to rubber stamp their prosecution theory.
The problem of unscientific evidence persists from the most serious cases to the most common cases. Although most of us cannot imagine being victimized by a voodoo science in a murder or sexual assault case (and this does happen) we can all relate to what happens to a person arrested for drunk driving.
If you take a breath test, the government "expert" will come to court and testify that the results are accurate. The truth is that the government analyst will make gross assumptions. The rate of absorption in the person tested is never known. The government assumes a rate of absorption. The conversion ratio of breath alcohol to blood alcohol is never known in the person tested. The government assumes a standard conversion ratio. These two circumstances alone can be the difference between a .18% BrAC and a true blood alcohol content of less than .05% (well below the legal limit in California).
We must be reminded that there can be no assumptions, scientific or otherwise, in convicting people of crimes. Simply because someone calls a theory "science" doesn't mean that it is good science. There is only one presumption in our legal system – the presumption of innocence.