GRANDMOTHER CLEARED OF SHAKING BABY TO DEATH.

Byline: Brad A. Greenberg Staff Writer

Tomeka Smith prayed for this day, this day when her mother's name would be cleared in the death of her infant son.

Shirley Ree Smith, 45, has been in prison since 1997, serving 15 years to life for violently shaking 7-week-old Etzel while the rest of the family slept in its crowded Van Nuys apartment.

On Thursday, the 9th U.S. Circuit Court of Appeals overturned that conviction, ruling: ``There has very likely been a miscarriage of justice in this case.''

The opinion lifted the spirits of a family that never lost faith.

``Are you serious? Are you serious? Oh, my God - are you serious?'' Tomeka said by telephone when contacted in Illinois where she now lives.

``Thank you, Jesus! Thank you, Jesus! Thank you!''

Family members never believed that Shirley would have harmed a child she voluntarily helped raise.

``I knew the Lord would answer prayer. I didn't know the day or hour, but I knew it was coming,'' Shirley's mother, Mildred Keys, said by phone from her home in Kankakee, Ill.

Shirley isn't free yet, however, as prosecutors could decide to retry her case.

The Los Angeles County District Attorney's Office declined to comment because the federal court's opinion had not been reviewed. Richard Breen, the deputy attorney general who argued to keep Smith in prison, did not return calls for comment, nor did a spokesman.

Writing for the court, Judge William C. Canby Jr. ruled that the prosecution's case hinged on one huge hypothetical: The shaking was so violent it sheared parts of the brain stem, killing Etzel immediately.

But the prosecution's experts provided no proof of such damage. In fact, Dr. Stephanie Erlich, deputy county coroner, testified she had not inspected the brain stem and ``wouldn't have seen anything anyway,'' according to the opinion.

Some 300 to 400 children are shaken to death nationally each year, according to the Utah-based National Center on Shaken Baby Syndrome. These children typically have bruises and broken bones and experience retinal hemorrhaging.

Etzel had none of these and also was much younger than most shaken babies. His autopsy did show some bleeding on the brain, but the prosecution's witnesses conceded that it was not enough to kill him.

``An expert's testimony as to a theoretical conclusion or inference does not rescue a case that suffers from an underlying insufficiency of evidence,'' Canby wrote.

In 30 to 60 days, Shirley could be released from the Central California Women's Facility in Chowchilla, said Michael J. Brennan, the University of Southern California law professor who took on her case and argued it Feb. 8, 2005, in Pasadena.

Shirley raised Tomeka alone outside of Chicago. In 1996, they decided it was time for something new. So Shirley and two of Tomeka's children, Yolanda and Yondale, flew to Los Angeles. They moved into Shirley's sister's Van Nuys apartment and waited for Tomeka to join them.

Tomeka was 18 and eight months pregnant when she arrived in Los Angeles on Oct. 8. Two days later, she gave birth to Etzel - two weeks premature, jaundiced and suffering from a heart murmur. His health, however, improved quickly.

On Nov. 30, Tomeka rocked Etzel to sleep and laid him on his stomach on a couch in the family room. Her mother curled up on the floor next to Yolanda, then 4, and Tomeka went into her aunt's room to listen to music before falling asleep.

It was the first night she had slept in a different room from her baby - something she was never able to do with her fourth child.

At 1:30 a.m., Shirley awoke to find Etzel on the floor. She laid him back on the couch and returned to sleep.

About two hours later, though, she awoke again and saw that Etzel had vomited. Shirley also noticed blood oozing from his right nostril. He was cold to her touch and limp. She carried him to Tomeka, who dialed 911.

He was pronounced dead at Mission Community Hospital that morning.

The death was initially attributed to sudden infant death syndrome, an unexplainable condition that takes the lives of about 2,500 American infants each year. But authorities quickly became suspicious of Shirley and within a week had opened a homicide investigation.

She had appeared ``apprehensive'' to firefighters and paramedics, according to the ruling. She was the only adult sleeping with the children. And she told police she had given him a ``little shake,'' though she said that meant she rocked him from side to side.

Before her mother was arrested, another battle began for Tomeka - the fight to save her kids, whom she said were taken by protective services. The Department of Children and Family Services does not confirm or deny cases because of privacy.

``It was like losing my family all at once,'' Tomeka said. ``I had no reason to live.''

Shirley's extended family was poor, so they couldn't afford the likes of a Johnnie Cochran to defend her in court.

``The money we had, nothing but chump change, we dug up,'' said Shirley's mother, Mildred.

With that they paid for the services of Ubiwe K. Eriye, who had only one year of legal practice in California.

Eriye's license with the California Bar is active, but all listed phone numbers for Eriye and Associates' downtown office have been disconnected.

``She might have been better off with a public defender because that man didn't do nothing,'' Keys said.

A Van Nuys jury found her guilty of assault on a child resulting in death.

Tomeka, who turns 28 today, hasn't seen her mother since. If the 9th U.S. Circuit Court of Appeals' ruling isn't challenged, she will be able to spend her next birthday with ``the best mom in the world.''

Shirley's attorney called the prison Thursday to arrange a phone call for this morning. He needs to tell her the news.

Brad A. Greenberg, [phone]

brad.greenberg(at)dailynews.com