Metropolitan News-Enterprise


Wednesday, November 4, 2009


Page 1


C.A. Again Upholds Parole Denial in Toddler’s Death


By STEVEN M. ELLIS, Staff Writer


This district’s Court of Appeal has again upheld Gov. Arnold Schwarzenegger’s determination that a woman who denies having beaten her 2-year-old daughter to death over 28 years ago after the child fed a pancake to a pet duck remains unsuitable for parole.

Pointing to the aggravated circumstances and the woman’s failure to admit to participating in the beating, Div. Six in an unpublished opinion held Monday that sufficient evidence supported the governor’s 2007 finding that Linda Lee Smith continued to pose an unreasonable risk of danger if released, just as it supported the governor’s similar finding in 2006.

Smith was convicted of second-degree murder and sentenced to 15 years to life in prison in 1981 after her daughter, Amy, died from a severe head injury received while being “disciplined” by Smith and then-boyfriend David Foster for crying and refusing to sit on a couch where the duck could not reach the pancake.

Amy suffered more than 80 bruises and injuries, including bite marks on her buttocks and numerous blunt injuries to her head, neck, chest, back and extremities, but Smith—despite initially confessing to police in an emergency room following arrest—has maintained over the years that she did not deliver any of the fatal blows.

Instead, she acknowledged that her failure to intervene to protect Amy from Foster led to the death, but claimed she only confessed in order to protect Foster, who was on parole, and to get Amy to the emergency room.

Amy’s sister Bethany, who was 3 1/2 at the time of Amy’s death, testified then that both Smith and Foster struck and bit her sister, but in recent years has recanted her testimony and now supports her mother’s version of events.

In 2007, the Board of Parole Hearings decided for the eighth time that Smith should be granted parole, but the governor for the eighth time reversed the decision.

Smith had no documented history of violent behavior prior to incarceration and no other criminal record. She also, since her incarceration, has had no incidents of discipline, has earned a college degree and begun pursuit of a master’s degree in divinity, and has availed herself of self-help and therapy sessions, the board found.

Smith challenged the governor’s similar decision in 2006 and San Luis Obispo Superior Court Judge Jac A. Crawford granted a petition to vacate, but the Court of Appeal reversed and reinstated the governor’s decision in an opinion issued in February of this year in In re Smith 171 Cal.App.4th 1631.

Three months earlier, Smith had challenged the governor’s decision as to the board’s 2007 recommendation, and Crawford granted that petition as well. The Court of Appeal reversed that decision yesterday in an opinion by Justice Kenneth R. Yegan, who also wrote the earlier opinion.

Pointing to the California Supreme Court’s opinions in In re Lawrence (2008) 44 Cal.4th 1181 and In re Shaputis (2008) 44 Cal.4th 1241, Yegan said the governor had reason to conclude that Smith’s failure to take responsibility for her daughter’s death by continuing to characterize herself as a mere bystander demonstrated a lack of insight into her crime, supporting the governor’s decision.

Justice Paul H. Coffee joined Yegan in his opinion, but Justice Steven Z. Perren—as he also did in February—dissented that the governor’s conclusion as to Smith’s “demeanor and mental state” about her actions was not enough to show current dangerousness.

“[T]he Governor’s conclusion that Ms. Smith poses an unreasonable risk to society were she to be released hinges on her failure to repeat what she said at the emergency room….,” he said.

“The conundrum is evident: steadfast for over 20 years in her recounting of the circumstances of the offense, Ms. Smith must get her ‘mind right’ before she can be released. The Governor has repeatedly concluded that her current thinking makes her a danger to the community. Yet if she conforms her description to align with what she said at the emergency room, she will admit to what she has denied for over a score of years.

“Having thereby admitted not only greater culpability but dishonesty as well, is she now to be considered less of a threat to public safety? She is in a room without doors. In effect the Governor’s reasoning denies her due process and converts her 15-years-to-life sentence to a sentence of life without the possibility of parole.”

The case is In re Smith, B213431.


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