Linda Lee Smith


Linda Lee Smith, 52, has spent 24 years in prison in the murder of her 2-year-old daughter, Amy.

Metropolitan News-Enterprise
Thursday, February 19, 2009
Page 1

Court Upholds Parole Denial for Woman Who Murdered Toddler

By SHERRI M. OKAMOTO, Staff Writer
This district’s Court of Appeal yesterday upheld Gov. Arnold Schwarzenegger’s finding that a mother who beat her 2-year-old daughter to death after the child fed her pancake to her pet duck was still not suitable for parole 28 years after the murder.

A divided panel of Div. Six reversed San Luis Obispo Superior Court Judge Jac A. Crawford’s grant of habeas corpus relief to Linda Lee Smith, concluding in an unpublished decision that the aggravating circumstances of the child’s death and Smith’s failure to take responsibility for her conduct supported the governor’s finding that Smith continued to pose an unreasonable risk of danger to society if released.

Smith was convicted by a jury of second degree murder in 1980. The California Supreme Court subsequently reversed her conviction due to an instructional error, but she was again convicted on retrial.

Physical Abuse

According to the Supreme Court, Smith became angry when her daughter Amy refused to sit on the couch instead of the floor to eat a snack.  Smith then took Amy into a bedroom, spanked her, and slapped her in the face. 

David Foster, who lived with Smith and her two children, apparently joined Smith in the bedroom.
Smith’s other daughter, Bethany, age 31/2, testified that both Smith and Foster struck Amy with their hands and a paddle, and also bit the child.

Eventually, Amy went into respiratory arrest and Smith and Foster took her to the hospital where Smith admitted that she had beaten her daughter “too hard,” but denied Foster’s involvement.

Severe Injury

Amy died from a severe head injury which, doctors opined, occurred less than an hour before the child was brought to the hospital. She also manifested injuries that were consistent with compressive force caused by numerous blows by hands, fists, and a paddle. 

Smith claimed that Foster had been alone with Amy in the bedroom when Amy was injured and that she was afraid that if she interfered she would become the object of Foster’s attack.

She asserted that Foster had objected to taking the child to the hospital because he was concerned about possible ramifications for his parole status, so she agreed to take all responsibility for Amy’s injuries at the hospital.

Following retrial on remand from the Supreme Court, a jury again convicted Smith of second degree murder. She was sentenced to prison for a term of 15 years to life.

 At subsequent parole hearings, Smith continued to deny her involvement in the attack on Amy, but accepted responsibility for Amy’s death because she did not protect the child from Foster.

Smith also claimed that she had falsely confessed to police following her arrest—which was the basis for the Supreme Court’s statement of facts portraying her as the initiator and chief perpetrator of the attack on Amy—because she had told Foster that she would take the blame and because she was trying to protect her children.

Prior to Smith’s conviction, she had no documented history of violent behavior, and no criminal record. Since her incarceration, she has had no incidents of discipline, has earned a college degree and begun pursuing a master’s degree in divinity, and availed herself of self-help and therapy sessions.

On seven separate occasions, the Board of Parole Hearings has decided that Smith should be granted parole, but each time, the governor has reversed the board’s decision.

Nature and Circumstances

In justification of the most recent reversal, Schwarzenegger said the nature and circumstances of Amy’s death and Smith’s refusal to acknowledge her participation in the beating outweighed the factors in favor of Smith’s parole suitability.

Smith then filed a petition for writ of habeas corpus in the San Luis Obispo Superior Court, which Crawford granted.

Writing for the appellate court, Justice Kenneth R. Yegan noted that the governor relied on similar grounds to those he had relied on in In re Shaputis (2008) 44 Cal.4th 1241—which involved a defendant who was convicted of murdering his wife with a single gunshot to the neck—in reversing the board’s decision, and that the California Supreme Court had upheld the governor’s decision in Shaputis.

Like the defendant in Shaputis, who maintained that his wife’s death was an accident, Yegan reasoned that Smith had never taken responsibility for Amy’s death by continuing to characterize herself as a mere bystander to a beating perpetrated by Foster alone. 

“The gravity of respondent’s commitment offense has continuing predictive value as to current dangerousness in view of her lack of insight into her behavior and refusal to accept responsibility for her personal participation in the beating of Amy,” Yegan wrote.

Justice Paul H. Coffee joined Yegan in his opinion, but Justice Steven Z. Perren dissented.

Despite the heinousness of Amy’s murder, Perren asserted, the offense was both temporally remote and mitigated by circumstances indicating the conduct is unlikely to recur in light of the “overwhelming” evidence of Smith’s rehabilitation. The justice noted that every mental health professional and counselor who has met with Smith since 1986 had concluded she had accepted responsibility for her crime.

Perren also noted that Beth

any had substantiated Smith’s claim that she was not the aggressor in the attack on Amy by testifying before the parole board that her mother did not administer any blows to her sister in concluding that the evidence did not support the governor’s finding that Smith continued to pose a threat to society.

Blanca F. Young and Hailyn J. Chen of Munger Tolles & Olson LLP represented Smith, while Deputy Attorney General Kim Aarons represented the state.

The case is In re Smith, B207324.

ten times since 1989. Each time, the Governor has reversed the Board's decision, despite the fact that Amy's father and sister (who witnessed the crime) support Linda's release.
Linda currently is in her
29th year in prison where she has remained disciplinary-free, earned a Bachelor's degree from the University of La Verne, and continues to work toward her Master of Theology degree from Fuller Theological Seminary.

In 1981, Linda Lee Smith was convicted of 2nd degree murder and sentenced to 15-years-to-life in connection with the death of her two-year-old daughter, Amy, who was beaten to death by her abusive boyfriend.
Although the victim in Linda's case was not her abusive partner, the fact that she was a battered woman was significant in her inaction to stop the crime.
Linda has been found suitable for parole by the Board of Parole Hearings

Linda Lee Smith, 52, has spent 24 years in prison in the murder of her 2-year-old daughter, Amy. Although the parole board has declared her suitable for release six times since 1989, the state's governors have decided otherwise.

Smith was convicted of second-degree murder in San Luis Obispo County in 1980 and sentenced to 15 years to life after she did not stop her boyfriend from fatally beating Amy. Whether Smith participated in Amy's abuse was hotly disputed at her trial. The prosecution argued that by not aggressively intervening, she condoned the violence.

That Smith may have been a victim of domestic violence was no defense, Schwarzenegger said. He said in his May 18 letter denying parole that Smith still poses "an unreasonable threat to public safety."

Smith's situation is not unique.
Legal scholars and court dockets across the nation suggest that during the past two decades, mothers increasingly have been blamed —— and prosecuted ——for not protecting their children from harm. That includes women who have been victims of domestic violence or who have used drugs while they were pregnant.

"There's the sense of a noose being tightened," says Michelle Oberman, a Santa Clara University law professor and co-author of the book Mothers Who Kill Their Children.

"We want to try to find some way to think we're protecting children," says Benjamin Wolf, associate legal director of the American Civil Liberties Union in Illinois. Fixing social problems is too complicated, he says.

"Blaming the mother is the easy way out."
Some prosecutors say women merely are being held to the same standards as men.

"If we're not going to hold the mother accountable, then who's going to be responsible for protecting that child?" says Wendy Macfarlane, a deputy district attorney in Ventura County, Calif.

It is unclear precisely how many mothers are being prosecuted and convicted of failing to protect their children each year. They are charged under a complex web of state laws, which are enforced differently in various jurisdictions. No one tracks the number of prosecutions across the states.

Oberman and other legal scholars say there is no doubt prosecutions and convictions of mothers in children's deaths are on the rise. Anecdotal evidence from court dockets supports that:

• In Lake County, Ind., the county prosecutor isn't excusing Felicia Gordon for not intervening in the fatal beating of her son George, 7, in March. Gordon, 27, of Gary, was charged with murder after her boyfriend repeatedly hit, punched and kicked the boy to death. She admitted to police that she could hear beating and screaming for 10 minutes. Her attorney, Lemuel Stigler, says she stayed in another room during most of the incident because she was trying to protect her other son, a 1-year-old. She says her boyfriend pointed a gun at her after the beating and threatened to hurt her if she called police. If convicted at her trial this summer, she could face more than 65 years in prison.

• In a case this week, Arlene Haines, 24, of Ulysses, Pa., pleaded guilty to child endangerment because she didn't stop her boyfriend from fatally abusing her 2-year-old daughter, Serena, last year. Had a plea agreement not been struck, Haines could have been sentenced to up to seven years.

Preventing harm can even include not doing enough to prevent a child's suicide. In October 2003, Judith Scruggs was found guilty of contributing to her son's suicide. A Connecticut jury convicted Scruggs of risk of injury to a minor because she kept such a filthy home and allowed her 12-year-old's hygiene to deteriorate so much that he was bullied at school. She received probation.

That same month, the U.S. Supreme Court refused to hear an appeal of a South Carolina mother convicted of murder through an interpretation of the state's homicide-by-child-abuse law. Regina McKnight was prosecuted for having cocaine in her system when she suffered a stillbirth. She is serving 12 years in prison.

Mary Becker, an Illinois attorney involved in a protection case, says mothers are being treated differently under the law because they are assumed to be a child's natural protector. Fathers rarely are charged, she says.
In 1992, Illinois became the first state to consider parents accomplices to first-degree murder if they don't protect their children. That's when an appellate court upheld the conviction of Kimberly Novy of Shiloh, Ill., saying that although she'd been battered by her husband and may not have caused her stepson's fatal injuries, her actions —— and inaction ——made her responsible for his murder. She is serving 30 years.

The following year, Illinois prosecuted Kathy Cecil of Wood River for the first-degree murder of her 2-year-old son, Michael. She didn't participate in his fatal beating and had been repeatedly punched, choked and raped by her lover for months. Cecil, now 31, was sentenced to 35 years in jail.

Battered women don't get much sympathy in many of these cases. Some prosecutors say abuse of the mother is irrelevant.

"That's not an excuse for standing by and letting someone beat your child to death," says Terry Patton, the state's attorney in Henry County, Ill.

Advocates of battered women say it's not that simple. These women may be unable to help because if a husband or boyfriend is beating a child, they probably are beating the mother, too.

That was happening in Linda Lee Smith's case, her surviving daughter, Bethany McDermott, said in an interview last week.

McDermott said her mother did not intervene in Amy's beating because she was paralyzed with fear. She said Smith had been battered and sexually tortured for months by her boyfriend, David Foster, who was convicted of second-degree murder and is still in prison. Her mother had been severely beaten when she tried to stop Foster from harming McDermott, then 3, a few weeks earlier.

"Standing back and not doing anything was horrible," said McDermott, 29. "But such a harsh punishment wasn't the right answer."