On January 24, 2006, 32-year-old Tammy Smith said she was doing dishes when she heard her 4-year-old son, Gabriel, whimpering on the basement stairs. When she went to him, his right arm appeared to be badly injured.
The boy was taken from the family home in Humboldt, Iowa, to a local medical center and then transferred to a hospital in Des Moines after x-rays showed the boy’s arm was broken in four places and his shoulder was dislocated.
The boy was developmentally disabled and unable to tell anyone what happened because he could not speak. When asked what happened, he only could make a sound that sounded like “rer, rer” and made a circular motion.
Smith gave varying accounts of what happened. At first, she said she was doing the dishes and her two-year-old son was flipping the light switch to the basement on and off. She said she turned off the light and took the boy to his bedroom. When she returned, she discovered Gabriel moaning on the basement stairs. On one occasion, she said that she was taking clothes out of the dryer in the basement and Gabriel was next to her and suddenly he got hurt.
On another occasion, Smith said that Gabriel fell down the basement stairs. She also reported that she suspected that Gabriel had opened door of the front-loading washing machine when it was in the spin-dry cycle. According to Smith, Gabriel had learned to open the door as a toddler and the machine was not working properly—it failed to automatically stop when the door was opened.
In November 2006, Smith was charged with child endangerment causing serious injury and Gabriel was placed in foster care.
Smith went on trial in May 2007 in Humboldt County District Court. Physicians who treated Gabriel testified that his injuries could only have been caused by a significant amount of force or leverage being applied to the boy’s arm. The injuries were inconsistent with a fall, the physicians testified.
Gabriel was not called as a witness because he could not talk, although he could utter sounds as such as “ma” and “owie” and “no.” A social worker who examined Gabriel testified that he was “the most unsocialized child” she had ever seen. The social worker said, “I refer to him even as a little animal child because he would do a lot of grunting and moaning and pointing…It was almost animalistic noises coming out of him.”
Neither Smith nor her husband, John, was called as a defense witness. The jury convicted Smith on June 1, 2007.
One week after the conviction and prior to sentencing, Smith’s attorney filed a motion for a new trial. The motion alleged that Bradley Anderson, a counselor at the youth shelter where Gabriel was living, said that Gabriel spoke and told Anderson that he broke his arm in the washing machine.
The motion was dismissed in July 2007 after the court found that Gabriel’s statement was not newly discovered evidence because Smith suspected prior to trial that Gabriel had broken his arm in the washing machine. Smith was sentenced to 10 years in prison.
Smith appealed her conviction and in 2008, the Iowa Court of Appeals upheld the conviction. In April 2009, Smith filed a motion for a new trial contending that her trial lawyer had provided a constitutionally inadequate legal defense by failing to raise the possibility that the boy had been injured by the washing machine. The motion claimed that the defense attorney had been aware of the washing machine theory and had even made a video showing how the machine did not stop when the door was opened. But instead of pursuing that theory at trial, the defense attorney argued the boy slipped and fell, even though the physicians testified that was impossible.
At the hearing, Smith’s trial attorney testified that he believed Gabriel had been injured by the washing machine, but he didn’t pursue that theory because he thought he could prevail by showing there was no evidence that Smith intentionally hurt Gabriel. He said he feared that if he presented the washing machine theory, the prosecution would argue that the failure to fix the faulty machine was evidence of neglect. The attorney, however, admitted that the failure to pursue the washing machine theory was “a huge mistake” on his part.
Bradley Anderson, Gabriel’s counselor, testified that prior to Gabriel’s spontaneous statement that he hurt his arm in the washing machine, there were occasions when Gabriel would pass by the washing machine in the foster home and he would point at the machine. On one occasion, Anderson said, Gabriel actually opened the door of the machine, put his arm in it and said, “Mom.”
Anderson testified that he was mystified by these actions until he mentioned them to Smith’s husband, John, who explained that they suspected Gabriel had hurt himself in the washing machine. Anderson said he then understood what Gabriel was doing. Further, Anderson testified that one week after the trial ended, Gabriel pointed to the washing machine and said, “I broke my arm in a washing machine like that.”
Gabriel also testified at the hearing. He was a few days short of his ninth birthday and his verbal skills had improved dramatically. He said that his mother had nothing to do with his injuries. Instead, he said he injured himself by opening the washing machine door when the spin cycle was moving and putting his arm inside.
He testified that he had discussed this with his father on occasion since the trial and that he had tried to tell people what happened prior to the trial, but couldn’t because of his inability to talk.
In May 2010, the judge denied the motion, holding that Smith’s trial lawyer’s strategy at trial was reasonable, and that Gabriel’s statement was not new evidence. Even if it was new evidence, the judge found, it would not have changed the outcome of the trial.
In April 2011, the Iowa Court of Appeals disagreed, reversed the conviction and ordered a new trial. Gabriel’s version of what happened, the court held, “was unknown and unavailable. Since he was the only eyewitness, the evidence could not have been known before Gabriel made his statement.”
On September 8, 2011, the Humboldt County District Attorney’s office dismissed the charge and Smith was released.
Smith filed a lawsuit seeking compensation from the State of Iowa, but the lawsuit was dismissed.
– Maurice Possley
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