In Re Fero (2016)
by David S. Marshall
The Washington Court of Appeals has granted defendant Heidi Fero a new trial because the “medical paradigm” in so-called “shaken baby” cases has shifted.
Fero was convicted in 2003 in Clark County Superior Court of first-degree child assault after a young girl she was babysitting was found to have serious brain injuries.
While caring for the child, Fero found her unresponsive. Fero called 9-1-1. By the time medics arrived, the girl was unconscious. She was taken to the Southwest Washington Medical Center in Vancouver, Washington, and then, when a CAT scan revealed swelling in her brain, across the Columbia River to Legacy Emanuel Hospital in Portland, Oregon.
At trial, the prosecution had several doctors testify about the brain injuries. One said that “shaken baby syndrome,” severe shaking of a child that causes brain damage, was the only explanation for the brain swelling. Another doctor testified that there probably would not be any “lucid interval” after the child sustained the injury; rather, there would immediately be signs her brain was not working normally.
The thrust of the medical testimony was this: the child must have been assaulted by the adult who was with her when she became unresponsive—Fero.
Fero appealed her conviction but was denied a new trial. In 2014, just before completing her prison sentence, she filed a petition for relief from personal restraint, again seeking a new trial. (Under Washington law, such a petition is a form of collateral attack on a criminal conviction, akin to a habeas corpus petition.)
Fero’s petition was based on new evidence about child head trauma that, she asserted, is now generally accepted in the medical community. She presented the evidence in declarations from two physicians.
Pediatric neuro-radiologist Patrick Barnes declared that a child could remain lucid for three or more days after an injury occurs. Thus there was a significant chance the child was injured before coming into Fero’s care.
Pediatric forensic pathologist Janice Ophoven declared that the medical evidence presented at Fero’s 2003 trial could not have determined when the girl was injured or whether injuries were accidental. Dr. Ophoven concluded the girl was probably injured 12-24 hours before reaching the hospital, rather than immediately before.
The two doctors explained that, since 2003, the medical community has accepted that falls and accidents can cause the same blood clotting and swelling that the doctors at Fero’s trial testified could only have been caused by a severe accident or child abuse by an adult.
Fero argued that this “paradigm shift” in understanding shaken baby syndrome and head trauma warranted a new trial. The court agreed.
The court compared Fero’s case to a Wisconsin case, State v. Edmunds, and a case from Illinois, Del Pete v. Thompson. In both those cases, too, women caring for children found to have brain injuries were convicted and sent to prison, and then granted new trials because of the medical community’s new understanding about child head injuries.
A defendant who seeks a new trial based on newly-discovered evidence must show that she could not have discovered the evidence before trial through the exercise of due diligence. The court of appeals found that the medical community’s new understanding didn’t develop until after 2008, so it had no trouble concluding Fero could not have discovered it before her 2003 trial.
But what about the years between 2008 and 2014, when Fero filed her petition? Shouldn’t Fero have filed her petition sooner than 2014?
The court recognized the challenges a prison inmate faces in preparing such a petition. It is not easy for a prisoner to keep up with medical developments and case law, or to find an attorney to help prepare her petition.
The prosecution argued that Fero should not get a new trial just because she had found two expert witnesses who disagreed with the expert witnesses who had testified at her trial. The State cited two Washington cases in which the courts had denied new trials to prisoners who found new experts with new opinions.
Fero’s case is different, the court of appeals said. Her expert witnesses show that the 2003 expert testimony against Fero is no longer generally accepted in the medical community.
The State can appeal to the Washington Supreme Court. If Fero’s victory is not overturned there, it will be a strong basis for new trial petitions from other Washington prisoners convicted of causing children brain injuries.