Babysitter Granted New Trial by Presenting Updated Medical Science

In re Fero (2016)

by David S. Marshall

The Washington State Court of Appeals has granted Heidi Fero’s petition for release from post-conviction restraints and granted her a new trial. Ms. Fero was convicted in 2003 for the first-degree assault of a child she babysat, but this conviction may have been due in part to reliance on now-outdated medical science on so-called “shaken baby syndrome.”

Ms. Fero’s petition, granted recently by Division II of the Court of Appeals, provided sufficient new evidence to warrant a new trial. She argued that the paradigm shift in the medical community’s understanding of “shaken baby syndrome” and head trauma in children suggested that the medical testimony presented at her 2003 trial may have caused a different result than would have been reached with more current medical testimony on the subject.

The child assault charge arose as a result of the events of one day in January of 2002, when Ms. Fero was babysitting a four-year-old boy and his one-year-old sister, children she frequently cared for in her Vancouver home. According to Ms. Fero’s testimony, she noticed that Brynn, the little girl, seemed uncharacteristically distant, sedentary, and sleepy that afternoon. When Ms. Fero gave Brynn a bath that evening, she saw several bruises on the child’s body.

Later that same evening, after Ms. Fero had put Brynn and her brother to bed, Ms. Fero’s own daughter came upstairs to tell her mother that the little boy was banging his little sister’s head into the wall. Ms. Fero rushed downstairs to find the little boy hastily climbing out of Brynn’s crib, while Brynn was shaking in the crib with a little blood coming out of her mouth.

While checking on Brynn shortly after this incident, Ms. Fero realized that the little girl was unresponsive and called Brynn’s mother and 911. Brynn was immediately transported to the hospital, where doctors found a blood clot on her brain, brain swelling, retinal hemorrhages in both eyes, and a fractured left shinbone. Brynn was placed in the pediatric intensive care unit.

Ms. Fero was charged in Clark County Superior Court with first-degree child assault. At trial, the State produced medical experts who testified that Brynn’s injuries were consistent with shaking but that a four-year-old boy (such as her brother) would not have been strong enough to inflict injuries as severe as the injuries Brynn had sustained. Ms. Fero was convicted of first-degree child assault.

Years later, Ms. Fero filed a personal restraint petition, seeking to have the judgment against her set aside. In support of the petition, she presented declarations from two medical experts in child head trauma. Both these physicians testified that the medical community had shifted its understanding of child head trauma since Ms. Fero’s 2003 trial. Both concluded it was impossible to determine that Brynn’s injuries occurred while in her care.

Patrick Barnes, a pediatric neuroradiologist and one of Ms. Fero’s experts, testified that radiological findings that once suggested only non-accidental child head trauma to doctors are now understood to “include a variety of accidental and natural causes.” Contrary to previous medical understanding, the research since Ms. Fero’s trial has established that injured children can remain lucid for three days or more after the trauma is inflicted.

Janice Ophoven, Ms. Fero’s other medical expert, is a pediatric forensic pathologist specializing in “shaken baby syndrome.” Dr. Ophoven concluded that “much of the medical testimony presented during Ms. Fero’s 2003 trial is no longer scientifically valid in light of recent advances in the medical community’s understanding of the natural, accidental and non-accidental causes of cerebral edema, subdural hematoma and retinal hemorrhages.”

The court found this new evidence persuasive and granted Ms. Fero both release from her post-conviction restraints and a new trial.

At the Marshall Defense Firm we are particularly happy to see this result for Ms. Fero, as she consulted with us before filing her petition.