Personal Restraint Petition Of Heidi Charlene Fero , 192 Wash. App. 138 ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
January 5, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Matter of the Personal Restraint No. 46310-5-II
Petition of
HEIDI CHARLENE FERO, PUBLISHED OPINION
Petitioner.
LEE, J. — Heidi Charlene Fero was convicted of first degree assault of a child in 2003 for
the injuries suffered by Brynn Ackley. The evidence that linked Fero to Brynn’s injuries was that
1) Brynn had fallen unconscious while under Fero’ s care and had presented at the hospital with
subdural hemorrhaging (brain bruising or bleeding), cerebral edema ( brain swelling), and retinal
hemorrhaging ( retina bruising or bleeding); and ( 2) all of the doctors who testified on the topic
stated that children suffering those injuries become unconscious almost immediately and those
injuries can only be caused by car accidents, long falls, or abuse by an adult. Fero now brings this
personal restraint petition (PRP) asserting new material facts exist in the form of the now generally
accepted medical paradigm that recognizes children can remain lucid for up to three days after
suffering similar head injuries and those injuries are now known to be caused by much less extreme
circumstances.
We agree that Fero has presented sufficient new material facts to warrant relief because the
uncontested declarations of the medical experts she provided establish that the result of her trial
No. 46310-5-II
would probably be different if the current generally accepted medical evidence was available at
the time of her trial in 2003. Accordingly, we grant Fero’ s petition and remand for a new trial.
FACTS
A. THE INJURIES
On January 7, 2002, Heidi Fero baby-sat two children—15-month-old Brynn Ackley1 and
4½-year-old Kaed Frank— at Fero’ s home in Clark County. Fero’ s two children—1-year-old
Deric and 5-year-old Rachel— were also at Fero’ s home. Fero had baby-sat Brynn and Kaed on
multiple occasions before that day.
Brynn and Kaed were dropped off at about 2:00 p.m. that day, and left in the care of Fero’ s
boyfriend, Dustin Goodwin. Goodwin testified that Brynn’ s mother carried Brynn into the house
in her car seat, which was the only occasion she had done so. Usually, Brynn’ s mother would
bring Brynn and Kaed in, and then go back out for the car seat and diaper bag. Brynn was upset,
so Goodwin placed her in a rocking chair to calm her down. When Deric put his hands on her legs
she began crying again and needed Goodwin to calm her down.
Fero came home from work at about 3:00 p.m., and Goodwin left for work shortly
thereafter. Fero described Brynn as being “ distant” and staying wherever Fero set her, instead of
following Fero around like she usually did. 5A Verbatim Report of Proceedings (VRP) (Mar. 17,
2003) at 75. Fero saw several bruises on Brynn’ s body when Fero gave her a bath after dinner.
Brynn had been acting tired so, after the bath, Fero put Brynn to bed in a playpen downstairs while
she bathed Deric.
1
Both parties refer to the children by their first names in the briefing; this opinion follows the
parties’ lead.
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No. 46310-5-II
While Fero was bathing Deric, Rachel came upstairs to tell Fero that Kaed was hurting
Brynn. Fero took Deric out of the bath, put him in his crib, and went downstairs. When Fero got
downstairs, Kaed was on the couch. Fero covered Brynn back up before heading upstairs again to
finish drying Deric off. As Fero was drying Deric off and putting him to bed, Rachel came upstairs
again to tell Fero that Kaed was “ banging Bryn’ s [ sic] head into the wall.” 5A VRP (Mar. 17,
2003) at 81. Fero went back downstairs and testified that she “ saw Cade [ sic] climbing out of the
playpen], trying to get out of there fast,” and “ back over to the couch.” 5A VRP (Mar. 17, 2003)
at 82.
Fero went to the playpen and saw Brynn on her hands and knees, “ shaking” and
trembling,” with a little blood in her mouth. 5A VRP (Mar. 17, 2003) at 82. Fero picked Brynn
up to comfort her. When she thought Brynn had fallen asleep, Fero laid Brynn on a futon that was
angled inward so Brynn could not roll off.
Fero then called Brynn and Kaed’ s father, Jason Ackley, to tell him she was concerned that
Kaed had been hurting Brynn by “ pushing Brynn’ s head into a wall” and that Brynn could not
walk on one leg. 1 VRP (Mar. 11, 2003) at 119. According to Ackley, Fero wanted to know how
to discipline Kaed. Ackley said he told Fero to put Kaed in a different room.
Brynn continued to lay on the futon while Fero cleaned the house and the other kids
watched a movie. Fero periodically checked on the kids during this time. At some point, Fero
noticed that Brynn’ s eyes were halfway open— she did not look like she was sleeping, nor did she
look like she was awake.
Fero placed her hand on Brynn’ s chest and Brynn was breathing, but Brynn would not
respond when Fero called Brynn’ s name or wiggled her chest. Fero took Brynn to the kitchen and
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No. 46310-5-II
tried putting water on Brynn’ s face to get a response. Fero called her mother at 9:52 p.m. and
called 911 at 9:54 p.m.
When the paramedics arrived at 9:59 PM., Brynn was “ completely unconscious.” VRP
Mar. 10, 2003) at 39. According to the paramedics, Brynn’ s color was good, except for some
bruising to her forehead, around her nose, and on her chin.” VRP (Mar. 10, 2003) at 40-41. The
paramedics transported Brynn to the hospital.
Brynn was transported to Southwest Washington Medical Center. There, Dr. Daniel
Gorecki performed a CAT ( computerized tomography) scan of Brynn’ s head, chest, and
abdominal/pelvic area. The CAT scan of Brynn’ s head showed a subdural hematoma, which is a
blood clot on the brain, and a cerebral edema, which is a swelling of the brain. Brynn was then
transferred to Legacy Emanuel Hospital where she was placed in the pediatric intensive care unit.
The following morning, Brynn was seen by Dr. Shawn Goodman, a pediatric
ophthalmologist at Legacy Emanuel. Dr. Goodman noted that Brynn had retinal hemorrhages in
both eyes. Brynn was also seen that day by Dr. Mike Lukschu at Legacy Emanuel, who noted
Brynn had a fractured left shinbone.
The State charged Fero with one count of first degree child assault.
B. NON-MEDICAL TESTIMONY PRESENTED AT TRIAL
The State presented several witnesses whose testimonies refuted portions of Fero’ s account
of what happened. These witnesses included Detective Scott Smith, Officer Scott Telford, and
Detective Steve Norton, all with the Vancouver Police Department.
Detective Smith testified that he was directed to investigate around the playpen because
that was where he was told Brynn’ s injury had occurred. He testified that the absence of
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No. 46310-5-II
indentations left by the playpen indicated that the playpen had not been up against the wall, but
was close to the wall. He also testified that Fero had told him Brynn had had a bloody lip in the
playpen, but he did not see any blood around the playpen. Detective Norton testified that Fero
told him that she wiped the blood off of Brynn’ s mouth with a handy wipe.
Officer Telford testified that Fero had told him on the night Brynn was injured that she had
laid Brynn down on the futon and “ within about five minutes she said she checked on Brynn and
found . . .that [Brynn’ s] eyes were glazed over and that [Brynn] was unresponsive.” 1 VRP (March
11, 2003) at 88. Detective Norton also testified that the time frame Fero relayed to him was that
from the time she got Brynn out of the crib and put her on the couch until she noticed that
something was wrong with her was about five minutes.” 2 VRP (March 12, 2003) at 192. This
conflicted with Fero’ s statements that she had checked on Brynn periodically while cleaning the
house.
C. MEDICAL TESTIMONY PRESENTED AT TRIAL
The State presented six doctors during the trial who testified on the nature and cause of
Brynn’ s injuries.2 Those doctors were Dr. Daniel Gorecki, Dr. Shawn Goodman, Dr. Mike
Lukschu, Dr. James Ockner, Dr. William Bennett, and Dr. Kent Grewe.
Dr. Gorecki, the emergency room doctor at Southwest, testified that “ the subdural
hematoma] is caused by the shaking, essentially, of the brain within the cranium.” 1 VRP (Mar.
12, 2003) at 60. He testified further that he did not believe that a four-and-a-half-year-old boy,
2
Dr. Janice Cockrell also testified. Dr. Cockrell was a pediatrician who assumed the care of Brynn
when she became more responsive and was moved to the rehabilitation unit of Legacy Emanuel.
Her testimony only related to Brynn’ s motor skills and cognitive function at the time of trial and
in the future.
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No. 46310-5-II
meaning Kaed, could inflict the trauma that Brynn sustained. Dr. Gorecki said he based this
opinion on working with kids and keeping up on the literature. Finally, Dr. Gorecki testified that
it could take five or ten minutes, or up to as much as two hours, for a child who suffered this kind
of trauma to lose consciousness while the swelling in the brain progresses.
Dr. Goodman, the pediatric ophthalmologist at Legacy Emanuel, testified that the retinal
hemorrhages in Brynn’ s eyes were “ consistent with nonaccidental trauma.” VRP (Mar. 13, 2003)
at 63. Dr. Goodman testified that retinal hemorrhages could occur if the patient had been in a car
accident or had fallen from several stories, but they were found “ most commonly in nonaccidental
trauma.” VRP (Mar. 13, 2003) at 63.
Dr. Lukschu, the pediatrician at Legacy Emanuel, testified that head injuries like Brynn’ s
were “ the result of severe shaking,” and he based that opinion on the CAT scans and the presence
of retinal hemorrhages. 2 VRP ( Mar. 11, 2003) at 191. He testified that subdural hematomas
occur “ during severe shaking [when] the brain jostles around” in the skull, causing the veins that
connect the surface of the brain to the skull through the dural layer to break, and resulting in blood
collecting under the dural membrane. 2 VRP (Mar. 11, 2003) at 192. He said the only debate in
the medical community was whether injuries like Brynn’ s required a shaking and impact and most
of the medical community believed shaking alone was sufficient. As to Brynn’ s retinal
hemorrhages, Dr. Lukschu testified that he believed shaken baby syndrome was the only way to
cause the retinal hemorrhages that extend all the way to the retina. He further testified that this
type of injury could not have happened from falling off of a counter or a bed. Finally, he testified
that “[ w]ith this severe injury . . . . She would have been almost immediately unconscious.” 2
VRP (Mar. 11, 2003) at 195.
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No. 46310-5-II
Dr. Ockner, a radiologist at Southwest, reviewed Brynn’ s CAT scans when she was at
Southwest. He testified that a subdural hematoma occurs when the brain is shaken severely or is
slammed into something, like in a car wreck, a severe blow to the head, or a fall from a great
height; and that it could not occur from falling off a counter top or out of bed. He opined that
something had been inflicted on this patient not by accident” because there was no visible external
injury that was indicative of such injury and there was bleeding along the membrane that was
indicative of rotational forces. 1 VRP (Mar. 12, 2003) at 92. Finally, Dr. Ockner testified that
with this type of “shaking injury, typically a patient loses consciousness right away.” 1 VRP (Mar.
12, 2003) at 97.
Dr. Bennett, a pediatric radiologist at Legacy Emanuel, reviewed some of the x-rays and
CAT scans from Brynn’ s file and testified about Brynn’ s broken leg and head injuries. He testified
that the type of force required to produce a head injury like Brynn’ s would be the “ equivalent of
being ejected from a motor vehicle and smashing her face into a bank.” VRP (Mar. 13, 2003) at
30.
Dr. Grewe, a neurosurgeon at Legacy Emanuel, examined Brynn on the night she arrived
at Legacy Emanuel. He also performed the brain surgery on her that night to remove the blood
clot and relieved the swelling in her brain. Dr. Grewe testified that there would “[ p]robably not”
be “ any lucid interval between the time she sustained the injury and the onset of the [ brain]
swelling,” “ and the swelling usually starts immediately.” VRP (Mar. 13, 2003) at 43.
D. PROCEDURAL HISTORY
Fero was found guilty of first degree assault of a child on March 18, 2003. 6 VRP (Mar.
18, 2003) at 212. She appealed, challenging the sufficiency of the evidence, the constitutionality
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No. 46310-5-II
of the jury instructions, and the application of an exceptional sentence. State v. Fero, 125 Wn.
App. 84, 87, 104 P.3d 49 ( 2005). We affirmed the conviction and, on remand from the State
Supreme Court, amended our opinion to require Fero be resentenced within the standard range.
Fero, 125 Wash. App. at 102. The direct appeal mandated in 2006.
On May 6, 2014, Fero filed this personal restraint petition while she was incarcerated. Fero
was released from prison on July 30, 2014, but remains under post-release restrictions.
E. MEDICAL TESTIMONY PRESENTED IN SUPPORT OF THIS PRP3
In support of her PRP, Fero submits the declarations of two doctors specializing in the field
of pediatric head trauma: Dr. Patrick Barnes and Dr. Janice Ophoven. Fero asserts that in their
declarations, Dr. Barnes and Dr. Ophoven both establish that there has been a paradigm shift in
the medical community’ s understanding of head trauma in children and that Dr. Barnes and Dr.
Ophoven both conclude that it was impossible to determine that Brynn’ s injuries occurred in Fero’ s
care.
1. Declaration of Dr. Barnes
Dr. Barnes is a pediatric neuroradiologist, Chief of Pediatric Neuroradiology at Lucile
Salter Packard Children’ s Hospital, and Professor of Radiology at Stanford Medical Center. He
has “ practiced and taught on head injury in children for thirty five years, and ha[s] published over
one hundred articles, reviews, and book chapters on this subject.” Decl. of Barnes at 1-2.
3
Fero also submits several exhibits attesting to her positive influence on others while in prison.
These are irrelevant to her petition to this court because they are not material to the conviction.
RAP 16.4(c)(3).
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No. 46310-5-II
Dr. Barnes states in his declaration that since Fero’ s trial, the understanding of the
radiological findings that had been “ associated with non-accidental pediatric head trauma have
greatly expanded and now include a variety of accidental and natural causes.” Decl. of Barnes at
3. Moreover, contrary to what was previously understood, the research since Fero’ s trial has
established that children who suffer trauma, non-accidental or accidental, can remain lucid for
three days or more after the trauma is inflicted.
In support, Dr. Barnes cites articles and associated studies from 1987 to 2012, and states,
Over the past decade, many doctors— including myself—have changed their testimony and
beliefs to bring them into accord with the scientific evidence and standards of evidence-based
medicine.” Decl. of Barnes at 5-6. He continues:
Given the new medical research on lucid intervals, the testimony of the State’ s
experts to the effect that Brynn would have immediately gone unconscious is
unsupported by the medical literature. It is impossible to tell from the radiology or
otherwise in the medical record when Brynn was injured, and there is a significant
chance that she was injured before she arrived at Ms. Fero’ s home.
Decl. of Barnes at 26-27. Dr. Barnes concludes that “[ a] t the time of Ms. Fero’ s trial, many doctors
would have agreed with the doctors for the state. . . . However, shaken baby syndrome theories as
applied in this case are no longer supported by the scientific literature.” Decl. of Barnes at 31.
2. Declaration of Dr. Ophoven
Dr. Ophoven offers a similar opinion and conclusion. Dr. Ophoven is a pediatric forensic
pathologist, specializing in “‘ shaken baby syndrome’ and ‘ abusive head trauma’ cases in which
violent shaking is alleged to be the cause of serious injury or death of a child.” Decl. of Ophoven
at 1. She has been in the field for nearly 40 years and currently works as an independent consultant
primarily on cases involving allegations of child abuse or neglect. Decl. of Ophoven at 1.
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No. 46310-5-II
Dr. Ophoven states in her declaration that the nonaccidental or accidental nature of Brynn’ s
injuries cannot be determined by the medical evidence in Brynn’ s case. Nor can the timing of
Brynn’ s injuries be determined exactly, but it is more likely that she suffered the injuries 12 to 24
hours before arriving at the hospital.
Dr. Ophoven also states that in 2003, “ many medical professionals believed that if a child
presented with a triad of symptoms, including cerebral edema, subdural hematoma and retinal
hemorrhages, that was exclusively diagnostic of abuse by violently shaken” and that symptoms of
the brain injuries would manifest immediately. Decl. of Ophoven at 5. These views, she says,
were supported by 2001 papers issued by the American Academy of Pediatrics ( AAP) and the
National Association of Medical Examiners.
Dr. Ophoven explains that since 2003, it has become generally accepted in the medical
community that falls from chairs and similar heights can cause the same subdural hematoma,
cerebral edema, and retinal hemorrhages in children. There have been documented examples of
children falling from 30 inches and suffering significantly worse injuries than Brynn’ s. The AAP
issued a new paper in 2009 acknowledging the advances in the medical understanding of child
head trauma.
Dr. Ophoven concludes,
Based on the medical records, my review of the literature, and my experience as a
pediatric forensic pathologist . . . it is my opinion 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.
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No. 46310-5-II
Decl. of Ophoven at 3. Further, Dr. Ophoven states that “[ b]ased on the new medical evidence
regarding lucid intervals and the mechanism and timing of the development of cerebral edema, I
have concluded, to a reasonable degree of certainty, that Brynn was injured at least 12 hours before
her first CT scan, which would have been before Brynn was dropped off at Heidi Fero’ s house.”
Decl. of Ophoven at 10.
ANALYSIS
Fero petitions for release from her continuing post-conviction restraints. She argues that
the paradigm shift in the medical community’ s understanding of “ shaken baby syndrome” and
head trauma in children, as described in the declarations of Dr. Barnes and Dr. Ophoven attached
to her petition, constitute new “ material facts” satisfying the standard for her release under RAP
16.4(c)(3). We agree and grant her petition.
A. STANDARD OF REVIEW
The collateral relief afforded under a personal restraint petition is limited and requires the
petitioner to show that she was prejudiced. In re Pers. Restraint of Stockwell, 179 Wash. 2d 588,
596, 316 P.3d 1007 (2014). There is no presumption of prejudice on collateral review. In re Pers.
Restraint of Hagler, 97 Wash. 2d 818, 823, 650 P.2d 1103 (1982). The petitioner must either make
a prima facie showing of a constitutional error that, more likely than not, constitutes actual and
substantial prejudice, or a nonconstitutional error that inherently constitutes a complete
miscarriage of justice. In re Pers. Restraint of Stockwell, 161 Wash. App. 329, 334, 254 P.3d 899
2011), aff’ d, 179 Wash. 2d 588, 316 P.3d 1007 (2014); In re Pers. Restraint of Cook, 114 Wash. 2d
802, 810, 812, 792 P.2d 506 (1990). Without either such showing, this court must dismiss the
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No. 46310-5-II
petition. Cook, 114 Wash. 2d at 810, 812; see also In re Pers. Restraint of Hews, 99 Wash. 2d 80, 88,
660 P.2d 263 (1983).
The petitioner must support her allegations of prejudice with specific evidence. In re Pers.
Restraint of Rice, 118 Wash. 2d 876, 886, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992). Such
support may come in a variety of evidentiary forms, but it must be competent and admissible and
establish a factual basis for the allegations. Id. Bald assertions and conclusory allegations are not
sufficient. Id.
B. TIMELINESS AND MERITS OF PETITION
Typically, personal restraint petitions must be brought within one year after the judgment
becomes final. RCW 10.73.090(1). However, the one year time bar does not apply to a petition
based on “[ n]ewly discovered evidence, if the defendant acted with reasonable diligence in
discovering the evidence and filing the petition.” RCW 10.73.100(1).
Under RAP 16.4, this court will grant relief to a petitioner if the petitioner’ s restraint is
unlawful because, among other reasons, “ Material facts exist which have not been previously
presented and heard, which in the interest of justice require vacation of the conviction, sentence,
or other order entered in a criminal proceeding.” RAP 16.4(c)(3). The standard for relief under
RAP 16.4(c)(3) “ is the same as that applied to a motion for new trial based upon newly discovered
evidence.” In re Pers. Restraint of Brown, 143 Wash. 2d 431, 453, 21 P.3d 687 (2001).
Accordingly, for Fero’ s case to be timely because there is “ newly discovered evidence,”
and for Fero’ s petition to warrant relief under the RAP 16.4(c)(3) exception, she must establish
that the evidence (1) will probably change the result of the trial; (2) was discovered
since the trial; (3) could not have been discovered before trial by the exercise of
due diligence; (4) is material; and (5) is not merely cumulative or impeaching. The
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No. 46310-5-II
absence of any one of the five factors is grounds for the denial of a new”
proceeding.
In re Brown, 143 Wash. 2d at 453 (quoting State v. Williams, 96 Wash. 2d 215, 222–23, 634 P.2d 868
1981) (citations omitted)).
1. Factor 1: Probably Change the Result of the Trial
Fero argues that the result of her trial would probably be different because the medical
community’ s now generally accepted understanding of brain trauma in children directly
contradicts the medical theories that were relied upon to convict her, and she could not have been
convicted without the now-refuted medical testimony presented against her. We agree.
Fero specifically points to the testimony of the several doctors who testified that a child
would lose consciousness “ almost immediately” after the injury, and contrasts that with
declarations of Dr. Barnes and Dr. Ophoven stating that it is now known that children can remain
lucid for up to three days after suffering the injury. Fero also points to the testimony of the several
doctors who testified that the only causes of Brynn’ s injuries could have been ( 1) a major
accidental trauma or (2) child abuse, and contrasts that with the declarations of Dr. Barnes and Dr.
Ophoven explaining that today there are many acknowledged causes of the injuries Brynn suffered
and that using the medical science available today, it is impossible to determine what caused
Brynn’ s injuries.
At Fero’ s trial, the State argued that Brynn’ s injuries happened while she was in Fero’ s
care on January 7 and that the injuries were recklessly caused by Fero. Because no one testified
to witnessing Fero inflicting such injuries on Brynn and the only people who were at the house at
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No. 46310-5-II
the time were children who did not testify that Fero hurt Brynn,4 the State had to prove that it was
Fero who inflicted Brynn’ s injuries through the medical evidence and inferences drawn from that
evidence.
a. Lucidity after Suffering the Injuries
To establish Brynn was injured by Fero, the State first showed that Brynn must have lost
consciousness while she was with Fero. The State relied on statements by Fero and others that she
had found Brynn unconscious sometime between when she called Jason Ackley at about 7:45 p.m.
and when she called 911 at 9:54 p.m. The State then compared that time frame with repeated
medical testimony from multiple doctors that Brynn’ s injuries were such that she would likely
have lost consciousness “ almost immediately,” but surely not more than two hours, after suffering
the injuries. See, e.g., 2 VRP (Mar. 11, 2003) at 195 (Dr. Lukschu testifying, “ She would have
been almost immediately unconscious.”); 1 VRP (Mar. 12, 2003) at 97 (Dr. Ockner testifying that
with this type of “shaking injury, typically a patient loses consciousness right away.”); VRP (Mar.
13, 2003) at 43 ( Dr. Grewe testifying that there would “[ p]robably not” be “ any lucid interval
between the time she sustained the injury and the onset of the [brain] swelling . . . and the swelling
usually starts immediately”; VRP 1 (Mar. 12, 2003) at 70, 74 (Dr. Gorecki testifying that it could
take five or ten minutes, or up to as much as two hours, for a child who suffered the same kind of
trauma to lose consciousness). The conclusion that the State was able to explain to the jury was
that Brynn’ s injuries had to have been sustained when she was with Fero because she had been
4
See VRP 2 (Mar. 12, 2003) at 214-15 (Officer Norton testifying that Kaed told him he did not
see anyone hurt Brynn on the day she was hurt); see also 5A VRP (Mar. 17, 2003) at 39-59
Rachel testifying about the events that night and repeatedly saying it was only Kaed who hurt
Brynn).
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No. 46310-5-II
conscious when she was with everyone else that day and the medical testimony established that
she could not have remained conscious for any substantive amount of time after suffering the
injuries.
b. Cause of the Injuries
With the medical testimony establishing that the injuries must have occurred while Brynn
was in Fero’ s care, the State next had to show that Brynn’ s injuries were inflicted by Fero. The
State was able to make this showing through the several doctors who testified at Fero’ s trial that
the type of injuries Brynn suffered could only be inflicted through some type of major trauma, like
1) being thrown from a car in an auto accident or falling from several stories up or (2) from child
abuse inflicted by an adult. See, e.g., 1 VRP (Mar. 12, 2003) at 60, 63-64 (Dr. Gorecki testifying
that Brynn’ s injuries were caused by shaking, and that it was not conceivable for a 4½-year-old
boy to inflict the trauma that Brynn sustained); VRP (Mar. 13, 2003) at 30 (Dr. Bennett testifying
that Brynn’ s injuries required a force “ equivalent to being ejected from a motor vehicle and
smashing her face into a bank.”); 1 VRP (Mar. 12, 2003) at 84, 92, 96-97 (Dr. Ockner testifying
that Brynn’ s injuries were not inflicted by accident because there was no external injury and her
injuries would have been caused by an auto accident, a severe blow to the head, or a fall from a
great height); VRP (March 13, 2003) at 63 (Dr. Goodman testifying that Brynn’ s injuries could
occur if the patient had been in a car accident or had fallen from several stories, but that they were
most commonly in nonaccidental trauma”); 2 VRP ( March 11, 2003) at 191 ( Dr. Lukschu
testifying that Brynn’ s injuries were most likely “ the result of severe shaking”). Because there
were no allegations that Brynn had been in a car accident or fallen from a building, the State was
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No. 46310-5-II
able to show that the only medically possible explanation for the type of injuries Brynn suffered
was child abuse at the hands of Fero.
c. The Medical Community’ s Current Paradigm
Both Dr. Barnes and Dr. Ophoven submit in their declarations that the medical
community’ s generally accepted understanding of the duration of a child’s lucidity after a
traumatic head injury and the potential causes for serious head trauma in children, have changed
dramatically since Fero’ s trial in 2003. The testimony in the declarations of Dr. Barnes and Dr.
Ophoven refutes the medical testimony that was presented by the medical experts during Fero’ s
trial, but also acknowledges that the medical testimony presented at trial was consistent with the
generally accepted medical understanding at that time.
Dr. Barnes and Dr. Ophoven declare that, contrary to what was previously believed, today
the medical community recognizes that children can stay lucid for multiple days after suffering a
traumatic head injury. See Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby
Syndrome and the Criminal Courts, 87 WASH. U. L. REV. 1 ( 2009). Their assertions are not
contested by the State and directly contradict the medical testimony that Brynn’ s injuries had to
have happened at Fero’ s house because that is where Brynn lost consciousness.
Dr. Barnes and Dr. Ophoven also declare that the medical community now recognizes that
trauma like Brynn’ s, which was once believed could only be inflicted by car accidents, long falls,
or child abuse, can actually be caused by short falls and other low-impact accidents, in addition to
various natural causes. In fact, as Dr. Ophoven points out, under the current paradigm, a child is
more than capable” of causing severe head trauma to another child. Decl. of Ophoven at 4.
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No. 46310-5-II
Dr. Barnes and Dr. Ophoven further declare that the medical community now generally
accepts that there are multiple conditions that “mimic” the symptoms of what used to be classified
as “ shaken baby syndrome.” Decl. of Barnes at 17; Decl. of Ophoven at 7; Tuerkheimer, supra.
Thus, under the current medical understanding of the trauma Brynn suffered, and based on the
record available at Fero’ s trial, Dr. Barnes and Dr. Ophoven state that it is impossible to determine
that Brynn suffered the injuries at Fero’ s house and impossible to determine that her injuries were
recklessly inflicted. This testimony contradicts the certainty of the doctors at trial that Brynn’ s
injuries had to have been inflicted by Fero.
d. Legal Precedent
Whether the current medical paradigm described by Dr. Barnes and Dr. Ophoven creates a
reasonable probability of a different result at trial is an issue of first impression in Washington.
Other jurisdictions that have considered the current paradigm’ s effect on prior convictions have
granted relief to the petitioner.
State v. Edmunds, 308 Wis. 2d 374, 746 N.W.2d 590 (Wis. Ct. App. 2008), presents facts
similar to those in this case. In Edmunds, a woman was convicted of first degree reckless homicide
for allegedly shaking a seven-month-old child. Id. at 378. At her trial, the State presented
numerous medical experts who testified that the cause of the child’ s head injury was violent
shaking or violent shaking combined with an impact and that the child’s condition would have
appeared immediately abnormal. Id. The State then used testimony that the child had appeared
normal when she was dropped off with Edmunds to argue that the injuries had to have been caused
by Edmunds. Edmunds, 308 Wis. 2d at 378. To support her petition for a new trial,
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No. 46310-5-II
Edmunds presented evidence . . . in the form of expert medical testimony, that a
significant and legitimate debate in the medical community has developed in the
past ten years over whether infants can be fatally injured through shaking alone,
whether an infant may suffer head trauma and yet experience a significant lucid
interval prior to death, and whether other causes may mimic the symptoms
traditionally viewed as indicating shaken baby . . . syndrome.
Id. at 385-86.
The Edmunds court held that this constituted new evidence and warranted a new trial
because there was a reasonable probability the result would be different. Id. at 392. In holding it
constituted new evidence, the court reasoned that “ it is the emergence of a legitimate and
significant dispute within the medical community as to the cause of [ the child’ s] injuries that
constitutes newly discovered evidence. At trial . . . there was no such fierce debate.” Id. And, in
holding the new evidence warranted relief, the court reasoned,
Now, a jury would be faced with competing credible medical opinions in
determining whether there is a reasonable doubt as to Edmunds’ s guilt. Thus, we
conclude that the record establishes that there is a reasonable probability that a jury,
looking at both the new and the old medical testimony, would have a reasonable
doubt as to Edmunds’ s guilt.
Id.
In Fero’ s case, this court is presented with a scenario similar to that faced by the Edmunds
court. Fero was convicted of first degree assault of a child for recklessly injuring Brynn. 6 VRP
March 18, 2003) at 212. The evidence against Fero amounted to repeated medical opinions that
Brynn’ s injuries must have been suffered during Fero’ s care because of when Brynn was
unconscious and that Fero must have recklessly inflicted the injuries because of the nature of the
injuries. See, e.g., 1 VRP (March 12, 2003) at 63-64 (Dr. Gorecki); VRP (March 13, 2003) at 63
Dr. Goodman); 2 VRP (March 11, 2003) at 191, 196, 202-03 (Dr. Lukschu); 1 VRP (March 12,
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No. 46310-5-II
2003) at 84, 96-97 (Dr. Ockner); VRP (March 13, 2003) at 30 (Dr. Bennett). Now, in a petition
for post-conviction relief, Fero presents medical testimony that there has been a significant change
over the last 10 years to the medical community’ s understanding. Under the current generally
accepted medical understanding, children can remain lucid after the injury for many hours and
these injuries can be caused by something other than severe trauma.
Thus, under the logic relied upon by the Edmunds court, a jury in Fero’ s case today would
be faced with medical opinions stating there is no way to determine Brynn was injured during the
evening she was in Fero’ s care nor can it be determined what caused Brynn’ s injuries. See
Edmunds, 308 Wis. 2d at 392. Therefore, there is a reasonable probability that the result of Fero’ s
trial would be different given the new medical testimony she presents.
A Texas appellate court similarly granted a habeas corpus petitioner a new trial when she
presented medical expert testimony stating that advances in science had shown that the type of
injuries sustained by the child she was convicted of murdering “ could have been caused by an
accidental short fall onto concrete,” and that there was no way to tell if the child’ s injuries were
the result of intentional abuse. Ex Parte Henderson, 384 S.W.3d 833, 833-34 (Tex. App. 2012).
This new testimony was contrary to the testimony presented at her trial by the medical examiner
who testified it was impossible that the child’ s injuries could have been accidental. Id.
Fero cites two other cases which come to the same basic conclusions as the courts in
Edmunds and Ex Parte Henderson did: Del Prete v. Thompson, 10 F. Supp. 3d 907 ( N.D. Ill.
2014); People v. Bailey, 47 Misc. 3d 355, 999 N.Y.S.2d 713 (2014). These courts recognized that
the medical community’ s new understanding of head trauma in children and the current paradigm
is new evidence warranting post-conviction relief for those convicted through testimony under the
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No. 46310-5-II
old paradigm. Del Prete, 10 F. Supp. 3d 907; Bailey, 999 N.Y.S.2d 713. Specifically, these courts
recognize that doctors now know children can remain lucid for much longer periods of time after
suffering the injury and that doctors now know there are several causes for injuries once thought
to be indicative only of abuse. Del Prete, 10 F. Supp. 3d at 956-57; Bailey, 999 N.Y.S.2d at 726-
727.
We hold that the medical testimony Fero presents probably would change the result at trial.
Thus, Fero satisfies the first factor warranting relief under RAP 16.4(c)(3) and In re Brown, 143
Wash. 2d at 453.
2. Factors 2 and 3: Discovered After the Trial and with Reasonable Diligence
Fero asserts that the evidence she presents to this court in her petition was discovered after
her trial and that she was reasonably diligent in finding the evidence. The State responds that Fero
did not exercise ‘ reasonable diligence’ in finding this evidence or in presenting it” to this court.
Br. of Resp’ t at 14. We hold that the evidence Fero presents in her petition was discovered after
her trial and could not have been discovered earlier with reasonable diligence.
Fero was convicted in 2003 and was incarcerated at the Washington Corrections Center for
Women until her release on July 30, 2014. She asserts, and the State does not dispute, that she has
no medical training and that it was impossible for her to keep up with the developments in medical
research on shaken baby syndrome.
While a few of the studies cited by Dr. Barnes and Dr. Ophoven were published before
Fero’ s trial, the majority of the studies they cite were published after Fero was convicted and
incarcerated. Moreover, the publishing of one or more articles professing a new viewpoint or
describing new evidence does not mean that the generally accepted beliefs of the medical
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No. 46310-5-II
community change on, or anywhere near, the publication date— the changing of paradigms takes
time. This reality is highlighted by the language of the Edmunds court, which, in 2008,
characterized the shifting paradigm as being a “ fierce debate” and a “ legitimate and significant
dispute within the medical community.” 308 Wis. 2d at 392. Both Dr. Barnes and Dr. Ophoven
stated in their declarations that the paradigm shift is a recent development and the current paradigm
was not in place when Fero was tried. Therefore, we hold that the evidence was discovered after
her trial. Fero thereby establishes the second factor because the current understanding of causation
and duration of subsequent lucidity in pediatric head trauma was not accepted at the time of Fero’ s
trial and was still not generally accepted at least through 2008.
We also hold that Fero exercised reasonable diligence for two reasons. First, there was not
a general consensus on the new paradigm until relatively recently. Second, Fero was incarcerated
during the majority of the years when the relevant medical literature and case law was being
published. Expecting her to keep up with the relevant medical literature and case law while
incarcerated is a high hurdle. Furthermore, once she learned of the shifting paradigm, she would
still need to find an attorney who would assist her in this petition despite her indigency. Then
more time would be needed for the attorney to research and draft the petition and accompanying
documents. Thus, under the circumstances of this case, Fero satisfied the reasonable diligence
factor.
3. Factor 4: Materiality
Fero asserts that the evidence she presents is material. We agree and hold the testimony of
Dr. Barnes and Dr. Ophoven is material. Our Supreme Court has stated that evidence is material
if it is admissible and there is a “ reasonable probability” that, had the evidence been presented,
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No. 46310-5-II
the result of the proceeding would have been different. Rice, 118 Wash. 2d at 887; State v. Knutson,
121 Wash. 2d 766, 772, 854 P.2d 617 (1993).
The evidence Fero presents would be admissible. The declarations of Dr. Barnes and Dr.
Ophoven are sufficient to establish each as experts under ER 702, and establish their opinions as
experts under ER 703. The State does not question Dr. Barnes or Dr. Ophoven as experts or
question the opinions they present.
The testimony of Dr. Barnes and Dr. Ophoven is also material. As explained in the
discussion on Factor 1 above, the substance of Dr. Barnes’ and Dr. Ophoven’ s testimony creates
a reasonable probability that the result of Fero’ s trial would be different had it been presented.
Therefore, we hold that Fero established the fourth factor for warranting relief under RAP 16(c)(3)
because the evidence she offered is material to her petition.
4. Factor 5: Not Merely Cumulative or Impeaching
Fero argues the evidence she presents is not merely cumulative nor impeaching. We agree
and hold that the testimony of Dr. Barnes and Dr. Ophoven is not merely cumulative or
impeaching.
Cumulative evidence is additional evidence of the same kind to the same point.’” State
v. Williams, 96 Wash. 2d 215, 223-24, 634 P.2d 868 (1981) (quoting Roe v. Snyder, 100 Wash. 311,
314, 170 P. 1027 ( 1918)). Here, Dr. Barnes’ and Dr. Ophoven’ s testimony is not “ of the same
kind to the same point” as the testimony of the other doctors presented at Fero’ s trial. Id. It is,
instead, evidence to the opposite point; that opposite point being that Brynn could have remained
lucid for up to three days after suffering her injuries and it was impossible to determine how Brynn
suffered her injuries.
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No. 46310-5-II
Similarly, Dr. Barnes’ and Dr. Ophoven’ s testimony is not merely impeaching.
I]mpeaching evidence can warrant a new trial if it devastates a witness’ s uncorroborated
testimony establishing an element of the offense. In such cases the new evidence is not merely
impeaching, but critical.’” State v. Savaria, 82 Wash. App. 832, 838, 919 P.2d 1263 (1996); see also
State v. Roche, 114 Wash. App. 424, 438, 59 P.3d 682 (2002) (“ Moreover, the evidence of Hoover’ s
malfeasance is more than ‘ merely’ impeaching; it is critical, with respect to Hoover’ s own
credibility, the validity of his testing, and the chain of custody.”). As discussed above, consistent
with the generally accepted medical evidence at the time, the medical testimony at trial established
that Brynn would have lost consciousness almost immediately after being injured and that her
injuries could only be caused by being shaken, slamming head first into something like being in a
car accident, or falling from several stories. However, the generally accepted medical paradigm
now recognizes that children can remain lucid for up to three days after suffering head injuries and
that those injuries are known to be caused by much less extreme circumstances. Thus, we cannot
say that the new evidence is “ merely impeaching.”
5. The State’ s Arguments are Unavailing
The State’ s response acknowledges that the factor test applied above is the correct standard
to use. But, instead of arguing the factors, the State merely argues that ( 1) “[ a] new medical
opinion or new medical theory is not a ‘ material fact,’” and ( 2) “ a new expert’ s opinion that the
medical community would present different evidence in a trial today than it did when Fero received
her trial is not ‘ newly discovered evidence.’” Br. of Resp’ t at 13. In support of its argument, the
State analogizes State v. Harper, 64 Wash. App. 283, 823 P.2d 1137 (1992) and State v. Evans, 45
Wash. App. 611, 726 P.2d 1009 ( 1986), review denied, 107 Wash. 2d 1029 ( 1987). We are not
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No. 46310-5-II
persuaded because these arguments have been addressed in the factor analysis above and the
conclusions in Evans and Harper are easily distinguishable.
In Evans, the defendant petitioned the trial court for a new trial on his arson conviction. 45
Wash. App. at 612. In support of his petition, he submitted a new expert’ s opinion that the fire was
caused by defects in the electrical system and was, thus, an accident. Id. at 613. In concurring
with the appellate court’ s holding that the defendant was not entitled to a new trial for submitting
new material evidence, Judge Reed wrote:
What we have in the instant case is, purely and simply, a question of expert
witness competency. Experience has taught us that such “ experts” rarely agree.
What may be a crucial “ fact” to one, may not be to another.
Before affirming the grant of a new trial because the defense expert
presented at trial overlooked or thought unimportant a fact or facts now deemed
pertinent by an expert who did not testify, we must ask whether all of those
defendants who could now unearth a new expert, who finds “ new facts”— which if
believed by the same jury might cause them to acquit— were denied a fair trial, i.e.,
failed to receive substantial justice. Surely we have to answer in the negative, or
finality goes by the boards and the system fails.
Evans, 45 Wash. App. at 617.
In Harper, 64 Wash. App. at 285, the defendant was convicted of attempted premeditated
murder, and, at trial, presented a defense of diminished capacity. In support of his subsequent
personal restraint petition, the defendant submitted an affidavit from a different doctor who had
determined that the defendant had “ depersonalization disorder” that prevented him from forming
the premeditative intent to kill. Id. at 290-91. In reaching its conclusion, the Harper court relied
on the same concurrence by Judge Reed in Evans, 45 Wash. App. at 617-18 (Reed, J., concurring).
Harper, 64 Wash. App. at 293-94. The Harper court held that the new expert’ s opinion did not
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No. 46310-5-II
constitute the requisite “ material facts not previously presented” standard because the expert
reviewed the same evidence and merely presented a new opinion. Id. at 294.
Evans and Harper are inapposite to Fero’ s case because the experts in Evans and in Harper
provided second opinions based on the same trial record and under the same paradigm as existed
at the time of the respective petitioners’ trials. Id. at 293-94; Evans, 45 Wash. App. at 613, 617. As
stated above, and restated briefly below, that is not what happened in Fero’ s case.
In Fero’ s case, Dr. Barnes and Dr. Ophoven are new experts, but their opinions establish
that the scientific explanations that were offered as evidence against Fero in her trial are no longer
generally accepted in the medical community. Moreover, their opinions state that based on the
record that existed at Fero’ s trial and under the currently accepted paradigm, it is not medically
possible to determine that Brynn’ s injuries occurred when she was with Fero, nor is it medically
possible to determine how Brynn’ s injuries were caused. Therefore, we hold that Fero is entitled
to relief from her post-conviction restraints, grant Fero’ s petition, and remand for a new trial.
Lee, J.
We concur:
Worswick, P.J.
Sutton, J.
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