In re Pers. Restraint of Fero ( 2018 )

This opinion was filed for record
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SUSAN L. CARLSON
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SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In re the Personal Restraint of
Heidi Charlene Fero, No. 92975-1
Respondent. En Banc
Filed 0 I MIS
GonzAlez, J.—On a January night in 2002, Heidi Charlene Fero called
emergency responders seeking help for an injured child. Minutes later, paramedics
arrived and found fifteen-month-old Brynn Ackley unconscious and limp, with
bruising on her face. Brynn's treating physicians later determined that she had
suffered severe and debilitating injuries consistent with shaken baby syndrome:
retinal hemonfiaging (bleeding in the eyes), cerebral edema (brain swelling),
subdural hematoma (brain bleeding), a leg fracture, and large bruises on her pelvic
and vaginal areas. 2 Verbatim Report ofProceedings(VRP)(Mar. 11, 2003) at
183-85, 191; VRP (Mar. 13, 2003) at 13-14. Fero was charged and convicted of
first degree child assault. In 2014, many years after her judgment became final.
In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
she filed a personal restraint petition contending that the medical community's
evolving understanding of shaken baby syndrome is newly discovered evidence
that would undermine the expert evidence as to the causes and timing of Brynn's
injuries. We hold that this evidence would not probably change the result at
trial. In re Pers. Restraint ofBrown, 143 Wn.2d 431, 453, 21 P.3d 687(2001).
We therefore dismiss Fero's petition.
Background
On January 7, 2002, Fero was babysitting Brynn and her four-year-old
brother, Kaed, as she had occasionally done since August 2002. At around 2:00
p.m. that day, Brynn and Kaed were dropped off at Fero's home by their mother,
Breanne Franck. Fero's then-boyfriend, Dustin Goodwin, watched Kaed and
Brynn as well as Fero's children, Rachel and Derrick. Fero returned home around
3:00 p.m. and Goodwin left for work. For the rest ofthe night Fero was alone
caring for the four children.
Around 7:45 p.m., Fero called Jason Ackley, Brynn and Kaed's father. She
reported that Kaed had pushed his sister's head into a wall and Brynn could not
walk on one leg. Fero asked how best to discipline Kaed. A few hours later, Fero
called her mother, panicked because Brynn was unresponsive. Fero's mother
instructed her to call 911 immediately.
In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
When paramedics arrived, they found Brynn "limp, like a rag doll" with
obvious bruises on her face and chest, and blood in her mouth. 1 VRP (Mar. 11,
2003) at 39-41. Fero explained to the emergency responders that she had not
personally witnessed Brynn's injuries and her daughter told her Kaed had swung
Brynn into the wall "like a baseball bat." Id. at 40. While in transport to the
hospital, paramedics observed Brynn's facial bruising grow rapidly.
At the hospital, multiple physicians examined and treated Brynn. One
emergency room doctor reviewed her CAT(computed axial tomography) scan,
which showed severe brain injury caused by a blood clot, bleeding, and swelling;
another physician discovered hemorrhaging in both her eyes and another found she
had a displaced fracture of her left tibia, bruising on her pelvis, and laceration on
her vagina. Brynn underwent emergency surgery to remove the blood clot and a
piece of bone from her skull to allow her brain to swell. Later, Brynn's therapists
predicted that as a result of her trauma, she would likely never live without the
need of a caregiver.
Fero was charged with first degree child assault. At trial, the defense argued
that Kaed caused Brynn's injuries. Fero testified that Kaed was difficult to care for
In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
and was often aggressive toward his sister.^ Kaed's father echoed this
characterization, clarifying that while Kaed sometimes pushed and pinched Brynn,
he never injured her and described the behavior as "hard" playing. Id. at 126-30,
144.
Goodwin,Fero's then-boyfriend, testified that on January 7, 2002, Brynn's
mother had carried the infant into the house in her car seat—an unusual occurrence
according to Goodwin because normally the child was brought in first, her mother
then returning to the car to retrieve the car seat separately. Goodwin also asserted
that during his brieftime watching the children until Fero returned from work,
Brynn appeared upset, refused to play, and cried whenever her leg was touched.
Unlike Goodwin, Breanne Frank testified she saw no bruises or injuries to
the child when she brought her to Fero's apartment. Frank stated that her daughter
had no trouble walking and that she carried Bryrm into the home as usual,
retrieving the car seat after. Regarding her son, Frank admitted that she had heard
about Kaed pinching his sister and had seen him kick and jump on her. She
acknowledged Kaed could be mean to his sister, but Frank thought it was only
sibling rivalry that caused slight bruises and never injured Brynn.
'Fero explained that at her son's birthday party in 2001, Kaed was disciplined by his father for
throwing food at guests and in response the boy became angry enough to slam his fists into a
glass tabletop and crack it.
In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
Fero testified to the timeline of Brynn's injuries and remarked on the little
girl's behavior while at Fero's home. She explained that Brynn was "distant" and
remained sitting wherever Fero set her instead of following Fero around as she had
in the past. 5A VRP (Mar. 17, 2003)at 75. Fero also stated she gave Brynn a bath
that evening, noticing a large bruise on the child's pelvis which "disturbed" her.
Id. at 77. Fero dressed Brynn and put her in the playpen downstairs where Kaed
and Rachel were watching television. Fero then took her son. Derrick, upstairs.
While bathing Derrick, Fero's daughter reported that Kaed was hurting Brynn;
Fero checked downstairs and saw Kaed on the couch and Brynn in her crib. Fero
went back upstairs to tend to her son. Soon Rachel returned to her mother's side
saying that Kaed was once more hurting his sister by banging Bryrm's head against
the wall.
Downstairs, Fero saw Kaed scramble out of Brynn's crib; the little girl was
on her hands and knees,"shaking and trembling more than [Fero had] seen a child
do before." Id. at 82. Fero picked her up and saw a small amount of blood in her
mouth. She asked Kaed what he had done and he responded that he was a Power
Ranger. After comforting Brynn, Fero said the infant closed her eyes, relaxed, and
appeared to fall asleep.
Fero then put Brynn on the futon and called Ackley at about 7:45 p.m. Both
Fero and Ackley testified that she told him about Brynn's inability to walk on one
In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
leg and seeing Kaed push Brynn's head into a wall. But Fero did not mention any
bleeding or bruising, according to Brynn's father; moreover, Ackley testified that
Brynn was running around with no trouble and had no bruises when he left for
work that day. Goodwin's testimony largely agreed with this version of events,
adding that Fero had told him about the bruises and bleeding in Brynn's mouth.
After calling Ackley, Fero proceeded to clean the house, checking on the
children intermittently. At approximately 9:45 p.m., Fero noticed Brynn's eyes
were lidded and that something was not "right." Id. at 88. When her attempts to
wake Brynn were unsuccessful, Fero called her mother and then 911.
Police aiTived at Fero's home after Brynn was taken to the hospital. Fero
provided a written statement explaining how Kaed jumped out of the crib and that
Fero saw blood in Brynn's mouth; she also stated that she checked on Brynn "in a
few minutes" after putting her on the fliton and found she was unresponsive. Id. at
102-03. Fero testified that she did not remember writing the statement or telling an
officer that five minutes had passed from when she put Brynn on the ftiton and
when she noticed Brynn's eyes were half open. Further, Fero admitted to telling
the 911 operator that Kaed was "'chasing [his] sister'" and that when she came
downstairs, she saw Kaed bash Brynn's head into a wall. Id. at 98-99. Fero said
she was too upset to think clearly and so could not remember saying these things to
the investigators.
In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
Kaed and Rachel also testified at trial. Six-year-old Rachel stated that Brynn
was injured when Kaed "push[ed] her into the wall" and hit her with toys. Id. at
43. She testified that when she saw this, she went upstairs to tell Fero, who
checked on the children downstairs. Rachel remembered telling the police officer
that Kaed hit Brynn with toys, and that no one had instructed her to say it. Rachel
also told police that Brynn was running around playing the day she was injured.
Five-year-old Kaed testified that he heard Brynn crying upstairs the night
she was hurt. Kaed stated that he went upstairs and saw Fero giving a bath to
Brynn and another child. He also said that Fero took Brynn downstairs and laid
her on the couch. Later, according to Kaed,Fero yelled at him because she
believed he did something to the little girl. Kaed testified that he had been in the
crib at Fero's home but not on the day Brynn was injured and he denied doing
"anything at Heidi's to her." 1 VRP (Mar. 12, 2003)at 12.^
The police officers that investigated the incident also testified. Officer Scott
Telford testified that Fero recounted the events ofthe evening to him, which echo
her testimony at trial. Notably, Fero told the officer that Brynn was crying in her
crib with blood in her mouth. Officer Telford was unable to find blood or stains in
^ Kaed's testimony contained many inconsistent statements. For example, he first testified that
he did not know who "Heidi" was and yet later stated she was Brynn's babysitter. 1 VRP (Mar.
12, 2003) at 15-16. He also denied and then admitted hitting Brynn.
In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
the area. Detective Scott Smith testified that Fero told him the crib had been
situated against the wall on the night ofthe incident but was later moved. He
examined and photographed the crib and markings in the carpet. He determined
that it had not been moved. Detective Smith also collected as evidence two plastic
toys he was told may have caused Brynn's injuries.
Detective Steve Norton testified that he interviewed Fero the night Brynn
was injured. Fero reported to him that she checked on the children downstairs
twice that night, the second time seeing Kaed jump out of the crib. Detective
Norton stated that Fero told him only five minutes passed from when she picked
Brynn up and when she noticed the girl had fallen unconscious and called 911.
Norton also testified that Fero said she had not given Brynn a bath and the infant
had not been upstairs that day. Fero told him she had seen some red marks on
Brynn's stomach and that Fero's daughter saw Kaed jump on and hit Brynn.
Detective Norton interviewed Kaed and his father, Ackley, on the night of
January 7, 2002. Ackley reported that Kaed was rough with Brynn, pushing and
pinching her, and needed to be watched to prevent him from hurting his sister.
Norton testified that Kaed was "hyperkinetic" during the interview and seemed to
admit to causing Brynn's bleeding from her mouth. 2 VRP (Mar. 12, 2003) at 212-
13. Kaed told the detective he made the blood come out, then said the
"temperature just push[ed] it out," and "[djreams push it out." Id.
In re Pars. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
Fero's daughter, Rachel, was interviewed on January 8, 2002. Detective
Norton testified that Rachel was focused, with a good attention span. The girl told
Norton that Kaed banged Brynn's head into the wall, hit her with plastic toys, and
shook Brynn's high chair when she was in it.
The State presented medical testimony from six expert witness about the
cause of Bryrm's injuries.^ These witnesses, all physicians who treated Brynn,
explained that the little girl suffered severe brain injury caused by a blood clot,
bleeding, and swelling. The head trauma, bruising, and leg fracture were caused
by severe shaking and "repetitive force," the type offorce a boy of Kaed's size and
strength could not inflict. 1 VRP(Mar. 12, 2003) at 63-64. One physician agreed
it was possible that the pelvic bruising could be the result of a four-year-old
jumping on Brynn,the facial bruises could be inflicted by hitting her with a plastic
toy, and that such a blow could cause a subdural hematoma. But the doctor also
stated that it was unlikely a plastic toy could cause a local brain injury such as
Brynn's. Kaed could not inflict the "constellation" of injuries Brynn suffered. 2
VRP (Mar. 11, 2003) at 200.
The medical experts described shaken baby syndrome. When the brain is
shaken, the veins in the brain break and start to bleed, and a collection of blood
^ Another medical expert also testified regarding Brynn's rehabilitation therapy that began after
her hospitalization but did not opine on the cause of her injuries.
In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
forms in what is called a "subdural hematoma." 1 VRP (Mar. 12, 2003) at 84.
Brynn had multiple hematomas and swelling in her brain, indicating severe trauma.
Physicians found no external head injuries, such as a skull fracture,"goose egg," or
scalp bleeding, which would be present if Brynn had been struck by a blow to her
head; her doctors concluded that she had been severely shaken. Id. at 90-92.
In addition, the trauma to Brynn's brain could not have been caused by
repeated blows to her face because "[t]he amount of force necessary to produce a
brain injury of this magnitude... would destroy the face, there wouldn't be just
bruises and swelling, there would be destruction of all the bones ofthe face." VRP
(Mar. 13, 2003) at 34. The medical experts also testified that Brynn's injuries
could not be caused by a fall, being pushed into a wall, or being hit with a plastic
toy.
Regarding Brynn's leg injury, two physicians stated that it was a recent
"displaced" or "pulled apart" oblique fracture ofthe left tibia. Id. at 13-14. Both
doctors explained that in order to cause an oblique fracture such as this, a person
would have to "twist the leg violently." Id. at 16. The physician who examined
Brynn's X-rays stated he saw no indication that Brynn's bones were fragile, and,
though agreeing a fracture could be sustained in a fall or by accident, medical
experts stated that it would be very unlikely that Kaed had the strength to fracture
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In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
Brynn's leg in this manner. A child suffering from a displaced fracture would not
walk on the leg because it would be extremely painful.
The medical experts also testified Brynn would likely have fallen
unconscious at some point on the night of January 7, 2002. Given the severity of
her injuries, multiple physicians stated that typically Brynn would have lost
consciousness almost immediately after being shaken and would probably not have
been consolable. Another doctor said it could take five minutes to two hours for
signs of unconsciousness to manifest. Only one physician appears to have stated
Brynn would have had no "lucid interval" after sustaining her injuries. Id. at 43.
While unconscious, Brynn could have appeared to be sleeping and she may not
have closed her eyes.
Fero was found guilty of first degree child assault. The court imposed an
exceptional sentence, finding Brynn was particularly vulnerable due to her youth
and that Fero had breached her duty to protect the little girl. Fero was sentenced to
15 years. She appealed and the court held the 15-year exceptional sentence
violated Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 403(2004). State v. Fero, 125 Wn. App. 84, 102, 104 P.3d 49(2005). On remand,
Fero was resentenced to 10 years. On May 6, 2014, Fero filed this personal
restraint petition. She was released from prison in July 2014. In re Pers. Restraint
ofFero, 192 Wn. App. 138, 148, 367 P.3d 588 (2016).
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In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
The Court of Appeals issued a published decision on January 5, 2016,
granting Fero's petition and remanding for a new trial. Id. at 142. The State filed
a motion for reconsideration on January 25, 2016. The Court of Appeals denied
the motion on March 3, 2016. Less than thirty days later, on April 1, 2016,the
State petitioned for review. The petition was redesignated as a motion for
discretionary review,"^ which we granted. In re Pers. Restraint ofFero, 187 Wn.2d
1024, 390 P.Sd 356(2017).
Analysis
I. Timeliness of the State's Motion for Discretionary Review
Fero and the State agree that a party has 30 days to file a motion for
discretionary review with this court. As previously stated, the State filed for
review on April 1, 2016. Fero contends the motion is untimely because it was not
filed within 30 days ofthe Court of Appeals' January 5 decision granting her
personal restraint petition. Conversely, the State argues its motion was timely
because the 30-day filing deadline began with the Court of Appeals' March 3
decision denying its motion for reconsideration. Thus, the threshold question in
The clerk ofthis court correctly treated the State's petition for review as a motion for
discretionary review under RAP 16.14(c). To avoid confusion, we will refer to the State's
petition as a motion for discretionary review throughout.
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In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
this case is what "decision" under RAP 13.5(a) initiates the 30-day filing deadline
for discretionary review with this court. We agree with the State.
If a personal restraint petition is "decided by the Court of Appeals on the
merits, the decision is subject to review by the Supreme Court only by a motion for
discretionary review . . . [as] provided in rule 13.5A." RAP 16.14(c).
Additionally, a party may seek review ofthe decision to grant or deny a personal
restraint petition by filing a motion for reconsideration. RAP 12.4(a). A pleading
is considered timely filed if it is timely filed in any division ofthe Court of
Appeals or in the Supreme Court. RAP 18.23.
The procedure governing a motion for discretionary review is specified in
RAP 13.5(a) and (c). RAP 13.5A(c). RAP 13.5(a) states:
A party seeking review by the Supreme Court of an interlocutory decision of
the Court of Appeals must file a motion for discretionary review in the
Supreme Court and a copy in the Court of Appeals within 30 days after the
decision isfiled.
(Emphasis added.)
Most obviously, the emphasized phrase provides a period of 30 days in
which to file a motion for review and a date from which to begin counting "the
decision." But, the rule's language alone does not define what type of"decision"
begins the filing deadline. Because this term is not defined within RAP 13.5(a),
we look to the context, related rules, and rule-making scheme as a whole to
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In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
determine its meaning. State v. Stump, 185 Wn.2d 454,460, 374 P.3d 89(2016)
(citing V. Conover, 183 Wn.2d706, 711, 355 P.3d 1093 (2015)).
Presumably, Fero would direct us to RAP 13.5A for guidance. This rule
governs motions for discretionary review of decisions dismissing or deciding
personal restraint petitions. RAP 13.5A(a)(l). Thus, because this rule is triggered
when a party files for review of a decision deciding a personal restraint petition as
the State did here, the undefined "decision" ofRAP 13.5(a) must relate to the
original January 5 Court of Appeals opinion.
This argument would be persuasive if our analysis ended here. However,
just as we look to the related provision RAP 13.5A in order to decipher and carry
out the drafter's intent, we must also consult the rules in their entirety. Stump, 185
Wn.2d at 460 {citing Dep't ofEcology v. Campbell & Gwinn, LLC, 146 Wn.2d 1,
9,43 P.3d 4(2002)). In doing so, RAP 1.2(a) is of critical importance. This rule
governs our interpretation ofthe Rules of Appellate Procedure and explains:
These rules will be liberally interpreted to promote justice and facilitate the
decision of cases on the merits. Cases and issues will not be determined on
the basis of compliance or noncompliance with these rules except in
compelling circumstances where justice demands.
RAP 1.2(c) provides that "[t]he appellate court may waive or alter the
provisions of any ofthese rules in order to serve the ends ofjustice, subject to the
restrictions in rule 18.8(b) and (c)." In light of RAP 1.2(a)'s directive to construe
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In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
our rules "liberally" and not to dismiss a case solely on the basis of
"noncompliance" with these rules, Fero's reading of RAP 13.5(a)'s "decision" is
unnecessarily rigid. Concluding that the January 5 decision begins the 30-day
filing deadline would not "facilitate the decision of cases on the merits" as this
case would be dismissed without regard for the significant underlying issues ably
argued by both Fero and the State. Such a summary dismissal would not be in
keeping with RAP 1.2(a).
Moreover, as the State points out, Fero's interpretation of RAP 13.5(a)
would require a party to file a motion for discretionary review very likely before
the Court of Appeals issued its decision on reconsideration. Pet'r's Reply to
Answer at 4. Not only would Fero's case be pending in two courts at once, had the
Court of Appeals granted the motion for reconsideration, the State may not have
sought further review. Requiring multiple motions in multiple courts before an
opinion that may decide the case is issued is inefficient for those seeking appellate
review, as well as for the court. To construe RAP 13.5(a) in this way is
unnecessary and risks signaling to parties that form matters more than substance. ^
^ We look to RAP 1.2(a) for guidance in interpreting our rules of appellate procedure. Invoking
this provision does not accordingly mean that we have waived timely filing requirements
contained in RAP 13.5.
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Thus, we conclude that the "decision" initiating the 30-day filing period
under RAP 13.5(a)is the order on reconsideration. Here, the Court of Appeals
denied reconsideration on March 3, 2016 and the State filed for review with this
court less than 30 days later on April 1, 2016. The State complied with RAP
13.5(a), and its motion for discretionary review was timely.
II. Newly Discovered Scientific Evidence
Fero contends that the scientific community's advancements in
understanding shaken baby syndrome constitute newly discovered evidence that
undermines the State's theory of the case and entitles her to a new trial. The State
contends this evidence is not newly discovered because it would not probably
change the result at trial. We agree with the State and dismiss the petition.
A. Standard OF Review
Fero challenges her postrelease restrictions through a personal restraint
petition. As this court has noted, personal restraint petitions are the modem
version ofthe writs of old, most notably the "Great Writ" of habeas corpus. In re
Pers. Restraint ofCoats, 173 Wn.2d 123, 128, 267 P.3d 324(2011); Toliver v.
Olsen, 109 Wn.2d 607, 608, 746 P.2d 809(1987). Our review ofthese petitions is
constrained, and relief gained through collateral challenges is "extraordinary." In
re Coats, 173 Wn.2d at 132(citing In re Pers. Restraint ofCook, 114 Wn.2d 802,
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In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
810-12, 792 P.2d 506(1990)). A personal restraint petition, like its ancestor the
Great Writ, is not granted "as a matter of course." See In re Frederick, 149 U.S.
70, 75, 13 S. Ct. 793, 37 L. Ed. 653 (1893). The bar facing a petitioner is high, and
overcoming it is necessary before this court will disturb a settled judgment. In re
Coats, 173 Wn.2d at 132.
The right to collateral review by a personal restraint petition requires the
petitioner to make a heightened showing of prejudice. In re Cook, 114 Wn.2d at810 (citing/?? re Pers. Restraint ofHaverty, 101 Wn.2d 498, 504, 681 P.2d 835(1984)). A personal restraint petitioner must state "with particularity facts which,
if proven, would entitle him [or her] to relief." In re Pers. Restraint ofRice, 118
Wn.2d 876, 886, 828 P.2d 1086 (1992). "Bald assertions and conclusory
allegations" alone are insufficient. Id.; RAP 16.7(a)(2)(i).
Fero filed her personal restraint petition more than one year after her
judgment became final, RCW 10.73.090(1), thus the petition is untimely unless she
raises only grounds for relief exempt from the one-year limit under RCW
10.73.100. See In re Pers. Restraint ofAdams, 178 Wn.2d 417,422, 309 P.3d 451(2013). Newly discovered evidence is a potentially exempt ground for relief.
RCW 10.73.100(1); RAP 16.4(c)(3);/« re Restraint ofLord, 123 Wn.2d296,
319-20, 868 P.2d 835 (1994).
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In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
The court reviews a claim of newly discovered evidence raised by a personal
restraint petition under the same test as newly discovered evidence asserted in a
new trial motion. State v. 96 Wn.2d 215, 223, 634 P.2d 868 (1981). To
prevail on a claim of newly discovered evidence, a personal restraint petitioner
must show evidence that(1)will probably change the result ofthe 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. Id. If any ofthese factors is missing, the petitioner is not entitled to
relief. Id.B. Supporting Declarations
Fero submitted declarations from Drs. Patrick Barnes and Janice Ophoven in
support of her petition. Dr. Ophoven, a pediatric forensic pathologist, and Dr.
Barnes, a pediatric neuroradiologist, specialize in shaken baby syndrome and
pediatric head trauma.^ Both physicians focused on changes in the medical
understanding of shaken baby syndrome and infant head injuries since Fero's trial.
In his declaration. Dr. Barnes explains that alternative explanations for
symptoms once associated with shaken baby syndrome have expanded to include
® Dr. Barnes is the chief of pediatric neuroradiology at Lucile Salter Packard Children's Hospital
and professor of radiology at Stanford Medical Center. He has practiced, taught, and published
articles, reviews, and book chapters on head injury in children for 35 years. Dr. Ophoven has
expertise in shaken baby syndrome cases and has practiced as a physician for nearly 40 years.
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In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
accidental and natural causes. Since 2003, members of the scientific community
now question whether the brain swelling and bleeding in the eyes and brain are
definitive signs of shaken baby syndrome. In the 1990s, doctors routinely testified
that the force necessary to cause hemorrhaging in children was equivalent to the
force from a high speed car accident or fall from multistory building. Dr. Barnes
asserts that "several literature reviews" have shown no scientific basis for this
testimony. Barnes Deck at 5 (included as an exhibit in Opening Br. in Supp. of
Pers. Restraint Pet.). He also states that researchers have recognized that children
who suffer trauma can remain lucid (conscious)for up to three days or more after
injury. Dr. Barnes concludes,"[I]t is impossible to tell ... 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." Id. at 26-27.
Dr. Barnes states in his declaration that the medical community once
universally accepted that victims of shaken baby syndrome would fall
unconsciousness immediately after injury. Since Fero's trial, it is now generally
accepted that short and accidental falls can cause injuries like Brynn's and children
can be lucid and "appear symptom-free" for up to three days. Ophoven Deck at 4
(included as an exhibit in Opening Br. of Supp. of Pers. Restraint Pet.).
Dr. Ophoven concludes that Brynn suffered a traumatic brain injury but
could not determine whether the injury was accidental or nonaccidental or whether
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In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
an adult or child caused it. The doctor also explains that the timing of Brynn's
injuries could not be exactly determined but that "[i]t is more likely [she] suffered
her injuries between 12 and 24 hours before" arriving at the hospital. Id. at 3.
C. Merits of the Petition
Fero contends that the result of her trial would probably be different because
the medical community's current understanding of pediatric head trauma
contradicts the medical testimony offered at trial on which she was convicted.
Fero focuses on two advancements in shaken baby syndrome research, arguing
scientists now recognize that(1)a child does not immediately fall unconscious
after suffering a traumatic brain injury and (2) many causes other than severe
shaking can inflict injuries such as those Brynn suffered. Fero argues that had this
evidence been presented to the jury, the State could not have proved Brynn was
injured in Fero's care and Fero injured the little girl.
The declarations from Dr. Barnes and Dr. Ophoven state that children can
remain lucid for up to three days postinjury. This, Fero argues, undermines the
State because it presented medical evidence of unconsciousness occurring
'"immediately"' after injury. Resp't's Suppl. Br. at 5-6. But Fero characterizes
the State's evidence in a light most favorable to her. See, e.g., id. ("The State's
trial experts testified that it would have been impossible for Brynn to remain lucid
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In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
for more than a few minutes after suffering her injuries."(emphasis added)).
Reviewing the medical testimony as a whole demonstrates that the trial experts
described the general shaken baby syndrome case in which ''typically a patient
loses consciousness right away," 1 VRP (Mar. 12, 2003)at 97(emphasis added),
and that there would "{pyobably not" be a lucid interval between injury and onset
of symptoms. VRP (Mar. 13, 2003)at 43(emphasis added). The State's witnesses
did not state that Brynn necessarily immediately lost consciousness after being
injured. Had the experts offered this categorical conclusion, Fero's lucidity
evidence may have sufficiently refuted it.
Furthermore, even though some State experts testified that a typical victim
of shaken baby syndrome would lose consciousness immediately, the jury also
heard testimony that signs of unconsciousness in victims could take anywhere from
a few minutes to a few hours to manifest. Thus, the jury was already presented
with the theory that Brynn could have been conscious for hours after she was
injured. Fero does not address this point.
Accepting arguendo that a child can remain conscious for up to three days
after traumatic brain injury and that Brynn followed this lucidity pattern, though
we note Fero alleged no particular facts showing this, such evidence merely invites
the inference that Brynn might have been injured before January 7, 2002. Fero
urges us to conclude from this possibility that someone else injured the little girl.
21
In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
Fero fails to show, however, how this evidence would have changed the result at
trial since her theory ofthe case, at its most basic, was that someone else injured
Brynn—indeed, she argued Kaed was to blame. Conceivably, the evidence could
point to an alternative suspect in addition to Kaed, namely Brynn's parents, thus
widening the field of possible suspects and strengthening Fero's theory. But
strengthening the defense's trial theory is not the standard for newly discovered
evidence. State v. Gassman, 160 Wn. App. 600, 609, 248 P.3d 155 (2011)("the
standard is 'probably change,' not just possibly change the outcome"(quoting
Williams, 96 Wn.2d at 223)); see also State v. Riofta, 166 Wn.2d 358, 369, 209
P.3d 467(2009)("defendants seeking postconviction relief face a heavy burden
and are in a significantly different situation than a person facing trial" (citing
Schlup V. Delo, 513 U.S. 298, 326 n.42, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995)).
Fero also asserts, through her declarations, that short falls or natural causes
present alternative explanations for Brynn's injuries. The State's experts testified
that the type and severity of Brynn's injuries could only have been caused by
violent shaking or trauma akin to falling from a multi-story building or being
ejected from a moving vehicle. The jury might have doubted whether Fero
violently shook the infant if it had been presented with testimony that a short fall
from a counter or chair could cause head trauma like Brynn's. Fero contends this
22
In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
evidence would have changed the result at trial because the State could not prove
she assaulted Brynn.
This argument is unconvincing. Fero did not present at trial or allege in her
personal restraint petition any evidence that Brynn suffered a fall—accidental or
nonaccidental, short or long, either in Fero's care or at any other time."^ In support
of her contention that an accidental event could have caused Brynn's head injuries,
Fero citQS Ex Parte Henderson, 384 S.W.Bd 833, 833-34(Tex. Crim. App. 2012)
(per curiam). In Henderson, a defendant was granted a new trial after expert
witnesses testified the child victim's injuries could have been caused by a short fall
onto concrete. Henderson is distinguishable because, unlike in Fero's trial,
testimony was offered that the child had accidentally fallen from the defendant's
arms onto a concrete floor. Id. at 838(Cochran, J., concurring). Here, nothing in
the record suggests an accidental cause of Brynn's injuries. The record similarly
fails to show and Fero's petition does not allege that Brynn suffered from any
medical conditions that may have caused or contributed to her injuries. Dr.
Ophoven recognized this in her declaration, stating "[njothing in the materials that
[she] reviewed suggested that there were vascular, congenital, infectious or
^ Rachel told a police officer that Brynn was in a high chair and Kaed had shaken her while in
the chair. At trial, however, Rachel stated she did not remember telling the officer this, and no
other witnesses testified to this information. Furthermore, even if Rachel had told the jury that
Kaed shook the chair while Brynn was in it, no evidence was offered that Brynnfell from the
chair.
23
In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
metabolic causes for the cerebral edema, subdural hematoma or the retinal
hemorrhages." Ophoven Decl. at 8,
Fero's further citations to cases from other jurisdictions are similarly
unpersuasive. For example, Fero cites Del Prete v. Thompson, 10 F. Supp. 3d 907(N.D. 111. 2014) dind People v. Bailey, 144 A.D.3d 1562, 41 N.Y.S.3d 625 (2016).
These cases recognize longer periods of consciousness posttrauma and alternative
causes for injuries once considered diagnostic of abuse. Del Prete, 10 F. Supp. 3d
at 956-57; Bailey, 144 A.D.3d at 1564.
Both cases are distinguishable on their facts. In Del Prete, the child victim
had been taking antibiotic medication for an infection, had a history of
hospitalization, and displayed subdural head injuries two to four weeks before the
alleged shaking. 10 F. Supp. 3d at 910, 956. In Bailey, undisputed evidence was
presented that the two-and-a-half-year old victim had fallen from a bench and hit
her head. Bailey, 144 A.D.3d at 1562-63; see also People v. Bailey, A1 Misc. 3d
355, 357,999 N.Y.S.2d 713(Monroe County Ct. 2014). The prosecution's expert
witnesses testified at trial that short falls are rarely fatal. Bailey, 47 Misc. 3d at
358-59, 363. On collateral review, the court's opinion discussed in detail the
evidence of the fall and the scientific community's advancements in this arena,
concluding that the evidence "significantly, and substantially, undermines" the
prosecution's trial testimony. Id. at 372-73. Unlike Del Prete and Bailey, Brynn
24
In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
had no history of hospitalization and did not display weeks' old head injuries, nor
was any evidence offered that she had fallen while in Fero's care or outside it.
In addition, Fero relies on State v. Edmunds, 2008 WI App 33, 308 Wis. 2d
374, 746 N.W.2d 590 for analogous facts and its consideration ofrecent shaken
baby syndrome research in the context of postconviction review. See also In re
Fero, 192 Wn. App. at 157-60. In Edmunds, a caregiver was convicted ofreckless
homicide for shaking a seven-month-old child. 308 Wis. 2d at 378-79. At
Edmunds's trial, the State's experts testified that violent shaking caused the
victim's head trauma. Id. at 378. The Wisconsin Court of Appeals held that
Edmunds presented medical testimony showing a legitimate debate over whether
infants can be fatally injured through shaking, the length of lucidity periods, and
alternative causes that may mimic the symptoms once viewed as indicating shaken
baby syndrome. Id. at 385-86. The Edmunds court reasoned that today a jury
would encounter competing medical opinions concerning the cause ofthe victim's
injuries, and that there was a reasonable probability that a jury faced with both the
new and old medical testimony would have reasonable doubt as to Edmunds's
guilt. Id. at 392. The court concluded this constituted newly discovered evidence
that would probably change the result at trial. Id.
Here, Fero's petition leans heavily on Edmunds for support. Such reliance is
understandable; Edmunds is one ofthe first cases in the country to provide reliefto
25
In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
petitioners collaterally challenging their convictions based on shaken baby
syndrome.® While Fero's reliance may be understandable, it is nevertheless
misplaced.
Edmunds is distinguishable because it does not present a similar factual
background as the instant case. Though both children exhibited traumatic brain
injuries, Edmunds,308 Wis. 2d at 380, Bryrm displayed extensive bruising on her
face, chest, abdomen, and vaginal areas. Her vagina was lacerated and her leg
severely fractured. It is not any one ofthese injuries alone that makes this case
different from Edmunds, but all ofthem together. The dissent misunderstands our
analysis on this point. See dissent(Gordon McCloud, J.) at 17, 18. Brynn
Ackley's internal and external injuries differ significantly from those suffered by
the victim in Edmunds. It is possible that in a different case, one resting solely or
primarily on internal traumatic brain injuries, such as in Edmunds, Fero's lucidity
and alternative cause evidence may meet the requisite standard for relief. That is
not the case here.
Therefore, a jury in Fero's case today would be faced with testimony stating
that Brynn's injuries might have been caused by an accidental fall or medical
^ See Andrea L. Lewis & Sara L. Sommervold,Death, But Is It Murder? The Role ofStereotypes
and Cultural Perceptions in the Wrongful Convictions of Women,78 Alb. L. Rev. 1035, 1035-36
(2014-15); Emily Bazelon, Shaken-Baby Syndrome Faces New Questions in Court, N.Y. Times
(Feb. 2, 2011), http://www.nytimes.eom/2011/02/06/magazine/06baby-t.html.
26
In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
condition, and perhaps the infant was injured outside Fero's care.^ In support,
Fero's declarations offer many equivocal conclusions. See, e.g., Ophoven Decl.
at 3 ("it is more likely" that Brynn suffered her injuries 12-24 hours before she was
hospitalized (emphasis added)),9(her injuries "are consistent with the injuries that
could occur from a short(less than 3 foot) fall"(emphasis added)); Barnes Decl. at
31 (it is ''possible" that the injuries were inflicted early in the day of January 7,
2002(emphasis added)). While evidence based on might and perhaps is sufficient
to possibly change the result at trial, it is far too remote and speculative to prove
the result would probably be different. In re Pers. Restraint of Wheeler, 183
Wn.2d 71, 82, 349 P.3d 820(2015)(citing Williams, 96 Wn.2d at 222-23).
^ The dissent emphasizes the possibility that Kaed injured his sister prior to arriving at Fero's
home due, in part, to Brynn's many injuries and Kaed's "pattern of assaults." Dissent(Gordon
MeCloud, J.) at 21-22. The dissent offers no evidence of a specific injury caused by Kaed that
caused or contributed to untreated head trauma. The evidence presented indicates only that Kaed
had possibly hurt his sister in the past. This does not demonstrate a particular fact that if true
would entitle Fero to relief. In re Rice, 118 Wn.2d at 886. Such particularized evidence is
necessary on collateral review. Id.(bald assertions and conclusory allegations are insufficient to
warrant relief).
Dr. Ophoven states that the "[fjindings in the case that I believe are very important to the
forensic analysis include: a. History that Brynn was irritable, less active and had trouble walking
when she arrived to Heidi's residence on January 7, 2002.... b. Several bruises were noted at
bath time." Ophoven Decl. at 14. Notably, these "findings" appear to be based on conflicting
testimony before the court. While Fero and Goodwin testified that Brynn was carried into their
home by her mother, cried whenever her leg was touched, and appeared distant throughout the
night, Brynn's parents testified that the little girl had been running around while in their care and
that her mother did not carry Brynn into Fero's home. Fero's daughter, Rachel, told
investigators Brynn had been running and playing while in Fero's care. These "facts" referenced
by Dr. Ophoven conflict with the testimony offered at trial and do not constitute "findings."
27
In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
Fero's lucidity and alternative cause evidence is insufficient to probably
change the result at trial, thus her collateral challenge does not fall within the
newly discovered evidence exception and the one-year time bar precludes any
relief.^' 7ti.; RCW 10.73.100(1); In re Adams, 178 Wn.2d at 422. Therefore,
Fero's petition is dismissed.
Because Fero did not demonstrate that the evidence presented in Drs. Bames's and Ophoven's
declarations would probably have changed the result at trial, we do not opine on whether Fero
satisfies the additional requirements of newly discovered evidence. Williams, 96 Wn.2d at 222-
23. Nevertheless, we note that Fero does not appear to establish the lucidity and altemative
causes evidence is "not merely .. . impeaching" under Williams, and thus constitutes an
additional ground to dismiss Fero's petition. Id. New evidence is "merely impeaching" if it
serves only to discredit previously presented evidence at trial and the possibility of some
impeachment value does not satisfy the "not merely ... impeaching" standard. In addition, we
decline to address whether recent research on shaken baby syndrome constitutes a debate in the
scientific and medical communities, whether the potential debate constitutes newly discovered
evidence, or whether the evidence supporting shaken baby syndrome is still valid. We leave
these issues for another day's discussion.
28
In re Pers. Restraint Petition ofHeidi Charlene Fero, No. 92975-1
^7
WE CONCUR:
29
In re Pers. Restraint ofFero, No. 92975-1
(Yu, J., concurring)
No. 92975-1
YU,J.(concurring) — I concur in the well-reasoned and thoughtful lead
opinion of Justice Gonzalez and write separately only to express my dismay at the
result-driven dissent of Justice Gordon McCloud. The alleged "newly discovered
evidence" in this case does not reflect any actual advancement in the medical
community, and even if it did, it is unreasonable to elaim that this evidence "will
probably change the result ofthe trial." State v. Williams, 96 Wn.2d 215, 223, 634
P.2d 868 (1981). Heidi Charlene Fero is not entitled to relief or a reference
hearing on her personal restraint petition.
First, the dissent points to an alleged "paradigm shift in the medical
community" that does not exist. Dissent(Gordon McCloud, J.) at 2. The attacks
on abusive head trauma or shaken baby syndrome are just a concerted effort to
minimize the harm when force is directly applied to an infant's head. According to
the American Academy ofPediatrics, "[tjhere is no legitimate medical debate
among the majority of practicing physicians as to the existence or validity of
In re Pers. Restraint ofFero, No. 92975-1
(Yu, J., concurring)
[shaken baby syndrome]. The only real debate and controversy appear to be in the
legal system and the media." Pet. for Review, App. B,Ex. 1, at 3(Am.Acad.of
Pediatrics,Understanding Abusive Head Trauma in Infants and Children:
Answers from America's Pediatricians (2015)). Because there is no genuine
factual dispute about any alleged paradigm shift in the medical community, Fero is
not entitled to a reference hearing on that issue. See dissent(Gordon McCloud, J.)
at 30.
Second, even if Fero were presenting legitimate new medical evidence,
which she is not, that evidence cannot possibly be viewed as likely to change the
result of her trial. Fero's theory ofthe case has always been that someone else
must have caused the child's extensive physical injuries, such as the child's five-
year-old brother or some adult who assaulted the victim long before she got to
Fero's house. After a full trial with competent counsel, the jury did not believe
her, and for good reason. Regardless of any alleged newly discovered evidence, no
one could look at the photographs depicting the child's physical injuries in this
case and entertain a reasonable doubt as to Fero's guilt based on the theory that
"someone else did it." The photographs have been sealed so the public will never
see the child's horrific injuries, but there is no question that she suffered
inconceivable trauma, and there is no way that the massive bruises covering her
body were inflicted by a five-year-old, or developed over time as the result of
In re Pers. Restraint ofFero, No. 92975-1
(Yu, J., concurring)
preexisting injuries. It is simply beyond credibility and inconsistent with the
proffered testimony.
Unfortunately, this court is unable to come to a holding on this important
issue and instead allows an erroneous Court of Appeals decision reversing Fero's
conviction to stand. Our fractured opinion provides no clarity on what qualifies as
new scientific or medical evidence that is generally accepted in the relevant
scientific community for the purposes of sustaining a collateral attack.
I therefore respectfully concur in Justice Gonzalez's lead opinion.
In re Pers. Restraint ofFero, No. 92975-1
(Yu, J., concurring)
In re Personal Restraint ofFero (Heidi Charlene)
(Stephens, J., concurring in part and dissenting in part)
92975-1
STEPHENS, J. (concurring in part, dissenting in part)—I join Part I of the
lead opinion regarding the timeliness ofthe State's motion for discretionary review.
On the merits of the petition, I join Justice Gordon McCloud's dissenting opinion
remanding for a reference hearing.
In re Pers. Restraint ofFero (Heidi C.)
No. 92975-1
MADSEN,J.(dissenting)—I disagree with the lead opinion's holding that the
State of Washington timely filed its motion for discretionary review. In order to be
considered timely, the State's motion must have been filed no later than 30 days after
January 5, 2016. The State filed its motion on April 1, 2016, clearly in excess ofthe 30
day limitation. Accordingly, I would hold that the State's motion for discretionary
review was untimely. Because I find that the State's motion was untimely, I do not
address the other issues raised in this ease.
RAP 13.5(a) governs the procedure for discretionary review of a personal restraint
petition (PRP). RAP 16.14(c); RAP 13.5A(c). Specifically, RAP 13.5(a) states:
A party seeking review by the Supreme Court of an interlocutory decision
ofthe Court of Appeals must file a motion for discretionary review in the
Supreme Court and a copy in the Court of Appeals within 30 days after the
decision is filed.
The rule is clear—a party has 30 days from the time an interlocutory decision is filed to
file a motion for discretionary review. Here, the Court of Appeals granted Heidi Fero's
PRP on January 5, 2016. A timely motion under RAP 13.5(a) would have been no later
than 30 days after the date of that decision. However, the State subsequently filed a
No. 92975-1
Madsen, J., dissenting
motion for reconsideration, and, incorrectly believing that its motion for reconsideration
tolled the filing period, the State did not file a motion for discretionary review until
April 1, 2016.
The lead opinion does not dispute the State's noncompliance with RAP 13.5(a)
but, rather, holds that the court may waive the timeliness requirement under RAP 1.2.'
According to RAP 1.2(a), the "rules will be liberally interpreted to promote justice and
facilitate the decision of cases on the merits." However,this rule is subject to the
restrictions in RAP 18.8(b), which directly deals with the failure to timely perfect an
appeal. RAP 18.8(b) states:
The appellate court will only in extraordinary circumstances and to prevent
a gross miscarriage ofjustice extend the time within which a party must
file a notice of appeal, a notice for discretionary review, a motion for
discretionary review of a decision ofthe Court of Appeals, a petition for
review, or a motion for reconsideration.
'The lead opinion asserts that by invoking RAP 1.2 it did not thereby waive the RAP 13.5(a)
timely filing requirements. That is incorrect. The lead opinion unmistakably waived the RAP
13.5(a) timely filing requirements and, in doing so, relied solely on RAP 1.2. Specifically, the
lead opinion notes:
RAP 1.2(a) is of critical importance. This rule governs our interpretation ofthe
Rules of Appellate Procedure ....
RAP 1.2(c) provides that "[t]he appellate court may waive or alter the
provisions of any of these rules in order to serve the ends ofjustice, subject to the
restrictions in rule 18.8(b) and (c)." In light of RAP 1.2(a)'s directive to construe
our rules "liberally" and not to dismiss a ease solely on the basis of
"noncompliance" with these rules,...[sjuch a summary dismissal would not be
in keeping with RAP 1.2(a).
Lead opinion at 14-15. Indeed, if the lead opinion is not invoking RAP 1.2 to waive the
RAP 13.5(a) timely filing requirements, it is unclear on which basis the lead opinion
relies in circumventing RAP 13.5(a).
No. 92975-1
Madsen, J., dissenting
(Emphasis added); see Beckman v. Dep't ofSoc. & Health Servs., 102 Wn. App. 687,
693, 11 P.3d 313(2000)("RAP 18.8 expressly requires a narrow application"). The lead
opinion is unfazed by this limitation, holding that allowing the case to move forward
serves the ends ofjustice because a strict interpretation of"decision" in RAP 13.5(a) is
"unnecessarily rigid" and it is possible that the State would be required to file its motion
for discretionary review before the Court of Appeals ruled on its motion for
reconsideration.
While this court promulgates the court rules, we approach them "as though they
had been drafted by the Legislature" and interpret the rules using principles of statutory
construction. State v. Greenwood, 120 Wn.2d 585, 592, 845 P.2d 971 (1993). To that
end,
[t]he intent to overturn settled principles of law will therefore not be
presumed unless:
an intention to do so plainly appears by express
declaration or necessary or unmistakable implication, and the
language employed in the [court rules] admits of no other
reasonable construction.
Id. at 593 (quoting Ashenbrenner v. Dep't ofLabor & Indus., 62 Wn.2d 22, 26, 380 P.2d
730(1963)). Although the majority has concerns with the application of our court rules,
those concerns should be addressed "through the normal rule-making process." In re
Pers. Restraint ofCarlstad, 150 Wn.2d 583, 592 n.4, 80 P.3d 587(2003). However,
"[fjoisting [an unfounded interpretation of the court rules] upon courts and parties by
judicial fiat could lead to unforeseen consequences." Id.No. 92975-1
Madsen, J., dissenting
Here, the State's failure to timely file its motion was neither the product of
extraordinary circumstances nor a gross miscarriage ofjustice. An extraordinary
circumstance includes "instances where the filing, despite reasonable diligence, was
defective due to excusable error or circumstances beyond the party's control." Shumway
V. Payne, 136 Wn.2d 383, 395, 964 P.2d 349(1998)(citing Hoirup v. Empire Airways,
Inc., 69 Wn. App. 479,482, 848 P.2d 1337 (1993); Reicheltv. RaymarkIndus., Inc., 52
Wn. App. 763, 765, 764 P.2d 653 (1988)). For example, this court has held that the RAP
18.8(b) standard was met and granted an extension oftime where a pro se litigant
misinterpreted the RAP. See Scannell v. State, 128 Wn.2d 829, 835, 912 P.2d 489(1996).
However, this ease does not deal with a pro se litigant but, rather, the State. I am
unpersuaded that the State, in exercising reasonable diligence, is incapable of
understanding and adhering to the clear mandate set forth in RAP 13.5(a). Finally, if
justice is served by allowing the State, perhaps the most sophisticated and experienced
litigant to appear in this court, to circumvent the plain text of RAP 13.5(a), it is unclear as
to whom this rule could possibly apply.
Because the State's motion was untimely under RAP 13.5(a), and RAP 18.8(b)
does not apply, I would decline to review the decision below. Accordingly, I respectfully
dissent.
No. 92975-1
Madsen, J., dissenting
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
No. 92975-1
GORDON McCLOUD, J. (dissenting)—^Petitioner Heidi Fero presents new
scientific evidence that devastates the State's entire shaken baby theory.
Fero's 2003 jury convicted her of first degree child abuse because an
overwhelming number of state medical experts all confirmed to a reasonable degree
of medical certainty that Fero must have been guilty of child abuse. Those experts
came to this conclusion because, in their opinion, the child's injuries could have
been inflicted only by an adult, only intentionally, and only during the time period
when Fero was the sole adult present. Fero did not even try to rebut this testimony
at trial with her own experts because those experts testified in accordance with the
prevailing medical opinion at the time.
But that opinion, Fero claims, has shifted dramatically in response to recent
advances in medical technology and new scientific studies. These new studies show
that the child's injuries could have been inflicted accidentally, could have been
inflicted by another child, and were probably inflicted before the child arrived at
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
Fero's home. Fero contends that these new scientific conclusions are so dramatically
different from the old shaken baby syndrome understanding as to constitute a
paradigm shift in the medical community. This evidence (based as it is on recent
scientific research and studies)is clearly new,could not have been discovered before
trial, and would probably change the result oftrial. Fero is entitled to an opportunity
to prove both of her critical factual claims—^that the studies credibly demonstrate a
paradigm shift and that she exercised reasonable diligence. If those new scientific
studies and paradigm shift claims are credible and if Fero was reasonably diligent in
discovering them and filing her petition, then she is entitled to a new trial.
I therefore respectfully dissent.'
'On the threshold timeliness issue, I agree with the lead opinion that we should
accept the State's motion for review, but I disagree with the lead opinion's underlying
conclusion that the State's motion was timely. Lead opinion at 16. The lead opinion
acknowledges the State's motion was w«timely under a literal application of RAP 13.5(a).
It must do so, because that rule states that "[a] party seeking review . . . must file for
discretionary review . . . within 30 days after the decision is filed." The lead opinion,
however, chooses a nonliteral reading ofthe rule that begins counting the 30 days for filing
from entry of the decision on reconsideration, rather than entry of the decision itself.
Untimeliness, however, does not preclude us from considering the State's motion.
RAP 18.8(b) authorizes us to excuse a missed filing deadline "in extraordinary
circumstances and to prevent a gross miscarriage ofjustice." Although RAP 18.8(b) sets
a high standard, that standard has been met in this case where the State did not realize RAP
13.5(a) required that it file its motion for discretionary review within 30 days of the Court
of Appeals' decision regardless of whether a motion for reconsideration was pending.
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
Relevant Facts
On January 7, 2002, Heidi Fero agreed to watch 15-month-old Brynn and 4
'/2-year-old Kaed while their parents, Breann Franck and Jason Ackley,^ were at
work. Franck dropped the children off that afternoon at Fero's home around 2:00
p.m. 1 Verbatim Report of Proceedings (VRP)(Mar. 11, 2003) at 152. Because
Fero was not home at the time, Franck left the children with Fero's fiance. Id. After
Fero arrived, her fiance left for work. 1 VRP (Mar. 12, 2003) at 157-58. That left
Fero home alone with Brynn, Kaed, and her own two young children, Rachel and
Derrick, from that point until paramedics arrived at about 10:00 p.m. to transport
Brynn to the hospital. Id. at 154; Excerpted VRP(Mar. 10,2003)at 37. When those
paramedics arrived, Brynn was visibly limp and unconscious. She had bruises on
her forehead, chin, and pelvic area; a fractured left tibia; and dried blood in her
mouth. Additional hospital scans showed retinal hemorrhaging, brain bleeding, and
brain swelling.
Fero claims she did not cause any ofthese injuries. At trial, Fero's testimony
suggested that Brynn was probably somewhat injured before she arrived and that
^ Ackley is Brynn's biological father but not Kaed's. 1 Verbatim Report of
Proceedings(Mar. 11, 2003) 124-25.
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
Kaed likely aggravated those preexisting injuries at Fero's home when he climbed
into Brynn's playpen, banged her head against the wall, and lifted her leg to her chin
while pretending to be an action hero fighting monsters.
A. Fero's Evidence at Trial
Fero testified that she noticed early that evening that Brynn was not walking
around the house like she normally would, but Fero did not think much of it at the
time. 5A VRP (Mar. 17, 2003) at 75. Fero explained that she watched Brynn
occasionally while her parents were at work, id. at 69-70, so Brynn had bonded with
her and would follow her around the house, id. at 75. But on that day, Brynn stayed
mostly wherever Fero placed her. Id. Fero dismissed Brynn's unusual behavior,
however, believing Brynn was acting distant because she had not seen Fero for three
I
weeks. See id. at 73, 75.
Fero also testified that she saw an enormous bruise on Brynn's pelvic area
early that evening. Fero testified that she first noticed that large bruise below
Brynn's belly button, near her pelvis, while she was bathing Brynn. Id. at 76.
Although the bruise "disturbed [her]" and made her feel sick when she saw it, she
ultimately dismissed it since Brynn often had bruises on her body. Id. at 76-77.
Brynn's father confirmed that Brynn often had bruises because she was a "pretty
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
clumsy" toddler and her older brother, Kaed, had a tendency to pinch and play too
roughly with her. See 1 VRP(Mar. 11, 2003) at 142, 127-30. This is why Fero did
not call Brynn's father right away.
Fero testified that after she finished bathing Brynn, she dressed her, brought
her downstairs, and placed her in her playpen. 5A VRP(Mar. 17, 2003) at 77. Fero
then proceeded to bathe her son. Derrick. Id. at 78. While Fero was upstairs bathing
Derrick, her five-year-old daughter, Rachel, came in and reported that Kaed was
hurting Brynn. Id. at 80. Fero immediately stopped bathing Derrick, placed him in
his crib, and went downstairs to investigate. Id. at 80-81. She found Kaed on the
couch and Brynn in her playpen. Id. at 81. Fero checked on Brynn; she looked fine
so Fero went back upstairs to finish drying and dressing Derrick. Id.
While Fero was upstairs, Rachel appeared a second time. Id. This time, Fero
recalled Rachel specifically saying that Kaed was banging his sister's head against
the wall. Id. Rachel mostly confirmed Fero's recollection but said she saw Kaed
pushing rather than banging Brynn against the wall. Id. at 43-44. Rachel added that
she also saw Kaed hitting Brynn with a toy hammer and toy wooden cane and lifting
Brynn's leg to her chin. Id. at 43, 49.
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
When Fero went downstairs this second time to investigate, she caught Kaed
climbing out of Brynn's playpen. Id. at 82. Although Fero did not catch Kaed in
the act, Fero believed Kaed probably hurt his sister because Bryrm was crying. Id.
at 82-83. Brynn's cries, however, seemed unusual and silent, and she was shaking
and trembling "more than [Fero had] seen a child do before." Id. at 82. Fero picked
Brynn up and noticed a small amount of blood in Brynn's mouth. Id. Fero asked
Kaed to explain what he had done to his little sister, but Kaed responded only that
he was a "Power Ranger" action hero. Id. at 83. Although Kaed never described
what he did to Brynn, he later admitted to the responding police officers that he
caused his sister to stop breathing, though he also believed there was blood in
Brynn's mouth because "the temperature just push[ed] it out" or her "[djreams
push[ed] it out." 2 VRP(Mar. 12, 2003) at 212-13.
Fero testified that she knew at that time that Brynn was hurt, but believed
Brynn would be "okay," 5A VRP (Mar. 17, 2003) at 87, because Bryrm had only a
few red marks forming on her face, 5B VRP (Mar. 17, 2003) at 122. Fero therefore
focused on soothing Bryrm by rocking her until her eyes closed and her body "just
kind of relaxed all of a sudden." 5A VRP (Mar. 17, 2003) at 84. Believing Bryrm
had fallen asleep, Fero laid her down carefully against the back dip of her futon so
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
Brynn would not accidentally roll off and then called Brynn's and Kaed's father. Id.
at 84-85. That call occurred around 7:45 p.m. Id. at 86.
The father, Ackley, confirmed that Fero called him that evening while he was
at work and told him that Rachel saw Kaed push Brynn's head against a wall. 1
VRP (Mar. 11, 2003) at 118-19. Ackley also confirmed that Fero told him that
Brynn was unable to walk on one leg. Id. In contrast to Fero's testimony, however,
Ackley did not recall Fero mentioning blood in Brynn's mouth or bruises on her
pelvis. Id. at 119-20. Ackley acknowledged the focus of his conversation with Fero
was on disciplining Kaed for hurting his sister, id. at 120, rather than on identifying
Brynn's precise injuries. The call ended with Ackley suggesting that Fero lock Kaed
in a closet or bedroom. 5A VRP (Mar. 17, 2003) at 86. It is unclear whether Fero
disciplined Kaed that night as Ackley suggested.
Sometime after the call ended, Fero turned on a movie to occupy Kaed and
Rachel while she cleaned her house. Id. at 87-88. Fero testified that she checked on
the children every few minutes while she was cleaning. Id. at 88, 93.
But a couple of hours later, around 9:45 p.m., when Fero was swapping in a
new movie for the children, Fero noticed that Brynn's eyes were partially open and
"something didn't look right." Id. at 88. Fero tried to wake Brynn by "wiggling her
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
chest and saying her name" and then splashing water on her face, but Brynn did not
respond. Id. at 89. It was at this moment that Fero noticed dark bruises had formed
on Brynn's face. SB VRP (Mar. 17, 2003) at 118. Fero immediately called her
mother, who had some medical training, for advice. Her mother told her to call 911.
Cell phone records show that Fero called her mother at 9:52 p.m. and called 911 two
minutes later. 5A VRP (Mar. 17, 2003) at 90.^
Fero explained to the paramedics and responding officers that Kaed might
have been responsible for Brynn's injuries. Excerpted VRP (Mar. 10, 2003) at 41
^ Fere's statements to the responding officers and emergency personnel conflicted
with her trial testimony in four ways. First, Fero told the 911 operator that Kaed was
'"chasing"' his sister that night, 5A VRP (Mar. 17, 2003) at 98, which implied Brynn
had been running even though Fero testified that Brynn was mostly sedentary that evening,
id. at 75. Second, Fero told responding officers that she did not bathe Brynn that day, 2
VRP (Mar. 12, 2003) at 193, even though she testified that she first noticed the bruise on
Brynn's pelvic area while she was bathing Brynn,5A VRP(Mar. 17,2003)at 76-77. Third,
Fero told the detectives that Brynn's playpen was originally located against the wall but
had been recently moved even though there were no carpet indentations showing the
playpen had been moved. 1 VRP (Mar. 11, 2003) at 66. Fourth, Fero signed a statement
stating only "a few minutes" had elapsed between her seeing Kaed climb out of Brynn's
playpen and her finding Brynn unconscious on the futon, 5A VRP(Mar. 17, 2003) at 102-
03, even though she testified at trial that approximately two hours had elapsed in between,
id. at 88, 93. But Fero contested the accuracy of the signed statement. According to Fero,
she told the officers that she was checking on the children every five minutes during the
two hours she was cleaning. Id. at 92-93. Notably, Captain Mitch Nelson of the fire
department was present during the police interview and confirmed Fero's story. According
to Captain Nelson, Fero reported that night—consistent with her trial testimony—that
Brynn was sleeping for hours. 1 VRP(Mar. 11, 2003) at 101-02.
In re Pers. Restraint ofFero (Heidi Charlene), No,92975-1
(Gordon McCloud, J., dissenting)
(Dohman); 1 VRP (Mar. 11, 2003) at 20 (same), 40 (Tone), 62 (Smith), 84-88
(Telford), 101-02 (Nelson); 2 VRP (Mar. 11, 2003) at 190-91 (Dr. Lukschu), 195-
97(Norton).
Even Kaed's mother, Franck, believed Kaed was likely responsible for
Brynn's injuries. 1 VRP (Mar 11, 2003) at 164. According to Franck, Kaed was
mean to his baby sister. Id. at 154-56. Franck had seen Kaed kicking Brynn and
once even saw him land on top of her while trying to jump over her. Id. at 161-63.
Brynn's father, Ackley, confirmed that Kaed had problems with anger and
violence, id. at 28, and believed Kaed may have been jealous of the attention his
little sister received, id. at 130. Ackley himself had seen Kaed pushing and pinching
Brynn and once even saw Kaed pull Brynn's legs out from under her. Id. at 128.
This aggression, Ackley explained, had worsened in the months preceding the night
at Fero's home. Id. at 130.
B. The State's Shaken Baby Theory
The State rejected Fero's theory that Kaed caused Brynn's leg and head
injuries. So did the jury. That was probably because the State presented expert
testimony from six medical professionals all opining to a reasonable degree of
In rePers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
medical certainty that Kaed lacked the strength to exert the magnitude of force
necessary to cause Brynn's head injuries.
The State's experts acknowledged that Kaed could have caused the bruises on
Brynn's face and pelvic area by jumping on her or hitting her with a toy hammer or
a wooden cane,2 VRP(Mar. 11, 2003) at 204-06, 218-19(Dr. Lukschu), and could
have fractured her leg by tackling or knocking her down, VRP(Mar. 13, 2003)at 26
(Dr. Bennett), But those activities, the experts testified, could not explain Brynn's
head injuries.
Specifically, the State's experts testified that it was physically impossible for
Kaed to cause Brynn's head injuries. Id. at 34-35 (Dr. Bennett); 2 VRP (Mar. 11,
2003) at 196, 200 (Dr. Lukschu); 1 VRP (Mar. 12, 2003) at 64, 72 (Dr. Gorecki).
According to these experts, a substantial amount of force—equivalent to the force
involved in an automobile accident or a fall from a multistory building—was needed
to produce retinal hemorrhaging, brain bleeding, and brain swelling in a child. See
id. at 84, 96 (Dr. Ockner); VRP (Mar. 13, 2003) at 50 (Dr. Grewe), 63, 75 (Dr.
Goodman). This ruled out Kaed as a possible suspect since a four-and-a-half-year-
old could not produce such substantial force.
10
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
The State's experts also ruled out all other adults as potential suspects. Those
experts opined that, given the amount offorce needed to cause Brynn's head injuries,
Brynn would have lost consciousness either immediately,2 VRP(Mar. 11, 2003)at
195,229(Dr. Lukschu); 1 VRP(Mar. 12,2003)at 97(Dr. Ocloier),74(Dr. Gorecki),
or at least within 2 or 5 hours after injury, 70 (Dr. Gorecki)(2 hours); VRP (Mar.
13, 2003) at 28 (Dr. Bennett)(5 hours). This expert testimony left Fero as the only
possible suspect because she was the only adult with Brynn for over six hours from
3:30 p.m. to 9:45 p.m.
Based on this expert testimony, the State theorized that Fero—a normally
loving caregiver—became so frustrated with Brynn while she was giving her a bath
around 7:00 p.m. that she beat the toddler, twisted her leg until it fractured, and later
around 9:45 p.m. when Brynn would not stop fussing over her injured leg, violently
shook Brynn into immediate unconsciousness. 5B VRP(Mar. 17, 2003)at 160,162-
63. The State advanced this theory despite testimony from Brynn's parents
describing Fero as a great mom, proclaiming how glad they were to have her as a
babysitter, and confirming how they never saw her "lose her cool" with any children,
including their daughter, Brynn. See 1 VRP(Mar. 11, 2003) at 131, 160.
11
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
Since there was no eyewitness testimony to support the State's shaken baby
theory, the jury must have convicted Fero based on the strength of the State's six
expert witnesses. Those experts overwhelmingly confirmed that the force necessary
to produce Brynn's head injuries had to have been inflicted intentionally, by an adult,
and during the period when Fero was the only adult present."^
C. Fero's Newly Discovered Evidence
Fero's new evidence undermines that expert testimony. Fero's two
postconviction experts. Dr. Patrick Barnes and Dr. Janice Ophoven, describe new
scientific studies and medical research that they believe prove the State's shaken
baby theory was wrong and show that Fero is probably innocent. According to
Fero's postconviction experts, these new studies and this new research disprove two
critical assumptions underlying the State's shaken baby theory:(1)that a substantial
amount offorce was required to produce Brynn's head injuries and(2)that this force
would have been so violent that Brynn's injuries would probably have manifested
immediately with no intervening period of lucidity.
The State also suggested that Fero might have swung Brynn into a wall like a
baseball bat, 5B VRP (Mar. 17, 2003) at 154, but it is unlikely the jury believed this. This
theory was completely refuted by the State's own experts who said it was impossible for
Brynn's head injuries to have been caused by blunt force impact without cracking her skull
or shattering her facial bones, neither of which occurred. 2 VRP (Mar. 11, 2003) at 224-
25 (Dr. Lukschu); VRP (Mar. 13, 2003) at 46, 48(Dr. Grewe), 34(Dr. Bennett).
12
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
Dr. Barnes is a pediatric neuroradiologist with 35 years of practice and
teaching experience. Barnes Decl. at 1 (included as an exhibit in Opening Br. in
Supp. of Pers. Restraint Pet.). He is an expert in diagnosing possible child abuse.
Id. at 1-2. Dr. Barnes explains that until about 2004 (the year after Fero's trial), he
and virtually everyone else in the medical community—including the State's
experts—believed that retinal hemorrhages, brain bleeding, and brain swelling were
conclusive signs of child abuse by intentional shaking even though there was no
scientific evidence to support that diagnosis. Id. at 4-8. That theory. Dr. Barnes
explains, has since been refuted by actual scientific evidence. Id. at 5-6. For that
reason. Dr. Barnes concludes, the State's theories on those points are no longer
regarded as credible by many doctors in the medical community. Id.
In fact, according to Dr. Barnes, research in biomechanics, neuropathology,
and ophthalmology, coupled with advances in MRI (magnetic resonance imaging)
technology over the past decade, have led medical experts to believe that subdural
and retinal hemorrhages can be caused by far less force than previously assumed.
Id. at 10-19. Indeed, one study shows that even "a relatively small impact following
an unresolved head injury occurring days to weeks previously" could cause subdural
hemorrhaging in a child. Id. at 19 (citing R. Cantu & A. Gean, Second-Impact
13
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
Syndrome and a Small Subdural Hematoma: An Uncommon Catastrophic Result of
Repetitive Head Injury with a Characteristic Imaging Appearance, 27 J.
Neurotrauma 2557(2010)).
Fero's other expert is Dr. Ophoven, a specialist in anatomic and forensic
pathology and an expert in shaken baby syndrome. Ophoven Deck at 1 (included
as an exhibit in Opening Br. in Supp. of Pers. Restraint Pet.). Dr. Ophoven agrees
with Dr. Barnes that "new medical evidence .. . directly contradicts the positions of
the prosecution's experts at trial" and explains that this new evidence is so
compelling that the positions taken by the State's experts at trial "are no longer
generally accepted within the medical community." Id. at 11. According to Dr.
Ophoven, most experts now accept that "a broad range of phenomena, including
accidental falls from a very short height, could cause injuries like Brynn's." Id. at
4. And because the force required to cause such injuries is far less than previously
assumed,"[a] child is more than capable of causing such injuries." Id.
If Dr. Barnes and Dr. Ophoven are correct, these studies would have changed
everything about Fero's trial. These studies show that Brynn's injuries could have
been caused accidentally by Kaed's aggressive play. They also establish to a
reasonable degree of medical certainty that Brynn's injuries were probably inflicted
14
In re Pers. Restraint ofFero (Heidi Charlene), No,92975-1
(Gordon McCloud, J., dissenting)
before Brynn arrived at Fero's home and were only aggravated later that night by
Kaed when he climbed into Brynn's playpen and banged her head against the wall.
Ophoven Decl. at 3, 9-10; Barnes Decl. at 26-27. Thus, this new evidence, if true,
completely undermines the State's theory that Fero was the only person who could
have hurt Brynn and shows that there are at least four others who could have harmed
her: the brother, Kaed; the father, Ackley; the mother, Franck; and Fero's fiance,
who was home with Brynn when she was first dropped off.
Analysis
To obtain a new trial based on newly discovered evidence, Fero has to prove
'"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.'" In re
Pers. Restraint ofBrown, 143 Wn.2d 431,453, 21 P.3d 687(2001)(quoting State v.
Williams, 96 Wn.2d 215, 223, 634 P.2d 868 (1981)). Additionally, because Fero
filed her personal restraint petition after the one-year period for collateral attacks
under RCW 10.73.090 had expired, Fero must also prove that she '"acted with
reasonable diligence in discovering the [new] evidence and filing the petition.'" In
15
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
re Pers. Restraint ofStenson, 174 Wn.2d 474, 485, 276 P.3d 286 (2012)(quoting
RCW 10.73.100(1)).
Fero claims her evidence meets this standard. She argues that because the
majority of the medical community did not question the underlying assumptions of
the State's shaken baby theory until after her trial was over, her evidence is obviously
new and clearly could not have been discovered before trial. Opening Br. in Supp.
of Pers. Restraint Pet. at 42-43. Fero also argues that this evidence, if believed, is
material and would probably change the result of trial because the evidence
completely undermines the State's entire shaken baby theory. For this reason, Fero
concludes that she is entitled to a new trial without a need for a reference hearing.
She says no reference hearing is warranted because the State offered no opposing
evidence. Suppl. Br. of Resp't Heidi Charlene Fero at 12-16; In re Pers. Restraint
ofRice, 118 Wn.2d 876,886-87,828 P.2d 1086(1992)(holding no reference hearing
is necessary if the State does not challenge the petitioner's prima facie evidence of
prejudice).
But the State did offer opposing evidence. The State challenged the newness
of Fero's evidence and the credibility of her claim of a recent paradigm shift. See
infra, Section D.l. Alternatively, the State argues that Fero's declarations are
16
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
immaterial and would not have made a difference at trial because they do not account
for all of Brynn's injuries—specifically her leg injury. Suppl. Br. ofPet'r at 19-22.
Finally, the State asserts that Fero is not entitled to a new trial because her petition
is tardy. Id. at 16-17. At most, the State concedes that Fero might be entitled to a
reference hearing to evaluate the credibility of her expert declarations and the
circumstances surrounding her delayed filing. Id. at 24-28.
As discussed below, no one has tested the credibility of Fero's experts or
determined the timeliness of her petition given the new "paradigm shift" on which
she relies. I therefore agree with the State's (alternative) position that Fero has
presented sufficient evidence to warrant a reference hearing under RAP 16.11 and
16.12, andi?ice, 118 Wn.2d at 886-87.
A. Fero's Postconviction Evidence Undermines the State's Shaken Baby
Theory—IfIt Is Believed, It Is Material and Would Probably Change
the Result ofthe Trial
Fero's postconviction evidence, if true, devastates the State's entire shaken
baby theory. The State attempts to sidestep that fact. It argues that no matter how
persuasive Fero's new evidence may be at proving she did not cause Brynn's head
injuries, her evidence would not have made a difference at trial because it does not
17
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
explain Brynn's displaced leg fracture. Suppl. Br. ofPet'r at 19-22. The lead opinion
agrees with the State. Lead opinion at 26.
The State, however, charged Fero with first degree assault of a child. A leg
fracture is not enough to convict Fero of that crime. To convict Fero of that crime,
the State had to prove that Fero intentionally assaulted Bryrm and recklessly inflicted
"great bodily harm" on her. RCW 9A.36.120(b)(i); 5B VRP(Mar. 17, 2003)at 142.
'"Great bodily harm' means bodily injury which creates a probability of death, or
which causes significant serious permanent disfigurement, or which causes a
significant permanent loss or impairment of the function of any bodily part or
organ." RCW 9A.04.110(4)(c). There was no evidence at trial that Brynn's leg
fracture was a "permanent" injury or "creat[ed] a probability of death." Indeed, the
State conceded that Brynn's leg would heal within a couple of months. SB VRP
(Mar. 17, 2003)at 143. Thus, even ifthe lead opinion were correct that a reasonable
jury more probably than not would still have found beyond a reasonable doubt that
Fero (a person whom everyone regarded as a wonderful mother and caregiver)
intentionally assaulted Brynn (a child who was bonded with her) with force
sufficient to cause her leg to fracture, a leg fracture alone would not have been
sufficient to support Fero's conviction. The State's and the lead opinion's argument
18
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
that the leg fracture alone supports Fero's conviction and that her new evidence
would not have changed the outcome at trial therefore fails.
We must therefore consider the main focus ofthe State's case at trial, that is,
Brynn's head injuries. Fero's postconviction experts say that Fero could not have
caused (per one expert), or probably did not cause (per her other expert), those head
injuries, given the amount of time it takes for such head injuries to manifest.
According to Dr. Ophoven,"brain swelling following serious brain damage peaks at
48 to 72 hours." Ophoven Deck at 13. Because "Brynn already had significant brain
swelling by the time she arrived at [the hospital]," id.. Dr. Ophoven was able to
"conclude[], to a reasonable degree of medical certainty, that Brynn was injured at
least 12 hours before her first CT [(computed tomography)] scan, which would have
been before Brynn was dropped off at Heidi Fero's house," id. at 10. Dr. Barnes
similarly concludes that "there is a significant chance that [Brynn] was injured
before she arrived at Ms. Fero's home." Barnes Deck at 26-27.
The lead opinion cautions against giving too much weight to Dr. Ophoven's
and Dr. Barnes's declarations because the State's experts already acknowledged at
trial that it could have taken some time for Brynn's injuries to manifest. Lead
opinion at 20-21. In other words, the lead opinion characterizes Fero's experts'
19
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
opinions as repetitive of the State's experts' opinions at trial on this point. Fero's
postconviction evidence is critically different. It establishes through scientific
evidence that Brynn probably experienced a prolonged lucid interval before losing
consciousness. That means her injuries must have (according to one expert) or may
have (according to another expert) occurred before, not after, she arrived at Fero's
home. That obviously supports Fero's defense that she did not inflict the injuries—
someone else did. The State's evidence was completely different. The State's
experts testified that Brynn could have remained conscious for at most 2 or 5 hours
after injury. That meant that Brynn was injured while she was in Fero's care. 1 VRP
(Mar. 12, 2003) at 70 (Dr. Gorecki)(2 hours); VRP (Mar. 13, 2003) at 28 (Dr.
Bennett)(5 hours). The State's experts never said a period of lucidity of days or
weeks was possible as Fero's experts do. Barnes Deck at 19; Ophoven Deck at 13-
14. Nor did the State's experts testify that a period oflucidity of48 to 72 hours was
typical as Dr. Ophoven asserts. Ophoven Deck at 13. And most crucially,the State's
experts never testified to a reasonable degree of medical certainty that Brynn
probably experienced at least 12 hours oflucidity from the time she was injured until
the time she was admitted into the hospital as Dr. Ophoven says, Ophoven Deck at
3, 10, or that there was a "significant chance" Brynn was injured before she arrived
20
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
at Fero's home as Dr. Barnes says, Barnes Decl. at 26-27. If believed, this evidence
alone is sufficient to probably change the result of trial.
But Fero's evidence undercuts the State's evidence even more. At trial, the
State's experts ruled out Kaed as a possible assailant because he was so small
(though they all acknowledged there was no scientific evidence to support that
theory). In contrast, Fero's experts say that the newest, most reliable scientific
evidence shows that a small child like Kaed could have caused Brynn's injuries.
According to Dr. Barnes, one study proves that even a relatively small impact
following an unresolved head injury can cause subdural hemorrhaging in a child. Id.
at 19 (citing Cantu & Gean, supra). According to Dr. Ophoven, that means "[a]
child is more than capable ofcausing such injuries." Ophoven Decl. at 4(citing G.T.
Lueder et al., Perimacular Retinal Folds Simulating Nonaccidental Injury in an
Infant, 124 Arch. OPHTHALMOLOGY 1782(2006)).
The lead opinion dismisses these statements because there was no evidence
that Brynn had one specific prior head injury. Lead opinion at 22-25. While the
lead opinion correctly identifies the lack of one specific head injury, it ignores the
unrebutted evidence at trial about the other injuries all over Brynn. That evidence
included acknowledgements from Brynn and Kaed's own parents that Kaed
21
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
committed a pattern of assaults against Brynn. The parents testified that Brynn often
had bruises on her body because Kaed had a tendency to play too aggressively with
her. 1 VRP (Mar. 11, 2003) 154-56, 161-63 (Franck), 128 (Ackley). That pattern
of aggressive play included testimony that Kaed constantly pinched her, fell on her
while jumping over her, and even pulled her leg out from under her at least once.
This aggressive play, Brynn's father explained, only worsened in the months leading
up to Brynn's arrival at Fero's home. Id. at 130. The lead opinion errs in dismissing
the new experts' evidence that a small child could easily have exacerbated a
preexisting head injury. In fact, there was overwhelming evidence at trial that Brynn
might have had a preexisting head injury that was aggravated by Kaed at Fero's
home.
Fero's new evidence thus undermines the State's shaken baby theory, places
the time of Brynn's injury outside the period when Fero was home alone with her,
and confirms that Kaed, a person known for his violent and aggressive acts toward
Brynn,could have caused those injuries. If credible, this new expert evidence would
certainly be material and would probably change the result at trial.
22
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
B. Fero Claims There Was a Paradigm Shift in the Medical Community
Discrediting the State's Shaken Baby Theory—IfCorrect, This Is a Shift
That Could Not Have Been Discovered with Due Diligence or
Reasonable Diligence before Trial
The lead opinion next observes that Fero would not be entitled to a new trial
if her evidence was not new. It continues that the State's own experts acknowledged
at trial that Brynn could have remained lucid for a short period of time following
injury, rather than falling unconscious immediately,so such evidence ofa short lucid
interval is not new. Lead opinion at 20-21. This is correct. The State's experts
specifically acknowledged during trial that Brynn could have been lucid for up to
two or five hours following impact. Nor could Fero obtain a new trial based solely
on the absence of scientific data to support the State's expert opinions because that
inadequacy could have been discovered before trial. See VRP (Mar. 13, 2003) at
66-71 (Dr. Goodman acknowledging an ongoing debate in the medical community
over whether retinal hemorrhages were really conclusive signs of child abuse since
there is no evidence to support that conclusion).
But Fero does not rest her petition solely on these grounds. Instead, Fero
identifies a slow avalanche of new scientific data collected over the past decade that
has led to a significant shift in the medical community's views on the credibility of
shaken baby diagnoses. This new scientific evidence, Fero explains, proves Brynn
23
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
could have been lucid for days or even weeks following injury, rather than just a few
hours. This new evidence also proves that the State's experts' opinions regarding
shaken baby diagnoses were wrong, rather than simply unsupported.
According to one of Fero's experts. Dr. Barnes, shaken baby syndrome was a
medical hypothesis developed in the 1940s that gained nearly universal acceptance
in the medical community by the 1990s, despite the lack of scientific or evidentiary
data to support the hypothesis. Barnes Deck at 4-5. Thus, for years, doctors
diagnosed children with shaken baby syndrome based simply on "circular
reasoning." Id. at 9. "Since the triad (subdural hemorrhage,retinal hemorrhage and
brain swelling) was considered to be pathognomonic of child abuse, a child who
presented with the triad (or sometimes with a portion ofthe triad) was automatically
classified as 'shaken' or 'abused.'" Id. "These diagnoses were then used to validate
the theory and to diagnose other 'shaken' or 'abused' children," which only further
legitimized the shaken baby theory in the medical community despite "the lack of
an evidence base." Id. This, Dr. Barnes explains, was the state of medicine when
Fero's trial was held. See id. at 5-6.
But slowly over the last decade, propelled in part by a community push for
more evidence-based medicine, doctors and other medical experts began to question
24
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
the assumptions underlying the shaken baby theory. Id. at 6-8. This evidence-based
approach led Fero's experts to believe that Brynn was mistakenly diagnosed with
shaken baby syndrome. Barnes Deck at 30; Ophoven Deck at 9. Specifically, Dr.
Barnes based his opinion on recent biomechanical research "confirm[ing] that short
falls can cause the findings previously associated with abuse and that shaking would
cause serious neck injury before it created subdural hemorrhages" and the fact that
Brynn had no such neck injury. Barnes Deck at 11 (citing J. Plunkett, Fatal
Pediatric Head Injuries Caused by Short-Distance Falls, 22 Am. J. FORENSIC Med.
Pathology 1 (2001); A.K. Ommaya et ak, Biomechanics and Neuropathology of
Adult and Pediatric Head Injury, 16 Brit. J. Neurosurgery 220 (2002); M.T.
Prange et ak, Anthropomorphic Simulations ofFalls, Shakes, and Inflicted Impacts
in Infants, 99 J. NEUROSURGERY 143 (2003); W. Goldsmith & J. Plunkett, A
Biomechanical Analysis of the Causes of Traumatic Brain Injury in Infants and
Children, 25 Am J. FORENSIC Med. & PATHOLOGY 89 (2004); F. Bandak, Shaken
Baby Syndrome: A Biomechanics Analysis ofInjury Mechanisms, 1521 FORENSIC
Sci. Int'L 71 (2005)), 30-31. Instead, Dr. Barnes explains,"increased research into
second impact syndrome" now shows that "a relatively small impact following an
unresolved head injury occurring days to weeks previously can result in cerebral
25
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
edema, a small subdural hemorrhage and death." Id. at 19 (citing Cantu & Gean,
supra). Such a smaller impact is consistent with Fero's account ofthat night.
Finally, according to Fero's new experts, advances in radiology technology
have "undercut a basic premise of shaken baby syndrome, which assumed that
subdural hemorrhages are immediately symptomatic and that the perpetrator can
therefore be identified based on timing." Barnes Decl. at 15; accord Ophoven Deck
at 8. But that assumption—which Fero's experts discredit—is the only way the
State's experts say they were able to narrow the list of possible assailants to only
Fero.
To be sure, Fero's expert. Dr. Barnes,recognizes that"[s]ome ofthis literature
was available before Ms. Fero's trial." Barnes Decl. at 10. However, "it was not
widely read or applied by clinicians or child protection teams." Id. Thus,"[a]t the
time of Ms. Fero's trial, many doctors would have agreed with the doctors for the
[S]tate." Id. at 31.
Fero therefore describes her new evidence as a paradigm shift in the medical
community regarding the credibility of shaken baby diagnoses. She explains that
this shift is significant because it now allows her to do what she could not do at trial,
that is, to persuasively challenge the State's experts' testimony with data-based
26
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
evidence that their assumptions and opinions "are no longer generally accepted
within the medical community." Ophoven Decl. at 11. In other words, "it is the
emergence of a legitimate and significant dispute within the medical community as
to the cause of... injuries [formerly considered definitively symptomatic of shaken
baby syndrome] that constitutes newly discovered evidence." State v. Edmunds,
2008 WI App 33, 308 Wis. 2d 374, 392, 746 N.W.2d 590.
If Fero's experts are believed, this paradigm shift also undermines the State's
experts' testimony. In addition, if Fero's experts are believed, this paradigm shift
had not yet occurred at the time of her trial and therefore could not have been
discovered before trial through the exercise ofdue diligence or reasonable diligence.
Barnes Decl. at 31; Ophoven Decl. at 5.
C. Fero's Evidence Is Substantive, Not Merely Impeaching
The only other thing that Fero needs to prove to gain a new trial is that her
new, material, outcome-determinative evidence is more than "'merely cumulative or
impeaching.'" Brown, 143 Wn.2d at 453 (quoting Williams, 96 Wn.2d at 223).
"Impeachment evidence" refers to "[ejvidence used to undermine a witness's
credibility." Black's Law Dictionary 676 (10th ed. 2014). Impeachment
evidence typically tests a witness's ability to perceive or recall matters, highlights
27
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
defects in a witness's character, or underscores a bias that may lead the witness to
distort his or her testimony, either consciously or unconsciously. ROGER PARK &
Tim Lininger, The New Wigmore: A Treatise on Evidence: Impeachment and
Rehabilitation § 2.1, at 65 (2012). Substantive evidence conveying a different
story or reaching a different conclusion is not impeachment evidence because it does
not directly attack a witness's credibility. See id. § 2.1.5. Thus, even though
alternative expert conclusions undermine the credibility of an opposing witness's
opinions, such evidence does not belong under the traditional rubric ofimpeachment
evidence.
Dr. Barnes's and Dr. Ophoven's declarations fall into that latter category.
They both opine that Fero probably did not cause Brynn's head injuries. Barnes
Decl. at 26-27; Ophoven Decl. at 3, 10. They explain they reached a different
conclusion from the State's experts because they chose to rely on recent scientific
data rather than past assumptions. Barnes Decl. at 5-6; Ophoven Decl. at 9-10. They
do not dispute that the State's experts were correctly testifying to the current state of
scientific knowledge at the time of trial. To the extent these opinions have a
28
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
tendency to undermine the credibility of the State's experts, that tendency is
ancillary.^
D. There Are Material Factual Disputes on Almost All of the Points
Addressed Above; Under RAP 16.11 and 16.12 awJRice, They MustBe
Resolved at a Reference Hearing in Superior Court
1. Fero Is Entitled to a Reference Hearing on the Credibility of Her
New Expert Evidence
Fero presents evidence of a paradigm shift in the medical community on
shaken baby syndrome. The State challenges Fero's claim of a paradigm shift.
Wash. Court of Appeals oral argument,In re Pers. Restraint ofFero, No. 46310-5-
II(Oct. 26,2015), at 12 min., 8 sec. through 32 sec. and 16 min., 49 sec. through 17
min., 29 sec. (attached to Resp. to Br. of Amicus Curiae Wash. Assoc. of Criminal
Defense Lawyers). According to the State, "the argument that there's a paradigm
shift is to a large extent a straw man," id. at 12 min., 32 sec. through 40 sec., because
^ The Washington Association of Prosecuting Attorneys (WAPA) amicus brief
advocates in favor of a new rule classifying all new scientific evidence as "merely
impeaching" if it fails to discredit the evidence presented at trial so completely such that
the old evidence would still be admissible under Frye v. United States, 54 App. D.C. 46,
293 F. 1013 (1923). Am. Br. of Amicus Curiae WAPA at 12-13; State v. Canaday, 90
Wn.2d 808, 813, 585 P.2d 1185 (1978) (explicitly adopting the Frye standard in
Washington); State v. Copeland, 130 Wn.2d 244, 255, 922 P.2d 1304(1996)(adhering to
the Frye standard). That proposed rule is neither advisable nor necessary for us to consider
in this case because the new expert evidence here presents a new substantive theory, not
an attack on the credibility ofthe State's experts at the time of trial.
29
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
"there has never been a point in time when defense experts have not contested the
validity and tested the science of these cases, so the idea that at some point in the
past there was never a dispute and now, only now there has become a dispute is
simply incorrect," id. at 13 min., 15 sec. through 32 sec. The State also challenged
the existence of a paradigm shift on the ground that at least some of the studies on
which Fero's experts rely predated her trial. Resp. to Pers. Restraint Pet. at 14.
The State is correct that we do not have to accept Fero's claim of a paradigm
shift as true, but we also cannot accept the State's claim that there has not been one
either. "[T]he purpose of a reference hearing is to resolve genuine factual disputes."
Rice, 118 Wn.2d at 886. Thus, once a petitioner has stated with particularity facts
that if proved would entitle him or her to relief—which Fero has done—^then a
reference hearing is necessary to resolve any material dispute regarding the
credibility ofthose factual assertions ifthey cannot be resolved on the record. Id. at
885-86. That's the case here. It is therefore necessary for the superior court to
conduct a reference hearing to determine whether Fero's expert evidence is credible.
30
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
2. Faro Is Entitled to a Reference Hearing on Whether She Used
"Reasonable Diligence" and "Due Diligence" in Discovering the
New Evidence and Filing Her Petition
Generally, a personal restraint petitioner seeking a new trial based on newly
discovered evidence needs to satisfy only one diligence requirement. That
requirement is to show the evidence "could not have been discovered before trial by
the exercise of due diligence." Williams, 96 Wn.2d at 222-23 (emphasis added).
But because Fero filed her petition more than a year after herjudgment and sentence
became final, she must additionally prove that she "acted with reasonable diligence
in discovering the [new] evidence and filing the petition." Stenson, 174 Wn.2d at
485.
The State argues that Fero did not exercise such diligence because the most
recent study that Dr. Barnes cites in his declaration was from 2010—four years
before Fero filed her petition. Resp. to Pers. Restraint Pet. at 14-15. While the State
correctly identifies the publication date ofthat study, that date alone does not prove
Fero was dilatory in filing her petition, though it is evidence that she might have
been. That's because it is unclear when the paradigm shift occurred.
Although Fero's experts insist a paradigm shift has occurred, they are vague
about its arrival. They cite "recent medical literature," Ophoven Deck at 9, and
31
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
advances "[o]ver the past decade," Barnes Decl. at 5. Whether this shift occurred in
2010(the date of Fero's most recent study), earlier or never(as the State asserts), or
later (as Fero suggests) cannot be resolved on the record. It needs to be addressed
at a reference hearing. Rice, 118 Wn.2d at 885-86; RAP 16.11(b).
Moreover, even if Fero could have filed her petition earlier, there remains the
issue of whether it was "reasonable" for her to wait until the medical science
repudiating shaken baby syndrome became more fully developed so she could cast
serious doubt on the State's case. Personal restraint petitioners relying on new
scientific developments face a legal dilemma: waiting too long risks a violation of
the due diligence requirement, yet petitioning too early risks a failure to establish
materiality and probable effect. What qualifies as a reasonable waiting period thus
can depend largely on the facts of each case.
Lastly, the reasonableness inquiry takes into consideration the circumstances
of the petitioner. As Fero highlights, and the Court of Appeals accepted, many
barriers could have prevented Fero from marshalling her new evidence earlier,
including her incarceration for 10 years and her lack of medical knowledge. In re
Pers. Restraint of Fero, 192 Wn. App. 138, 161, 367 P.3d 588 (2016), review
granted, 187 Wn.2d 1024, 390 P.3d 356(2017).
32
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
Fero has certainly raised facts that, if believed, show that she discovered and
presented her new evidence of a paradigm shift with diligence. The State has
certainly challenged her factual assertions of a significant paradigm shift and/or its
timing. It is therefore necessary for the superior court to conduct a reference hearing
to determine whether she was diligent.
Conclusion
Fero presents evidence of a paradigm shift in the medical community that, if
believed, undermines the State's entire shaken baby theory and supports her claim
that she is innocent. This evidence, if credible, is material, not merely impeaching,
and probably would have affected the result of trial. The State disputes whether a
new paradigm shift exists, the date the alleged shift occurred, and the role Fero's
incarceration played in impeding her ability to file her personal restraint petition
sooner. These questions cannot be resolved based on the record. For that reason, I
would reverse and remand to the superior court for a reference hearing pursuant to
RAP 16.11(b) and 16.12.
I therefore respectfully dissent.
33
In re Pers. Restraint ofFero (Heidi Charlene), No. 92975-1
(Gordon McCloud, J., dissenting)
34