UPDATE: Ms. Fero’s attorney, J. Christopher Baird of Perkins Coie LLP in Seattle, said in an email late Thursday night that after studying the opinion further, they believe,“The state has failed to convince a majority of the Supreme Court that Heidi’s petition should be dismissed, therefore the (Court of Appeals’) decision vacating her conviction and granting a new trial stands.”
Fifteen years after a former Clark County baby sitter was convicted of shaking a toddler hard enough to cause brain damage, state Supreme Court justices and attorneys are at odds over an opinion issued Thursday addressing where her case now stands.
The lead opinion from the Washington Supreme Court states that Heidi C. Fero’s post-appeal petition should be dismissed, meaning her conviction for first-degree assault of a child would stand. Fero already completed her 10-year prison sentence, and her community custody ended in August.
Clark County Prosecuting Attorney Tony Golik said in a phone interview Thursday that his office is pleased with the Supreme Court’s ruling.
But Fero’s attorney argues that the outcome of the opinion is unclear, because only four justices signed the lead opinion, rather than a majority. Therefore, Fero’s petition could still be in play.
“We are still studying the decision to try to figure out what it means,” said attorney J. Christopher Baird of Perkins Coie LLP in Seattle. “Heidi maintains her innocence and is looking forward to clearing her name.”
Fractured opinions from the nine Supreme Court justices add to the confusion.
One justice who signed the lead opinion goes on to say in her concurring opinion that the 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.”
The Court of Appeals granted Fero’s post-appeal petition in January 2016, ordering that her 2003 conviction be vacated and the case remanded back to Clark County Superior Court. Fero filed her petition in May 2014 while she was still in custody.
Golik says the Supreme Court’s lead opinion is clear: The petition should be dismissed.
“That is the only ruling in the opinion, and it’s stated very clearly. Our position is there’s nothing to do at this point,” he said.
But that was not the only area of confusion in the opinion. There was also disagreement among the justices on whether too much time had elapsed to review the case.
Shaken-baby syndrome
Fero was convicted by a Superior Court jury in connection with the Jan. 7, 2002, incident involving 15-month-old Brynn Ackley, who was under Fero’s care at the time. Doctors determined that Brynn suffered from shaken-baby syndrome after sustaining injuries so severe they had to have been inflicted by an adult.
Fero blamed Brynn’s injuries on the girl’s younger brother, who was about 4 1/2 years old at the time.
Brynn, who’s now about 17 years old, suffered paralysis of her right side and vision loss because of her injuries. She’s also suffered from seizures over the years, according to Columbian archives.
In her petition, Fero asserted that new medical evidence on shaken-baby syndrome exists, and if it had been presented at her trial, it could have changed the outcome.
The evidence recognizes children may remain lucid up to three days after sustaining a head injury, implying that Brynn could have received her injuries before coming under Fero’s care.
During her trial, the evidence that, in part, linked Fero to Brynn’s injuries was that Brynn had fallen unconscious while in her care as a result of brain trauma. Doctors testified that children who suffer traumatic brain injuries become unconscious almost immediately, court records state.
In her petition, Fero relied on two doctors who specialize in shaken-baby syndrome and pediatric head trauma. One doctor explained that symptoms previously associated with shaken-baby syndrome have expanded to include accidental and natural causes.
The other concluded that although Brynn suffered a traumatic brain injury, it is unclear whether the injury was accidental or if it was caused by an adult or child. The Court of Appeals agreed that Fero presented sufficient evidence to warrant a retrial.
However, the Supreme Court’s lead opinion states that Fero failed to show how any of this evidence would have changed the trial’s outcome.
Her theory was that someone else injured Brynn, “but strengthening the defense’s trial theory is not the standard for newly discovered evidence,” the opinion reads. And Fero pointed the finger at a small child, when the severity of Brynn’s injuries suggest otherwise.
Additionally, at no time during her trial did Fero present evidence that Brynn suffered an accidental fall or other medical event that could explain her injuries, the opinion states.
