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

Background

In 2003 Heidi Fero was convicted of first-degree child assault after 15-month-old Brynn Ackley arrived at the hospital with subdural hematoma, cerebral edema, retinal hemorrhages, and a fractured shin; medical testimony at trial tied those injuries to violent shaking or major impact and stated loss of consciousness would be immediate or within hours.
At trial no witness saw Fero injure Brynn; state relied heavily on medical experts to place timing of injury during the period Brynn was in Fero’s care and to infer abuse rather than accident.
Fero exhausted direct appeal; in 2014 she filed a personal restraint petition (PRP) claiming new, material medical evidence (a changed medical paradigm) undermined the conviction.
Fero submitted declarations from Dr. Patrick Barnes and Dr. Janice Ophoven asserting (1) the medical community’s understanding has shifted: children can remain lucid for up to three days after similar head injuries, and (2) the same triad of findings can arise from lesser falls, accidental causes, or natural conditions — making timing and cause indeterminate.
The Court of Appeals evaluated the RAP 16.4(c)(3) / newly discovered evidence factors and concluded the new medical paradigm would probably change the trial result, was discovered post-trial and not discoverable earlier with reasonable diligence, was material and not merely cumulative or impeaching.
The court granted the PRP and remanded for a new trial.

Issues

Issue	Fero's Argument	State's Argument	Held
Whether changed medical paradigm constitutes new material facts warranting relief under RAP 16.4(c)(3)	New medical evidence shows children can remain lucid for days and injuries can result from less extreme causes, so medical proof tying injury timing and causation to Fero is undermined	New medical opinions do not equal "material facts"; this is just another expert disagreement and not newly discovered evidence	Court held the paradigm shift is new material evidence and satisfies RAP 16.4(c)(3); relief warranted
Whether the new evidence would probably change the trial result	The new expert declarations would create reasonable doubt by contradicting trial experts on timing and causation	The State contended the new evidence is merely a different opinion and not dispositive	Court held a reasonable probability of a different result exists because juries would face competing credible medical opinions
Timeliness and diligence: Was evidence discovered post-trial and through reasonable diligence?	Fero lacked medical training and was incarcerated; consensus shifted post-2003 and she acted promptly when aware	State argued Fero lacked reasonable diligence in discovering/presenting evidence	Court held the shift occurred after trial, was gradual, and Fero exercised reasonable diligence given incarceration and limited means
Materiality and non-cumulativeness of the new testimony	New experts’ opinions are admissible, directly material, and not merely cumulative or impeaching because they contradict, rather than duplicate, trial testimony	State relied on precedent refusing relief where defense later offers a different expert opinion on same record	Court distinguished those precedents and held the new paradigm evidence is material and not merely cumulative/impeaching

Key Cases Cited

In re Pers. Restraint of Stockwell, 179 Wn.2d 588 (Wash. 2014) (standard for collateral relief and prejudice on PRP)
In re Pers. Restraint of Brown, 143 Wn.2d 431 (Wash. 2001) (RAP 16.4(c)(3) relief standard equals new-trial standard for newly discovered evidence)
In re Pers. Restraint of Rice, 118 Wn.2d 876 (Wash. 1992) (requirement that allegations of prejudice be supported by competent, admissible evidence)
State v. Williams, 96 Wn.2d 215 (Wash. 1981) (factors for newly discovered evidence/new-trial analysis)
State v. Edmunds, 308 Wis. 2d 374 (Wis. Ct. App. 2008) (granting new trial where emerging medical debate about shaken-baby causation created reasonable probability of different verdict)
Ex parte Henderson, 384 S.W.3d 833 (Tex. App. 2012) (granting new trial based on new medical expert evidence showing accidental short fall could explain injuries)
State v. Harper, 64 Wn. App. 283 (Wash. Ct. App. 1992) (refusing relief where new expert merely offered an alternative opinion on the same record)
State v. Evans, 45 Wn. App. 611 (Wash. Ct. App. 1986) (denying new trial where defense expert contradicted prosecution expert but relied on same paradigm)