Despite already having completed a 10-year prison sentence, a former Clark County baby sitter convicted of shaking a toddler hard enough to cause brain damage is entitled to a new trial, the Washington Court of Appeals ruled Tuesday, following a decision to allow medical evidence not previously available.
In 2003, a jury convicted Heidi C. Fero, then 24, of first-degree assault of a child in connection with the Jan. 7, 2002, incident involving 15-month-old Brynn Ackley. Physicians had determined Brynn suffered from shaken-baby syndrome after sustaining injuries so severe that they had to have been inflicted by an adult.
Fero, who was taking care of Brynn at the time, blamed the girl’s then 4 1/2 -year-old brother for the injuries.
According to a Facebook page for Brynn, the girl, who’s now about 15 years old, sustained paralysis of her right side and vision loss because of her injuries. She’s also suffered from seizures over the years.
The now 37-year-old Fero filed the personal restraint petition while still incarcerated in May 2014, arguing new medical evidence exists that recognizes children may remain lucid up to three days after sustaining a head injury.
During her trial, the evidence that, in part, linked Fero to Brynn’s injuries was that Brynn had fallen unconscious while in Fero’s care as a result of brain bruising or bleeding and swelling, as well as retina bruising or bleeding. Doctors testified that children who suffer from those types of injuries become unconscious almost immediately. They also testified that those head injuries can only be caused by car accidents, long falls or abuse by an adult, according to the petition.
On appeal, Fero presented declarations from two doctors who specialize in pediatric head trauma. Both doctors concluded it’s impossible to determine whether Brynn’s injuries were sustained while in Fero’s care, primarily based on the medical community’s changed understanding of shaken-baby syndrome, court records say.
The appeals court agreed that Fero presented sufficient facts to warrant a retrial, because with the new evidence, it’s possible the outcome of her trial would have been different.
Former Superior Court Judge Roger Bennett had sentenced Fero to 15 years in prison — five years more than the maximum allowed under the standard sentencing range — because of the victim’s age and because Fero violated a position of trust.
However, the sentence was altered following two court rulings.
The U.S. Supreme Court in 2004 said a jury, not a judge, must decide if special circumstances warrant a longer-than-normal sentence. As a result, the state appellate court voided Fero’s sentence and ordered a jury look at exceptional circumstances.
Then, in 2005, the Washington Supreme Court ruled that exceptional circumstances must be introduced at trial, not after the verdict. Because Fero’s verdict was upheld on appeal, there could be no new trial, meaning no aggravating circumstances could be introduced.
Instead, Bennett resentenced Fero to the 10-year maximum allowed under the standard sentencing range.
She was released from prison on July 30, 2014, but remains under post-release restrictions, according to court records.
In addition to receiving a new trial, Fero will be relieved from her post-conviction restrictions, the appeals court ruled.
“Our client is a truly wonderful person, and it feels great to get the result we feel she deserves,” said J. Christopher Baird of Perkins Coie LLP in Seattle.
Baird, along with Margaret Hupp of Perkins Coie LLP and M. Fernanda Torres, a staff attorney with the University of Washington School of Law, represented Fero on her personal restraint petition.
The state could ask the state Supreme Court to review the appeals court decision. Assuming it’s not altered by either the appeals court or the state Supreme Court, Fero’s conviction will be vacated, Baird said.
It’s unlikely if she’s tried and convicted again that she would spend any more time in prison.