Washington Court of Appeals Orders Retrial in ‘Shaken Baby’ Case

Washington Appeals ruling

A longstanding miscarriage of justice in a string of “shaken baby” cases that swept the Nation has been potentially set aright by a decision filed by the Washington State Court of Appeals, Division Two, on January 5.

Tuesday’s opinion ends a long, dark chapter in the life of Heidi Charlene Fero, who was convicted of first degree assault of a child in 2003 for the injuries suffered by Brynn Ackley.

As the Court explains it, the body of evidence linking Fero to Brynn’s injuries was that 1) Brynn had fallen unconscious while under Fero’s care and had presented at the hospital with subdural hemorrhaging (brain bruising or bleeding), cerebral edema (brain swelling), and retinal hemorrhaging (retina bruising or bleeding); and (2) all of the doctors who testified on the topic stated that children suffering those injuries become unconscious almost immediately and those injuries can only be caused by car accidents, long falls, or abuse by an adult.

Fero brought her petition asserting that new material facts existed in the form of “the now generally accepted medical paradigm that recognizes children can remain lucid for up to three days after suffering similar head injuries and those injuries are now known to be caused by much less extreme circumstances.”

In light of the evidence of a profound paradigm shift among the medical community genuinely having occurred, the Court wrote:

We agree that Fero has presented sufficient new material facts to warrant relief because the uncontested declarations of the medical experts she provided establish that the result of her trial would probably be different if the current generally accepted medical evidence was available at the time of her trial in 2003. Accordingly, we grant Fero’s petition and remand for a new trial.


The case began on January 7, 2002, with Heidi Fero baby-sitting two children — 15-month-old Brynn Ackley1 and 4 ½-year-old Kaed Frank — at her home in Clark County, Washington. Her own two children— 1-year-old Deric and 5-year-old Rachel — were also at her home at the time. The Court notes that she had baby-sat Brynn and Kaed on multiple occasions prior to that particular day.

We may never know what truly caused Brynn’s injuries, because the physicians at the time were apparently too concerned with building up the case for the favored hypothesis of the time. As the Court explains, after the medics arrived,

Brynn was transported to Southwest Washington Medical Center. There, Dr. Daniel Gorecki performed a CAT (computerized tomography) scan of Brynn’ s head, chest, and abdominal/pelvic area. The CAT scan of Brynn’ s head showed a subdural hematoma, which is a blood clot on the brain, and a cerebral edema, which is a swelling of the brain. Brynn was then transferred to Legacy Emanuel Hospital where she was placed in the pediatric intensive care unit.

The following morning, Brynn was seen by Dr. Shawn Goodman, a pediatric ophthalmologist at Legacy Emanuel. Dr. Goodman noted that Brynn had retinal hemorrhages in both eyes. Brynn was also seen that day by Dr. Mike Lukschu at Legacy Emanuel, who noted Brynn had a fractured left shinbone.

The State charged Fero with one count of first degree child assault.

Getting a conviction was easy enough. The State presented six doctors during the trial who testified on the nature and cause of Brynn’ s injuries. Those doctors were Dr. Daniel Gorecki, Dr. Shawn Goodman, Dr. Mike Lukschu, Dr. James Ockner, Dr. William Bennett, and Dr. Kent Grewe.

Their testimony is described in detail in the ruling. Suffice it to say here that the sum and substance of it was the child could only have suffered an injury in one way – to have been mercilessly shaken. Fero was found guilty of first degree assault of a child on March 18, 2003.

That’s how quickly it occurred. And, that’s just how quickly it occurred in far-too-many such cases. With this familiar cluster of “markers,” prosecutors had a seemingly air-tight case. The generally accepted paradigm of the era was that only a severely shaken baby could present with such injuries. To the juries that heard these cases, and saw what appeared to be the irrefutable medical evidence, there was no viable option other than to convict.1


In support of her petition, Fero submited the declarations of two doctors specializing in the field of pediatric head trauma: Dr. Patrick Barnes and Dr. Janice Ophoven. Fero asserted that in their declarations, the doctors had established “that there has been a paradigm shift in the medical community’s understanding of head trauma in children and that Dr. Barnes and Dr. Ophoven both conclude that it was impossible to determine that Brynn’s injuries occurred in Fero’s care.”

Dr. Barnes stateed that since Fero’s trial, the understanding of the
radiological findings that had been “associated with non-accidental pediatric head trauma have greatly expanded and now include a variety of accidental and natural causes.”

Contrary to what was previously understood, the research since Fero’s trial has established that children who suffer trauma, non-accidental or accidental, can remain lucid for three days or more after the trauma is inflicted. In support, Dr. Barnes cited articles and associated studies from 1987 to 2012, and stated, “Over the past decade, many doctors — including myself — have changed their testimony and beliefs to bring them into accord with the scientific evidence and standards of evidence-based medicine.”

Dr. Barnes continued on to explain:

Given the new medical research on lucid intervals, the testimony of the State’s experts to the effect that Brynn would have immediately gone unconscious is unsupported by the medical literature. It is impossible to tell from the radiology or otherwise in the medical record when Brynn was injured, and there is a significant chance that she was injured before she arrived at Ms. Fero’s home.

Next to weigh in was Dr. Ophoven – a pediatric forensic pathologist, specializing in “shaken baby syndrome” and “abusive head trauma” cases in which violent shaking is alleged to be the cause of serious injury or death of a child.

Dr. Ophoven stated that in 2003, “many medical professionals believed that if a child presented with a triad of symptoms, including cerebral edema, subdural hematoma and retinal hemorrhages, that was exclusively diagnostic of abuse by violently shaken” and that symptoms of the brain injuries would manifest immediately.

Dr. Ophoven concluded:

Based on the medical records, my review of the literature, and my experience as a pediatric forensic pathologist . . . it is my opinion that much of the medical testimony presented during Ms. Fero’ s 2003 trial is no longer scientifically valid in light of recent advances in the medical community’s understanding of the natural, accidental and non-accidental causes of cerebral edema, subdural hematoma and retinal hemorrhages.


The Court devoted a considerable amount of legal analysis concerning whether all of the factors that needed to be met were met to grant a new trial. In summing up its analysis, the Court ultimately concluded:

In Fero’s case, Dr. Barnes and Dr. Ophoven are new experts, but their opinions establish that the scientific explanations that were offered as evidence against Fero in her trial are no longer generally accepted in the medical community. Moreover, their opinions state that based on the record that existed at Fero’s trial and under the currently accepted paradigm, it is not medically possible to determine that Brynn’s injuries occurred when she was with Fero, nor is it medically possible to determine how Brynn’s injuries were caused. Therefore, we hold that Fero is entitled to relief from her post-conviction restraints, grant Fero’s petition, and remand for a new trial.

Whether the State will take the case to a new trial remains to be seen. I think it far more likely that the prosecutors will save face, and avoid the potential embarrassment of retrying a person believed in the court of public opinion to have been wrongfully convicted from the outset.

1. Many convictions of “satanic ritual abuse” against daycare providers had been won by the same cadre of professionals involved in a number of the shaken baby cases. Equally spectral in nature was the cluster of symptoms provided as evidence to juries during the sexual abuse crusade of the 1980s. Those cases had, at best, what has aptly been described as “spectral evidence.” The shaken baby cases, by contrast, had “hard evidence,” only it was misinterpreted by crusading physicians and sold to the juries as irrefutable by the experts testifying for the prosecution.