In Re Fero, No. 92975-1

WACDL filed an amicus in the WSSC after the state was granted discretionary review following a successful decision on behalf of petitioner in the COA-Division II.




In a personal restraint proceeding where the petitioner submitted extensive factual support for the petition and the State's response did not identify any dispute as to the facts presented in her PRP, did the Court of Appeals properly conclude that the uncontested declarations by petitioner's medical experts presented sufficient new material facts to warrant relief.


Four justices agreed in an opinion labeled as a lead opinion that Ms. Fero's PRP should be dismissed. These justice engaged in a fact driven analysis based on the specific facts of Ms. Fero's case in which they determined that the new evidence presented would probably have not changed the result at trial and was thus not sufficient to get around the one year time bar for the PRP. In an opinion labeled as a dissent 3 justices would remand to the trial court for a reference hearing to determine whether the new evidence was sufficient to get around the time bar. Two justices would decide the issue solely on procedural grounds that the state did not timely file an appeal of the COA decision and as a result would not reach, and did not reach in their opinion, the substantive issues. This fractured opinion provides little clarity, however, Justice Yu, who signed on to the 4 justice lead opinion, also wrote separately and stated "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.” As a result the unanimous COA opinion which vacated Ms. Fero's conviction and remanded for a new trial without the need for a reference hearing in the trial court stands. Ultimately, a victory for Ms. Fero.

WACDL Amicus

Ms. Fero was convicted for assault of a child in the first degree in 2003 based on testimonial evidence of shaken baby syndrome. Ms. Fero filed a PRP in May 2014 contesting the conviction and submitted declarations from medical experts who challenged the testimony from the 2003 trial based on a shift in the medical community's understanding of head trauma in children and that it was now impossible to determine that the injuries to the child occurred in Ms. Fero's care. She requested the COA to vacate her conviction or in the alternative that an evidentiary hearing be ordered to resolve any factual disputes. The State was ordered to respond in which they were directed to identify all material disputed questions of fact. The State made a tactical decision not to challenge the factual allegations of Ms. Fero's experts but rather framed the issue that: the petition was untimely, and failed to establish that there was newly discovered evidence that she exercised due diligence in discovering that would warrant vacation of her conviction. The State never requested an evidentiary hearing, even as an alternative remedy. On a motion for reconsideration and now on review to WSSC the State is now arguing that the COA should not be free to find the expert declarations in support of the PRP credible and grant the petition without a reference hearing.

WACDL Amicus Author

Neil Fox

Appellate Authors

Christopher Baird, Margaret Hupp, Fernanda Torres

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