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.

Court

WSSC

Issue

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.

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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