POST: ""Appeals Court Recognizes Change in Medical Thinking," by Sue Luttner, published on her most informative Blog, 'On SBS," on January 7, 2016.
GIST: From The Columbian
coverage: A Washington state appeals court has granted a new trial to Heidi
Fero, a mother and babysitter who was out of prison but
still under court restriction after serving eight years on a child
assault conviction. The
decision,
written for the 3-judge panel by Judge Linda CJ Lee, recognizes a
change in medical thinking about both the timing of infant head
injuries and the reliability of an abuse diagnosis in these
cases. Specifically, the decision endorses this defense argument: [N]ew material facts exist 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.........
According to the case summary, six prosecution
doctors testified at trial that the findings could result only from a
major trauma like a car accident, a long fall, or abuse by an adult, and
that the child would have become unconscious almost immediately after
the assault. Several of the experts seem to have specified that the girl
had been violently shaken. Fero was initially sentenced to 15 years, 5 years above the statutory
limit because of the “special circumstances” of the infant
victim’s extreme vulnerability and Fero’s failure in her “duty to
protect” a child in her care. A
2005 decision
reduced her sentence to 10 years, with the objection that the judge had
not submitted the special circumstances to the jury for adjudication
before applying them. The 2014 petition that reversed Fero’s conviction included affidavits
from two physicians, pediatric neuroradiologist Patrick Barnes, who
testified for the prosecution in the highly publicized 1997 trial of
“Boston nanny”
Louise Woodward, and forensic pathologist Janice Ophoven, who
has testified that shaken baby syndrome is “controversial” and “an ongoing debate in the medical field.” The Fero decision offers this quote from Dr. Barnes, “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.” And on the subject of timing: Given the new medical research on lucid intervals, the
testimony of the State’s experts to the effect that [the girl] 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 [the girl] was injured, and there is a
significant chance that she was injured before she arrived at Ms. Fero’ s
home..........Although the filing came more than a decade after her conviction, the
judges concluded that Fero had exercised “reasonable diligence”
regarding timeliness, considering that she was in prison when the
medical debate was building and needed time after her release to find an
attorney who could research the debate. The decision cited four other
cases in the past few years where the convictions of child care
providers were vacated—
Audrey Edmunds in 2008,
Kathy Henderson in 2012,
Jennifer Del Prete in 2014, and
Rene Bailey in 2014—based on the argument that a change in medical thinking over the past few years constituted “newly discovered evidence.” This approach has been effective in righting past wrongs, but
ironically, it will be less persuasive against recent convictions (like
those of
Cammie Kelly,
Michelle Heale, and
Joshua Burns, for example), since the debate has now been raging for a decade or more. With the decision, the court released Fero from court supervision while she awaits the state’s response.
The entire post can be found at:
http://onsbs.com/2016/01/07/appeals-court-recognizes-change-in-medical-thinking/
PUBLISHER'S NOTE:
Dear Reader. Keep your eye on the Charles Smith Blog. We are following this case.
I
have added a search box for content in this blog which now encompasses
several thousand posts. The search box is located near the bottom of
the screen just above the list of links. I am confident that this
powerful search tool provided by "Blogger" will help our readers and
myself get more out of the site.
The
Toronto Star, my previous employer for more than twenty incredible
years, has put considerable effort into exposing the harm caused by Dr.
Charles Smith and his protectors - and into pushing for reform of
Ontario's forensic pediatric pathology system. The Star has a "topic"
section which focuses on recent stories related to Dr. Charles Smith. It
can be found at:
http://www.thestar.com/topic/charlessmith
Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:
http://smithforensic.blogspot.ca/2013/12/the-charles-smith-award-presented-to_28.html
Harold Levy: Publisher; The Charles Smith Blog.
