The retrial of former Waco day care owner Marian Fraser will not be a carbon copy of the first trial five years ago because it will feature a different judge, different prosecutors and a different defense team.
Since the March 2013 death of 4-month-old Clara Felton at Fraser’s Spoiled Rotten Day Care, Fraser’s criminal case has bounced between two district attorney’s offices, two state district courtrooms and three appellate courts.
Fraser, 57, was sentenced to 50 years in prison in 2015 after her murder conviction in the death of the child, who died in Fraser’s care from a toxic level of diphenhydramine, or Benadryl. Her conviction was overturned after years of legal wrangling on two appellate court levels, and she was awarded a new trial. She remains free on bond.
While no trial date has been set, Judge David Hodges met via teleconference Friday morning with prosecutors Nelson Barnes and Anne Jackson and defense attorneys Christy Jack and Letty Martinez to discuss how the case is proceeding.
Hodges was appointed to hear the case after 19th State District Judge Thomas West recused himself because he used to work with the parent of one of the children from Fraser’s former Hilltop Drive day care and was a former associate of Fraser’s former trial attorney, Gerald Villarrial.
West succeeded Judge Ralph Strother, who presided over Fraser’s first trial and retired in December.
Barnes and Jackson are taking over the prosecution of the case from the Tarrant County District Attorney’s Office, which agreed to handle Fraser’s case after former McLennan County District Attorney Abel Reyna recused his office. Reyna stepped aside because he is friends with the Felton family and one of his office prosecutors at the time had a child at Fraser’s day care.
Fraser has since hired Jack, a Fort Worth attorney and former Tarrant County prosecutor, to represent her.
“It’s a whole new ball game,” Jack said after Friday’s brief status conference.
Jack said Fraser has been “abiding by all the terms and conditions of her bond and trying to reestablish her life and make up for lost time.”
Jack said Fraser is working but declined to say where or describe the type of work she is doing.
Trial testimony showed the baby’s parents, Perry and Laura Felton, did not give the girl Benadryl, and subsequent tests of hair follicles of at least 15 other children in Fraser’s care revealed they also had been given Benadryl without their parents’ knowledge and permission.
Fraser, who operated the day care in her home for 25 years, testified at trial she never gave Benadryl to the children in her care without their parents’ knowledge.
Barnes is District Attorney Barry Johnson’s first assistant and was a longtime prosecutor in Bell County. Jackson worked in the Bell County District Attorney’s Office for seven years before joining Johnson’s staff on Nov. 30. Before that she worked in the Bell County Attorney’s Office for seven years and a year each as a prosecutor in Lubbock and Taylor counties.
“We are all new to this case since we have taken it back from Fort Worth,” Barnes said. “They returned the case to us in the original four boxes, and we are in the process of scanning that to make it all electronic for the discovery process.”
Hodges set another status hearing in the case for Feb. 26.
The Texas Court of Criminal Appeals in April effectively awarded Fraser a new trial after it declined to consider her appeal for a second time. Fraser’s appeal started in Waco’s 10th Court of Appeals but was transferred to Amarillo’s 7th Court of Appeals under a state docket equalization program.
The Amarillo court reversed the conviction, ruling an “egregious” error by Judge Strother involving the definition of “reckless” behavior prevented Fraser from getting a fair trial.
The same appeals court previously reversed the murder conviction in 2017 on different grounds, but the Texas Court of Criminal Appeals, after granting a petition for discretionary review from Tarrant County prosecutors, vacated that ruling and sent the case back to the 7th Court. After the Amarillo court reversed the case for the second time, Fraser won a new trial when the Court of Criminal Appeals declined to consider the case again.