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Retrial of former Waco daycare owner blamed for infant’s Benadryl overdose death postponed

Forensic toxicologist, lab involved in evidence testing under investigation by Texas Forensic Science Commission
Marian Fraser, 58, was sentenced to 50 years in prison in 2015 after her murder conviction in...
Marian Fraser, 58, was sentenced to 50 years in prison in 2015 after her murder conviction in the March 2013 death of 4-month-old Clara Felton. Fraser’s conviction was overturned after years of legal wrangling. She was awarded a new trial and remains free on bond. (Source: Waco Police Department)
Published: May. 5, 2022 at 6:20 PM CDT
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WACO, Texas (KWTX) - The retrial of former Waco day care owner Marian Fraser was postponed this week after court officials learned that a forensic toxicologist and his lab involved in testing hair samples from 14 other children at the day care are under investigation by the Texas Forensic Science Commission.

Fraser, 58, was sentenced to 50 years in prison in 2015 after her murder conviction in the March 2013 death of 4-month-old Clara Felton at Fraser’s Spoiled Rotten Day Care on Hilltop Drive.

The child, the granddaughter of McLennan County Judge Scott Felton, died from a toxic level of diphenhydramine, or Benadryl. Trial testimony showed the baby’s parents, Perry and Laura Felton, did not give the girl Benadryl nor give Fraser permission to do so. Subsequent tests of hair follicles of at least 14 other children in Fraser’s care revealed they also had been given Benadryl without their parents’ knowledge or consent.

Fraser’s 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.

Judge David Hodges postponed Fraser’s scheduled May 23 trial date this week after Fraser’s attorney, Christy Jack, revealed during a teleconference hearing that Ernest Lykissa and his ExperTox lab near Houston are currently under investigation and that Lykissa allowed his state credentials to lapse in February.

Lykissa testified at a hearing in March but did not disclose to Hodges, prosecutors Sydney Tuggle and Will Hix, or to Fraser’s defense team, that he no longer is licensed or that he and his lab are being investigated by the Texas Forensic Science Commission.

While the parties agreed to postpone Fraser’s trial until after the investigation is done, the fallout potentially could significantly weaken the state’s case against Fraser.

“Bad science makes for bad evidence,” Jack said. “If scientists and the way they analyze evidence cannot be trusted, then the results themselves cannot be trusted. The case was overturned because it was flawed, and I think what we will see is that much of the evidence that the jury relied upon was also flawed... If you can’t trust the scientists,  you can’t trust the results. We anticipate a whole different trial with a very different outcome.”

Fraser, who operated the day care in her home for 25 years, testified at her trial seven years ago she never gave Benadryl to the children in her care without their parents’ knowledge.

After Clara Felton’s death, other parents independently went to Lykissa’s lab in Deer Park to have hair follicles from their children tested for Benadryl. Many of the results came back positive and that evidence was presented at Fraser’s trial.

If that evidence is tainted by the investigation and Lykissa is no longer considered an expert witness because he isn’t certified, it is possible the evidence about the other children’s test might not be available to state prosecutors at Fraser’s retrial.

Tuggle said the recent developments and the fact that Lykissa did not disclose he was under investigation to the parties in the case are “disturbing and troubling.”

“It is premature to say all that other evidence is out,” Tuggle said Thursday. “Both the state and the defense know it is important to know the results before going to trial. We want to make sure that this is done once and for all.”

Tuggle said she and Hix are “frustrated and disappointed”  that the case cannot be tried this month.

“We look forward to getting a resolution for the Feltons and all the other families involved,” Tuggle said.

A spokeswoman for ExperTox declined comment Thursday on Lykissa’s behalf.

Jack filed a motion in March requiring Lykissa to appear at a show-cause hearing to explain to the judge why he had ignored Jack’s subpoena for the lab’s records involving the testing of the children and why he should not be held in contempt of court.

Lykissa, who testified at Fraser’s first trial, initially told prosecutors and Jack that he had produced all the records he had. However, when he appeared for the hearing in March, he said he found about 500 pages of underlying data for the tests that he said his staff found on an older server in storage. He also said that his lab either destroyed the hair follicle samples after six months or consumed them all during testing, thwarting efforts to have them tested again by another lab.

“The first question that came to mind when Dr. Lykissa was not responding to my subpoena is what are they hiding?” Jack said.

Hodges has set a hearing for May 23 to discuss the state investigation against Lykissa and the status of his license.

Robert Smith, a staff attorney for the Texas Forensic Science Commission, said he was limited in what he could discuss about the complaint against Lykissa because it is an ongoing investigation. He said the commission discussed the case at a Jan. 29, 2021, meeting.

The complaint against Lykissa and his lab came from the head of the conviction integrity unit of the Philadelphia District Attorney’s Office. Jack said she has since learned that other jurisdictions are questioning the results and methodology used at ExperTox, placing other convictions in possible jeopardy.

“(Fraser) is ready to be on the other side of this case,” Jack said. “She is ready for the truth to come out and I think we are one step closer.”

Clara Felton’s body was taken to the Southwestern Institute of Forensic Sciences in Dallas. All tests pertaining to her death were done there, so the state’s case-in-chief relating to the toddler’s death remains intact, Tuggle said. It’s the introduction of the extraneous offenses regarding the other children that remains in limbo, officials said.

“I still feel confident in the strength of the evidence regarding the murder of Clara Felton,” Tuggle said Thursday.

Children and parents affectionately called Fraser “Mimi,” according to trial testimony. However, privately, some called her the “Nap Nazi” because of Fraser’s strict policy that parents could not pick up their children during the three-hour afternoon nap period and her proclivity for calling parents to pick up their crying kids who were keeping others awake.

Prosecutors alleged Fraser mixed Benadryl with the children’s formula or juice to make them drowsy and easier to manage.

The Texas Court of Criminal Appeals effectively awarded Fraser a new trial in April 2020 after it declined to consider the state’s appeal for a second time. Fraser’s appeal started in Waco’s 10th court of Appeals but was transferred to the 7th Court of Appeals in Amarillo for docket equalization.

The Amarillo court reversed the conviction after ruling an “egregious” error by former 19th State District Judge Ralph Strother regarding the court’s definition of “reckless” behavior precluded Fraser from getting a fair trial.

The Amarillo court reversed the murder conviction in 2017 on different grounds, but the Texas Court of Criminal Appeals, after granting a prosecution request to review the opinion, vacated the ruling and sent the case back to the 7th Court. After the Amarillo court reversed the case for a second time, Fraser won a new trial when the Court of Criminal Appeals declined to consider the case again.

Hodges was tapped to preside over the case after 19th State District Judge Thomas West, who succeeded the retired Strother, recused himself because he is a former law associate of Fraser’s former trial attorney, Gerald Villarrial.

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