Waco judge vacates portion of gag order for upcoming retrial of ex-daycare owner charged in child’s overdose death

Former Waco daycare owner Marian Bergman Fraser (Source: Waco Police Department)
Published: Jan. 11, 2023 at 4:45 PM CST

WACO, Texas (KWTX) - A Waco judge on Wednesday vacated a far-reaching gag order in the Marian Fraser murder case after KWTX attorneys convinced him that his attempt to restrict media coverage of her upcoming retrial is unconstitutional.

Judge David Hodges, citing a “clear and present danger” that pretrial publicity surrounding the case could adversely affect the jury selection process, filed an order on Monday prohibiting media outlets from reporting any information related to testimony from the previous trial, the fact the case was reversed and the reason for the reversal.

His order also attempted to prohibit the media from reporting any pretrial rulings made in the case or the “exact nature of the specific restrictions” outlined in his order, which he filed in Fraser’s case, making it a public document.

Hodges also ordered attorneys and potential witnesses not to disclose “to any unauthorized person or member of the media any information relating to this case that is not a matter of public record.”

Fraser, 59, is charged with murder and injury to a child in the March 2013 overdose death of Clara Felton, a 4-month-old girl in her care at the former Spoiled Rotten Day Care in Waco. The child died from a toxic amount of diphenhydramine, or Benadryl, which prosecutors allege Fraser gave the child without the knowledge of her parents, Perry and Loren Felton.

On Friday, Hodges postponed the trial, which was supposed to begin on Monday, because he was concerned there would not be enough potential jurors from which to select a jury.

Also on Monday, Hodges set jury selection in Fraser’s retrial to begin Feb. 27. He ordered a panel of 700 potential jurors to report to court on Feb. 24 to fill out questionnaires about their knowledge of the case in an effort to aid attorneys in the jury selection process.

After Hodges issued his order on Monday, KWTX, through its attorneys, asked Hodges to reconsider his ruling in a three-page letter to the court. The attorneys considered his order “a classic prior restraint,” quoting a U.S. Supreme Court case that described prior restraint of the press as “the most serious and the least tolerable infringement on First Amendment rights.”

After receiving the letter, Hodges lifted the provisions in his order that limited what media outlets could report about the case.

Fraser’s attorney, Christy Jack, of Fort Worth, has filed a motion to move the trial out of McLennan County, alleging publicity about Fraser’s first trial will preclude officials from seating a fair and impartial jury.

Fraser, who remains free on bond, was convicted of murder and sentenced to 50 years in prison after a trial in Waco’s 19th State District Court in 2015. Her conviction was overturned on appeal after years of legal wrangling in state appellate courts.

Hodges conducted a hearing to consider the change of venue motion last week. However, he did not rule, saying he wanted to wait to see how the jury selection process went.

Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, said Hodges was correct to vacate his order restricting press reports on the case.

“It’s good the judge removed the provision of this order that would have placed a prior restraint on the press and would have infringed on First Amendment rights,” Shannon said. “Journalists have a right - and a duty - to cover what’s going on at the courthouse to keep the public informed. It’s understandable that the judge wants to ensure a fair trial and try to select a local jury, but attempting to restrain what the news media reports is not the answer.”

Hodges wrote that his previous order is no longer effective once a jury is impaneled. He began both orders by writing, “Due to the nature of crimes alleged in the indictment in the above cause, and considering the nature and extent of previous and ongoing daily media coverage of his case, the Court is of the opinion that there is a clear and present danger that pretrial publicity could impinge upon defendant’s right to a fair trial…”

Hodges, a former McLennan County Court-at-Law judge, presides over the county’s mental health specialty court. He was assigned to hear the case after 19th State District Judge Thomas West recused himself because his former law partner, Gerald Villarrial, was Fraser’s former attorney.