Marian Fraser found guilty in 2013 murder

WACO, Texas (KWTX) - UPDATE: Marian Fraser has been found guilty of murder in the March 2013 death of Clara Felton by jurors.

Fraser has been taken into custody per the judge’s orders. The punishment phase of the trial will begin Monday morning.

The ninth day of former Waco day care owner Marian Fraser’s murder retrial bogged down Thursday afternoon after the judge expelled a juror for violating the court’s instructions and his oath as a juror.

Mark McDaniel, an auto mechanic, was removed from Fraser’s jury after other jurors notified the judge about his egregious behavior. Judge David Hodges and McLennan County District Attorney Josh Tetens said Thursday they will discuss the possibility of filing contempt charges against him.

Hodges said he would have held McDaniel in contempt of court Thursday. However, the alleged conduct the other jurors complained of happened during breaks outside of court and not in the judge’s presence, so it will be up to the DA’s office to decide if contempt charges will be pursued, the judge said.

Tetens said his office will consider the testimony elicited in court Thursday about McDaniel’s behavior.

“Our team of prosecutors have worked diligently to ensure this trial has and will continue to be handled professionally,” Tetens said in a statement. “We were all disappointed to learn about juror misconduct today and will be reviewing the evidence presented in court.”

KWTX REPORTER TOMMY WITHERSPOON IS PROVIDING LIVE UPDATES FROM THE COURTHOUSE:

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Prosecutor Tara Avants and Will Hix were prepared to called rebuttal witnesses after the lunch break after Fraser’s defense team called a veteran pediatrician at Cook Children’s Hospital inFort Worth, who said he thinks 4-month-old Clara Felton died from Sudden Infant Death Syndrome, not a fatal overdose of diphenhydramine, an ingredient in Benadryl.

Fraser is charged with murder in the baby’s March 2013 death at Fraser’s Spoiled Rotten day care, which she operated in her Hilltop Drive home for 24 years. Prosecutors allege Fraser mixed Benadryl with the babies’ milk or formula to help maintain her rigid nap schedule and daily routine.

Fraser was sentenced to 50 years in prison after a trial in 2015. However, her conviction was overturned on appeal because of improper jury instructions.

Defense attorneys Christy Jack, Lettie Martinez and Alex Thornton rested their case Thursday after calling Dr. Frank McGehee, of Fort Worth. Unlike her first trial, Fraser did not testify this time.

To ensure that the other jurors on the panel were not unduly affected by McDaniel’s behavior and comments, Hodges called McDaniel, the remaining 11 jurors and the two alternates into court individually , put them under oath and questioned them about their abilities to remain fair and impartial in the wake of what many of them heard from McDaniel.

Hodges appointed attorney John Wiersgalla to represent McDaniel before calling him in to testify. Jurors complained to the judge that McDaniel was following or at least had seen screen shots from KWTX’s live courtroom Twitter feed about the trial and even pointed out the KWTX reporter who is live tweeting the trial.

KWTX got permission from Judge Hodges to tweet live from the courtroom before the trial started.

McDaniel initially denied he had been following the Twitter feed during the trial. However, when asked again, he exercised his 5th Amendment right to remain silent after consulting with Wiersgalla. Hodges removed him from the jury and replaced him with one of the alternates.

The judge then called the other jurors in to testify about what they heard McDaniel say and how it might affect their abilities to remain fair and impartial. Most said they tried to ignore him and warned him on several occasions that he was violating the judge’s orders. McDaniel persisted, prompting the jurors to report him Thursday.

Jurors said McDaniel, during breaks and while seated in the jury room, made inappropriate comments about state witnesses, told them the state was not proving its case and called the defense team “firecrackers,” telling his fellow panel members that if he were in trouble, he would want Jack and Martinez to represent him.

Hodges cracked from the bench that McDaniel soon might get that opportunity.

Hodges had instructed the jury to refrain from reading media accounts about the case. Two jurors heard McDaniel say Thursday morning that a pediatrician was expected to testify for the defense, a fact that only was disclosed in KWTX’s trial coverage Wednesday night. Another juror testified that McDaniel mentioned he knew about Fraser’s first trial, which court officials took great care not to mention and which was only in media accounts.

“He talked so much I tried not to pay any attention to what he was saying,” a male juror told the judge.

After all jurors were interviewed, Jack asked for a mistrial based on the chance that jurors learned about Fraser’s first trial through McDaniel’s misconduct. Hodges denied the motion.

In defense testimony Thursday morning, McGehee, who has been board certified in pediatrics since 1981, told jurors that studies he has read show the level of diphenhydramine in Clara’s system is toxic, but the fatal level is actually five times greater than what her autopsy report revealed.

He said toxic levels of diphenhydramine can be treated with activated charcoal, although he acknowledged that emergency room doctors didn’t know at the time that Clara had been given medication containing diphenhydramine.

He said Clara’s death more likely can be attributed to SIDS.

Attorneys will give jury summations Friday morning. If convicted of murder, Fraser, 59, faces up to life in prison.