‘My worst fear’: Defense attorney says Marian Fraser did not get fair trial; predicts successful appeal, another retrial

Attorney hopes change of venue will be granted for hypothetical retrial
Published: Mar. 13, 2023 at 7:26 PM CDT
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WACO, Texas (KWTX) - Two different juries eight years apart, but for former Waco home day care owner Marian Fraser, the result was the same.

Fraser, 59, was convicted of murder Friday and sentenced to 50 years in prison Monday in the March 2013 death of 4-month-old Clara Felton, who died from an overdose of an antihistamine that prosecutors say Fraser gave her and more than a dozen children in her care so the babies would sleep for hours and conform to her regimented schedule.

The child was the daughter of Perry and Loren Felton, and the granddaughter of McLennan County Judge Scott Felton and his wife, Mary Ann.

Fraser, who owned and operated Spoiled Rotten day care at her home on Hilltop Drive for 24 years, was sentenced to 50 years in prison after a 19th State District Court jury convicted her of murder after her first trial in 2015. That conviction was overturned on appeal and Fraser was awarded a new trial after spending almost three years in prison.

Fraser, who did not testify during the two-week trial, will be given credit for the time she served in prison before her conviction was overturned. She must be given credit for serving at least 25 years in prison before she can seek parole.


She showed no emotion at the jury’s punishment verdict and sat at the counsel table conferring with her attorneys, Christy Jack and Lettie Martinez, for about 20 minutes after court recessed before deputies led her away to jail.

Clara’s father, Perry Felton, said he and other parents who loved and trusted Fraser felt an overwhelming sense of betrayal because of Fraser’s actions.

“I want to thank the jurors and the prosecution and all the witnesses who came forward,” Perry Felton said. “On behalf of my family and Loren, we want to give our appreciation for all those people who were involved that got us to this point. Fifty years is what she got the first time, and I think the jury saw the person she was and punished her accordingly. I think if she would have confessed 10 years ago, she would have been out by now and we wouldn’t have had to go through 10 years of agony and pain and not have to go through two trials.

“I think a lot of mercy would have been shown toward her and we would have definitely forgiven her. We are a forgiving people and she would have been dealt a lot more mercy. It’s not only what she did 10 years ago, it’s what she had done since that has caused so much pain,” he said.

Fort Worth attorney Christy Jack, who defended Fraser with Lettie Martinez and Alex Thornton, predicted in a statement that her client will be tried a third time.

“This verdict confirmed my worst fear,” Jack said. “Given the pervasive publicity, there was no way that Marian Fraser was going to get a fair trial in Waco, Texas. Half of the jury knew about the case or knew one of the witnesses. Two of the jurors on the panel were related – one of whom was removed midtrial for jury misconduct. That juror was following a reporter’s live Tweets and sharing the information with other jurors. This was in direct violation of the judge’s order to avoid all media coverage, and the juror invoked his 5th Amendment right against self-incrimination when later questioned by the judge.

“Marian Fraser has stood trial twice for the same charge. Given what I have seen in the past two weeks, I wouldn’t be surprised if we end up here again for Round 3. We have excellent grounds for a successful appeal. Hopefully, the next time a change of venue will be granted, and the trial will be moved out of McLennan County,” Jack said.

Judge David Hodges denied a defense motion to move the trial after a jury was selected to hear the case.

At Fraser’s first trial, prosecutors introduced evidence that a dozen or more parents whose children attended Spoiled Rotten had their kids’ hair follicles tested for the presence of diphenhydramine, an antihistamine present in Benadryl and other over-the-counter medications. Those positive findings were ruled inadmissible at Fraser’s second trial because the lab at which the testing was done has since been decertified and its owner discredited for findings in unrelated cases.

Scott Felton, who shares the same birthday with Clara, thanked the jury and prosecutors Tara Avants and Will Hix in a statement after the trial ended.

“For the last 10 years our thoughts and prayers have been with (Clara’s parents) and Clara’s two sisters and brothers,” Scott Felton said, noting Clara’s sister, Pippa, was born after she died. “Clara would be 11 years old this October. Being grandparents and step grandparents of eight wonderful kids, we know the love and joy we were deprived of by the loss of Clara at such an early age.

“This case was expertly presented by the state to a very attentive and dedicated jury. We appreciate their service. We are glad we can now finish the closure process during this awful time in our lives. We thank God for giving us the extra strength that was given to us,” Felton said.

Retired Waco police Detective Mike Alston, who investigated Clara’s death, said the case, especially with so many children involved, was among the most complex he has investigated in his 34 years with the department.

“I am happy with it and I’m glad that Marian has been convicted and finally justice can prevail,” Alston said.

Avants and Hix asked the jury for a life prison term. When asked his thoughts on the punishment, Alston said, “It’s enough.”

McLennan County District Attorney Josh Tetens praised the efforts of Avants and Hix and said he thinks “the jury absolutely got it  right.”

Avants said the parents of the children felt the “ultimate sense of betrayal” by Fraser, who was entrusted to care for their children and then gave the kids medicine to make them sleep without parental consent.

In a victim-impact statement, Jennifer Felton, who is married to Perry Felton’s cousin, said she thinks Clara was an angel sent down to put an end to Fraser’s dangerous habit of drugging children in her care and to save other children from the same fate.

She sent her children to Spoiled Rotten, too, and recommended it to Perry and Loren Felton for Clara’s care. She said she has had to live with that guilt for years. She said she has never felt such betrayal from anyone and never felt so naïve for placing her trust in Fraser.

Sheridan Sibley, whose children also were cared for by Fraser, told her to serve her sentence with dignity and to ask God for forgiveness. She said Fraser should be ashamed for telling so many lies and for betraying the trust of so many who loved and supported her.

In defense punishment phase testimony, Jack and Martinez called Fraser’s daughter, who is 17 weeks’ pregnant with a son; Fraser’s husband, Gary; her 85-year-old mother, Mina Bergman; and her older brother, James Bergman. They also called longtime friends of Fraser’s, who all testified about what a caring, loving person Fraser is and how she helped them through some of the darkest periods of their lives.

They all said they respect the jury’s decision to convict Fraser, but added they don’t think she is guilty.