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Judge Waco vacates part of gag order for upcoming retrial of former daycare owner accused of child overdose death

Waco, TexasKWTX)- Judge Waco on Wednesday overturned a far-reaching gag order in the murder of Marian Fraser after KWTX lawyers convinced him that his attempt to limit media coverage of the upcoming retrial was unconstitutional.

Judge David Hodges, citing a “clear and present danger” that pre-trial publicity surrounding the case could adversely affect the jury selection process, filed an order on Monday barring the media from reporting any information related to testimony at the previous trial, the fact of affairs. was canceled and the reason for the appeal.

His order also attempted to prevent the media from reporting any pre-trial rulings made in the case, or the “precise nature of the specific restrictions” set out in his order he filed in the Fraser 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 in the public domain.”

Frazier, 59, is accused of killing and injuring a child in a March 2013 overdose 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 to the child without the knowledge of her parents, Perry and Lauren Felton.

On Friday, Hodges postponed the trial, which was due to begin on Monday, as he was concerned that there would not be enough potential jurors from which to choose a jury.

Also Monday, Hodges set the Fraser retrial jury selection for Feb. 27. jury selection process.

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

Upon receiving the letter, Hodges rescinded the provisions of his order that limited what the media could report on the case.

Fraser’s lawyer Christy Jack of Fort Worth filed a motion to move the trial out of McLennan County, arguing that the publicity of Fraser’s first trial would prevent officials from forming a fair and impartial jury.

Frazier, who remains at large on bail, was found guilty of murder and sentenced to 50 years in prison following a trial in Waco 19th District Court in 2015. Her conviction was overturned on appeal after years of litigation in state appeals courts.

Last week, Hodges held a hearing on the change of venue. However, he did not rule, saying he wanted to wait to see how the jury selection process goes.

Kelly Shannon, chief executive of the Texas Freedom of Information Foundation, said Hodges was right to lift the order restricting press coverage of the case.

“It is good that the judge removed the provision of this ruling, which would have placed preliminary restrictions on the press and would have violated First Amendment rights,” Shannon said. “Journalists have the right – and duty – to report on what is happening in the courthouse in order to inform the public. It is clear that the judge wants to ensure a fair trial and is trying to select a local jury, but trying to limit what the media reports is not the answer.”

Hodges wrote that his previous order was no longer valid after the jury was held accountable. It began both judgments by writing: “In view of the nature of the offenses alleged in the indictment in the above case, and in view of the nature and extent of previous and current daily media coverage of his case, the Court considers that there is a clear and present risk that that pre-trial publicity may infringe on the right of the defendant to a fair trial …”

Hodges, a former Judge of the McLennan County Court, presides over the county’s Specialized Mental Health 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.

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