August 12, 2013 10:45:03 AM
District Attorney Forrest Allgood will not pursue felony charges against a Starkville daycare worker who admitted to giving two children a powerful muscle relaxer that sent them to the emergency room almost a year ago, The Dispatch has learned.
Allgood did not respond to calls, but according to assistant district attorney Lindsay Clemons, who helped with research on the case, the district attorney's office cannot pursue felony charges against Diana Covin, 52, because the evidence from the medical records fails to prove serious bodily injury, which was required under Mississippi Code Section 97-5-39.
"The problem is with the way the statute was drafted," Clemons said. "You have to have the injury, not just the potential of injury."
Clemons admitted the law was poorly written and noted that on July 1, the statute was changed with the passage of House Bill 1259, also known as the Lonnie Smith Act.
"They did a total overhaul. Now you don't have to have serious bodily injury, just the potential," Clemons said. "In this case, the poisoning would be enough."
The change won't apply to Covin, however. She cannot be tried under the new statute, Clemons said.
"I have children, I understand the feeling," Clemons said. "But we are restricted to that black letter of law."
'Gasping for breath'
Brad Fuller was one of the parents whose child was given the muscle relaxer. He recalls the events of May 17, 2012, with great clarity.
When Fuller's mother called him that day to say his daughter was acting sluggish, he first thought she was simply overreacting.
According to her, four-month-old Hallie Fuller had been acting extremely sluggish since being picked up from daycare at First Baptist Church in Starkville around 4:30 that afternoon.
"She kept calling me back periodically," Fuller said. "But I kept thinking she must just be overly tired, and I may not know much, but I know you don't want to just wake a 4-month-old up for nothing."
But Fuller came home a little early that day anyway to check on his daughter. When he approached her crib, Fuller noticed a hiccup-like sound coming from her tiny frame.
"She was gasping for breath," he said.
Something wasn't right.
The Fuller's took Hallie to the Oktibbeha County Regional Medical Center's emergency room.
That's where things began to add up.
When he met with the ER doctors, Fuller was asked if he knew the other family who had also brought their infant to the ER that day.
It was Keith and Keisha Walters, who had taken their 7-month-old son, Jacob, to the ER with the same symptom the Fullers had reported. The link was obvious -- both children had been at First Baptist Church of Starkville's Creative Learning Center daycare earlier that day.
"That's when we first called Diana," Fuller said.
Covin, who had worked at the daycare for nine years, told the parents she dropped some pills and that, perhaps, the kids had picked them up, because she never found them.
"At that point, I knew in my head that my daughter couldn't even grab a pacifier and put it in her mouth, much less a small pill," Fuller said. "I knew these kids didn't pick up those pills, but I also knew we couldn't prove it."
The children recovered after a night's stay at OCH, and local law enforcement began an investigation.
Covin was arrested by the Starkville Police Department on June 6, 2012. During questioning, authorities say she admitted to giving the children Tizanidine, a powerful muscle relaxer.
The U.S. National Library of Medicine states that Tizanidine is "used to relieve the spasms and increased muscle tone caused by multiple sclerosis, stroke, or brain or spinal injury. Tizanidine is in a class of medications called skeletal muscle relaxants. It works by slowing action in the brain and nervous system to allow the muscles to relax."
The May 2012 affidavits state Covin put portions of the drug directly into the children's mouths "for the express purpose of keeping (them) quiet."
With a confession, both the families of the victims as well as law enforcement thought they had a slam dunk case for felonious child abuse.
The evidence was passed on to Allgood's office for prosecution. More than a year later, Covin has yet to be indicted.
"(Allgood) told us from the beginning he didn't think there was enough for a felony charge," Fuller said. "He even compared it to a parent giving their child too much Benadryl. It kills me. Why wouldn't you want to even give this a shot at a felony? We would rather have her walk free with a felony charge than get off with a misdemeanor."
Oktibbeha County Sheriff's Department Detective Brett Watson worked the case briefly before handing it over to the SPD.
"It's certainly unfortunate that it couldn't be handled under the law," he said. "If there was a case that was tailor-made for this (new) statute, this would have been it."
Because the possibility for a misdemeanor charge is still on the table, the Starkville Police Department declined to comment.
Fuller praised the SPD's efforts, however, in pursuing the case.
"I can't say enough about the SPD. They worked this as hard as they could," he said. "This definitely isn't the product of a bad investigation."
Not giving up
Fuller said he has done everything he knows to do. He said he has talked to doctors and other attorneys, all of whom said they agree with him that getting a felony conviction with the evidence available wouldn't be that difficult.
"We aren't going to let this die," he said. "It seems everyone but the DA agrees with our thinking. Hopefully, there are some other areas we can pursue."
Child abuse is an exception to the statute of limitations, and ADA Clemons said down the road, if there are injuries, internal or otherwise, that can be traced to the Covin incident, the case could be brought back up.
"We are in the business of prosecuting crimes and no one in this office shies away from that," Clemons said. "To be hamstrung the way we are is probably the most frustrating part of this job."