PORTSMOUTH — A judge on Tuesday threw out all charges against a Portsmouth home day care operator accused of causing several children to be injured in a fire after determining prosecutors failed to properly turn over information to the defense.
Circuit Court Judge Brenda Spry announced her decision after hearing arguments from the Portsmouth Commonwealth’s Attorney’s Office and defense attorney Michael Massie, who represents day care owner Dewanna Seward. Prosecutors said afterward they plan to appeal.
Spry ruled all 19 of Seward’s charges — which included multiple counts of child abuse and neglect, child cruelty and unlawful wounding — be dismissed with prejudice, meaning prosecutors can’t refile them later. If Seward, 32, had been convicted of all counts, she could have been sentence to decades in prison. Her trial was supposed to have begun Thursday.
“It makes me sick to my stomach to do it, but this case is dismissed with prejudice,” Spry told the lawyers.
The judge determined that prosecutors had failed to adequately follow discovery rules, which dictate what information both sides of a criminal case must provide to each other and when they must hand it over.
Spry noted Tuesday it was far from the first time she’d admonished members of the Portsmouth Commonwealth’s Attorney’s Office about not properly following discovery rules. She said she’d had four or five criminal cases in the last month alone in which the issue was raised, including another one on the docket Tuesday.
The main issue in Seward’s case centered on the list of witnesses prosecutors planned to call. But the judge and Massie also expressed concern with the fact that they didn’t hand over more than 7,000 pages of medical records to the defense until just a few days before the trial was set to begin.
Assistant Commonwealth’s Attorney Elke Daniel told the judge last week that she’d hand-delivered the witness list to Massie at a previous hearing, but conceded it was “deficient” and didn’t contain some required information. Massie said he’d never seen it and pointed out that it wasn’t in the court file and there was nothing on the document indicating it had ever been sent.
“Trial preparation is real and there are consequences if you don’t prepare,” Massie told Spry. “There are rules that have to be followed, and basically what they’re asking you to do is to not follow the rules.”
Deputy Commonwealth’s Attorney Chris Warman agreed mistakes made by the prosecutor assigned to the case were serious, but argued that tossing the case aside was a “nuclear option” not warranted under the circumstances.
“I understand the court’s frustration,” Warman told the judge. “But dismissing with prejudice is an extreme remedy in a case like this.”
Parents of the children harmed in the fire declined to comment afterward. But several of them gathered in the courthouse parking lot after last week’s hearing to express their frustration and anger with how it was handled.
Prosecutors said in a statement Tuesday they will continue fighting to get the case to trial.
“The Commonwealth’s Attorney’s Office will exercise all available appellate rights to seek justice for the victims in this matter,” spokeswoman Tamara Shewmake wrote. “To be clear, this office agrees that court rules are not suggestions and takes seriously its discovery obligations and requires strict and documented compliance. As such, any individual non-compliance is addressed internally through the personnel process. This office remains open to immediate feedback from judicial officers should related concerns arise and will act accordingly.”
The fire happened in April 2022 at Seward’s townhouse in the Charlestowne Condominiums complex on Greenwood Drive, where she ran an unlicensed day care.
Seward left the children without an adult while she went to the store, according to her attorney. A fire broke out and seven of the children were injured, three seriously, with most of their injuries being due to smoke inhalation. A neighbor caught five children trapped on the second floor in his arms after they jumped from a window.
After Tuesday’s hearing, Massie grew emotional as he talked about how the case ended. He said he was saddened for the children and their families but believed the judge made the right decision under the law, and out of fairness to his client.
“I was a prosecutor for six years,” Massie said. “When it’s a case that involves children you always want to make sure that you do a really good job. That justice is served. That didn’t happen for them (in this case) and it should have happened for them.”
Jane Harper, [email protected]
