Freed by SC Supreme Court after 6 years in jail, mother sues prosecutor

rlurye@islandpacket.comJanuary 9, 2014 

gavel

— A woman claims she was maliciously prosecuted by a Beaufort County Sheriff’s Office investigator and former deputy solicitor after the 2006 death of her toddler, according to federal court records.

Paris Avery, formerly of Beaufort, filed the lawsuit Monday, about seven months after the S.C. Supreme Court overturned her 2008 conviction for homicide by child neglect. Her attorney, Elizabeth Franklin-Best, argues that former assistant solicitor Angela McCall-Tanner was “malicious, deceptive, and reckless” in testifying against and prosecuting Avery in the August 2006 death of her 15-month-old son.

McCall-Tanner and two other defendants — lead investigator Christine Wilson and former Beaufort County Coroner Curt Copeland, who died in 2010 — also erred in failing to report the death to the S.C. State Law Enforcement Division, which could have conducted its own investigation into the child’s death, the lawsuit states.

In May 2008, Avery was sentenced to 35 years in prison after a jury found her guilty of giving her son, Ra’Saan, too much of a prescription antihistamine used to relieve itching associated with eczema.

In June 2013, after Avery had spent about six years in prison and lost custody of her two other children, the S.C. Supreme Court overturned the conviction. The court ruled that prosecutors failed to meet a requirement of the charge: proving that Avery “acted with extreme indifference to human life.”

“We find the State failed to submit evidence indicating Avery was aware of the gravity of the danger in overmedication so as to prove she acted without regard as to whether Victim lived or died,” the court’s opinion read.

Avery’s attorney argues that McCall-Tanner, now chief of staff of the Bluffton Police Department, misstated evidence during the trial “for the sole purpose of inflaming the passions of the jury.”

The assistant solicitor told jury members they could not rule out the possibility Avery meant to kill her son, according to the suit. Avery’s attorney maintains the prosecutor and investigator also downplayed the likelihood she accidentally gave her toddler tablespoons of the medicine rather than teaspoons.

McCall-Tanner and Wilson declined to comment for this article.

After the S.C. Supreme Court overturned the decision in June, Solicitor Duffie Stone said that he felt “very strongly on the expert’s position” that Avery had used the hydroxyzine to chemically restrain her son.

The expert, forensic toxicologist Demetra Garvin, is also named in the suit for offering a “baseless medical opinion well beyond her area of expertise.” Garvin testified that Avery may have administered the drug as a sedative to avoid taking care of her son, and that the child had six times the expected concentration of hydroxyzine in his blood.

The lawsuit states other aspects of her testimony were misleading, in that Garvin referenced the death of another child who died after ingesting too much of the prescription antihistamine, but failed to mention that a report by the American Association of Poison Control Centers characterized the death as a methadone poisoning.

Garvin also told the jury she ruled out the possibility the child’s pharmacist made a mistake, though she did not consult or contact that pharmacist, the suit says.

Attempts to reach Garvin for comment were unsuccessful.

The defendants have 21 days from the time they were notified of the lawsuit to respond.

Attempts to reach Paris Avery through her mother, Patricia, were unsuccessful. Patricia Avery said her daughter has lived in Tacoma, Wash., since her release.

Patricia Avery said she was relieved after the Supreme Court’s decision in June, but anger soon set in.

“They took away almost seven years of her life that cannot be replaced,” she said. “I know that justice will prevail in the end.”

The State is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service