The S.C. Supreme Court on Wednesday overturned the conviction of a Beaufort woman who was sentenced to 35 years in prison for the death of her toddler son more than five years ago.
Paris Avery was accused in 2006 of giving her 15-month-old son, Ra'Saan Avery Young, too much Atarax, an oral prescription antihistamine used to relieve his itching from eczema.
She was found guilty of homicide by child abuse by a Beaufort County jury on May 21, 2008, and was sentenced the next day by Circuit Court Judge Carmen Mullen.
The Supreme Court said prosecutors failed to prove that Avery "acted with extreme indifference to human life" -- a requirement before someone can be found guilty of homicide by child abuse.
"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.
During her trial, forensic toxicologist Dr. Demetra Garvin testified that a blood sample taken from the child during an autopsy showed hydroxyzine levels about six times the expected concentration for someone his age.
Garvin's opinion was that Avery used the medicine to "chemically restrain" her son, as hydroxyzine's side-effect is sedation.
Fourteenth Circuit Solicitor Duffie Stone said Thursday he felt "very strongly on the expert's position" that Avery had used the hydroxyzine to chemically restrain her son. Stone said the Supreme Court's decision is not appealable, but he would contact the state Attorney General's Office to decide whether there is another course of action.
Avery's appellate defender, David Alexander, said the state has 10 days to petition the Supreme Court to reconsider its opinion before it is finalized. Alexander declined to comment further.
Before the start of her sentencing hearing back in 2008, Beaufort County chief public defender Gene Hood moved for a retrial, saying the state failed to prove Avery acted with "extreme indifference to human life."
But Mullen denied the motion.
Attempts Thursday to reach Mullen and Hood for comment were unsuccessful.
"The jury paid close attention to the critical evidence in this case, and that evidence was adequate to convict Ms. Avery," Mullen said before she sentenced Avery. "The fact that there was six times the normal level of hydroxyzine in this child's body would speak to the extreme indifference requirement, and as such, I will let the jury's verdict stand."
Before sentencing, Mullen heard testimony from several people, including Avery, who spoke for the first time in court.
"I maintain my innocence, and I just want the court to know that I love all my kids," Avery said.
Ra'Saan was the youngest of Avery's three sons.
The Supreme Court's decision to overturn the conviction was not unanimous. Justice John Kittredge dissented, saying the motion for retrial was "properly denied."
But the court's majority wrote that the state's sole evidence was the medicine bottle's label that indicated it should be taken by mouth every six hours as needed. The opinion said that "this does not amount to substantial circumstantial evidence from which a jury could conclude Avery acted without care as to whether Victim lived or died."
Elizabeth Franklin-Best, who first handled Avery's defense at the appellate level, said she visited Avery in prison to hand deliver her a copy of the Supreme Court decision. Franklin-Best had filed Avery's first two appeals and asked theSupreme Court to review the case. She subsequently went into private practice, and Alexander took over Avery's defense.
"Paris was very emotional when I saw her, and she kept telling me 'thank you,'" Franklin-Best said. "She always felt like this day would come. She knew she didn't do this, and now she can move on with her life and get back with her children."
Franklin-Best said she had first heard of Avery during her initial trial, which Franklin-Best called "a nightmare for her and her family."
"I had followed the trial as it was happening, and I asked my boss if I could handle her appeal once she was convicted," Franklin-Best said. "To lose a child and then be prosecuted for it is tragic, and for her to be convicted for this was just wrong. Paris got the release she was due, and this case will always hold a special place in my heart."
Avery's mother, Patricia, said she was in "sheer delight" when she saw an email Wednesday morning notifying her of her daughter's successful appeal.
"I'm very thankful for the Supreme Court ruling in my daughter's favor and for righting a wrong," she said. "I'm thankful for her attorneys, too. I don't know where we'd be without them."
Patricia Avery said her daughter would probably be released in about two weeks and would be flying to Tacoma, Wash., to reunite with her family. She said she hasn't seen her daughter in nearly three years, roughly the time when the appeals process began.
"I haven't seen her since I moved back to Tacoma, which is where Paris grew up," she said. "When I moved, the appeal process was still in its infancy stages. We held on to our faith and remained optimistic, and we knew she had a good chance of winning an appeal."
Patricia Avery said her family would start to work to reunite Paris Avery with her children, who are in the care of their father and grandparents in Florida.