Correction to This Article
The article about Marilyn R. Fischl's conviction on felony child-neglect charges for the heroin overdose of her 5-month-old son incorrectly said that Fischl would serve no more than 15 days of her 30-day sentence because sentences in the Fairfax County jail are halved in light of concerns about crowding and staffing. Misdemeanor sentences are halved in Virginia, but people convicted of felonies must serve 87 percent of their sentences.

Virginia woman convicted of neglect for son's drug overdose

Accused mom Marilyn R. Fischl, left, and babysitters Erin Flynn and Patrick Hall.
Accused mom Marilyn R. Fischl, left, and babysitters Erin Flynn and Patrick Hall. (Courtesy of Fairfax County Sheriff's Office)
By Tom Jackman
Washington Post Staff Writer
Thursday, April 29, 2010

The mother of a 5-month-old Fairfax County boy, who overdosed on heroin last year, was convicted Wednesday of felony child neglect, and the jury sentenced her to 30 days in jail.

Prisoners sentenced to the Fairfax jail serve only half their time because of overcrowding and staffing issues, so Marilyn R. Fischl, 36, will spend a maximum of 15 days behind bars. Fairfax Circuit Court Judge David S. Schell ordered Fischl be taken into custody and set her sentencing hearing for May 9; by then, she will have served nine days. Virginia judges may impose or reduce, but not increase, a jury's sentence.

The jurors -- 10 women and two men -- declined to comment after the trial. Fischl's sentence could have been anywhere from no time to five years in prison.

Fischl was living in a Springfield townhouse, for which she testified she received Section 8 rent assistance, with her three children and her boyfriend, Rafael Preston, when their son overdosed last summer. Fischl said she allowed her longtime friend, Patrick M. Hall, 41, to live in the basement in exchange for babysitting her children, then ages 10, 2 and 5 months.

Also staying in the house was Erin Flynn, 32, who had met Fischl in a drug treatment center in Fairfax City. Flynn said she and Fischl shot and snorted heroin together, including 10 days before the baby's overdose, and that she had seen Fischl provide heroin to Hall at different times.

Flynn testified that she saw Fischl hand Hall a package of heroin July 14. Fischl denied doing this. Fischl then took her 2-year-old to a speech pathology appointment, leaving the 5-month-old with Hall and Flynn.

Flynn said she and Hall each snorted a line of heroin with the baby nearby. Flynn, who has pleaded guilty to felony child abuse, testified that she stepped outside to smoke cigarettes, and that when she returned, the baby had a small piece of paper in his mouth.

"I thought it might have been the piece of paper that Patrick and I had consumed heroin off of," Flynn said.

Flynn said she watched the baby, and he didn't seem to show any ill effects. But when the baby's grandmother arrived to pick up the boy, she noticed that he was groggy. She summoned Fischl, who testified that she thought her son was having a seizure. Fischl took him to Inova HealthPlex at Franconia-Springfield, and he was then taken to Inova Fairfax Hospital, where tests showed that he had ingested heroin. The baby recovered.

Fischl testified that she had not been using heroin at the time. But after Child Protective Services took away her children, she said she had relapsed. When police searched her home in October, they allegedly found heroin and more than 100 hypodermic needles, testified Fairfax County Police Det. Darrin DeCoster at a preliminary hearing in December.

The jury deliberated for more than four hours before finding Fischl guilty. During the sentencing hearing, Fischl took the witness stand, saying she had sought treatment after her arrest in October, and in March she entered the inpatient treatment center at A New Beginning in Chantilly.

Fischl said she had been using heroin for more than 10 years. "It has absolutely ruined my life," she told the jury.

"Consider two things," Assistant Commonwealth's Attorney Camille Turner told the jury. "However long you elect to incarcerate the defendant, you will be protecting her children from the type of environment she created." Turner said the jury's sentence also would send a message to the community that "giving drugs to caretakers is not acceptable."

Defense lawyer Kevin Smith said Fischl had "already lost her children. She's working with social services to get the children back. If social services is willing to work with her to get her children back, then I think Ms. Fischl is worth saving. They think she's worth saving."

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