PORTSMOUTH, Va. (WAVY) – Dismissed, or dismissed with prejudice? That seems to be the only issue left to decide in the case of a woman who allegedly ran an unlicensed childcare facility that caught on fire while she was away.

32-year-old Dewanna Markita Seward faced 19 counts, including child abuse/neglect-serious injury, child cruelty and unlawful wounding. The April 2022 incident related to those charges resulted in seven children going to the hospital, with reports of some jumping from a second-floor window to escape.

The trial began in Portsmouth Circuit Court Thursday morning. After Seward was arraigned on the charges and pleaded not guilty to all of them, her attorney, Michael Massie motioned to separate the witnesses. The judge accepted, sending those waiting to testify out of the courtroom.

Then Massie made an announcement that brought everything to a halt: he said he’d never received a witness list from the prosecution, which is required at least 21 days before the trial begins.

He then explained that to win a case like this, the commonwealth would have to rely on at least two expert witnesses.

“They have not given this case the attention it deserves,” he told the court, before objecting to any witness testimony being presented.

The judge announced a 10-minute recess to investigate the matter.

When the court reconvened, the prosecutor passed a document to the judge and explained that a witness list had been exchanged during a previous continuance hearing, but it was never filed with the court.

Massie said he’d never seen it before, didn’t have a copy and couldn’t locate it in the court filing system.

“It looks like someone started to put together a witness list but did not complete the task,” he remarked.

The judge asked if the prosecution had planned to call any expert witnesses. The prosecutor clarified that they had subpoenaed a fire marshal, but not a medical expert.

After several minutes of further questioning and argument, Massie said he had been aware of the issue for some time and could have brought it up earlier, but he didn’t think the Commonwealth’s Attorney’s Office deserved a continuance.

He hammered the office, stressing the importance of doing one’s due diligence when someone’s liberty is at stake.

The prosecutor reiterated that Massie had received a witness list two weeks prior. The judge asked her if her work was adequate.

“There are some deficiencies with the witness list,” the prosecutor responded.

Massie went on to criticize the Commonwealth’s Attorney’s Office for waiting until the last minute to acquire and share key documents.

“This case is [from] April of last year,” he said. “They submitted the [medical] records request in August of this year. This is not an exercise of due diligence. This is not an exercise in care.”

The judge then reminded the assistant commonwealth’s attorney that her office had been put on notice already for failing to file documents in the past.

“There have been repeated issues with discover,” she said, before ruling on the initial motion to block testimony.

“I don’t think the commonwealth has adequately prepared for this case,” the judge said. “Based upon that, I’m not going to allow witnesses to testify.”

The prosecutor then asked for a mistrial to be declared.

Massie retorted that their office not doing their due diligence wasn’t good cause for a mistrial.

The prosecutor asked the court not to punish the children, referring to the victims of the fire.

The judge denied the request. The prosecutor then asked for the charges to be nolle prossed (effectively, set aside for the time being). The judge also denied that motion.

Finally, the prosecutor requested for the charges to be dismissed.

Massie followed up by requesting for the charges to be dismissed with prejudice, noting that his motion to block the prosecution’s witness testimony took place after the witnesses had been removed.

“I waited for my client to have been arraigned and entered her plea of not guilty in an effort for jeopardy to attach before I made the objection,” he explained outside of the courthouse. “So that was my thought process: to wait so that it could be dismissed with prejudice.”

The judge said she would take the matter under advisement and set a new hearing date for August 29.

“If she dismisses it with prejudice they cannot re-indict; if she dismisses it without prejudice they can re-indict,” Massie explained after the proceedings.

“There are rules that have to be followed by all of the lawyers and they didn’t follow the rules,” he added. “When you don’t follow the rules the court takes sometimes adverse actions against you.”

The Commonwealth’s Attorney Office provided this statement to WAVY:

The Assistant Commonwealth’s Attorney handling this matter stated in court, as an officer of the court, that she provided a witness list to defense counsel in person, by hand in advance of today’s hearing date. This office therefore disagrees with any representations to the contrary.

A mother who wanted to be anonymous and whose children were at Indoor/Outdoor Reach LLC when the fire broke out, tells us they were left unattended when Seward gassed up a bus. Her children jumped to safety and suffered trauma as a result. She says whatever the court decides, her children will get through this.

Check WAVY.com for the latest updates.