PORTSMOUTH, Va. (WAVY) — It turns out the unattended children injured in a fire at their Portsmouth daycare will not get their day in court.

“It makes me sick to say it,” said Portsmouth Circuit Court Judge Brenda Spry before announcing the 19 charges against Dewanna Seward would be dismissed with prejudice Tuesday morning.

That means, according to the Code of Virginia, that further prosecution is barred.

The trial began on August 24, though the normal order was derailed shortly after it started. Seward’s attorney, Michael Massey, objected to testimony by the commonwealth’s witnesses because the prosecution had neglected to file a witness list.

The proceedings that day ended not long after, with the commonwealth’s attorney having requested that the charges be dropped. The only real question up for debate in Tuesday’s hearing was whether the case would be dismissed with or without prejudice.

In court Tuesday, both Massie and Spry referred to dismissal with prejudice as “the nuclear option.”

Spry blasted the Portsmouth Commonwealth’s Attorney’s Office for making errors or failing to follow procedure during the discovery process in multiple recent cases, something she had put them on notice of in the past.

“I will say in this court, within a month, we’ve had four or five cases that have dealt with this,” she said.

Spry said that she did not believe the office was acting maliciously or with ill will, but went on to describe their actions in this case as gross negligence.

She also addressed the fact that the prosecution produced 7,000 pages of documents for the defense to review a week before the trial, calling it inappropriate.

Massie argued that it would’ve been unfair to his client if a mistrial had been declared or if the charges were to be dropped and brought back up later, calling it a “do-over” for a commonwealth’s attorney’s office that had 18 months to prepare.

He explained how he would normally use a witness list to look into the backgrounds of the potential witnesses, but was unable to because it was never delivered to him — as well as the fact that many more people had been subpoenaed to appear than were named in the incomplete document that was produced.

“All of us who practice law make mistakes from time to time, but you have to own it,” Massie said.

The prosecutor acknowledged that his office had not met the burden of care when producing the witness list.

Judge Spry took time to explain the arguments and her course of thinking in making the decision. She said she hadn’t slept the night before and probably wouldn’t the next night.

“I hate this case, I hate the facts of this case,” she said, before ruling.