Was due-process right violated? Defendant in 'Baby Joey' murder case seeks ruling

News-DemocratApril 4, 2014 

— A first-degree murder charge against a 62-year-old Indiana man accused of killing a baby boy 42 years ago in St. Clair County may hinge on a motion to dismiss now before a judge.

Gary Warwick of Portage, Ind., was indicted Sept. 12 for the murder of 1-year-old Joseph H. "Baby Joey" Abernathy III, who died Dec. 30, 1972, at his home near Washington Park of lacerations to the liver caused by a blow or blows to the abdomen.

Warwick pleaded not guilty and remains free on bond. His attorney, James A. Gomric, of Belleville, filed a motion to dismiss Monday with Circuit Judge Robert Haida.

It contends that Warwick's constitutional right to a speedy trial and his right to due process were violated, in part by the decades of delay between the child's death and his client's indictment.

Gomric's motion states that recollections have faded and potential witnesses have died, including the lead detective, the boy's maternal grandmother who discovered him unresponsive in a crib and the pathologist who conducted the autopsy.

"An array of essential records have been rendered unavailable," Gomric wrote.

The motion also notes that a murder charge and indictment filed in 1973 were dismissed by a county prosecutor in 1974. A Belleville News-Democrat review of those records last year did not turn up a specific reason why Warwick's murder charge was dismissed.

"Allowance of a trial 39 years after dismissal of the original charge would produce a patently unreliable legal result," the defense motion stated.

Haida ruled on one portion of the motion, denying a dismissal of charges based on a constitutional violation of Warwick's right to a speedy trial.

However, Haida has yet to rule on the second argument, Gomric's contention that his client's right to due process was violated.

"I find that the defendant has met his burden of showing actual and substantial prejudice," Haida wrote in an order setting a hearing on due process question for April 14.

At that time the state is required to show the "reasonableness" of the delay, Haida's order stated.

Assistant State's Attorney James G. Piper Jr. filed a 14-page motion in opposition to the motion to dismiss, presenting arguments for both issues.

On the remaining constitutional question -- was Warwick's right to due process compromised? -- Piper's motion contends that at the time of the first prosecution it was the defendant who sought what became a 513-day delay.

"It appears from the record that the defendant did not want a speedy trial," Piper's motion stated.

The prosecution's motion contends that as for the current charge, the case against Warwick has not been illegally delayed. It stated that the autopsy results remain available and can be interpreted by another pathologist, and that some witnesses including Baby Joey's mother, then Warwick's girlfriend, are ready for trial.

In conclusion, Piper stated that Warwick also failed to prove a legal requirement that the 39-year delay was "an intentional device by the People to gain a tactical advantage over the defendant."

The case was revived after investigators for then newly elected St. Clair County Sheriff Rick Watson reviewed old records and presented the matter to State's Attorney Brendan Kelly.

Contact reporter George Pawlaczyk at gpawlaczyk@bnd.com and 239-2625.

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