Judge dismisses murder charges in decades-old death of 'Baby Joey'

News-DemocratMay 14, 2014 

The case against a former St. Clair County man accused of the beating death of a baby in 1972 was dismissed Wednesday by the presiding judge.

St. Clair County Circuit Judge Robert Haida dismissed the murder case against Gary Warwick, of Portage, Ind. Haida found Warwick's defense was substantially prejudiced by the passage of time.

"My client and I are very pleased with the court's ruling," said James Gomric, Warwick's attorney. Warwick could not be reached for comment.

State's Attorney Brendan Kelly said Wednesday that his office is considering an appeal. He declined further comment.

Warwick was accused of the murder of 1-year-old Joseph H. "Baby Joey" Abernathy, who died Dec. 30, 1972, at his home near Washington Park. The cause of death was lacerations to his liver caused by a blow to the abdomen.

In his order, Haida stated that Warwick's Fifth Amendment right was violated by the delay.

"This conclusion is based upon my finding that the defendant has been substantially prejudiced by the delay balanced with the lack of any explanation by the state at two separate hearings to explain the reason or necessity for such a lengthy delay," the order stated.

Warwick was originally charged with Joey's murder on April 19, 1973, but the case was dismissed on Sept. 23, 1974, on the prosecution's motion. There was no reason for the case dismissal.

The case was resurrected 39 years later when prosecutors filed a criminal complaint against Warwick for first-degree murder.

In those 39 years, Warwick moved to Indiana married, had two daughters, coached youth softball, served as a softball coach at Purdue University North Central and ran a landscaping business. When he was arrested at a steakhouse last year on the new murder charges, Warwick, 63, was a grandfather to three small children.

He was booked into St. Clair County Jail, but posted bond and was released. He's been free on bond while awaiting trial.

Haida stated Warwick was hindered by the delay for the following reasons:

* Witnesses to inconsistent statements by Joey's mother, Cathy Melville, are now deceased and Warwick would be deprived of questioning them during a trial.

* Doctors and nurses who cared for Joey before he died are dead, keeping Warwick from eliciting testimony and evidence that he didn't kill Joey and that he didn't die from violence.

* Family members and others who had contact with Joey before his death are now dead, leaving Warwick without the opportunity to present evidence to prove he didn't kill Joey.

Bill Schroeder, who teaches criminal procedure at Southern Illinois University Carbondale, said the judge correctly took into account the delay, the lack of explanation for the delay, the fact that no new evidence was introduced when the case was re-charged and that the delay hindered the defense's ability to put on a case.

"If the state dismissed the case because they couldn't prove it then and they have no additional evidence, how can they prove it now?" Schroeder said. " ... The troubling part is we don't know the reason it was dismissed then."

In his order dismissing the case, Haida seemed to concur.

"In a criminal justice system that relies on retrospective reconstruction of events, delay at any stage of the process can tend to erode information of evidentiary significance," Haida wrote. "In this case, there can be no doubt that the extreme amount of time that has passed has substantially affected both sides in the truth-seeking process. The fact that state offers no reason or necessity weighs heavily."

Contact reporter Beth Hundsdorfer at bhundsdorfer@bnd.com or 618-239-2570.

Timeline of the Baby Joey case

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