August 27, 2014

Judge: 'Baby Joey' murder charges can't be refiled

A St. Clair County judge declined to reinstate first-degree murder charges against a 63-year-old man accused of killing a 1-year-old boy more than four decades ago.

Judge Robert Haida threw out the charges in May, and on Wednesday said he saw nothing in additional records filed by the state's attorney's office in a motion to reconsider that would cause him to change his earlier ruling.

St. Clair County State's Attorney Brendan Kelly said later, "We respect the court, but disagree and will appeal," to the 5th District Appellate Court in Mount Vernon.

Gary Warwick originally was charged in 1973 with the beating death of 1-year-old Joseph Abernathy, but the charges were later dismissed. He was the boyfriend of the victim's mother and they lived near Washington Park when the boy died. Warwick was one of the last people to see the baby alive.

An autopsy showed that the boy died from lacerations to his liver caused by blows to his abdomen.

Warwick, who now lives in Indiana, was present for the motions hearing. His attorney, James Gomric of Belleville, told Haida he saw nothing in the state's amended argument to warrant a reversal of the motion to dismiss.

Prosecutors stood by their written argument and did not make an oral presentation Wednesday except to answer procedural questions from Haida.

Haida cautioned that his decision to stick with the dismissal of the murder charge was not based solely on the four decades that have passed since Joey's death, during which time key witnesses have died and medical records are no longer available. Haida had ruled that the bringing of new charges 40 years later constituted a denial of Warwick's rights under the 5th Amendment.

The ruling also stated that the state never produced evidence of why the original murder charge was not adjudicated in court.

Family members of Joseph Abernathy declined to comment.

Contact reporter George Pawlaczyk at and 239-2625.

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