The family of an infant who police say was beaten to death 43 years ago is one step closer to getting what they want — a trial of the man who has been charged and indicted twice.
An Illinois appellate court, in a ruling earlier this month, reinstated murder charges against Gary Warwick in connection with the 1973 death of 1-year-old Joey Abernathy.
“I just want a trial when a jury of his peers hears all the evidence and makes a decision,” said Cathie Altman, Joey’s mother. “Even if they find that he’s not guilty, I can accept that. What I cannot accept is just letting him walk out the door without a trial again.”
Warwick was charged the murder of Joey Abernathy in April 1973, but the case was mysteriously dismissed on Sept. 23, 1974. In a footnote in the Illinois 5th District Appellate Court’s opinion, a reason for the dismissal is finally mentioned.
“Although the state’s motion to dismiss the original indictment did not identify a reason for the dismissal, the state argued that the dismissal occurred because the defendant was suffering from some form of eye disease which rendered him blind and affected his ability to stand trial,” the footnote stated.
For nearly 30 years, that dismissal stood.
But Altman couldn’t forget. In 2013, she called the St. Clair County Sheriff’s Department and asked for a new investigation into Baby Joey’s death. They found part of the file with the mysterious dismissal. And they found Warwick was still alive. Investigators asked Altman if they could have a week.
“I was surprised to find out that he was still alive,” Altman said. “A relative had told me 10 or 15 years after the murder that Warwick had died.”
Warwick was living in Indiana and coaching girls softball.
“That just made me physically sick,” Altman said.
Beth Stauffer, Baby Joey’s sister, agreed. A trial would bring closure, Stauffer and Altman said. So, they encouraged investigators to work the case.
A new charge was filed on Sept. 13, 2013, but St. Clair County Circuit Judge Robert Haida dismissed the case, stating too much time had passed between the death and the new charge, and it prejudiced the defense.
The lead investigator was dead. Baby Joey’s doctor was dead. The forensic pathologist who conducted Baby Joey’s autopsy was dead. And time had passed. Records were lost. Memories faded.
“Memories were gone and those recollections that remain were distorted due to passage of time,” wrote Jim Gomric, Warwick’s attorney.
Gomric also argued that Warwick hadn’t confessed, and there were likely no eyewitnesses to the murder.
Prosecutors argued that Warwick had to prove that the delay between the death and arrest or the charge caused substantial prejudice to his right to a fair trial, then establish the delay was an intentional device used by the state to gain a tactical advantage.
The 5th District Appellate Court Justices Thomas J. Welch, S. Gene Schwarm and James R. Moore, who sit in Mount Vernon, found there was no intent.
“In making this decision, we acknowledge that there is a real possibility of prejudice with such an extended delay. However this is presumptive prejudice, not actual prejudice,” Welch wrote in the opinion reversing Haida’s dismissal of the case.
Warwick has 30 days to file an appeal to the Illinois Supreme Court.
Gomric declined to comment on whether such an appeal would be filed.
Altman expressed her gratitude to Illinois Appellate Prosecutor Patrick Daly, who argued the case. More than two years after the case was dismissed the second time, Altman said, “The wheels of justice turn slowly.”
Altman and Stauffer compared the case to a roller coaster.
“I’ve gotten to where I have to make myself not think about it,” Stauffer said. “I can’t allow myself to dwell on it or I will go crazy.”
The charges allege that the baby died of injuries suffered in a blow to his abdomen.