MOUNT VERNON – St. Clair County Circuit Judge Robert Haida
improperly dismissed a murder indictment in the death of a year old child in
1972, Fifth District appellate judges ruled on May 19.
They reversed an order Haida signed in 2014, finding that
suspect Gary Warwick suffered prejudice in the delay of prosecution.
“A defendant must do more than show that a particular
witness is unavailable and that the witness’s testimony would have helped with
his defense,” Justice Thomas Welch wrote.
“The defendant must establish that the loss of testimony has
meaningfully impaired his ability to defend himself.”
Justices Eugene Schwarm and James Moore concurred.
Grand jurors first indicted Warwick in the death of Joseph
Henry Abernathy III in 1973, on a charge of murder in the first degree.
The child died of liver lacerations.
Warwick lived with Joseph’s mother.
State’s attorney Robert Rice dismissed the indictment in
“The reasons for the dismissal are unclear,” Welch wrote.
“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 some form of eye
disease which rendered him blind and affected his ability to stand trial.”
Current State’s Attorney Brendan Kelly obtained a second
indictment in 2013, and police arrested Warwick at a Texas Roadhouse in
News reports identified him as a college softball coach in
Portage, 62 years old.
CBS in Chicago identified the victim as Joseph Henry
Abernathy III. The network reported that Warwick was married, with two adult
daughters and three grandchildren.
The St. Louis Post-Dispatch identified the mother as Cathy
St. Louis criminal defense lawyer Stephen Welby wrote on his
website that lead investigator Charles Airhart married the grandmother.
CBS in Chicago gave credit to state’s attorney Kelly for
responding to a YouTube campaign, and the Post-Dispatch gave credit to sheriff
Warwick moved to dismiss the indictment as a violation of
His lawyer, James Gomric of Belleville, argued that
witnesses were dead, records were unavailable, and time had distorted memories.
At a hearing, he offered 13 examples of missing records and
Haida granted the motion and wrote, “Delay at any stage of
the process can tend to erode information of evidentiary significance.”
“There can be no doubt that the extreme amount of time that
has passed has substantially affected both sides in the truth seeking process,”
Kelly moved for reconsideration, and Haida denied it.
Kelly appealed and prevailed.
“Actual and substantial prejudice requires actual damage to
a defendant’s ability to obtain a fair trial because of the state’s
unreasonable delay,” Welch wrote.
“The defendant’s obligation to show actual and substantial
prejudice is an exacting one.
“His contentions that witnesses are deceased and records are
unavailable without any specificity as to the information that could be gleaned
from the unavailable documents, the subject matter of the witnesses’ testimony,
the relevance of the lost testimony and evidence, and an explanation as to why
this information could not be obtained from another source are inadequate to
establish actual prejudice.”
He acknowledged a possibility of prejudice but classified
that as presumptive prejudice rather than actual prejudice.
“However, this is not to say that the defendant cannot make
this motion again to allow the trial court to make a determination of whether
actual and substantial prejudice resulted from the improper delay in light of
what manifests during preparation for or in the course of the trial,” Welch