Madison - St. Clair Record

Friday, August 23, 2019

Fifth District reverses finding for defendant in 44-year-old child murder case: Due process for 62-year-old college coach not violated

By Record News | May 31, 2016

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 1974. 

“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 Portage, Ind. 

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 Abernathy. 

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 Rick Watson. 

Warwick moved to dismiss the indictment as a violation of due process. 

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 dead witnesses. 

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,” he wrote. 

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 wrote.

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