Share This Page

Troopers seek dismissal of suit by exonerated man in 'Baby Mary' case

| Thursday, Nov. 7, 2013, 12:01 a.m.

Attorneys for two state troopers want a judge to dismiss a federal lawsuit filed by a Fayette County man who was found not guilty in 2010 of the homicide of a newborn.

Warren Ernest Bircher Sr., 38, was charged with criminal homicide, concealing the death of a child and criminal conspiracy in a case that became known as that of Baby Mary.

Before he was acquitted, Bircher served nearly 19 months in prison.

Baby Mary was the name given to an unidentified infant found dead in a North Union creek on June 4, 2000. When police used DNA in 2008 to identify the mother as Sarah Sue Hawk, she implicated Bircher. She pleaded guilty in 2009 to third-degree homicide.

Hawk, 30, of North Union is serving a 7½- to 15-year sentence.

The lawsuit, filed in U.S. District Court in Pittsburgh, claims Troopers James A. Pierce and Scott Krofchek lacked probable cause because they had no physical evidence to charge Bircher, relied on “clearly unreliable witness statements,” failed to corroborate Hawk's allegations Bircher was involved, and created a “false motive” for Bircher to be involved, “namely that he feared he may be the father of the child.”

In motions filed on Wednesday, Senior Deputy Attorney General Robert Willig said the troopers are entitled to the same prosecutorial and qualified immunity that applies to district attorneys. He noted the troopers filed the charges at the direction of then-District Attorney Nancy Vernon.

“There is no indication that Pierce misled DA Vernon, provided false information, or in some way mischaracterized the evidence arrayed against plaintiff,” Willig wrote.

Willig argued the troopers had “ample” probable cause to file the charges.

“The defendants in good faith believed that the location of the body literally in plaintiff's back yard, along with the fact that Timothy Reckner implicated plaintiff in the murder, coupled with two statements from Baby Mary's mother implicating plaintiff in the murder amounted to probable cause,” Willig wrote. “The defendants did not knowingly violate plaintiff's rights.”

During Bircher's trial, Reckner testified Bircher approached him in 2000 at an outdoor party spot near Jumonville known as the “Moon” and told him of plans to dispose of the infant.

“Plaintiff told Reckner that one of plaintiff's “ho's” was pregnant and that plaintiff was going to “get rid” of the child just like he had rid himself of animals, that is, by putting the child in a bag and drowning it,” Willig wrote. “Then, lo and behold, this is exactly what happened a few months later.”

Bircher lived near the creek where the baby was found, according to Willig's motion.

“The body was anywhere from a ‘stone throw away' from the house to no more than a hundred yards from the residence,” Willig wrote. “In other words, the body was literally in plaintiff's back yard.”

Bircher's attorneys, Joel Sansone, Jonathan Gesk and Mark Gesk, claim Bircher's imprisonment inflicted a loss of privacy, physical and emotional pain and suffering.

In addition to the false accusation and imprisonment, Bircher's reputation was “irreparably damaged,” the attorneys said.

The suit seeks a jury trial and damages in excess of $75,000. The motion to dismiss is pending before U.S. District Judge Cathy Bissoon.

Liz Zemba is a reporter for Trib Total Media. She can be reached at 412-601-2166 or lzemba@tribweb.com.

TribLIVE commenting policy

You are solely responsible for your comments and by using TribLive.com you agree to our Terms of Service.

We moderate comments. Our goal is to provide substantive commentary for a general readership. By screening submissions, we provide a space where readers can share intelligent and informed commentary that enhances the quality of our news and information.

While most comments will be posted if they are on-topic and not abusive, moderating decisions are subjective. We will make them as carefully and consistently as we can. Because of the volume of reader comments, we cannot review individual moderation decisions with readers.

We value thoughtful comments representing a range of views that make their point quickly and politely. We make an effort to protect discussions from repeated comments either by the same reader or different readers

We follow the same standards for taste as the daily newspaper. A few things we won't tolerate: personal attacks, obscenity, vulgarity, profanity (including expletives and letters followed by dashes), commercial promotion, impersonations, incoherence, proselytizing and SHOUTING. Don't include URLs to Web sites.

We do not edit comments. They are either approved or deleted. We reserve the right to edit a comment that is quoted or excerpted in an article. In this case, we may fix spelling and punctuation.

We welcome strong opinions and criticism of our work, but we don't want comments to become bogged down with discussions of our policies and we will moderate accordingly.

We appreciate it when readers and people quoted in articles or blog posts point out errors of fact or emphasis and will investigate all assertions. But these suggestions should be sent via e-mail. To avoid distracting other readers, we won't publish comments that suggest a correction. Instead, corrections will be made in a blog post or in an article.