Troopers seek dismissal of suit by exonerated man in 'Baby Mary' case
By Liz Zemba
Published: 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 firstname.lastname@example.org.
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