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Indictment dismissed against man accused of sex abuse 37 years ago

Thomas Franklin Funk faced two counts each of custodial child abuse, third-degree sexual offenses and battery and one count of child abuse

March 17, 2011|By DON AINES | dona@herald-mail.com

Washington County Circuit Court Judge W. Kennedy Boone III Thursday dismissed the indictment against a Hagerstown man accused of sexually abused a child 37 years ago, ruling that the long delay violated the man's rights to due process.

Thomas Franklin Funk, 65, of 12829 Cathedral Drive, was indicted last year by a grand jury on two counts each of custodial child abuse, third-degree sexual offenses and battery and one count of child abuse under another section of the statute.

The victim made similar allegations against Funk to the Washington County Sheriff's Office in 1990, and Funk appeared in District Court, where the state decided not to prosecute the case.

The case was the subject of a hearing before Boone in February in which Funk's attorney, Alan L. Winik, argued the charges should be dismissed based on a violation of his speedy trial rights because the underlying allegations date to 1973. Winik also argued that the delay prejudiced Funk's case and violated his due process rights.

Winik presented a letter from the attorney who represented Funk in 1990, which stated the charges against Funk were later expunged.

Assistant State's Attorney Brett Wilson argued at the hearing that there is no statute of limitations on child sexual abuse, the specific charges filed in 1990 were unknown due to the expungement and dismissal of earlier charges did not bar the filing of new ones.

Maryland State Police Cpl. James Updegraff testified at the February hearing that the victim, now 46, went to the barrack in March 2010 and made a statement about the allegations.

In his ruling, Boone wrote that dismissing charges is not the same as an acquittal, but the prosecution never challenged the expungement of the 1990 charges and did not seek to recharge Funk between the dismissal and the victim's 2010 statement to state police.

Because the 1990 charges were dismissed in good faith, the state could have refiled at a later date and not violated Funk's right to a speedy trial, Boone wrote. However, there was no evidence that the state continued its investigation of the allegations after 1990, he wrote.

"The lapse in time will surely cause memory gaps in witnesses, victim and Defendant," Boone wrote. "Indeed, the prosecution witnesses may face difficulty recalling all the events, and it may be hard for the Defense to acquire the evidence necessary to defend and prove its case, as there was no preservation of records due to expungement."

The 20-year delay between charges for offenses allegedly committed 37 years ago "constitutes sufficient and substantial violation of Defendant's due process trial preparation and trial rights," Boone wrote.

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