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Judge asked to reconsider dismissal of indictment in child-abuse case

March 29, 2011|By DON AINES | dona@herald-mail.com

HAGERSTOWN — The discovery of 21-year-old investigative documents related to accusations of sexual abuse from 1973 has prompted the State’s Attorney’s Office to ask a Washington County Circuit Court judge to reconsider his decision to dismiss an indictment against a Hagerstown man.

On March 17, Judge W. Kennedy Boone III granted a motion by defense attorney Alan L. Winik to dismiss the indictment against Thomas F. Funk because his rights to due process had been compromised by the lack of documentation pertaining to a 1990 investigation by the Washington County Sheriff’s Office.

Funk, 65, of 12829 Cathedral Drive, was indicted in 2010 on two counts of custodial child abuse, third-degree sex offenses and battery, as well as another child-abuse charge under another section of the statute.

The indictment came after the alleged victim, now 46, made a statement to Maryland State Police last year.

On Tuesday, Assistant State’s Attorney Brett Wilson filed a motion for the court to reconsider the dismissal of the indictment, which stated that “the grandmother of the victim did discover ... copies of the original investigation.”

The prosecution has also corresponded with the original investigating officer from the 1990 case, who indicated the “state advised not to file charges in the case based on the length of time from the occurrence to the report,” Wilson wrote in the motion.

“The only thing filed with the court was, apparently, the expungement petition by the defendant,” Wilson wrote.

The due-process violation cited by Boone was due to his case “having been prejudiced by the destruction of the investigation that occurred in, or around, 1990, which would make it difficult for the defendant to defend himself,” Wilson wrote.

Because the original documents have been recovered and “no evidence having been destroyed,” Wilson asked the court to reconsider its opinion, and order and reinstitute the proceedings against Funk, the motion said.

Details of the 1990 investigation were not included in the motion.

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