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Judge declines to reinstate indictment

April 10, 2011|By DON AINES | dona@herald-mail.com

A Washington County Circuit Court judge has declined to reconsider his decision to dismiss an indictment against a Hagerstown man accused of molesting a child four decades ago.

In March, Judge W. Kennedy Boone III dismissed indictments against Thomas Franklin Funk, 65, of 12829 Cathedral Drive, on charges of child sexual abuse involving a preteen boy in 1973.

Boone ruled Thursday that Funk’s rights to due process had been compromised by the passage of time and a lack of documentation pertaining to a 1990 investigation of the allegations by the Washington County Sheriff’s Office.

The sheriff’s office investigated the allegations then, but Funk had the record expunged. Funk was indicted in 2010 after the alleged victim gave a statement to Maryland State Police.

The State’s Attorney’s Office last week filed a motion asking Boone to reinstate the indictment, noting that copies of documents from the original investigation by the sheriff’s office were found in the possession of the victim’s grandmother.

The motion for reinstatement also said the original investigating officer was contacted and indicated the state declined to file charges in 1990 “based on the length of time from the occurrence to the report.”

“Whatever happened back in the 1990s, there was in fact an expungement of the defendant’s records,” defense attorney Alan L. Winik wrote in his answer to the state’s motion to reconsider. “Frankly, absent the entry of a nolle prosequi or other court disposition, the defendant cannot see how or why a district court judge would have granted the expungement,” Winik wrote.

The defense also contended that any documents received by the state regarding the 1990 investigation were not obtained in accordance with Maryland laws for opening or reviewing an expunged record, the defense wrote.

In effect, Funk could not have had a criminal record expunged if, as the original investigating officer said, no charges had been filed in the first place, Winik wrote.

Winik included a copy of the 1990 district court expungement order in his answer to the state’s motion to reconsider.

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