Joey Abernathy III was found slumped on his toy motorcycle one winter morning in 1972.
The toddler had been hit in the abdomen, causing laceration of his liver, court records say.
He died on Dec. 30, 1972, at the age of 1.
A first-degree murder charge was filed the following year against his mother’s ex-boyfriend, Gary Warwick, but was mysteriously dismissed.
For four decades, the case remained unsolved — until about three years ago, when Warwick was, again, arrested and charged in the death of the boy relatives still call Baby Joey.
Warwick, 65, will now stand trial for murder, after the Illinois Supreme Court refused to hear his appeal to dismiss the case.
Cathie Altman just turned 18 when she had Baby Joey, her first child. She met Warwick shortly after she divorced Joey’s father, according to the Times of Northwest Indiana. When Joey died, she was a young and scared mother who didn’t understand why her son’s case was dismissed in the first place.
“I promised myself at that time that one day that I would try to seek justice,” Altman, now 63, told The Washington Post. “I just woke up one morning … and I just decided that I wanted to know why, why my child’s case was just so easily dismissed.”
Baby Joey was found unconscious in a home in Belleville in Southern Illinois.
Court records say that Warwick, then Altman’s boyfriend, heard a noise coming from Joey’s bedroom between 1 and 1:30 a.m. on Dec. 30, 1972. Warwick allegedly found the boy lying over the handlebars of his toy motorcycle.
Joey was taken to the hospital, where he was pronounced dead.
Earlier that month, the small child had been hospitalized for five days. He had bruises to his face, neck and nails, dog bites on both of his ears, and an infection in both eyes, according to court records.
A forensic pathologist agreed with a medical examiner’s report that the cause of death was a lacerated liver inflicted from blunt force trauma to the abdomen, an injury that could have resulted in death within 24 hours, according to court records. The state also noted that Warwick admitted being with the child around the time of his death.
Warwick, who was then in his early 20s and caring for Joey when he died, was charged with murder in April 1973. But St. Clair County prosecutors, for reasons that weren’t made clear, moved to dismiss the case the following year.
Warwick was set free, and he would go on to marry, have children and grandchildren, and work as a softball coach in Northern Indiana.
In 2013, Altman, with the help of her daughter, worked to get the case reopened. The daughter, Beth Stauffer, created a video, “Baby Joey Abernathy.” It shows her holding up flashcards that tell the story of her half-brother’s death.
Altman, now a retired nurse living in Arkansas, said she also contacted the St. Clair County Sheriff’s Office to try to see her son’s case file.
Warwick was charged in September of that year. St. Clair County Sheriff Rick Watson told the St. Louis Post-Dispatch that he “just felt something” about the case.
“When I looked at it, I saw too many holes in it and I thought, ‘We can do something on this.’ One thing led to another, and here we are,” Watson told the paper in 2013.
St. Clair County State Attorney Brendan Kelly could not be reached for comment.
Warwick declined to comment when reached by The Post on Tuesday.
A St. Clair County Circuit Court judge dismissed the case, finding that Warwick would not receive a fair trial partly because so much time had passed since the alleged crime occurred.
Witnesses — including the lead detective, the boy’s maternal grandmother, a forensic pathologist, and the physician and personnel who treated Joey when he was hospitalized — have all died.
Some law enforcement files and medical records from the boy’s hospitalization also are no longer available.
“Memories [were] gone and those recollections that remain [were] distorted due to passage of time,” Warwick’s attorney argued, according to court records.
The state argued that certain records, including the original autopsy report and a doctor’s one-page report created on the day of Joey’s death, are still available. The child’s mother and biological father will be able to testify. A different forensic pathologist can still review the available evidence, including photographs, and testify as an expert.
Earlier this year, the 5th District Appellate Court overturned the circuit court judge’s ruling, and the Illinois Supreme Court declined Warwick’s request to hear his case.
Warwick’s attorney, Jim Gomric, could not be reached for comment.
The appeals court found that Warwick was unable to show that his constitutional rights would be violated at trial. Deaths of potential witnesses or loss of physical evidence was not enough to prove that there would be prejudice against Warwick; he also failed to show how those lost testimonies or evidence would have helped his defense, according to the court’s ruling.
“In this decision, we acknowledge that there is a real possibility of prejudice with such an extended delay,” the 15-page ruling states. “However, this is presumptive prejudice, not actual prejudice. A far stronger showing is required to establish the requisite prejudice than what the defendant has presented at this point.”
Altman said she has not had any contact with Warwick since he was first charged in 1973.
At one point, she said, she heard a rumor that he had died.
It is still unclear to her why the murder charge was dismissed against him more than 40 years ago, she said.
According to a footnote in the appeals court ruling, the state argued that the case was dismissed because Warwick was suffering from an eye disease that rendered him blind and affected his ability to stand trial.
Whether Warwick’s eye problems began after Joey’s death is unclear. But to Altman, it doesn’t make sense.
“He drove a car. He never had any problems with his eyesight,” Altman said. “I never saw him with glasses on, ever.”
Warwick is scheduled to appear in court on Dec. 20.
His arrest in 2013 shattered the life he’d built with his wife of more than 30 years, according to a brief interview with the Post-Tribune.
“It’s just a nightmare,” he told the Indiana newspaper in July. “My family, my kids, my grandkids — it’s all in turmoil.”
The Post-Tribune reported that Warwick became “emotional but [declined] to discuss the case further.”
Nightmares about her son’s death have haunted Altman for years, she said.
“When you lose a child, it’s never gone from you,” Altman said. “He was the happiest baby. He was just a very loving baby. I don’t know the words to describe him. He was just to me, perfect.”