Judge rejects prosecution motion to amend Gorby indictment

Also Monday, Steptoe rejected a defense motion to dismiss the indictment. The standard to grant such a motion is high, he said, and the defense didn’t meet it.

Gorby went on trial Monday on five felony counts of sexual abuse by a parent, guardian, custodian or person in a position of trust. He’s accused of crimes against a juvenile female that were said to have occurred several years ago; the female since has become an adult.

Gorby has pleaded innocent.

The case began with 77 out of 86 jurors showing up for duty as required at 9 a.m.; five more arrived late, and four never came.

The sides worked throughout the morning and into mid-afternoon before settling on a jury of seven men, five women and two male alternates.

Twenty-four potential jurors were excused during the process. Reasons ranged from pretrial publicity and past personal history to needing to attend to a construction project out of state.

Once the jury was selected and then dismissed with instructions to return at 9 a.m., the court addressed multiple motions, including the state’s motion seeking to amend the indictment.

Special prosecutors Marcia Ashdown and Perri Jo DeChristopher, both of the Monongalia County’s prosecutor’s office, had sought the change to two of the five counts.

Wrongdoing in the two counts was alleged to have occurred June 15-16, 2006, in Harrison County. The accuser allegedly has said she could recollect that because her mother was away at a summer conference for work.

However, defense attorney Tom Pavlinic of Annapolis, Maryland, and his investigator, Gary Cooper, say there is no record of the mother attending that conference.

Ashdown argued the child wasn’t keeping notes or a journal back then, and it would be hard to ascertain exactly when wrongdoing occurred.

Pavlinic agreed that the law in cases similar to this doesn’t require an exact date. However, amending the indictment to such a wide range just prior to trial “would be grossly unfair,” he added.

Steptoe took about 10 minutes in chambers before returning to the bench and denying the motion to amend the indictment.

On the defense’s motion to dismiss, Pavlinic had questioned part of the presentation to grand jurors by State Police Cpl. Ken Murray. The motion was made just now because the defense only recently received the transcript of the grand jury testimony, Pavlinic added.

Steptoe, without addressing Pavlinic’s assertions, said Murray had offered other evidence that grand jurors could have considered to return an indictment.

Pavlinic and co-counsel Belinda Haynie of Morgantown also want the court to allow jurors to see social media postings allegedly made by the accuser.

Ashdown doesn’t believe they’re relevant to the accuser’s credibility. Pavlinic said they’re just as relevant as photographs of the accuser in cheerleading outfits from the time of the alleged offenses that the state might introduce.

Steptoe will rule on the social media postings issue, if necessary, at a conference at the bench during the trial.

The judge also has yet to decide whether he will grant the defense’s motion to have the jury visit the home where wrongdoing is alleged to have occurred.

The accuser came forward to her parents during a stay in a drug rehabilitation center in Pennsylvania, and they took her to State Police in Morgantown to report the allegations.

Each of the five counts lodged against Gorby carries a potential penalty of 10-20 years in prison in the event of a conviction. A conviction on any one of the counts also would require lifetime sex offender registration, and a period of supervised release up to 50 years would be required.

Gorby, 61, of Bridgeport, has been suspended without pay by the state Supreme Court since his arrest in October of 2014. He won election to a different magistrate seat in May, a term that won’t begin until Jan. 1. His own seat, the term of which expires Dec. 31, had been filled by Senior Magistrate Nancy Means until earlier this year, when the high court, likely as a cost-cutting move due to the state’s budget crisis, removed her from the circuit.

Gorby’s trial is being held in the courtroom of Harrison Circuit Judge John Lewis Marks Jr.