Dec 17, 2013 By The 3 min read

The attorney for an Adah man who filed suit after he was acquitted of homicide wants a federal judge to force the attorneys for state police to turn over information about polygraph examinations done during the course of the criminal investigation.

Warren Bircher, 38, was charged in the death of a newborn infant whose body was found in a North Union Township creek in 2000. After nearly a decade, police arrested Bircher and the baby’s mother, Sarah Sue Hawk, who ultimately pleaded guilty to third-degree murder in the case.

Hawk, 30, of Uniontown, testified against Bircher during his 2010 trial, alleging that he believed the baby was his and killed it.

Hawk is currently serving 7½ to 15 years in prison.

Jurors, however, acquitted Bircher of all charges, and he later filed suit in federal court, alleging malicious prosecution by Trooper James A. Pierce and Cpl. Scott Krofcheck.

Bircher’s attorney, Joel Sansone, asked U.S. District Judge Cathy Bissoon last week to order the attorneys for Pierce and Krofcheck to turn over polygraph examinations conducted on Hawk and another woman. Bissoon denied the request, noting that the motion came 10 months after the original deadline for discovery and six months after the final deadline for doing so. Discovery, in criminal and civil cases, is the mandated sharing of information between both sides.

“Plaintiff offers no meaningful explanation for the delay, and addressing his motion now would unduly prejudice defendants and undermine the judicial and public interests in timely and orderly resolving disputes presented to this tribunal,” Bissoon wrote.

Sansone on Monday asked her to reconsider the decision, arguing that he asked attorneys for the police to produce all documents related to the criminal investigation — and the polygraphs should have been considered part that request.

“It would be unjust to reward defendants for an intentional or inadvertent failure to produce requested documents,” Sansone wrote.

Sansone wrote that he was preparing to file court documents related to a motion to dismiss the suit, and reviewed “obscure” records in the case. One of those records was the preliminary hearing transcript where Hawk was questioned about the polygraph, Sansone wrote. During that hearing, Sansone wrote, Pierce was questioned about a polygraph that was given to Hawk, and the prosecutor who was there objected.

Sansone said he contacted attorneys for the police, who said they do not have polygraph results.

“There was no intention on the part of the plaintiff to delay or in any way impede justice or the trial process in this matter. Plaintiff’s discovery requests were timely made, and absent review of outside documents, plaintiff could not have discovered that documents were missing from the production,” Sansone wrote. “A failure to require the commonwealth to produce this evidence, in the face of obfuscation with respect to the existence of this document, cannot be laid at the feet of plaintiff.”

Bissoon will rule on the matter at a later date.