Lawyers for a Lansford man accused of killing his estranged wife on Thursday asked a Carbon County court judge to drop the charges and set him free, arguing that information from a 2009 preliminary hearing failed to provide sufficient evidence to take the case to trial and that evidence from three search warrants should be suppressed because they failed to include an initial visit to the defendant's home by a Lansford patrolman.
But District Attorney Gary F. Dobias argued against the move, stating that there was enough evidence to prosecute Ernest Troy Freeby, 36, in the death of his wife, Edwina Atieno Onyango. Further, Dobias said, the defense waited too long to bring the questions to court and that the move was yet another delaying tactic to push back Freeby's trial, now scheduled for January. The trial has been continued 13 times. Onyango's body has yet to be found.
President Judge Roger N. Nanovic II did not immediately rule on the matter after listening the about three hours of testimony. More hearings may be held to further clarify the arguments. Freeby was present during the hearing, but did not testify.
Charges of homicide and tampering with evidence were filed against Freeby on Aug. 4, 2009, Dobias said. The case has been wending its way through the court system since then. Freeby remains in the county jail without bail.
But public defenders Paul Levy and George Dydynsky didn't file motions to suppress evidence until Sept. 22, 2011, and to have Freeby released (called a writ of habeas corpus) until June 21, 2011. Dobias argued those motions must be filed within 30 days of Freeby's arraignment, which was Oct. 31, 2009.
Nanovic, however, said exceptions to that rule may apply, provided there were reasonable excuses for the delay. Levy said that the 30 day rule was rarely enforced in the county, and that new information wasn't learned by the defense until six months ago.
The new information was about a visit to Freeby's home by Lansford police officer Joshua Tom on Dec. 18, 2007.
Tom, called by Levy to testify, said he was at Freeby's house for about 20 or 30 minutes. Most of that time, he said, was spent talking with Freeby about what was at the time a missing persons report, not a homicide investigation. Then Tom, at Freeby's invitation, walked through the house on a cursory inspection to see if Onyango was there. The walk-through included the cellar, Tom said. He testified that he briefly shined his flashlight in the coal bin.
When Tom returned to the police station, he typed a note to indicate that he had followed through on his assignment to interview Freeby.
State police at Lehighton took over the case on Dec. 26. The case was changed from a missing persons to a homicide after police searched Freeby's house on Jan. 17, 2008. In February, when Tom learned it was now considered a homicide, he fleshed out his report, adding details of his conversation with Freeby and his walk-through of the house. The new report replaced the previous one in the computer system, he said. However, there was a printed version of the first report.
The defense argued that Tom's first report was not included in the search warrant affidavits filed by state police. It wasn't until January 2011, that state police learned of the initial report, state police Criminal Investigator William Maynard testified. Maynard, called by Dobias, said he met with Lansford's police chief on Dec. 27, 2007, when he took over the case. He spoke briefly with Tom, but did not get a copy of Tom's initial report. He did get the full report in Feb. 2008.
Maynard filed three search warrant affidavits in 2008. One each in January, February, and August. Each was slightly different from the previous one, including any new information, he said.
Levy and Dydynsky also argued that forensic evidence failed to provide sufficient evidence. They said the forensic report strayed from strict science by including the use of Onyango's credit card and car by Freeby after her disappearance.
Even the scientific evidence was lacking, they argued. Dydynsky said only three drops of blood were tested, not enough, given the absence of a body, to establish that a homicide had occurred there.
Dobias disputed that, citing two cases in the state that had been successfully prosecuted even though the victims' bodies had not been found. Prosecutors in both cases met the three requirements, as does Freeby's case.
The requirements are that the victim is dead; his or her death occurred under circumstances that were indicated to be criminal, and there was sufficient circumstantial evidence to indicate the defendant was responsible for the death.
Dobias cited examples from court documents and testimony that supported the satisfaction of all three requirements in Freeby's case. Further, Dobias cited the substantial volume of blood found in the home, which matched Onyango's DNA, Freeby's attempts to paint over bloodied steps and remove a bloodied wooden frame in the coal bin and his lies to police when confronted with evidence.
Onyango, 34, who moved to the United States from her native Kenya on Sept. 1, 1998, was reported by her brother to be missing on Dec. 9, 2007. She has not used her email account, bank account, credit card or car since then. Her close-knit family, with whom she spoke daily, has not heard from her. Information sent to law enforcement databases on missing persons have turned up no leads.
Onyango and Freeby met, and married in Allentown on March 20, 2001. Freeby later returned to Lansford, where he lived with his girlfriend and their children. Onyango stayed in Allentown, where she worked for an older couple.