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The decision to drop the charges against Keri Barry follows the state Supreme Court’s refusal to consider a lower court’s ruling that prosecutors couldn’t admit a trash bag containing the baby’s remains into evidence because it was retrieved from her parents’ Wayne home without a search warrant.
Authorities charged Barry with murder and child endangerment, saying that she gave birth in their basement in December 2009, stuffed the baby into the bag and left it on a bathroom floor.
Her trial was delayed while Barry’s attorney fought the admission of the deceased newborn into evidence.
A Superior Court judge previously said the handling of the evidence by police – including keeping it in a shed, unopened, for three days after it was retrieved from the family home without a warrant -- defied “logic, reason and objectivity.”
A state appeals panel agreed.
Authorities at the time apparently thought that the bag contained only evidence of a miscarriage, the Appellate Division ruling says.
When police finally opened it, they found the remains of a full term, 7-pound, 8-ounce newborn, the judges wrote, adding that an autopsy found that the infant had been suffocated.
Barry, who was 22 at the time, told investigations that the boy was born alive and stopped breathing on his own, after which she put him in the bag “because [I] could not look at it anymore.”
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Her attorney, John Bruno, petitioned the court to suppress the bag containing the corpse and a laptop that held messages from Barry to a friend saying that she was interested in an abortion and hoped to miscarry.
Superior Court Judge Joseph A. Portelli granted the request, which Valdes’s office appealed.
The Appellate Division denied the bid, saying that police didn’t have a valid reason to retrieve the bag when all that anyone believed at the time was that a miscarriage had occurred.
Prosecutors invoked the “inevitable discovery doctrine,” which the appeals judges rejected.
“The unlawful seizure of the plastic bag, and its retention in police custody over three days before it was searched, occurred because police failed to obtain a search warrant, despite ample opportunity to do so,” the appeals court wrote.
Police had “no intention” of getting the warrant, either, the judges added.
Although Barry’s father told police that they could retrieve the bag from his home, their decision says, he was “not informed that the police were conducting a criminal investigation or that the plastic bag in the shed may contain evidence that could be used against defendant in a criminal proceeding.
"He was not advised verbally or in writing of any of the constitutional rights he had with respect to the search of his property, including the right to refuse to consent to a search, to be present during the search, or to withdraw his consent at any time after it had been given.”
Nor was Barry herself told that she was “under investigation for suspected criminal activity," the judges wrote.
Valdes issued a release on Monday that said, in part:
“The decision to dismiss the charges was made after consideration of the recent Appellate Division opinion affirming the prior decision of the Honorable Joseph A. Portelli, J.S.C., suppressing critical evidence necessary to sustain the charges.
“The {NJ] Supreme Court denied the State’s final motion for leave to appeal on December 2, 2019, exhausting the State’s avenues for appeal. Without the use of the evidence deemed inadmissible by Judge Portelli’s ruling, the State cannot sustain its burden of proof with respect to each element of each offense, thus a dismissal is required.
“The Passaic County Prosecutor’s Office has aggressively pursued its legal right to appeal the decision of Judge Portelli to suppress the evidence in this case. While we respectfully disagree with Judge Portelli’s ruling, and with the Appellate Division’s decision, we of course respect the opinions and the process that produced those outcomes.”
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