Jeremiah David Mongold could have gotten out of jail a year ago, one of his lawyers said Tuesday.
"He became eligible for parole last year and actually forwent a parole hearing because he wanted to have his habeas hearing instead," said Valena Beety, the director of the Innocence Project at West Virginia University's College of Law, and one of Mongold's lawyers. "'I want to prove my innocence,' he said."
After a hearing last month, Mongold's conviction was thrown out.
After serving 11 years of the 40-year prison sentence he was handed in 2005, a Hampshire County judge threw out Mongold's conviction in connection with the death of his 2-year-old stepdaughter.
Hampshire Circuit Judge Charles Parsons ruled that Mongold, 32, should get a new trial. The judge found that Mongold's lawyer was ineffective during his original trial. Mongold was released on $75,000 bond to await the new trial, which is tentatively set for Nov. 28, according to Beety.
Parsons found that Mongold's trial counsel, Romney attorney Larry Sherman, was "extremely lax in his investigation" and committed "grievous error" on matters related to the pertinent evidence in the case.
Parsons ruled that "by any objective standard of reasonableness trial counsel performance was substantially deficient" and "that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different."
Sherman has had 45 complaints filed against him with the West Virginia Office of Disciplinary Counsel, which oversees lawyers in the state, and Beety said that 11 of those complaints were filed during the time he was representing Mongold.
"The West Virginia Supreme Court chastised him and reprimanded him for some of the complaints while he was representing Mr. Mongold," Beety said.
Mongold was convicted of, and now stands charged with, child abuse resulting in death based on prosecutors' arguments that the child died from shaken baby syndrome.
Beety said, though, there is evidence to prove that the toddler actually died from vasculitis, a rare illness that causes the body to attack its own blood cells.
"The basic diagnosis of shaken baby syndrome has been widely challenged in the 10 years since Jeremiah was convicted," Beety said.
Before his conviction was thrown out, the judge scheduled two hearing dates to allow Mongold to argue his innocence.
"After just the first day, the judge indicated he was inclined to vacate his conviction, just on the performance of trial counsel," Beety said.
Prosecutors said they wouldn't appeal Parsons' ruling.
It was during the second hearing, though, that Mongold's attorneys had planned to present evidence that the child didn't die from being shaken. The judge hasn't yet heard that evidence, Beety said.
On Tuesday, according to Beety, Hampshire Prosecuting Attorney Dan James said during a status hearing that prosecutors were looking into medical experts' opinions on vasculitis being the cause of death.
"I said to the court, 'Well that's great news and that may mean we don't even have a trial,'" Beety said. "That's really important and I appreciate that he is looking at experts in that area, because I believe it will confirm what our experts have found - that the girl died by vasculitis."
"If their experts do find that, it would be unconscionable for him to do anything but drop the prosecution," she said.
WVU's Innocence Project, which was started in 2012 by Beety, is made up of both students and professors.
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.