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By Lawrence J. Smith
Special to the Hur Herald
SPENCER - A Roane County woman and her estranged brother have agreed to settle legal disputes the two have against each other stemming from an alleged rape that occurred over 50 years ago.
Zelda Trembly Eagle, of Leroy, and Orville Trembly, of Vienna, have been engaged in fierce legal battle since May 2005. It was then that Eagle, 59, leveled accusations that Trembly, 71, her half-brother, raped her when they were children in the 1950's.
Trembly's attorney, George Cosenza of Parkersburg, predicted before the settlement his client would be exonerated of the charges against him.
"These charges are absolutely false," Cosenza said. "He [Trembly] has led nothing but an exemplary life."
Eagle Brings Case to Grand Jury
To bolster her accusation, Eagle was successful in convincing the Roane County grand jury to return two indictments, one of forcible rape and the other of statutory rape, against Trembly on May 24, 2005 (Roane County Circuit Court, Case No. 05-F-34 and 05-F-35).
Roane County Circuit Judge David W. Nibert granted a request by Eagle to present a case to the grand jury on her own behalf when county prosecutor Mark G. Sergent refused to seek an indictment, and dismissed himself from the case.
According to court documents, the indictments allege that Trembly raped Eagle on at least two occasions on an unspecified date sometime between January 1951 and December 1957.
Trembly immediately countered by filing a civil suit against Eagle on June 15, 2005 alleging defamation of character and malicious prosecution (Roane County Circuit Court, Case No. 05-C-47).
According to court records, Trembly denied the allegations, and said they were an attempt by Eagle and their sister, Shirley Lewis of Tennessee, to get the upperhand in an on-going dispute they were having over their mother's property.
According to court documents, the mother is suffering from Alzheimer's disease and is residing in a nursing home.
Case Dismissed, Appeal Filed, Cases Withdrawn
While Trembly's civil case was still in the discovery phase, the criminal case against him went forward. Calhoun County prosecutor Matthew J. Minney was appointed special prosecutor in the case.
Nibert initially denied a request by Cosenza to dismiss the case. According the Times-Record and Roane County Reporter, Cosenza said the 50-year delay hurt his client's chance for a fair trial.
However, after hearing two days of testimony in December and January, Nibert dismissed the case in February. According the Times-Record and Roane County Reporter, Nibert concurred with Cosenza that defending against accusations of rape that happened more than 50 years ago put a heavy burden on Trembly.
"Taking this case to trial would put the defendant in the precarious position of having to defend himself against half-century old alleged crimes," Nibert said in his ruling.
Eagle's attorney David Karr, partner in the Charleston law firm of Karr and Karr, filed a combined petition for appeal and petition for writ of prohibition with the state Supreme Court on March 24 (West Virginia Supreme Court of Appeals, State of West Virginia ex rel. Zelda Trembly Eagle v. Orville Trembly and the Hon. David Nibert, Case No. 060766).
A writ of prohibition is a judicial writ from a higher court ordering a lower court not to exercise jurisdiction in a particular case.
A petition conference on Karr's motion was scheduled for May 24. However, according to court documents, Karr asked the Court to withdraw his motion which it granted.
Both Eagle and Karr declined to comment on any aspect of their case, including the motion to withdraw. Though he, too, declined to comment, Cosenza did confirm that the agreement to dismiss all legal action was a mutual decision.
Upon receiving the Supreme Court's order granting Karr's motion to withdraw, Cosenza filed a motion with Nibert to dismiss Trembly's suit. Nibert granted Cosenza's motion for dismissal on June 24.
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