Sunday, October 15, 2006

Justice Anstead dissent - Arthur Rutherford

ANSTEAD, J., concurring in part and dissenting in part.

I concur in the majority opinion in all respects save one, the requirement of
an evidentiary hearing in order to properly evaluate the newly discovered evidence
of Mary Heaton’s role in the murder for which Rutherford is to be executed.

We must remember that it is not only Rutherford’s guilt but also the death
penalty imposed that may be affected by this new evidence. Even without this
evidence a jury voted for death by the narrowest of margins, seven-to-five, just one
vote short of a recommendation for life.

With that background it is essential that the credibility and reliability of this new evidence be evaluated in the crucible of an evidentiary hearing where testimony must be presented under oath and the State given a full opportunity for cross-examination

In turn, and because of the trial court’s first hand ability to evaluate the evidence presented, our confidence in the outcome will be qualitatively increased.

The trial jury’s narrow vote demands no less.

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