By BENNIE IVORY
The Sentinel-Record 3-24-1979
MALVERN– Seventh Judicial District Prosecuting Attorney Dan Harmon said Friday he will nol pros a first-degree murder charge against Hot Springs Police Lt. Thurman Abernathy then submit the case to the Hot Spring County Grand Jury for consideration.
The announcement of the unusual legal maneuver came in a press conference called by Harmon in the Hot Spring County Circuit Courtroom.
He said he will file the motion to nol pros the charge next week and hopes to submit the case to the Grand Jury within the next few 30 to 60 days.
Abernathy is charged in the 1976 death of Linda Edwards, a Garland County sheriff’s deputy, whose skeletal remains were discovered by hunters in western Hot Spring County in early 1977.
He has been suspended without pay since his arrest in June, 1977. He is free on $50,000 bond.
Harmon said he based his decision largely on a recent state Supreme Court ruling in the case, which, in effect, limited the prosecution’s case against Abernathy,
“I reached that decision after careful consideration in view of the Supreme Court ruling,” he said. “We have less evidence now than we did when the charge was filed.”
The Supreme Court earlier this month ruled that certain testimony ruled inadmissible last year in a hearing concerning the case can be admitted to court.
Then-Circuit Judge Henry Means had ruled that all of the testimony of Sara Edwards, who is not related to the dead woman, was inadmissible because it was hearsay.
In the hearing, Sara Edwards testified that Linda Edwards had told her she was going to meet Abernathy on the night she disappeared on Aug. 22, 1976. The Supreme Court said the testimony should have been ruled admissible.
However, the court also said that other testimony by Mrs. Sara Edwards could not be admitted into court. That included statements that Linda Edwards had said she was sexually involved with Abernathy, who is married, and was pregnant by the lieutenant.
The Supreme Court said since there was no proof to corroborate the testimony that she was pregnant by Abernathy, it could not be ruled admissible.
The Garland County Grand Jury investigated the case in 1976 before the victim’s body was found but took no action.
Harmon said he feels “insecure” with the case but would feel more comfortable going into the trial with the weight of a Grand Jury indictment behind him.
“If the Grand Jury returns an indictment, we will proceed to trial as soon as possible,” he said. “And if they return no indictment, we will not proceed to trial unless there is some additional evidence uncovered or produced in the case.
“I think the state police and other law enforcement agencies did a thorough and fine job investigating this case.”
Harmon speculated the Grand Jury proceeding will take about two days and indicated he will not subpoena Abernathy to appear before the panel.
He also said Circuit Judge John W. Cole, who filed the charge against Abernathy when he (Cole) was the prosecutor, will have to disqualify himself from the case and a special judge will be appointed to empanel the Grand Jury.
Harmon was asked if his course of action was an unusual legal move.
“Perhaps it is an unusual maneuver,” he said, “but it has been an unusual case. The fact that it has been to the Supreme Court before it went to trial and the change of prosecuting attorneys is somewhat unusual also.”
Harmon said he feels the Grand Jury will be able to consider the case impartially, even though it will be conscious of the fact that Abernathy had been charged with a crime.
Abernathy’s attorney, Jack Holt Jr., of Little Rock, said he was surprised, but not shocked by Harmon’s decision.
“I don’t quarrel with the prosecution’s actions at all,” Holt said. “In light of the Supreme Court’s decision, which ruled inadmissible some 90 percent of the prosecutions case, I think it not only wise, but fair that the matter be assessed by an impartial grand jury.
Holt also said he believes the Grand Jury will consider the matter impartially and added that he hopes Harmon will only present admissible evidence to the jurors.
“If they assume their responsibilities under their oath to only consider evidence brought before them, in assuming the prosecuting attorney will bring only admissible evidence to the grand jury for a fair evaluation, I feel like that justice will be done,” he said.
Since Abernathy already has given detailed statements to the state police, Holt said he will not advise the lieutenant to testify before the Grand Jury if he is subpoenaed.