By BENNIE IVORY
The Sentinel-Record 8-10-1978
SHERIDAN – Hot Spring County Prosecuting Attorney John Cole said Wednesday he has decided to appeal a lower court ruling in the first-degree murder case of Hot Springs Police Lt. Thurman Abernathy to the state Supreme Court.
At a preliminary hearing earlier this week, Hot Spring County Circuit Judge Henry B. Means ruled inadmissible the testimony of a woman who said Garland County Sheriff’s Deputy Linda Edwards told her she was going to meet Abernathy on the night she disappeared almost two years ago. He said the testimony was hearsay and could not be introduced to a jury.
Abernathy is charged in the Aug. 22, 1976, death of Mrs. Edwards, whose skeletal remains were found by hunters in a heavily wooded area, just inside the Hot Spring County line, several months after her disappearance.
Means’ ruling severely damaged the prosecution’s case because much of it is based on purported statements Mrs. Edwards made in conversations with other persons before her death that implicate Abernathy in the crime.
Cole contends the testimony should be admitted because it is an exception to the hearsay rule.
Abernathy was scheduled to go on trial in Malvern Monday, but the appeal automatically stays the proceeding, according to Cole.
Cole said he will file a notice of appeal with the Supreme Court today but the matter will be handled by the Arkansas Attorney General’s office on his behalf. He said he could not estimate how long it will take the Supreme Court to resolve the issue.
“It is an unusual legal step, but we are in a situation where we have sort of got our backs to the wall,” he said. “We have gone this far and damned if I am going to stop here.
“When there is any pre-trial order in a felony case, which substantially prejudices the prosecution of a case, we are entitled to appeal to the Supreme Court in order to let it determine whether the court was right in its ruling.”
Cole said he does not know how the Supreme Court will view the issue but feels the evidence has enough merit to be presented to a jury.
“I don’t know how the Supreme Court will view it,” he went on, “but I think the evidence we presented does have meritorious value and should be presented to the jury to determine guilt or innocence.
“I think I have an obligation to the people I represent to do everything I can do. Rather than forget it now, I am going to go ahead and appeal the decision to the Supreme Court. Judge Means may be right on the thing, I don’t know.”
During the hearing, Sarah Edwards, who is no relation to the dead woman, testified Linda Edwards had been involved with Abernathy, who is married, for about three years prior to her death and had planned to meet him the night she disappeared.
She said Linda Edwards told her she became pregnant by Abernathy but he wanted her to have an abortion against her wishes. She said Linda Edwards told her that she and Abernathy frequently argued about the abortion. (She was pregnant at the time of her death).
Sarah Edwards said Linda Edwards was “very mad” the last time she saw her on the day of her disappearance and that the deceased told her she was going to meet Abernathy that night.
“She said she was going to straighten this out one way or the other,” she quoted Linda Edwards as saying. “If he didn’t satisfy her, she was going to go up to Thurman’s wife.”
Sarah Edwards said she cautioned Linda Edwards to be “careful” but she said, “He (Abernathy) won’t hurt me.”
