Fayette County judge recuses herself from hitchhike murder case

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UNIONTOWN -- A Fayette County judge has recused herself from a resentencing hearing in the murder of a hitchhiker three decades ago.

Fifty-seven-year-old Scott Blystone of Fairchance has been on death row since his conviction in the 1983 murder of Dalton Smithburger Jr.

Authorities in Fayette County said Mr. Blystone shot Mr. Smithburger six times in the head for $13 in gas money.

A federal appeals court last year granted him a new sentencing hearing, saying his attorney should have called mental health specialists who might have convinced jurors to sentence him to life.

Judge Nancy Vernon says she will recuse herself from the resentencing proceedings because defense attorneys have alleged misconduct by prosecutors who now serve as senior judges.

The defense called no witnesses during his trial, and the defendant did not testify and offered no evidence in the penalty phase, in which jurors decided that he should be executed. He blamed his attorney, but state courts ruled that Mr. Blystone himself decided to present no defense against the advice of his attorney and after being questioned by the judge.

A federal judge in 2005 declined to overturn the verdict but ordered a new sentencing hearing, saying the attorney should have offered testimony about his client's mental problems. Prosecutors appealed, arguing that the defendant's statement during the penalty phase that he did not want to testify or call his parents as witnesses was comparable to other murder cases in which defendants had refused similar efforts to avoid a capital sentence.

The 3rd U.S. Circuit Court of Appeals upheld the lower court ruling, agreeing that the defendant's statement did not necessarily mean that he would have forbidden his lawyer from calling an expert witness. The appeals court also refused to order a new trial despite Mr. Blystone's allegations of prosecutorial misconduct, agreeing with the judge that there was overwhelming evidence of guilt including witness testimony and a recording of the defendant bragging about the slaying.

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First Published August 11, 2013 12:15 AM


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