A 3rd District judge has upheld his earlier ruling that Dail Ray Stewart, 30, should get a new trial for the 1984 prison slaying of fellow inmate Glen Evert.
Stewart was convicted of second-degree murder by a jury and received a five-years-to-life sentence in the slaying of Evert. At the time, Stewart was serving a one-to-15-year sentence for burglary.Another inmate, George Christensen, also was convicted of second-degree murder in the Evert killing and is serving a five-to-life sentence.
Rigtrup ruled in August that Stewart should receive a new trial, and he ruled from the bench again Monday in favor of a new trial.
Assistant Attorney General Dan Larsen indicated the ruling might be appealed to the Utah Supreme Court.
The new trial was ordered after Ray O'Connor recanted his earlier testimony. His new testimony was that Stewart was not holding a knife but a stick when a gang confronted the victim at the prison.
Former inmate Ronald Lee Ribarch, who couldn't be found during the original trial, has since said Stewart was not among those who attacked the victim after a chase through the prison yard.
Larsen argued Monday that Rigtrup "should not redetermine the credibility of the witnesses at trial."
Larsen said another witness, Russell Spencer, testified he saw a steak knife in Stewart's hand.
"The defendant has not shown his non-involvement or shown he was not involved in the attack . . . Stewart did not deny his participation in the melee that ended in the victim's death," Larsen said.
Defense attorney James Barber contended that if the jury had heard the recanted testimony of O'Connor and the new testimony of Ribarch, it might have acquitted Stewart.
Rigtrup said a substantial amount of evidence was not available at Stewart's trial, and "in fairness, he should get a new trial."