Bussey v. State

In Bussey v. State, 69 Ark. 545, 64 S.W. 268 (1901), after conviction for a rape and a sentence of death, the petitioner submitted an affidavit by the complaining witness retracting her accusation. 64 S.W. at 268. The analysis of the Arkansas Supreme Court puts into perspective the Fifth Amendment issue as well as any concern that the allowing of recanted testimony to overturn convictions would lead to a landslide of such claims: If it be said that to permit a witness, by a confession of perjury, to overturn a judgment based on her testimony would license her to trifle with the courts, we must reply that such a witness undoubtedly deserves to be punished; but this furnishes no reason for the refusal of justice to the defendant. It is the witness, and not the defendant that has trifled with the court, and she, and not the defendant should suffer for such contempt. The court and jury, relying on the testimony of this witness as that of a truthful and trustworthy woman, have convicted the defendant, and sentenced him to be hanged; but, if her affidavit is true, her testimony is false, and the judgment wrong. The circumstances under which she made this written retraction of her former testimony are such as to raise the belief that the retraction, and not the testimony is true and that, if this judgment is enforced, the defendant will suffer death for a crime of which he is not guilty. But whatever the truth may be, whether the defendant be guilty or innocent, it can be established by another trial; and certainly it is better that this case be retried than to enforce a judgment for the extreme penalty of death, when the newly - discovered evidence that could not be produced at the trial makes it seem probable that this judgment was wrong. (64 S.W. at 269.)