Bad Company

They had guns. They were after drugs and cash. What they got was trouble.

"I could have easily had a drink, and I didn't," he says. "I came back realizing that if I could make it through that and not relapse, there's absolutely no reason I should ever relapse unless it's because I want to get high. There's no outside thing that could happen that would be worse than losing your daughter like that."

The stakes kept rising. His brother died of a heroin overdose; his father had a serious heart attack. Baxendale moved into an apartment with other recovering addicts, then out on his own. Eventually his son and another daughter moved in with him. He went back to repairing and custom-building guitars, putting together a band, recording a CD. Six years down the road to recovery, he's still tested for drugs every few weeks. The tests have always come back negative.

"Music is the thing I lost in all this," he says, "and it's the thing I got back."

Kevin Rutherford got nothing back. After his conviction, what little he had left was taken away.

Another court-appointed attorney appealed his case, arguing that the sentence was inequitable, given what Baxendale had received. She also claimed that Podboy had improperly made reference to two credit cards Rutherford had when he was arrested--cards in the name of his ex-wife and a former roommate, it turned out, but Podboy implied that they'd been stolen.

In its decision, the Colorado Court of Appeals managed to further muddle the facts of the case. The judges stated that the credit cards had been taken in one of the robberies and that "most of the witnesses believed that [the] defendant was the leader of the three robbers." Neither statement had any basis in the record, but the judges decided that Podboy's remarks about the credit cards were harmless error and that nothing in the law required that Rutherford and Baxendale receive identical or even remotely similar sentences. The appeal was denied.

In 1995 Rutherford was granted a hearing before Judge Coughlin to request a sentence reduction. A few months earlier he'd been diagnosed with an advanced case of hepatitis C, a deadly blood-borne virus that attacks the liver functions and can lie dormant in the body for decades. Prisoners aren't priority candidates for liver transplants, and Rutherford's condition was sufficiently grave that a doctor estimated he had only a two- to ten-year life expectancy.

Judge Coughlin agreed that there was a "discrepancy" between Rutherford's sentence and what was offered to "the other two individuals who were more responsible for the crime." Over protests from the district attorney's office, he knocked the sentence down to eighteen years. He was unwilling to go further, he said, because of the defendant's own attitude about the case.

"Mr. Rutherford just never admits that he really did anything wrong," Coughlin said. "He still tries to persuade this court that his being there was almost like an accident, that he wasn't involved in these aggravated robberies."

Although he could be eligible for parole soon, Rutherford figures he doesn't have time to spare. He has continued to press his appeals in the federal courts. He also filed a grievance against his trial attorney, Michael Morrissey, alleging inadequate representation, and threatened to sue Ron Podboy for alleged prosecutorial misconduct. None of his complaints have gone anywhere.

Two years ago Rutherford wrote to his arch-enemy Podboy, asking if he would represent him on appeal. Since he's become a defense attorney, Podboy has on occasion accepted clients that he once prosecuted, including Baxendale--"I don't think I have seen anybody come out of his situation and have more success," he says--but the request from Rutherford amazed him. He declined the offer.

"I always thought you were foolish not to take that deal," Podboy wrote back. "You decided to roll the dice in going to trial, and they came up snake eyes."

Baxendale finds it ironic that Rutherford's own refusal to take any responsibility for what happened that night may be keeping him in prison, possibly for the rest of his life.

"I still blame myself for what I did," Baxendale says. "I took a ten-year deal that didn't guarantee me anything. I humbled myself before the court. I admitted what I did and I begged the judge for help with my drug problems--and I got a chance to straighten my life out. Kevin, on the other hand, didn't take the plea, denied he had a problem--and he's in jail dying of a liver disease that was probably brought on by the drug problem he denies he has."

According to Baxendale, syringes were found in Rutherford's room in Sandy's house after his arrest. Rutherford denies that he ever injected cocaine or anything else; he says he doesn't know how he acquired the virus that's killing him. The only thing he's guilty of, he insists, is making a poor choice of friends to hang out with one night.

"This wasn't my event," he says. "This wasn't my idea. What happened that night, it wasn't me. I was studying for a degree. I didn't spend all that time in school to stop and say, 'I wonder if robbery pays better.' It doesn't make any sense."

Baxendale says it makes sense to him.
"We were all drug addicts," he says. "But some people still can't admit it.

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