2005-01-26

Intolerance: USA To Either Retry or Release Death Row Scot

Article 1 A federal appeals court in Ohio has rejected the conviction and death sentence on Briton Mr.Kenny Richey. Ken Richey Mr.Richey has been on 'Death Row' since 1987 after he was convicted of killing a two-year-old girl in a fire. The 'Sixth US American Circuit Court of Appeals' has ruled that he must be retried within 90 days or set free. British politicians have campaigned on behalf of Mr.Richey, 40, originally from Edinburgh. His partner said she was 'delighted' by the news: Ms.Karen Torley, who lives in Cambuslang, on the outskirts of Glasgow, said:
'It was a bit overwhelming to be told the decision after all this time, it was a "bolt out of the blue". 'Every single one of the issues that were presented to the court have all been questioned and his conviction has been found "unsafe". 'It's just been a "total nightmare" for him over the years, it's been hard trying to campaign to get people to see what I could see, but today's result shows it's been worth it all'.
Mr.Richey's lawyer Mr.Ken Parsigian said Mr.Richey was overjoyed with the news:
'He said "thank you, thank you, thank you" and then the word that kept coming up was "finally". 'He said "I can't believe it's finally happened, finally". 'The first thing he wants to do is get out, hug his mum, hug Karen, breathe the free air -- I think all those things are going to consume his time for a while'.
Mr.Alistair Carmichael, the Member of Parliament who led the campaign for Mr.Richey and visited him last year, described the decision as 'excellent', and said it highlighted the flaws in the conduct of the initial trial.
'Where so much doubt exists about the "safety" of a conviction, it would be an offence against humanity to carry out a death sentence', Mr.Carmichael declared. 'It now remains to be seen exactly what attitude the district attorney's office will take -- but in reaching their decision, I hope that they will bear in mind that Kenny has already spent 18 years on "Death Row", when the prosecutor at the time of Kenny's trial was prepared to offer a plea bargain which would have involved Kenny spending 11 years in custody'.
In 2004-03, 150 MPs signed a Commons motion backing Mr.Richey's claim of innocence and The Prime Minister Mr.Tony Blair promised to look into the case. The case has seen appeals on his behalf from Pope John Paul-2 and the former Archbishop of Canterbury. In a resolution passed in 1992-06, 'The European Parliament' expressed its doubt concerning the validity of this sentence. Ms.Margo Macdonald, an Independent Member of the Scottish Parliament who has campaigned for Mr.Richey's freedom, said:
'It's a very bitter-sweet feeling, it's wonderful that he has managed to hold on and stay as focused as he has done. 'Imagine spending that amount of time losing your youth and knowing that you're innocent -- and yet he's still managed to hold onto his sanity and his focus'.
Mr.Richey, who has dual UK-USA citizenship, left Scotland in 1981 to live with his US American father in Ohio state.
He was convicted of killing Ms.Cynthia Collins, who died in a fire in 1986 at her mother's apartment in the town of Columbus Grove. Prosecutors said that he intended to kill his ex-girlfriend but ended up killing the child.
Three appeal court judges in Cincinnati issued a 26-page judgment on 2005-01-25, Tu. In it, they said:
'Because constitutional errors have undermined our confidence in the reliability of Richey's conviction and sentence, we reverse the decision'.
Ms.Kim Norris, spokesman for Attorney General Mr.Jim Petro, said lawyers were reviewing the ruling to determine whether or not to Appeal. State Attorneys could ask the full circuit court or the US 'American Supreme Court' to consider the case. However Mr.Richey's lawyer in Ohio -- and 'Amnesty International Scotland' --said they believed this was unlikely. 'Amnesty's' Ms.Rosemary Burnett said:
'The state has 14 days to Appeal but we imagine they won't Appeal because the trial was flawed. 'They have 90 days to set a date for a retrial or to release Kenny. 'Nobody should be sent to "the living hell of death row", but Kenny Richey's 18-year ordeal has come after a "flawed" trial and serious concerns about the Ohio justice system. 'Indeed, Kenny's case was always one of the most compelling cases of apparent innocence that human rights campaigners had ever come across'.
Mr.Richey has lived through 13 dates for his execution and at one point was an hour away from dying. In 2004, he said:
'I'm innocent and I'll stand by that 'till the day they kill me. 'I used to be afraid of death when I was a kid... but I'm not anymore; death doesn't bother me'.
'Briton's death sentence quashed', BBC NEWS, 2005/01/25 19:16:25 GMT Article 2: The Archbishop of Canterbury, the Pope, Ms.Susan Sarandon, Mr.Robbie Coltrane and Mr.Irvine Welsh have all backed Mr.Kenny Richey's bid for a retrial, but nobody has done as much as Ms.Karen Torley. Karen Torley Ms.Torley, a 41-year-old, from Cambuslang, first heard about his plight from a documentary in 1992 and three years later she took up his case. In the almost ten years that she has worked on his campaign, her involvement has gone from writing letters to 'World In Action' documentaries to setting up an Internet Site and making detailed examinations of the entire court transcripts of his case. Her efforts have helped ensure that MPs, MSPs and organisations such as 'Amnesty International' have kept up the pressure on the US American authorities. In 1994-03, 150 MPs signed a Commons motion backing Mr.Richey's claim of innocence after Mr.Tony Blair, the Prime Minister, pledged to look into the case. When she travelled to the USA to meet Mr.Richey, she said she felt the pair of them 'clicked' and it was as if they had known each other for many years. She now uses his surname of Richey as well as Torley. She first heard his voice on Bonfire Night, 1996, when Mr.Richey rang her at home. They maintained regular contact by telephone until 1998, when he proposed marriage, which she accepted. It seems the pair may finally be able to be together in Scotland. 'Scots fianc�e may finally get to be with her man', Edward Black, The Scotsman, 2005-01-25 Article 3: Mr. Kenny Richey was prepared to go to 'the electric chair' while maintaining his innocence rather than come to a 'plea bargain' with State Prosecutors that would have spared him. The Scot was subjected to a tortuous legal process which saw him go through 12 Appeals until his 13th and last attempt to convince a court of his case. He never wavered, maintaining the steely determination that saw him turn down the 'plea bargain' and a sentence which would have seen him released years ago. The case against Mr.Richey -- that he had climbed over a shed, into a flat, and set fire to it-- killing a two-year-old girl in Columbus Grove, Ohio -- was flawed from the start.
  • The prosecution alleged he had climbed the steep roof of the shed on to a balcony while holding petrol cans without making any noise that would have alerted people in the apartment block.
  • Yet Mr.Richey had broken his hand a week earlier and it was in a plaster cast. He was also seen by a witness as he collapsed drunk in some bushes nearby.
  • His former girlfriend and her new boyfriend -- said to be the target of the arson attack -- claimed to be light sleepers, and their bedroom window (just a few metres away from the shed) was open.
  • No traces of 'accelerants' were found on his clothes although, the prosecution said he had splashed these over the carpet and floor.
  • It was decided that the crime was 'premeditated' -- and therefore worthy of the 'death penalty' -- because a smoke alarm had been deactivated. But no evidence Mr.Richey did this was presented during his original trial.
  • The local fire chief was also reported to have initially said the fire was the result of an accident, a statement he later denied making.
  • The flat was not sealed off for investigation and the owner was given permission to start cleaning up -- extremely unusual if police thought a crime had been committed.
  • Evidence then had to be collected from the local rubbish dump. Unfortunately, the police transferred the charred remains of the contents of the flat on to a local sheriff's forecourt -- near a petrol pump.
In 1997-03, an Appeal court was told of new tests by some of North America's leading scientists -- including Professor Mr.Richard Custer, who advises the FBI -- which showed that the carpet did not contain any ignitable substances at all. They concluded the characteristics of the fire were consistent with an accident, but not arson. The original forensic tests on the carpet were deemed to be 'unreliable'. However, this particular appeal court decided the new evidence was inadmissible because it should have been submitted before. But if Mr.Richey did not start the fire, who did? The most likely candidate was the two-year-old girl who was killed. Ms.Cynthia Collins
was known to have a tendency to play with matches and had started fires in the flat previously. However, the defence was not told during the original trial that firefighters had gone there three times in the weeks before the toddler's death to investigate smoke coming from the flat. Whether this would have made much difference to the outcome of the trial is hard to tell, because it was handled by an inexperienced lawyer called Mr.William Kluge, who was working on his first capital case. Like many defendants who find themselves on 'death row', Mr.Richey had not been able to afford his own lawyer and one was provided for him by the state. The State Prosecution produced 34 witnesses to prove their case, while the defence called just 6. They did not include Mr.Richey or any expert on fires. Numerous inconsistencies in The State Prosecution case also went largely unchallenged Mr.Kluge has publicly admitted that he did not do his job properly and, before yesterday's decision, said he was 'haunted' by Mr.Richey's plight. 'Vindicated by his own determination', Ian Johnston, The Scotsman, 2005-01-25 Article 4: A Scot who has spent 19 years on 'death row' protesting his innocence saw his conviction for murder overturned yesterday after a US Amercian court ruled that grave mistakes had been made during his trial. Edinburgh-born Mr.Kenny Richey 'hooted' after receiving the call to tell him that, after 13 appeals, his ordeal looked finally to be coming to an end. State Prosecutors in Ohio now have 90 days to retry Mr.Richey, 40, or release him, after the decision by 'The Sixth Circuit Court of Appeals' in Cincinnati, Ohio. By a two-to-one majority, judges ruled his legal team committed fundamental errors during the 1986 trial in which he was found guilty of murdering his former girlfriend's daughter, Ms.Cynthia Collins, aged 2, by setting fire to her family home. He was sentenced to death.
'Constitutional errors have undermined our confidence in the reliability of Mr.Richey's conviction and sentence', the judges stated. 'Mr.Richey was clearly prejudiced by his attorney's deficiencies'.
Mr.Kenneth Parsigian, Mr.Richey's Boston-based lawyer, who has conducted his appeals since 1993, called him in prison to tell him of the ruling.
'He was understandably very excited', Mr.Parsigian said, 'He just hooted ... and then said "thank you, thank you, thank you"'.
Mr.Richey's execution date had been on hold while the latest Appeal was pending. Mr.Parsigian expressed the hope that Ohio State would decide not to retry Mr.Richey, given the court's conclusion that evidence was mis-handled -- and the amount of time he has already served. The lawyer went on:
'It's been a long time. The evidence has been badly undermined. It would be a real injustice at this point to put Mr.Richey through this again, based on what the court has said'.
Mr.Richey's fianc�e, Ms.Karen Torley, from Cambuslang, near Glasgow, had spent nearly ten years trying to win his freedom. Last night she was 'shocked but delighted' that his conviction had been overturned. Ms.Torley, who plans to marry Mr.Richey upon his release, said
'I have just heard from the lawyer and am trying to "download" the judgment. I am shocked but obviously delighted. 'It has been a "nightmare beyond words" for Kenny himself, but this verdict shows that all our tireless campaigning was worth it and that our arguments against the conviction were perfectly justified. 'I can't think right now about the future but it would nice to see him coming out the prison door and through mine. 'We just want to be a normal family and set up home together here in Scotland'.
British MPs and human rights campaigners had fought on Mr.Richey's behalf for years, pleading a 'compelling' case of innocence. Mr.Alistair Carmichael, the MP for Orkney and Shetland, and Ms.Kate Allen, the UK director of Amnesty International, met Mr.Richey in Ohio last year. His case won support from 'The European Parliament', the Pope and a 'host of celebrities'. In 2004-03, 150 MPs signed a Commons motion backing his claim of innocence after Mr.Tony Blair, the Prime Minister, pledged to look into the case. Mr.Richey was originally sentenced to die in Ohio's electric chair, nicknamed 'Old Sparky', though 'death by Electrocution' was banned in 2001, had his appeal been rejected, he would have been put to death by 'Lethal Injection' within six months. The Scot, who has joint UK-USA citizenship, left this country in 1983 at the age of 18 to go and live with his father in Ohio. In1986-06, shortly before he was due to return home to take up a job as a nightclub bouncer in Edinburgh, he was arrested and accused of setting fire to the home of Ms.Hope Collins, his former girlfriend, in Columbus, Ohio. She told police that her daughter had died in a fire after she asked Ms.Richey to keep watch over her while she spent the night at her then boyfriend's home. Mr.Richey has always denied that he agreed to babysit, saying that he was at a party in a neighbouring flat at the time and would have been too drunk to do so. He has had a string of appeals rejected since he was convicted and ten years ago he came within an hour of going to 'the electric chair' before he was granted a 'stay of execution'. He had even said his last goodbyes to his mother and family and his head had been shaved, ready for 'Electrocution'. Speaking at her home in Edinburgh, Mr.Richey's mother, Eileen, 60, said the verdict had taken her completely by surprise. She said:
'I wasn't expecting to hear anything today; I never knew anything about this latest appeal hearing so it was a total surprise. 'I felt like bursting into tears; I just felt a mixture of relief and joy. 'I felt many a time that this wouldn't happen but now all I am doing is looking forward to him coming home. 'I've spoken to Kenny's brother, Steven, and he was choked with tears. 'It's just a really exciting day. My phone has never stopped since I got the news'.
Mr.Richey's mother, who last saw him in prison two years ago, also paid tribute to Ms.Torley, saying:
'She has done a lot and if it wasn't for her, we wouldn't have got to where we are today. 'It's been a long time coming. I was never sure he would get out, but I just kept hoping. Sometimes Kenny was hopeful but other times he was very down, but he is coming home now and that is all I'm worried about. 'His health has deteriorated and that has been causing me serious concern of late'.
Ms.Kim Norris, a spokesman for 'The Ohio Attorney General's Office', said last night, 2005-01-24:
'We are disappointed in the ruling; a three-judge panel, the Ohio Court of Appeals, Ohio Supreme Court and Federal District Court all agree the evidence against Ken Richey proved his guilt in committing this terrible crime that killed two-year-old Cynthia Collins. 'At least three people heard Richey threaten to burn down the building. Richey admitted to one person after the fire that he set it, saying, "Looks like I done a helluva good job, don't it". 'Ohio law allowed for the "death penalty" based on these facts'.
However, Ms.Rosemary Burnett, of 'Amnesty International Scotland', was thrilled with the outcome.
'We don't have the judgment yet, but we have spoken to the lawyer on the phone and he said that the appeal court in Ohio has recognised that the original trial was flawed and has overturned the original trial', she said. 'The state has 14 days to appeal but we imagine they won't appeal because the trial was flawed. 'They have 90 days to set a date for a retrial or to release Kenny. 'Obviously this is great news and we are absolutely thrilled'.
Mr.Richey's younger brother, Tom, 37, is also behind bars in the USA; he was jailed in 1985 for killing Ms.Arlene Koestner at her home in Washington while high on drugs. He is not due for release until he is 83. '13th appeal saves Richey from death after lawyer is deemed incompetent', Dan Mcdougall, Kevin Schofield & Jacqui Goddard, The Scotsman, 2005-01-25 Article 5: It was on the night of 1986-06-30, that two-year-old Ms.Cynthia Collins was burned to death at home.
The State of Ohio successfully proved: That Mr.Kenneth Richey broke into a nearby greenhouse, stole cans of petrol and paint-thinner -- broke into the Collins' first floor flat -- doused it with the flammables -- disconnected the fire alarm -- set the room ablaze -- fled -- and then rushed back inside in an attempt to save the 2 year old. His motive was revenge -- on the Collins' downstairs neighbour in the ground floor flat: Ms.Candy Barchet, (who was Mr.Richey's ex-lover) -- and who was at that time asleep with her new lover, Mr.John Butler.
On this hypothesis, the child was an innocent victim of a botched attempted murder. Yet in order to secure the death penalty, which The State Prosecutor was keen to secure, Mr.Richey was charged with 'aggravated felony murder'. According to The Statute in place at the time, a guilty 'aggravated felony murderer' must have
'specifically intended to cause the death of the person killed -- the prosecution must prove specific intent of the person to have caused the death by proof beyond a reasonable doubt'
In court, however, The State Prosecution did no such thing; their evidence hinged on four elements:
  • First, Mr.John Butler testified to Mr.Richey's aggression towards him.
  • Second, neighbours insisted they heard Mr.Richey shout statements such as 'If I can't have her, nobody can' and 'I did a good job, didn't I?'.
  • Third was the evidence of 'The State Arson Lab.' -- which insisted accelerants, such as petrol or paint thinner, were present on samples of the living-room carpet. None were found on Mr.Richey's clothes and the cans were never found.
  • There was a final key element in the successful prosecution: Mr.Richey's own defence team; Mr.William Kluge, the public defender assigned to the case, made a number of mistakes that verged on incompetence.
He persuaded Mr.Richey to waive his right to jury trial in favour of a three-judge panel. He chose his arson expert from a newspaper ad., advised the expert (Mr.Gregory DuBois, an expert on metal fatigue, not fire) to spend no more than ten hours in research on grounds of cost. When the defence's expert's conclusions mirrored those of The State Prosecution, Mr.Kluge failed to prevent The State Prosecutor calling him to the stand to support their own case.
After just three days, Mr.Richey was found guilty and sentenced to death; the three judges attached specific significance to the tampered fire detector. Mr.Richey immediately lodged an Appeal. After reviewing the case, his new lawyer, also a public defender, wanted to make the 'ineffective assistance' of his old lawyer, Mr.Kluge, the heart of the Appeal. However his boss (who was a close friend of Mr.Kluge), insisted he drop this idea -- or face career retribution. The new lawyer felt the faults were 'too egregious to ignore' but pushed them weakly. So -- in 1989 -- 'The Ohio Court of Appeals' affirmed the sentence, and in 1992, 'The Ohio Supreme Court' did the same by 4:3 votes. Then in 1993, Mr.Richey retained yet another new counsel -- Mr.Ken Parsigian -- who would successfully illustrate the myriad faults in the case against his client: Witnesses such as Ms.Peggy Villearreal -- who testified against Mr.Richey -- now claimed they were only 'trying to tell the prosecution' what 'they wanted to hear'. At the heart of the new defence was the belief the fire was accidental.
In the two weeks before the blaze, Fire Marshals had been called out three times to investigate smoke in the flat. Mr.Parsigian brought in two new forensic experts -- a specialist in fire reconstruction and a forensic chemist, both demolished The State Procecution's case. Even Mr.Dan Gelfius, one of The State Procecution's forensic chemists, began to doubt his own work.
At the time he performed the studies he was unaware of what had happened to the carpet, which had been taken to the local dump. Police officers later retrieved it, but left it for three weeks to lie in a car park next to petrol pumps.
And the fire alarm that had so convinced the judges who sentenced him? Witnesses came forward to explain that on the evening of the tragedy, Ms.Cynthia Collins' mother burned steaks and the alarm failed to go off.
Nevertheless 5 further appeals in Federal Courts (1994, 1995, 1997, 1998, and 2000) failed.
The Federal District Court even quoted Mr.Anthony Cafe -- a distinguished forensic scientist -- to support The State Procecution's findings. Mr.Cafe later said the court had 'mis-cited and misunderstood' his work.
In 2003-03, Mr.Richey's lawyers went before 'The USA Court of Appeals', and finally -- in 2005-01 -- in a written opinion, the judges found by a 2:1 vote that constitutional errors -- including the decision to proceed with the charge of 'aggravated felony murder' -- had undermined the reliability of Mr.Richey's conviction, and therefore that he must be either re-tried (within 90 days) or else released. 'The law vs Kenny Richey', Stephen Mcginty, the Scotsman, 2005-02-01 Links:
US Court of Appeals for the Sixth Circuit Kenny Richey campaign Scottish Executive Scottish Parliament Foreign Office Previously on This Blog... Intolerance: Political Support Grows for Death Row Scot 2005-07 Intolerance: Scot demands Death Penalty -- For Himself 2004-06

2 Comments:

Anonymous Anonymous said...

Brilliant! Thank You Dave!
I saw this on TV and so I was just going to skip reading about it on your blog, but I am glad I did read it all.

It just goes to show how much of an influence press reporting is, my opinion shifted with each article!

I noticed how he was described as a Briton in the first one and then a Scot. From your previous blogs on this, it seems that the BBC have shifted from calling him a Scot (when he was a convicted criminal) to calling him a Briton when his appeal quashed the conviction.

It was fascinating to see all the famous people who have supported Richey, and it is a time for jubilation for Amnesty and everyone involved... especially when I read the actual details of the original trial and the inept lawyer... then I saw a subplot in the "fiance" storyline (fascinating in its own right), and just when I thought it was a happy ending... the DA's office think he's still guilty (but he's getting off on a technicality -- an inept lawyer)... and then I find his BROTHER is in another US jail for ANOTHER Murder!

I am amazed to find that I NOW believe that Richey IS guilty, but that the US legal system is a mess. I never believed in the death penalty anyway, so this case makes no difference to my thinking on that. I do think, though, that even if he is guilty, he has done his time... not just a question of being imprisoned for 18 years, but being on "death row". So I think the DA should take that into account.

I would hope that he gets a retrial, gets found guilty and set free because he's served his sentence!

1/26/2005 03:22:00 pm  
Anonymous Anonymous said...

No way is the guy guilty!!! He was totally fitted up and was nearly killed by the State for something he DID NOT DO! It shows why the death penalty should be outlawed everywhere. It shows that the US Justice system is barbaric and bloodthirsty and comparable with Saddam and that ilk. The whole story makes me sick to the stomach. Just be glad it did not happen to YOU!!!!

1/27/2005 11:01:00 am  

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