COLUMBUS - The state must retry Ohio death row inmate Kenny Richey within 90 days or release him from prison, a federal appeals court ruled yesterday.
A three-judge panel of the 6th Circuit U.S. Court of Appeals in Cincinnati threw out Richey's 1987 conviction and death sentence in the arson death of 2-year-old Cynthia Collins of Columbus Grove in Putnam County.
The appeals court said prosecutors failed to offer evidence that Richey, who was convicted of setting the fatal fire, intended to kill the girl.
Also, Richey's court-appointed attorney, William Kluge of Lima, was "outside the wide range of professionally competent assistance," in large part because he failed to challenge what the state called its evidence, the majority decision said.
"The record indicates that a competent arson expert - fully informed and supervised, and using the methods available to him at the time of the trial - would have all but demolished the state's scientific evidence, and with it a large part of the case against Richey," wrote Judge R. Guy Cole, who was joined in the 2-1 decision by Judge Martha Craig Daughtrey.
Judge Eugene Siler dissented. He wrote that Richey failed to raise the issue of insufficient evidence at his trial or in his initial appeals.
As the sole Briton on death row in the United States, Richey has gained international attention.
In 1992, the European Parliament approved a resolution urging that Richey's life be spared, and Pope John Paul II has made an appeal on his behalf.
In 1995, Karen Torley, a 39-year-old mother of four children from Glasgow, started a campaign to free Richey.
Yesterday, Amnesty International UK called on Ohio to release Richey soon.
"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," said Kate Allen, director of Amnesty International UK.
In an interview in May, 2003, with WLIO-TV in Lima, Richey called the U.S. justice system a "joke."
"There are better systems around the world. ... You did me wrong. You stole 17 years of my life for nothing," he said.
A member of the British Parliament who met in February, 2004, with Richey on death row at the state prison in Mansfield said yesterday's ruling was "excellent news for all of us who have campaigned to highlight the flaws in the conduct of Kenny Richey's initial trial.
"Where so much doubt exists about the safety of a conviction it would be an offense against humanity to carry out a death sentence," said Alistair Carmichael, a Liberal Democrat from Scotland who opposes the death penalty.
"It now remains to be seen exactly what attitude the [attorney general's office] will take. But in reaching their decision I hope that they will bear in mind that Kenny already has 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," Mr. Carmichael said.
Richey, 40, was born in the Netherlands to a Scottish mother and American father and grew up in Edinburgh. He moved to Putnam County in 1982 at the age of 18 to be with his father, who was divorced from his mother.
Paul E. Nemser, who began to represent Mr. Richey in 1993, called on the state to not retry Richey.
"An injustice was done here," Mr. Nemser said.
If he is released, Richey would return to Scotland, Mr. Nemser said. Richey was "very happy" when another of his attorneys, Kenneth Parsigian, told him in a phone call about yesterday's appeals court decision, Mr. Nemser added.
The state attorney general's office, which repeatedly has said it has no doubts about Richey's guilt, said it was consulting with the Putnam County prosecutor's office on the next step in the case.
The attorney general could ask the entire 6th Circuit U.S. Court of Appeals to review yesterday's decision by the three-judge panel. If so, that could freeze the 90-day deadline to retry Richey.
Any decision by the entire appeals court could be taken to the U.S. Supreme Court.
Until yesterday, state and federal courts had agreed that evidence against Richey "proved his guilt in committing this terrible crime that killed" young Collins, said Kim Norris, an attorney for Attorney General Jim Petro.
"At least three people heard Ken Richey threaten to burn down the building. Richey admitted to one person after the fire that he set it. ... Ohio law allowed for the death penalty based on these facts," Ms. Norris said in a written statement.
Putnam County Prosecutor Gary Lammers, who took office this month, said he was weighing whether to appeal yesterday's decision to the U.S. Supreme Court.
"We still view this as a viable conviction. It has been upheld in many previous forums. We will look long and hard before we wash our hands on it," he said.
At about 4:15 a.m. on June 30, 1986, 2-year-old Cynthia Collins was asleep inside a Columbus Grove apartment when a fire broke out.
Robert Cryer, assistant state fire marshal, ruled the next day that he believed the fire was arson because some of the burn patterns he found at the apartment showed the presence of accelerants. But Mr. Cryer didn't find any empty containers of flammable liquids.
Richey - who was arrested for arson - told investigators he was drunk on June 30 and didn't remember much, but he denied starting the fire.
Richey waived his right to trial by jury. The charges included aggravated felony murder, which if proven carried the death penalty.
According to state law, an aggravated felony murderer must have "specifically intended to cause the death of the person killed - the prosecution must prove the specific intent of the person to have caused the death by proof beyond a reasonable doubt."
A three-judge panel ruled that Richey, who prosecutors said was baby-sitting the 2-year-old girl for her mother, Hope Collins - who was out with a friend - started a fire in the apartment to murder his former girlfriend, Candy Barchet and her new boyfriend, Mike Nichols. Ms. Barchet and Mr. Nichols were in the apartment below.
The state retrieved six samples of debris from the fire, but several of those samples were in a garbage dump because the state fire marshal's office had allowed the building's owners to clean up the apartment.
The samples were placed in the parking lot of the sheriff's department - about 40 feet from gasoline pumps - for three weeks before they were taken to the state arson lab for testing.
A state forensic chemist testified at Richey's trial that a sample from Ms. Collins' living room and a sample of wood from her balcony contained paint thinner and another sample of the living room carpet contained gasoline - but there were no traces of accelerants on the other three samples from the apartment: the clothing and boots that Richey wore or the bandage that covered his broken hand.
The state appeals court said the state's scientific evidence went "unchallenged at trial" because Richey's attorney, Mr. Kluge, hired L. Gregory DuBois of the firm CTL Engineering.
Mr. DuBois had no accreditations in arson or fire investigations, didn't do any independent testing of the samples, didn't interview the assistant state fire marshal, and Mr. Kluge didn't cross-examine him when he testified for the prosecution against Richey, the appeals court said.
"Counsel adopted a defense that rendered Richey a sitting duck," the appeals court wrote.
Mr. Kluge yesterday said the three judges who presided at Richey's trial gave him a budget of $3,000 to hire an arson expert.
He said the federal appeals court "made me out to be the bad guy, and I will have to take responsibility for that," but he said the resources available to public defenders in death penalty cases now far exceed the 1980s.
Mr. Kluge said he never thought Richey was guilty of murder or should have received the death penalty.
"He put his own life at risk to rescue the girl. The firefighters had to restrain him from rescuing her," he said.
In 1992, after the Ohio Supreme Court upheld Richey's conviction in a 4-3 decision, Richey hired new attorneys who investigated the crime and hired new scientific experts.
Richey's attorneys submitted an affidavit from Peggy Villearreal - who lived next door to Hope Collins - that recanted her trial testimony that she had heard Richey threaten to burn down the apartment building.
Ms. Villearreal also recalled in her affidavit how Cynthia Collins played with matches and lighters, once placed a lit cigarette between sofa cushions, and had twice set fire to her bed.
Richard Custer, a specialist in fire reconstruction hired by Richey's attorneys, testified during Richey's appeals that the burn pattern at the apartment could have resulted from a fire that occurred naturally and that the assistant state fire marshal's "theory of the accelerant's pour pattern and location would have required the use of 10 gallons of fuel."
The appeals court also said the state erred in using a common-law theory - called "transferred intent" - in an aggravated felony murder case to present evidence that Richey had a motive to kill Candy Barchet and Mike Nichols - and that intent transferred to trying to kill Cynthia Collins.
"Based on the state of the law at the time of his actions, the only way that Richey could have been constitutionally convicted of aggravated felony murder would have been upon a showing that Richey intended to kill the person that actually died. Because it is undisputed that there was no evidence to this effect, Richey's conviction necessarily lacked the support of sufficient evidence," the appeals court said.
The appeals court said the court-appointed attorneys who represented Richey at trial and in state appeals were ineffective because they "failed to grasp that the state did not prove that Richey specifically intended to cause the death of Cynthia Collins."
Contact James Drew at:
jdrew@theblade.com
or 614-221-0496.
First Published January 26, 2005, 12:53 p.m.
