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24.01.07

"Even though this new evidence may establish Mr Richey's innocence, the Ohio and United States constitution nonetheless allow him to be executed because the prosecution did not know the scientific testimony offered at the trial was false and unreliable." - Kenny Richey's prosecutor, Dan Gershutz

A far as weeks on death row go, this is a particularly busy one for Scotsman Kenny Richey. Today, a court in Ohio heard arguments in his appeal; tomorrow is Robbie Burns' birthday; and on Saturday, Kenny will have spent 20 years on death row. Two years ago, the same court actually overturned Kenny's conviction but the prosecution used legal technicalities to put him back on death row. He was 22 when Ohio decreed that he should die. He has spent almost half of his life waiting for execution.

For years, defence lawyers in capital cases were accused of manipulating technicalities to avert the execution of the palpably guilty. Now, the Ohio prosecutors use technicalities to manoeuvre the execution of the patently innocent. According to Dan Gershutz, whether Kenny is innocent - and he is - should not be relevant to whether he should die for the crime.

This might seem an incredible assertion by the man who is employed by the state in a criminal proceeding. One might think that any justice system should be designed to sort the wheat of innocence from the chaff of guilt. The execution of the wrong person should be the nightmare of any legal process - as it was in Britain when the abolition of hanging came hard on the heels of some terrible mistakes.

Yet American courts are cavalier about their execution errors. Incredibly, the US Supreme Court had sided with Kenny's prosecutor. The court held in the case of Herrera v Collins that, without more, "claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief." Translated into English, this means that as long as the trial seemed superficially fair - the lawyers were awake, the judge unbiased - the fact that it reached a spectacularly erroneous result is simply not an issue.

How could it have come to this? Here in the UK, we have created the Criminal Cases Review Commission (Scotland has its own office) to review cases in which new evidence that significantly alters the case comes to light. In the US, no such body exists. Indeed, Kenny must depend on organisations such as Reprieve to help him without charge, and experts who volunteer their opinions.

Almost two decades ago now, Kenny was convicted of the murder of a child, the result of a fire in an apartment building. The prosecution portrayed Kenny as a calculating murderer, who set fire to the building in order to kill his ex-girlfriend. They argued that he first scaled a wall to steal petrol, and then climbed into a second-floor apartment above his girlfriend's - even an amateur arsonist should know that a fire should be set below its object. Kenny's injured hand was in plaster, making it all but impossible for him to clamber around the complex to get the job done. Earlier that evening, he had passed out drunk in a bush.

The prosecution's forensic evidence now lies in a shambles. The carpet from the apartment was only tested after it lay in a rubbish tip for a while. The prosecution insisted that there were signs of petrol or oil on it. Tony Café has over 20 years experience as a fire scene forensic examiner, conducting over 1,500 fire scene examinations. He did scientific testing on the evidence that convicted Kenny. "If Kenny Richey were executed on the basis of this scientific evidence, then these chromatograms will become historical documents, examined by scientists all over the world to show just how wrong forensic evidence can be."

Other new evidence proves Kenny did not start the fire. Although the prosecution does not challenge the power of this evidence, still they insist on their legal right to execute him on the basis of a procedural technicality: that the prosecutor who presented evidence regarding the fire did not know it was false when he presented it. Empty legal formalism has Kenny in its deadly grasp. Innocent people should not be in prison, let alone awaiting execution.

It seems unlikely that today's appeal will save Kenny's life, although we must hold out hope. If he loses, Kenny's best chance of avoiding execution lies with being granted clemency by Ohio's new governor, Ted Strickland. Failing this, Kenny could have an execution date by early 2008.

Kenny, a proud Scot, will tomorrow celebrate Burns night in his cell, where he is locked up for 23 hours of each day. Perhaps Robert Burns inadvertently summed up the US's attitude towards innocence when he wrote, "Man's inhumanity to man makes countless thousands mourn."