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Intro

Reprieve is a legal charity that has been involved in Kenny Richey’s case for many years. Clive Stafford Smith, Reprieve’s Legal Director, has worked on the case for 10 years, representing Kenny in front of the US Supreme Court. He continues to provide assistance to Kenny’s local lawyers. Reprieve has also assisted the case development by meeting with Kenny and spending time in Ohio, examining the case against him.

General

Kenny Richey was born on 3 August 1964 in the Netherlands to an American father and a Scottish mother. After a couple of years in America, Kenny moved back to Scotland with his mother.

In 1982 Kenny moved to America to live with his father. He lived there for four years before he was arrested and charged with arson and aggravated murder.

Events around the fire

On 30 June 1986 at approximately 4.15am a fire started in the 2nd floor apartment of Hope Collins, who was elsewhere at the time. Her 2 year old daughter Cynthia, who was alone in the apartment, died of smoke inhalation. It was not unusual for Cynthia to be left on her own.

When the fire broke out, Kenny was seen trying to enter the apartment to rescue Cynthia. On several occasions he entered the apartment to try and rescue her, only to be driven back by the heat. In the end, he was restrained by the firemen and removed from the scene. Three firemen entered the apartment and searched for Cynthia. They eventually found her in the second bedroom, lying face down on the ground by the side of her bed. She was found to have burns on the back of her legs and on her arms. She was rushed to St. Rita’s Medical Center in Lima, where she was pronounced dead.

The Fire Chief initially blamed the fire on an electric fan. However Assistant State Fire Marshall Robert Cryer came to investigate and informed the prosecutor’s office that it was arson. This was based on his belief that some of the burn patterns demonstrated the presence of accelerants. Rather than taking evidence, Cryer authorised the building’s owners to clean up the apartment. The carpet ended up at a local garbage dump.

When the carpet was eventually collected on 1 July, it was left in the sheriff’s car park, less than 40 feet away from some petrol pumps, for three weeks before testing increasing the likelihood of contamination.

Kenny’s arrest

Kenny was interviewed by the police chief within hours of the fire and was arrested for arson on 1 July. Two witnesses told the police that Kenny had earlier that day said he was going to burn the building down – these witnesses have since retracted their statements. Kenny was interviewed by the police, a prosecutor and Assistant State Fire Marshall, Cryer. Kenny admitted that he had been too intoxicated to remember much of the events but he denied starting the fire.

The state theorised that Kenny had obtained fire accelerants from a commercial greenhouse across the road where paint thinner and gasoline were stored. However the owner of the greenhouse could not confirm that any such items were missing and Cryer did not take any fire accelerants to compare with samples from the fire scene.

This is unlikely to have happened because Kenny had been so drunk that night that he had passed out in a bush. He also had one hand in plaster, because it was broken.

The trial

Kenny was appointed two attorneys to defend him who entered a plea of ‘not guilty.’ On the advice of his lawyers Kenny waived the right to jury trial and was instead tried by a panel of three judges.

The state conceded that at no point had it presented evidence that Kenny intended to kill Cynthia Collins.

The State’s scientific evidence went unchallenged at trial.

The panel unanimously sentenced Kenny to death on 27 January 1987.

New evidence of innocence

New forensic expert Richard Custer has testified on appeal that the prosecution’s conclusions were based on “unsound scientific principles” and that the fire was likely to have been caused by a carelessly discarded cigarette.

Forensic scientist and chemist Andrew Armstrong PhD echoed Custer’s conclusions and added that no control samples had been compared with the tainted ones, and that the crime labs were so unreliable as to be scientifically invalid.

Tony Café, a fire scene forensic examiner, who has investigated the origin of over 1000 fires, declared “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.”

Kenny’s legal appeals

In the US, a defendant will appeal initially through the state courts. Once these courts have ruled on the case, the case will pass into the federal courts. Federal courts have the power to overturn the decisions of the state courts only where it holds that the state courts have been ‘unreasonably wrong’ in their application of the law.

The federal court system is divided up into 12 ‘Circuits’. Kenny’s case is in front of the 6th Circuit, which covers Michigan, Kentucky, Tennessee and Ohio.

The first 6th Circuit federal court appeal

Kenny’s case was first appealed to the 6th Circuit federal court in 2002 and was heard by the court in May 2003. Kenny’s lawyers presented a substantial appeal which included the new evidence that proved Kenny’s innocence, and also highlighted the inadequacies of his initial representation.

On 25th January 2005, the court decided, by a majority of 2:1, to overturn Kenny’s conviction and ordered him to be retried or released within 90 days.

The court found that Kenny’s lawyers did not do their job properly highlighting seven examples of the lawyer’s conduct which prejudiced the court against Kenny’s case. These are summarised as follows:

- Kenny’s lawyer failed to hire a competent expert to challenge the State’s evidence that this fire was deliberate;

- He failed to allow sufficient time for the expert to conduct a proper analysis of the evidence, limiting initial investigations to just 10 hours rather than request additional money from the court;

- The lawyer failed to inform the expert that the carpet had been “housed in a garbage dump and on a parking lot near to gasoline pumps” for weeks. The presence of accelerants on the carpet samples was a fundamental pillar in the prosecution’s case.

- He also failed to take even basic steps to analyse the finding of the expert

- The lawyer prematurely placed the expert on the witness list resulting in his testifying for the state; and

- The lawyer failed to offer any competing scientific evidence.

In conclusion the court found that Kenny’s trial lawyer’s incompetent handling of the sole forensic evidence in the case fell far below the range of acceptable professional standards. There was therefore a reasonable possibility that had Kenny’s defence been handled competently and had the court heard the evidence of innocence, the panel would have had reasonable doubt as to Kenny’s guilt.

In addition, the court noted that the prosecution had conceded at the time of trial that Kenny had not specifically intended to kill Cynthia Collins.

As a result of this decision the State was given 90 days to apply for a re-trial otherwise the court ordered that Kenny should be released.

The case is appealed to the U.S. Supreme Court

In early 2005, the prosecution appealed against the decision of the 6th Circuit Court of Appeal to the Supreme Court of the United States. Kenny was back on death row.

The U.S. Supreme Court sends the case back to the 6th Circuit

On 28 November 2005, the U.S. Supreme Court held that the 6th Circuit had been wrong to overturn Kenny’s conviction. They held that the issue of intent had already been decided by the state court (in the prosecution’s favour) and that the federal court should not have interfered with this decision.

The Supreme Court’s main concern was whether the 6th Circuit had been correct to consider the new evidence of innocence when making their decision. Strict procedural rules mean that new evidence can only be considered if a series of procedural barriers are overcome. The prosecution complained to the Supreme Court that the 6th Circuit had not addressed these barriers before it decided to consider the new evidence.

Instead of considering whether these barriers had been overcome, the Supreme Court focussed on the fact the procedural barrier issues had been raised very late in the day – in fact it was only before the Supreme Court that the prosecution raised its objection for the first time.

The Supreme Court therefore sent the case back to the 6th Circuit to consider whether or not the prosecution had waived their right to raise these objections by not mentioning them sooner.

The hearing on 24 January 2007

The panel of 3 judges from the 6th Circuit, now considering the appeal for the second time, has decided that it needs to have a hearing on the case. This is taking place on 24 January 2007. The court will hear oral arguments on the technical procedural issue that will ultimately determine whether the 6th Circuit may consider the new evidence of innocence in Kenny’s case. A decision is expected a few months after the hearing.

What next for Kenny?

The outcome of the appeal on the 24th of January is crucial in determining whether Kenny walks free or is executed. If Kenny is successful in his appeal the prosecution will have a choice of whether to let Kenny walk free or face a new trial where, for the first time, a jury will consider the evidence of innocence. They will most likely choose the latter.

If the appeal is unsuccessful, Kenny’s best chance of avoiding execution lies with being granted clemency by Ohio’s new governor, Ted Strickland. If clemency is rejected, Kenny could have an execution date by early 2008.

Quotes

Clive Stafford Smith, Legal Director of Reprieve:

“Think about what you were doing 20 years ago. Imagine having spent 23 hours a day since, locked in your tiny cell with the courts refusing to even consider compelling evidence of your innocence. When will Tony Blair use his special relationship to bring this innocent Scot home?”

“His original trial was a travesty of justice where an innocent man was sentenced to death thanks to the incompetence of his court appointed lawyer."

“If anyone were to sit down and look at the facts of this case, they would realize that the prosecution’s evidence is weak. There was no physical evidence linking Kenny to the crime. The prosecution’s major witnesses have changed their story. I find it hard to believe that the Ohio authorities can not find better uses for their tax payers’ dollars.”

“At the moment, only legal technicalities are keeping Kenny on death row. The last time the court examined the evidence against Kenny, they overturned his conviction. I am confident that if anybody took the time to sit down and objectively review all the evidence they will come to the conclusion that Kenny is innocent and end the case.”

“These delays mean that Kenny will spend even longer in prison for a crime he did not commit. Kenny has had to deal with so much throughout this case and sadly it appears that the prosecutors wish to prolong this for him even longer.”

“Empty legal formalism has Kenny in its deadly grasp. Worried about the loss of ‘finality’ in convictions, the US has lost sight as to the reason why criminal justice systems exist. Innocent people should not be in prison, let alone awaiting execution.”

Dan Gershutz, Prosecutor

“Even though this new evidence may establish Mr Richey’s innocence, the Ohio and United States constitution nevertheless allow him to be executed because the prosecution did not know the scientific testimony offered at the trial was false and unreliable.”

Tony Café, Forensic expert

“I am sure that most of the world’s leading forensic scientists in this field would be horrified if they saw the chromatograms used to convict Kenny Richey. If Kenny Richey were convicted 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.”

Robert Burns

“Man’s inhumanity to man make countless thousands mourn”