Kenny Richey

From Wikipedia, the free encyclopedia

The neutrality of this article is disputed.
Please see the discussion on the talk page.

This article may require cleanup to meet Wikipedia's quality standards.
Please discuss this issue on the talk page or replace this tag with a more specific message.
This article has been tagged since August 2006.

Kenneth T. Richey

Kenneth (‘Kenny’) T. Richey (born August 3, 1964 in Zeist, Netherlands) is a UK-US dual citizen, born to a Scottish mother and American father, who was raised in Scotland but moved to Ohio to join his father in late 1982. He has been on death row for 20 years in Ohio, USA, after being convicted in 1987 of murdering two year-old Cynthia Collins by arson in 1986.

Richey’s case remains in the appeal courts, as the United States Court of Appeals for the Sixth Circuit must decide whether to uphold its previous overturning of Richey’s conviction following the prosecution's successful appeal of that ruling to the United States Supreme Court on a legal technicality concerning the common law theory of transferred intent.

Grave doubts about the entirely circumstantial evidence that convicted Richey, particlularly the forensic evidence, have led to widespread calls for a re-examination of the evidence. Described by Amnesty International as ‘one of the most compelling cases of apparent innocence that human rights campaigners have ever seen”[1], Richey's case has become something of a cause célèbre in the United Kingdom.

1 The prosecution case
2 The defence case
3 Trial and appeals
4 Personal life
5 Sources
6 See also
7 External links

[edit] The prosecution case

Around 4:15 a.m., on June 30, 1986, in Columbus Grove, Ohio, a raging fire broke out in Hope Collins's second-floor apartment, killing Cynthia Collins, Hope's two-year-old daughter. Less than an hour before, Hope had left her apartment with a convicted drug dealer. When she returned after the fire, she faced prosecution for child abandonment. She then said Richey had agreed to baby-sit Cynthia.

The prosecution alleged that Richey was angry at his ex-girlfriend, Candy Barchet, and her new boyfriend, so he allegedly set fire to the apartment above theirs, hoping the fire would burn through the concrete floor and injure them while they slept. The prosecution advanced this theory even though they seemed to agree that Richey knew that Cynthia Collins was sleeping in that apartment. During the fire, Richey had risked his life trying to rescue Cynthia, so his alleged actions do not make sense.

Richey, Hope, Peggy Price, Candy Barchet, Richey's ex-girlfriend, and a variety of other witnesses to these events lived at the Old Farm Village Apartments in Columbus Grove. Peggy and Hope lived in adjacent second-floor apartments, and Candy lived directly below Hope. All three apartments were in Building or Section "A" at Old Farm Village. Candy and her infant son moved into their apartment around June 15, and she met Richey. Within a few days, Candy and Richey formed a sexual relationship, and Richey frequently told Candy he loved her and "would kill any other guys" she was with.

On June 24, Richey learned that Candy had just been in bed with John Butler, and Richey pulled a knife on Butler. In response, Butler "bounced him around the room a little bit." Just after that fracas, Richey broke his hand by punching a door, requiring a splint.

On Sunday evening, June 29, Candy took her new boyfriend, Mike Nichols, to a party in Peggy's apartment; during the party, Candy kissed Nichols openly and told Richey that she wanted to date Nichols. Testimony at the trial indicated that Richey became upset at this news, according to other accounts the three discussed and Kenny accepted the fact. When Candy went home, around 1:00 a.m., she asked Nichols to spend the night with her, which he did.

That night, Richey wore his Marine Corps camouflage fatigues and combat boots, and he still had his right hand bandaged in a splint. Some witnesses reported Richey was intoxicated. Jeffrey Kezar testified he heard Richey saying, "If I can't have her (Candy), nobody else can." However, what was said exactly, when it was said, and in what context remains strongly disputed.

Richey told several persons that "A" Building would burn that night and he would use his Marine training to do that. Robert Dannenberger described Richey as "very upset" and said Richey threatened to blow the place up since he had "learned how to do explosives" in the Marines. Peggy Price became upset, and Richey told her, "Well, instead of blowing it up, I'll torch A Section." Price recalled that Richey said, "Before the night is over, part of A Building is going to burn down." Shirley Baker also recalls Richey saying, "A Building was going to burn * * *." Juanita Altimus, while just outside her own apartment, overheard Richey say on the landing, "Building A was going to burn tonight."

Curiously, the alleged statements about the building burning imply a somewhat pointless motive instead of the proffered one against Richey's ex-girlfriend and her new boyfriend. Whether true or not, vague statements are characteristic of perjured testimony. Individuals who lie on the stand typically do not want to get caught and will only readily make statements they can back away from. One witness, Peggy Villearreal, later denied her testimony that she heard such a statement. Richey denied making such statements and thought it was stupid that he would make them if he intended to do what the prosecution alleged.

By 2:00 a.m., the party was breaking up, and Richey kept asking Hope if he could spend the night on her sofa. Hope refused. Around 2:20 a.m., June 30, Richey offered to steal some flowers for Peggy from a greenhouse across the street, but Peggy told Richey not to bring them to her.

Between 3:00 and 3:30 a.m., Dennis Smith drove up and asked Hope to go with him. Hope replied she did not have a baby-sitter, but Richey said, "Well, I'll keep an eye on her (Cynthia), if you'll let me sleep on your couch." A neighbor also overheard Hope say to Richey, "Go upstairs with Scootie (Cynthia's nickname) -- she's asleep -- but don't lock the door because I can't get back in because I don't have a key."

Around 4:15 a.m., neighbors reported bright orange flames and smoke coming out of the Collins apartment, and the fire department responded. Firemen saw several feet of flames from the apartment and deck curl up over the roof. A resident and a fireman both started into the apartment, but the heat and fire were too intense. A fireman then went back in, with oxygen, but he could not find Cynthia and soon ran out of oxygen.

Ultimately, several firemen, with fire hoses and oxygen masks, succeeded in removing Cynthia's body from her burning bedroom. Cynthia died from asphyxia related to smoke inhalation.

When the firemen arrived, Richey was either at the Collins apartment or he arrived shortly thereafter; he was screaming that a child was still inside. One fireman saw him coming out of the apartment, helped him up, and had to restrain him to keep him from going back in. Richey was combative, argumentative, and interfered with efforts to fight the fire and rescue Cynthia. Two deputy sheriffs overpowered Richey and turned him over to Police Chief Thomas Miller to keep him out of the way.

During the fire, Richey asked Nichols, "Why don't we finish it now, since you think you're so bad?" Richey also asked Candy if the fire had scared her. When she replied it had, Richey told her, "if he couldn't have me, that nobody would * * *." Altimus reported that Richey, as he looked over the fire damage, drank a beer, laughed, and said, "It looks like I did a helluva good job, don't it."

Richey admitted that he had earlier gotten two plants from the K & J Greenhouse for Candy, and police found those plants outside Candy's apartment. The K & J owner identified them as having been stolen from his greenhouse. Richey had also offered to steal two plants for Peggy that evening. The K & J owner confirmed that paint thinner and gasoline were kept in two unlocked storage sheds. Gasoline and paint thinner could have been stolen from these sheds; the owner did not know if any was missing.

The Fire Chief initially blamed the fire on an electric fan, but then asked Assistant State Fire Marshal Robert Cryer to investigate further. Cryer arrived at the apartment at 6:30 a.m. and spent most of the day investigating. The next day, Cryer told the prosecutor’s office that he believed that the fire had resulted from arson.

As part of its investigation, the State eventually retrieved six samples of debris remaining from the fire. Several of those samples came from the carpet that had first found its way into the garbage dump. On the afternoon of July 1, nearly two days after the fire broke out, the Deputy Sheriff retrieved the carpet from the dump. One piece of carpet was recovered from atop the garbage pile, and another was partially covered by trash. Once removed, the carpet was placed in the sheriff’s parking lot. The carpet stayed in the parking lot - located no more than forty feet away from gasoline pumps - for three weeks, before it was finally taken to the State Arson Lab for testing. Similarly, a wood chip sample was not removed from Collins’s apartment for testing until July 17, nearly three weeks after the fire.

However, under Ohio court rules, the possibility of contamination goes to the weight of the evidence, not its admissibility, the Ohio Supreme Court ruled.

"Moreover, other evidence established that the arsonist had used accelerants, including dominant pour patterns to the burning on the wood deck and living room concrete. An accelerant was also found in wood chips from the deck floor. Thus, even if the rug had been wrongfully admitted, other evidence of arson rendered any error harmless," the justices opined.

Cryer concluded from the physical evidence and burn patterns that an accelerant had been used. An accelerant had been poured on the apartment's wooden deck, the fire's point of origin, as well as the living room rug. A smoke detector had been pulled from the ceiling before the fire. The fire was a very fast, hot, intense fire because of the accelerant.

Gregory DuBois, a consulting engineer, agreed that the fire had been caused by arson and that accelerants had been used. One rug sample from the Collins apartment contained gasoline, and another rug sample revealed paint thinner. Wood chips from that apartment's deck also contained paint thinner. However, laboratory tests failed to reveal any accelerants on Richey's fatigues or boots.

These samples were analyzed by the State Arson Lab using gas chromatograms, which one of the State’s forensic chemists, Dan Gelfius, described at trial as "scientific instrumentation that allows the differential migration of the components of hydrocarbons to separate and to give . . . a pattern similar to the identification of fingerprints."

Basing his conclusions on a method of analyzing the chromatograms that had neither been published nor peer-reviewed, Gelfius testified that both a sample of carpet from Collins’s living room and a sample of wood from her balcony contained paint thinner, and that another sample of the living room carpet contained gasoline.

"…DuBois’s resume, which trial counsel had received, indicated that he worked as a metallurgical engineer, and that his arson-related training consisted of only two two-day courses, neither of which involved the subject of burn patterns," wrote the 6th Circuit Court of Appeals when it reversed Richey's conviction and sentence in 2005. "Both courses were taught by personnel from the State Arson Lab, whose inculpatory conclusions DuBois was hired to review."

Counsel for Richey argued the evidence is insufficient because testing failed to show accelerants on his clothing. However, the prosecution argued that Richey may not have spilled any gasoline or paint thinner on his clothing when he set the fire, or at least not on portions of the clothing eventually tested. Alternatively, the fatigues seized by the police on July 1 may not have been those worn by Richey on June 29-30.

Counsel for Richey also argued that he could not have set the fire because he was intoxicated and had a splint on his hand. However, the prosecution maintained that he could still use his bandaged hand. The evidence about his intoxication was conflicting.

Chief Miller interviewed Richey as a witness on the morning of June 30 and also obtained his statement in the afternoon after advising him of his rights. By July 1, the investigation had focused on Richey, and police arrested Richey for arson and took further statements after advising him of his rights. Police tape-recorded an interview of Richey on July 1. (Fire Marshal Cryer and Assistant Prosecuting Attorney Randy Bassinger participated in that interview.)

In these statements, Richey maintained that he had been drunk on June 30 and did not remember much. However, he denied starting the fire or knowing how it started. He also denied that Hope had asked him to baby-sit Cynthia, and claimed that he had been at his father's apartment when the fire began. Richey did admit that he knew Cynthia was in Hope's apartment; he had stopped and looked in on her while she was sleeping during the party. Richey also claimed that he had secret ways with witnesses so they would not testify against him. In a later statement, he said he would cut the prosecutor's throat.

Richey told Deputy Roy Sargent on November 19 that "Randy Basinger (the prosecutor) was a dead man "and that "whoever testified against him had better hope he's six feet under." On August 17, Richey told Deputy Mike Ball to take a message to Randy Basinger, "that when he got out he was going to cut his throat."

A grand jury indicted Richey for aggravated murder with a specification alleging murder in the course of arson, aggravated arson, breaking and entering (the greenhouse), involuntary manslaughter, and child endangering. A panel of three judges convicted Richey of all charges, save the manslaughter charge, which was dropped. Following a presentence investigation, mental evaluation, and mitigation hearing, the panel sentenced Richey to death for aggravated murder and consecutive prison terms for the other offenses. The Court of Appeals affirmed the convictions and sentence.

While in pretrial custody, Richey wrote to a friend in Scotland that police in the United States did not scare him. The letter was quoted in the pre-sentence investigation as follows:

"If one ever pulls a gun on me he'd better shoot to kill. * * * Remember that day when I shot Gog's in the head with your gun, I laughed so hard I almost ripped my sides! (If the police in Scotland) ever found out about 1/2 the stuff we done they'd bring back the death penalty just for us! * * * If they just give me prison time they better hope to hell I die in there, cause when I get out I won't stop hunting them all down until everyone who is involved in this case is dead!"

Five days before the fire, Richey pulled a knife on Butler, who had just been in bed with Candy, and Richey had told Candy he would kill any new boyfriend she found. The evidence shows that Hope Collins gave Richey access to her apartment and asked Richey to baby-sit Cynthia, and he agreed to do so. Moreover, Richey admitted to the police that he knew Cynthia was in her bedroom, since he had stopped to see her there during the party.

Less than an hour after agreeing to baby-sit for her, Richey started the fire in Hope's apartment. Candy's apartment was immediately below Hope's apartment, and the latter's smoke detector had been ripped out of the ceiling and was hanging by the wires. Damage to the smoke detector may have delayed any warning about the fire.

Richey had access to a greenhouse where gasoline and paint thinner were stored; some of the gasoline and paint thinner could have been missing; and Richey admittedly had stolen plants from that greenhouse.

Additionally, during the fire, Richey continued to challenge Nichols to a fight and reasserted to Candy that he would not let anyone else have her. To Altimus, the elderly neighbor, Richey bragged that he had done "a helluva good job" as he laughed and surveyed the fire damage.

Counsel for Richey presented a variety of evidence concerning his personal history, character and background. Also, several mental health professionals concluded that Richey suffered from borderline and antisocial personality disorders. Richey's counsel at the original trial reasoned that this evidence was strongly mitigating and that the trial court and court of appeals erred by imposing a death sentence.

According to Dr. Leena Puhakka, a psychologist, Richey displayed classic symptoms of those personality disorders. Dr. Puhakka found Richey functioned at the emotional level of a ten- or eleven-year-old. Dr. Antoine Demosthene, a psychiatrist, found no evidence of psychosis or mental disease, although Richey was very socially maladjusted, and suffered antisocial personality disorder.

Dr. William McIntosh, a psychologist, testified that Richey frequently lied to manipulate the results of mental evaluations. He stated that Richey had come from a chaotic family background, had an early history of violence and drug abuse, and displayed erratic behavior and poor impulse control. Although not psychotic, Richey did have mental disorders, according to Dr. McIntosh.

Dr. Thomas Sherman, a board-certified psychiatrist testifying by deposition for the state, found Richey "extremely impulsive, self-centered, hedonistic." He stated that Richey did not display any psychosis or inability to understand the criminality of his acts or to refrain from those acts.

Evidence by psychiatrists and psychologists also revealed Richey's preoccupation with death, blood, and violence, and his acts of self-mutilation and attempts at suicide resulting in over six hundred self-imposed scars and cuts on his body. Richey received his first mental health evaluation in January 1978, when thirteen years old, and has been briefly treated and evaluated for erratic behavior in various mental institutions.

Social worker Judith Tolliver described Richey as a blustering young man who suffered from a "histrionic behavior disorder" in addition to his other personality disorders. She found Richey not delusional, mentally impaired or actively psychotic but severely and chronically maladjusted.

[edit] The defence case

The central premise of Richey's appeals is that no arson took place, and therefore no crime. Richey's counsel argue that the death of Cynthia Collins was instead a tragic accident. According to this view, dubious and conflicting circumstantial evidence combined with widely discredited forensic evidence resulted in an unsafe conviction.

Before the trial Richey declined a plea bargain involving pleading guilty to second degree murder in return for a lesser sentence of eleven years four months. Had he accepted the bargain, he would have been released by the year 2000. Throughout his incarceration, Richey has maintained his innocence, and concern surrounding the evidence and the perceived incompetence of Richey's own counsel during the original trial have led to an international campaign to secure his exoneration and release.

One of the central issues of concern to believers in Richey’s innocence is the prosecution’s controversial interpretation of forensic evidence, particularly chromatograms, in relation to which a sworn affidavit by Mr. Tony Cafe, an Australian authority on forensic laboratory analysis of fire debris, states: “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 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. It would be a great tragedy for the future of forensic science.” [2]

During Richey's appeals, Richard Custer, a specialist in fire reconstruction testified 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."[3]

Coflicting and inconclusive witness evidence has been undermined by recantations such as that submitted in an affidavit on appeal by Ms. Peggy Villearreal, who lived next door to Hope Collins, in which she reversed her trial testimony that she had heard Richey threaten to burn down the apartment building, and recalled how Cynthia Collins played with matches and lighters, once placed a lit cigarette between sofa cushions, and had twice set fire to her bed.[4]

Richey’s campaigners also assert the following points of fact:

-The prosecution was unable to present any evidence that Kenny had disabled the smoke alarm, despite the fact that this was the evidence that made the crime 'premeditated' - and therefore meriting the death penalty.

-There were no traces of flammable materials found on Kenny's trousers or boots despite the assertion he had splashed such materials over the carpet.

-The defence was not told that the local fire chief had been called to the flat on three separate occasions in the preceding weeks to investigate the mysterious appearance of smoke in the flat.

-Kenny had broken his hand a week earlier and it was in a plaster cast. A witness also saw him collapse in bushes drunk. It would have been almost impossible for him to climb onto a shed to gain access to the apartment holding petrol cans without making any noise. His-ex girlfriend and her new boyfriend claimed to be light sleepers but heard nothing.

-Fire Marshall Cryer who investigated the fire declared that the fire had started accidentally and authorised the building owner to gut the flat. Had he suspected arson, the flat would have had to be sealed off for investigation. Instead, vital evidence was removed first to the dump and then to the local sheriff's forecourt and placed near a petrol pump.

Richey's case has attracted appeals on his behalf from Scottish celebrities such as Irvine Welsh, Robbie Coltrane, Charlie and Craig Reid, members of the Scottish Parliament, Pope John Paul II, former British Home Secretary Jack Straw (who promised to intervene on his behalf), UK Prime Minister Tony Blair, actress Susan Sarandon, and organisations such as the European Parliament and Amnesty International.

In November 2006, Mr Alistair Carmichael, a British Member of Parliament, announced that he was seeking the assistance of the Catholic Church in persuading the outgoing Governor of Ohio, Bob Taft to grant Richey 'clemency'. Carmichael, himself a lawyer and former prosecutor, explained that in his view "Kenny's case was basically not properly put forward at trial. There was a multiplicity of flaws in the representation. The fact that his case was not even put in front of a jury was a pretty basic flaw in my view. I would hope that the governor would ideally recognise the fact that Kenny in fact has never had a fair trial and that he has been in prison for almost 20 years and that he should be pardoned and released. At the very least I would want the governor to commute the death sentence." [5]

[edit] Trial and appeals

Richey’s original appeals against his conviction were rejected. Efforts by Richey's counsel to secure a re-examination of the forensic evidence that convicted him were resisted by the prosecution. Prosecutor Dan Gershutz commented: "Even though this new evidence may establish Mr. Richey's innocence, the Ohio and United States Constitutions nonetheless allow him to be executed because the prosecution did not know that the scientific testimony offered at trial was false and unreliable." [6]

In 1994 Richey was given a last hour reprieve from the electric chair (the use of which has since been abolished by the state of Ohio and replaced by lethal injection). He had said his goodbyes to his mother in Edinburgh and had his head and legs shaven in preparation for the electrodes. He has seen a total of 13 execution dates come and go, each time with a stay of execution.

In a subsequent stage of appeal, on January 25 2005, the United States Court of Appeals for the Sixth Circuit overturned his conviction and sentence, ruling that Richey's original legal counsel had been incompetent and questioning the application of the principle of 'transferred intent'.

Subsequently, on November 28, 2005, the United States Supreme Court partially reversed the appellate court's decision. The prosecution had appealed to the U.S. Supreme Court, arguing that the Sixth Circuit ignored a constitutionally valid state law and thus overstepped its authority.

With reference to the legal principle of transferred intent, the Supreme Court stated in its ruling that the “explanation of Ohio law was perfectly clear and unambiguous. We have repeatedly held that a state court’s interpretation of state law … binds a federal court sitting in habeas corpus”.

It remanded the case to the Sixth Circuit for reconsideration in light of the new instructions. On 5 September 2006, Sixth Court took a rare decision to set the date of January 24, 2007 to re-hear the arguments from counsel for both sides. Under this procedure, a panel of six judges grants half an hour to the prosecution, represented by the District Attorney for Putnam County Mr. Gary Lammers, and Richey's defence counsel Mr. Ken Parsigian, to present their cases.

[edit] Personal life

Kenny Richey’s brother, Tom Richey, who also served a prison sentence for murder, has written a book about the case entitled "Kenny Richey Death Row Scot: My Brother Kenny’s Fight for Justice"[7]

Richey had married while serving in the US Army. His marriage to Wendy ended in divorce two months before the alleged crime, and Richey had no further contact with either his wife or son Sean until his sentence was overturned in January 2005. While on death row Richey became engaged to a Scottish woman, Karen Torley, who had written to him after seeing a documentary on this plight. She also became the organzier of the 'Kenny Richey Campaign', which campaigned for his exoneration and release. Their engagement ended in March 2006, as following the overturning of his conviction, Richey re-established his relationship with his ex-wife Wendy and son Sean. Ms Torley resigned as head of the Kenny Richey Campaign in June 2006, but continues to campaign for his exoneration[8].

Richey was granted British citizenship in 2003, becoming the first to benefit from a change in British nationality law that was instigated by his attorneys[9].

In August 2006 Richey, who is also a diabetic, suffered a heart attack in his prison cell. He was airlifted to hospital and underwent surgery, but made a recovery.

In September 2006 Richey was reported to be in talks with US publisher Excess Q with a view to publishing a book of Death Row Recipes[10]

[edit] Sources

State v. Richey, Case No. 12-87-2, Court of Appeals of Ohio, Third Appellate District, Putnam County, 1989 Ohio App. LEXIS 4914, December 28, 1989
State v. Richey, 64 Ohio St. 3d 353, 1992 Ohio 44, 595 N.E.2d 915, 1992 Ohio LEXIS 1723 (1992)
State v. Richey, Case No. 12-97-7, Court Of Appeals Of Ohio, Third Appellate District, Putnam County, 1997 Ohio App. LEXIS 5284, November 18, 1997
State v. Richey, 2000 Ohio 1843, 2000 Ohio App. LEXIS 2245 (Ohio Ct. App., Putnam County May 26, 2000)
Richey v. Mitchell, 395 F.3d 660, 2005 U.S. App. LEXIS 1218, 2005 FED App. 39P (6th Cir.) (6th Cir. Ohio 2005)
Bradshaw v. Richey, 126 S. Ct. 602, 163 L. Ed. 2d 407, 2005 U.S. LEXIS 9033, 74 U.S.L.W. 3320, 19 Fla. L. Weekly Fed. S 7 (U.S. 2005)