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Supreme Court of the United States

United States Court of Appeals
For the Sixth Circuit

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.

On August 10, 2007, the United States Court of Appeals for the Sixth Circuit upheld its previous ruling that overturned Richey’s conviction following the prosecution's appeal of that ruling to the United States Supreme Court on a legal technicality concerning the common law theory of transferred intent. The ruling means that Richey must be re-tried within 90 days or released.

Grave doubts about the entirely circumstantial evidence that convicted Richey, particularly the forensic evidence, 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”, Richey's case has become something of a cause célèbre in the United Kingdom.

Arson or accident?

Around 4:15 a.m., on 30 June 1986, at the Old Farm Village Apartment complex in Columbus Grove, Ohio, a fire broke out in the second-floor apartment home of Hope Collins and her two-year-old daughter Cynthia Collins. As a result of the fire, Cynthia died from asphyxia related to smoke inhalation. Hope was not present at the time of the fire as she had left to spend the night with a boyfriend following a party held with neighbors from adjacent second-floor apartments at the apartment complex. When the party was concluding, she invited Kenny Richey to sleep in her apartment in return for minding her sleeping daughter.

The Fire Chief initially blamed the fire on an electric fan, and the burnt remains of the interior of the apartment were removed. The Fire Chief then asked the Assistant State Fire Marshal Robert Cryer to investigate further. After investigating the scene, Cryer told the prosecutor’s office that he believed that the fire had resulted from arson, a conclusion that eventually led to Kenny Richey being convicted and sentenced to death on charges of aggravated murder with a specification alleging murder in the course of arson, aggravated arson, breaking and entering (a greenhouse where he is alleged to have acquired the materials to start the fire), and child endangering.

As result of her actions on that night, Hope Collins pled guilty to the amended charge of involuntary manslaughter, and served a total of 45 days in prison.

The prosecution case

The prosecution alleged that Richey was angry with 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. To do this, he stole gasoline and paint thinner from a nearby greenhouse, which he brought to the scene of the crime by climbing onto the roof of a utility shed below Hope’s living room balcony. Once inside, he splashed gas and paint thinner throughout the living room and set it alight before escaping back over the balcony with the empty cans.

Among a variety of other witnesses to the events of the party at section “A” Old Farm Village Apartments, witness evidence was given by the testimony of Hope Collins, Peggy Price (who lived in the adjacent apartment) and Candy Barchet (Richey's ex-girlfriend). Candy and her infant son moved into their apartment around 15 June, and she met Richey. Within a few days, Candy and Richey formed a sexual relationship. On 24 June, 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, 29 June, 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. Jeffrey Kezar testified he heard Richey saying, "If I can't have her (Candy), nobody else can." Other testimony reveals that Richey had told 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."

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., 30 June, 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 let me sleep on your couch." A neighbour 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., neighbours 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.

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 1 July, 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 17 July, nearly three weeks after the fire. With regard to the possibility of contamination, the prosecution pointed out that the Ohio Supreme Court has ruled that the possibility of contamination goes to the weight of the evidence, not its admissibility.

At the original trial, the judges accepted that "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.” 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.

These samples were analysed 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." 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.

Chief Miller interviewed Richey as a witness on the morning of 30 June and also obtained his statement in the afternoon after advising him of his rights. By 1 July, 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 1 July. (Fire Marshal Cryer and Assistant Prosecuting Attorney Randy Basinger participated in that interview.)

In these statements, Richey maintained that he had been drunk on 30 June 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 19 November that "Randy Basinger (the prosecutor) was a dead man "and that "whoever testified against him had better hope he's six feet under." On 17 August, Richey told Deputy Mike Ball to take a message to Randy Basinger, "that when he got out he was going to cut his throat."

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!"

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 behaviour 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-centred, and 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 was briefly treated and evaluated for erratic behaviour in various mental institutions.

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

The defense case

The central premise of Richey's appeals was 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.

Richey steadfastly maintained his innocence throughout his incarceration. Before his trial, he declined a plea bargain involving pleading guilty to involuntary manslaughter in return for a lesser sentence of eleven years and four months. Had he accepted, he would have been released by the year 2000. In the late 1990s he also rejected an offer of transfer to a Scottish jail and eventual release under Scottish probation law. Meanwhile, concern surrounding the evidence and the perceived incompetence of Richey's counsel during the original trial led to an international campaign to secure his exoneration and release.

One of the central issues of concern to believers in Richey’s innocence was the prosecution’s controversial interpretation of forensic evidence, particularly chromatograms, and the incompetence of the expert witnesses for both sides. Prosecution witness Mr. Dan Gelfius used a chromatogram analysis technique that had never been reviewed by any of his peers to conclude that carpet samples from Collins's living room contained gasoline and wood samples from the balcony contained paint thinner – allegedly the accelerants used by Richey. In a later commentary on Mr. Gelfius’ testimony submitted as an affidavit at the appeal stage, Mr. Tony Cafe, an Australian international authority on forensic laboratory analysis of fire debris, stated: “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."

Unfortunately for Richey, the defense counsel at his original trial used a newspaper advertisement to hire Mr. Gregory DuBois, a metallurgist specializing in metal fatigue, as its expert witness. Mr. DuBois, who had undergone only four days training in arson investigation, was ordered to limit his investigation to ten hours to save costs. Without carrying out any tests of his own, DuBois’ conclusions mirrored those of the prosecution to such an extent that during the trial he was called to give evidence for the prosecution, an event that defense counsel William Kluge failed to prevent. 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 Mr. Gelfius's "theory of the accelerant's pour pattern and location would have required the use of 10 gallons of fuel."

Following the original trial, conflicting and inconclusive witness evidence was further 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.

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

• 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 defense 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 is highly questionable that he would have been able 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 authorized 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.

An investigation by a local newspaper the Toledo Blade in 1998 pointed to the following "crucial errors" in the trial proceedings:

• In writing the three-judge panel's opinion on why Richey deserved the death penalty, Judge Michael J. Corrigan, the presiding judge, cited "unrefuted evidence" that Richey disconnected a fire alarm in the apartment. In fact, no evidence linking Richey to the fire alarm had been raised; only the fact that the alarm was disconnected. Judge Corrigan inferred two things – that Richey did the disconnecting, and that he did it to prevent the fire being discovered - from a neutral fact that the alarm was disconnected.

• Richey's attorney, public defender William Kluge, has admitted to making mistakes. The petition by his new attorney, Ken Parsigian, makes a compelling case that there were numerous errors in Richey's defense.

• Attorney Kluge's most obvious mistake was not asking Peggy Price Villearreal, a neighbor of Richey, how the fire alarm had been disconnected. She now says she and other residents of the apartment complex regularly disconnected the alarms in their own apartments.

This evidence would undermine Judge Corrigan's crucial conclusion regarding Richey's responsibility for disconnecting the fire alarm".

Internationally, Richey's case 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), former UK Prime Minister Tony Blair, actress Susan Sarandon, and organizations such as the European Parliament and Amnesty International.

Trial and appeals

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 where he is alleged to have obtained gasoline and paint thinner to start the fire), involuntary manslaughter, and child endangering. A panel of three judges, sitting without a jury, convicted Richey of all charges, save the manslaughter charge, which was dropped. Following a pre-sentence investigation, mental evaluation, and mitigation hearing, the panel sentenced Richey to death for aggravated murder and consecutive prison terms for the other offenses.

In 1992 a direct appeal was lodged with Ohio Supreme Court and denied by four votes to three.

In March 1997 an appeal lodged with the same judge who sentenced Richey to death was rejected. A 1998 appeal to the Ohio Supreme Court was also denied.

Throughout the appeals process efforts by Richey's counsel to secure a re-examination of the forensic evidence that convicted him were resisted by the prosecution. At one stage 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."

In June 1998 a stay was granted for the last in a series of 13 scheduled execution dates, and the case was transferred to the federal courts.

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

Subsequently, on 28 November 2005, the United States Supreme Court partially reversed the appellate court's decision following an appeal by the prosecution upholding the prosecution view that the Sixth Circuit ignored a constitutionally valid state law and thus overstepped its authority.

In upholding the prosecution's argument on the legal principle of transferred intent, the Supreme Court stated 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 scheduled oral argument on the remanded issue of ineffective counsel for 24 January 2007. Under this procedure, the Sixth Circuit panel of three judges heard arguments for one half hour each by both the Ohio Attorney General and Richey's defense counsel, Mr. Ken Parsigian.

On 10 August 2007, United States Court of Appeals for the Sixth Circuit upheld its January 2005 overturning of Richey's conviction and death sentence due to ineffective counsel and once again ordered Kenny Richey to be re-tried within 90 days or released.

On 24 August 2007, Brian Laliberte, Ohio deputy first assistant attorney general announced that the prosecution had decided not to appeal the Court of Appeals's ruling to the Supreme Court, and therefore accepted a retrial. Richey was moved off death row and back to the Custody of Putnam County Jail.

Richey's second trial was scheduled to commence at Putnam County Common Pleas Court on 28 March 2008.

At a bail hearing in Putnam County on 2 October 2007, a bail bond of $10 million was issued in order for Richey to be released, under strict limitations, until his new trial is held. Despite an anonymous donation of $900,000 and his father and brother's willingness to sell their homes to raise bail, Richey's counsel accepted that because any bail bond is non-refundable, they would not be able to secure his release until the new trial is held.

Richey's counsel originally applied for a change of venue to Columbus instead of Putnam County. In support of their argument that media attention would make a fair trial impossible, Richey's counsel presented 426 newspaper articles, letters to the editor or editorials about the case since it began. Putnam County Prosecutor Gary Lammers resisted this application, arguing that to do so would be premature and that the proper way to handle the matter is to try first to seat a jury to determine whether the jury pool has been tainted.

On 26 October 2007 Richey's counsel requested that the prosecution provide an account of what they intend to prove at trial, and applied for funds to hire an investigator and a mitigation expert, to be used only if Richey was re-convicted on death penalty charges and his case proceeded to the penalty phase.

In response to the Defense counsel's requests, the prosecution filed with the court a list of evidence that they intended to use at the trial. Prosecution witnesses would have included Cynthia Collins's mother, members of the emergency services who attended at the scene, and former neighbors and friends of Richey. Statements from the five witnesses who died since 1986 were to be read to the jury. Richey's clothing from the time and items from his days in the US Marine Corps were to be submitted as evidence, together with Cynthia Collins's medical records and death certificate.

Plea bargain

On 19 December 2007 it was announced that Richey had agreed a plea bargain and would be freed. Richey pleaded 'no contest' to involuntary manslaughter, child endangering and breaking and entering. The charges of arson and murder were dropped, and Richey was released after being sentenced to time served. Part of the agreement was that Richey leave the U.S. immediately.

Reaction to Richey's acceptance of the plea bargain was mixed. Richey's counsel, Mr. Ken Parsigian, had from the outset been extremely confident that his client would be exonerated at the retrial, stating that the prosecution had a "snowball's chance in hell" of securing a conviction a second time around, and that the prosecution case "is 10 times weaker that it was 19 years ago and it wasn't that strong a case then".

However, when the plea bargain was announced, he described it as "complete victory and more than Kenny and I could ever wish for... the State wanted him to plead guilty and he would not do that. They have agreed to drop murder, to drop the arson and took the most basic minor face-saving deal of no contest. There was nothing left for them to fight about".

One of the effects of accepting the plea bargain is that Richey is ineligible for a theoretical $1 million compensation payout for his 20-year incarceration. Under Ohio law, a wrongfully convicted person can receive $40,330 per year of wrongful incarceration (or an amount determined by the state auditor), in addition to lost wages, costs and lawyers' fees, as long as the claimant did not plead guilty. However, according to Richey's defence lawyer, Ken Parsigian, any such compensation would in effect be almost impossible to obtain: "There is a statute that allows a wrongfully convicted person to sue the state and collect, but the standard is very, very high, and the amount you can recover is limited. It is not enough to show that the government's case was wrong we would have to prove that he was innocent, and that the prosecutors knew or should have known that".

Karen Torley, the organizer of the 'Kenny Richey Campaign', urged his supporters not to feel let down by the bargain: "What Kenny always said was that he would never plead to starting the fire or trying to kill anyone. And he hasn't. The State has caved in and dropped those claims because it can't prove them. What he is pleading "no contest" to is failure to baby-sit and stealing a plant. After 21 years in prison for an unconstitutional conviction on charges the State has now dropped, what sense did it make to spend six more months in prison to fight about a failure to baby sit and stealing a plant?".

An editorial in the Ohio newspaper the Toledo Blade lamented that the full details of the procedure that led to his conviction would not now come to light: "News that Kenneth Richey plans to cop a no-contest plea to lesser crimes in the 1986 fire death of a 2-year-old Putnam County girl is a keen disappointment to those of us who expected the 43-year-old Scotsman would finally get full and fair disposition of the charges against him. Moreover, the plea bargain in this internationally watched case won't satisfy critics abroad who claim, with ample justification, that Richey was a victim of a rush to justice in a small U.S. town. What the deal does do, however, is remind us that American law does not require that criminal suspects prove themselves innocent. The prosecution must prove guilt, and the case against Richey collapsed under the weight of some very shaky evidence".

Criminal charges in Scotland

Richey has been arrested several times since his return to the UK. Most seriously, he was charged with assaulting and robbing 63-year-old Robert McCall at his Edinburgh apartment on July 11 2008 and another assault six days later and faced trial in March 2009. However, the judge presiding over the case dismissed the charges explaining that he felt Richey "had suffered enough". Most recently, he was charged with stealing a woman's purse.

Wikipedia.org

Freed death row Scot arrives home

BBC News

Wednesday, 9 January 2008

He paused briefly for photographers and nodded towards a group of supporters holding banners from the human rights charity Amnesty International as he made his way to an awaiting car, followed by the media crowd.

Asked what he thought of the US justice system, he replied simply: "It sucks."

Richey held up a large Scottish Lion Rampant flag before going into the silver vehicle and being whisked away from the airport.

PR guru Max Clifford, who is representing Richey, revealed the 43-year-old had sold his story to two newspapers.

Richey was convicted in 1987 of the arson attack on an apartment block in an Ohio town in which two-year-old Cynthia Collins died.

But in August last year the sentence was overturned.

On Monday, he pleaded no contest to charges of attempted involuntary manslaughter, child endangering and breaking and entering at the Putnam County Common Pleas Court in Ottawa, Ohio.

He was sentenced to a total of 21 years - time which he has already served, most of it on death row.

Richey spent his first day of freedom in the US being reunited with family members, including his brother Steven.

His lawyer Ken Parsigian said that, despite fears Richey would be overwhelmed by the outside world after years in prison, he appeared to be adjusting well.

UK-based charity Reprieve, whose legal director Clive Stafford Smith has been a member of Richey's legal team for 15 years, said he was thrilled about his return home.

Mr Stafford Smith said: "What matters most now is that Kenny finds the support he needs to rebuild his life.

"For many of the people I have known in his position, adjusting to freedom turned out to be the hardest battle of all."

The Case of Kenneth Richey

Update Jan 2005: Conviction overturned

Introduction

In 1981, at the age of eighteen, Kenny Richey left his home in Scotland to live with his American Father in Ohio State. In June 1986, one week before his return to the United Kingdom, Kenny was arrested for a crime the evidence shows was not a crime at all. Since his conviction some months later, he has been sitting on death row, waiting to be strapped into old sparky, Ohio's electric chair.

The State remains keen to execute him.

During the months preceding 21 March 1997, evidence was presented to the Ohio Court of Common Pleas, conclusively establishing the innocence of Kenny Richey. This compelling evidence was submitted to support a bid for a hearing to allow Kenny’s defence team to show that the case was a tragic miscarriage of justice.

The state prosecution did not dispute the accuracy of the new evidence. Prosecution Dan Gershutz said, "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 that the scientific testimony offered at the trial was false and unreliable"

Without setting any reasons, Judge Michael Corrigan agreed, (Judge Corrigan was the foreman of a panel of three judges who convicted Kenny then sentenced him to die by electrocution). He refused the defence’s request for an ‘evidentiary hearing’ and dismissed Kenny’s appeal. Thus Kenny was denied the right to prove his innocence of the crime for which was convicted.

In the early hours of 30^th June 1986, a fire started in an upper flat in a Columbus Grove apartment building in Ohio. The flames rapidly spread, engulfing the living room then the hallway before firemen extinguished the blaze. Minutes later, the body of a child carried out, confined in her room she died of smoke inhalation.

Hope Collins, the divorced mother of the child, had left her flat after midnight, driving off with her boyfriend to spend the night at his house. It is well documented that Hope regularly left her child unattended, sometimes feeding the child adult sleeping pills before doing so, the Putnam Child Welfare Services contacted her on two occasions regarding her practices that were reported by a neighbour. However, no action was taken.

After the fire, when threatened with arrest for neglecting her child, thereby being responsible for the girl’s death,. Hope claimed that she left her child in the care of Kenny Richey, a friend and one of several people who attended a party that occurred on the breezeway between Hope and her participating neighbour’s flat before the fire. Hope claimed she asked Kenny to watch her child moments before she climbed into her boyfriend’s truck. Kenny Richey maintains that he did not agree to baby-sit Hope’s child because he was too drunk from the party.

Two witnesses were present: Hope’s boyfriend and his friend who sat in the passenger seat. Both men denied hearing Hope ask Kenny to watch her child.

A third witness, a resident of the building, observed from behind her bedroom window. Although this witness heard nothing but roar of the truck’s engine that awoke her, she observed Hope climbing into the truck then saw Kenny (who was obviously drunk) stumble from the pavement and collapse in some bushes where he lay for ten minutes. Becoming concerned, this witness testified that she was about to leave her flat to check on Kenny’s condition when finally got to his feet and wobbled from her view.

This was the last person who saw Kenny before the fire caused pandemonium in the apartment complex.

Hours later, when Hope Collins was told about the fire and the death of her child, she did not make any comment nor ask the police officer about the whereabouts of any babysitter who she would much later claim had been caring for her child.

Given the circumstances, wouldn’t the first natural question to ask be, "Why didn’t the babysitter protect my child?"

Upon arriving at St. Rita’s Medical Centre in Lima, where her child had been taken, Hope told a Doctor Thomas Dickey that her girl had previously set fires in her flat (although this fact became known to the prosecutor, it was never mentioned during Kenny’s trial).

The local fire chief (who had been called to Hope’s flat on three occasions less than a fortnight before the fire to investigate the sudden mysterious appearance of smoke in the flat) arrived to inspect the flat first. However the investigation was soon taken over by the State Fire Marshal, Robert Cryer (State law demanded that the State Fire Marshal’s Office investigate the scene of a fire when a life had been taken). After a brief inspection, Fire Marshal Cryer declared that the fire started "accidentally". It should be noted that Fire Marshal Cryer insists that he never considered the fire an "accidental" occurrence. Yet, it is a claim that is both disputed by the building owner, and by the facts.

It is a fact that, after a brief inspection, Fire Marshal Cryer authorised the building owner to gut the flat. Within hours, its charred furnishings were thrown into a lorry then carried to the local dump. Obviously, had the fire marshal truly suspected the flat had been torched by an arsonist’s match, any layman knows that the flat would have been taped off and preserved for further investigation, for the gathering of evidence.

That being 1986, an election year, Prosecutor Basinger was one of several candidates hoping to be elected to fill the vacant position as a county judge. It was to Basinger’s benefit to build a big case, a headliner to promote his name on the front page of the county newspaper, and he took charge of the case personally.

Kenny Richey became the suspect. He was arrested and charged with arson, aggravated murder, child endangerment and breaking and entering. At the onset, Kenny stated he was innocent of the charges. He also demanded he be permitted to take a lie detector test. However, Prosecutor Basinger refused.

And so began the case of:

THE STATE OF OHIO -v- KENNETH RICHEY.

Prosecutor Basinger announced that he was seeking the death penalty, that instantly gained front-page attention; it was the first capital case in Putnam County since the eighteen-hundreds when a pig thief dangled from the end of a rope.

The capital case against Kenny dominated the local news for months, in turn, generating Basinger publicity as Election Day neared. It can be argued that the case he built against Kenny served its purpose, for it came as no surprise that, after votes were tallied, Prosecutor Basinger was elected to a new position of power; Judge Basinger.

Following Basinger’s successful election, he offered Kenny a "plea bargain". If Kenny would plead guilty to second-degree murder, Basinger informed him that he would receive a sentence of ten years with the possibility of parole after six years had been served.

Still maintaining his innocence, Kenny refused to accept the plea bargain.

Basinger then decided to continue to prosecute the case against Kenny, and don his judge’s robe after the trial.

It was a trial that lasted only three days. A trial that was void of a jury, substituted by a panel of three judges, led by Judge Michael Corrigan.

According to Prosecutor Basinger, Kenny is a calculating murderer. The prosecution contended that, after Kenny picked himself up from the bush he collapsed in, he did not walk to his father’s flat and go to sleep as Kenny claimed, but broke into a commercial greenhouse that stood one hundred years from the apartment complex. There, the State asserted that Kenny stole cans of petrol and paint thinner. Kenny then allegedly returned to the front of Hope Collins’ building. A utility shed stood below the living-room of Hope’s living-room balcony (CHANGE THIS!), and the prosecution insisted that Kenny silently climbed upon the shed, gaining access to Hope’s balcony and into her living-room. Once inside, the prosecution claimed Kenny "splashed" petrol and paint thinner throughout the living-room then set it alight before escaping back over the balcony with the empty cans.

Below Hope’s flat resided Kenny’s former girlfriend who was sleeping with her new boyfriend. Prosecutor Basinger contended that, in a jealous rage, Kenny set Hope’s flat on fire to burn his ex-girlfriend and her new boyfriend in the flat below.

1. Forensic tests performed on the carpet revealed traces of petrol and paint thinner.

2. The smoke detector had been disconnected, preventing an early warning of the fire.

3. Witnesses stated that they heard Kenny threaten to "blow up" or "burn" the apartment building.

4. A witness claimed that, after the fire, she heard Kenny brag, "I did a good job, didn’t I?"

It is the "theory", "motive" and the "evidence" presented by the prosecution that led the three fudge panel to find Kenny guilty and sentence him to die in the electric chair. Also responsible was the poor showing offered by Kenny’s court appointed defence lawyer who had never before represented a man accused of murder.

The claim that Kenny broke into the greenhouse and stole cans of petrol and then climbed into the flat is flawed from the start. The greenhouse owner testified that, to the best of his knowledge, no cans were missing from his greenhouse. Moreover, no empty cans were ever discovered anywhere near or around the apartment complex.

The second problem with the prosecution’s theory arises when you consider the shed that Kenny was supposed to have climbed upon to gain access to Hope’s balcony. The roof was slanted at a sharp angle, making it difficult to balance cans upon it (they would slide off). Also, Kenny broke his hand one week before, and it was in a cast. He was also so drunk a witness saw him collapse in bushes. It would be practically impossible for Kenny to climb onto the slanted roof then onto the balcony while intoxicated, one hand disabled, and to do so without making a sound.

A hot, humid night, the bedroom window of Kenny’s ex-girlfriend was only five feet from the shed, and the window had been left open. The young woman and her new boyfriend, both of whom stated they were light sleepers, heard no sound.

Inside the living-room, the flaws of the prosecution’s theory persist. Basinger claimed that Kenny "splashed" flammables over the carpet. However, Kenny’s trousers and boots were taken by the police and the state forensic lab tested them. No trace of flammables were found on the trousers or on the boots. Not even a speck. Even a sober person would find it impossible to splash petrol and paint thinner around a room without leaving a trace on their attire.

The prosecution’s theory that Kenny started the fire to burn his ex-girlfriend and her new boyfriend in the flat below makes little sense. Kenny lived with his father in the apartment complex, and he would know that the flats had concrete floors. Fire cannot pass through concrete. Even if the floors were made of wood, fire burns up faster than it burns down, and any fool would know that the fire would be reported before it could possibly torch the flat below. Additionally, as Kenny’s ex-girlfriend testified, she opened her window that hot night. If Kenny wanted to harm her, he could have easily achieved this by throwing a can or bottle of petrol with a burning wick into her room.

Despite the flaws revealed in the prosecution’s ‘theory’ and ‘motive’, it was mainly the circumstantial physical evidence the judges relied on to convict Kenny. It is the flaws of this physical evidence which Kenny’s defence team tried to introduce by requesting the hearing that Judge Corrigan denied.

1) THE CARPET.

The forensic tests performed on the carpet that revealed traces of petrol and paint thinner were false.

New tests were performed by America’s leading scientists in the field; Professor Richard Custer and Dr Andrew Armstrong. Two significant results were produced. First, the characteristics left by the fire in the flat were not consistent with arson but with an accident (in addition to the mysterious appearance of smoke in the flat during the weeks preceding the fire, it has also emerged that the child started three separate fires in the weeks preceding her death). Second, the carpet actually contained no ignitable substances at all. The State forensic lab had produced false positives by using defective and archaic techniques. The carpet then, was never splashed with petrol, paint thinner, nor any other flammable substances.

2) SMOKE DETECTOR

It was the belief that Kenny pulled down the smoke detector which persuaded the judges to sentence him to die. However, no proof was ever submitted by the prosecution showing that Kenny disabled the smoke detector.

On the contrary, months before the trial, Hope’s friend Peggy Villereal , informed Prosecutor Basinger that Hope had been cooking steak before the party on the night of the fire, and that she burnt the meat. Normally, the sensitive smoke detector would have squealed, but Mrs Villereal noticed the smoke detector had been disconnected. This information was never mentioned during Kenny’s trial. Nor was it mentioned that Mrs Villereal also reported that Hope often disconnected the smoke alarm, especially when she smoked drugs in her flat. Hope admitted she smoked drugs in her flat during the party.

3) WITNESSES

Mrs Villereal testified that, during the party, she heard Kenny threaten to burn down the apartment building. However, Mrs Villereal has since recanted her testimony, swearing that, on the stand, she was very nervous and agreed with what she thought the prosecution wanted to hear.

Another person at the party, Robert Dannenburg, testified that he heard Kenny threaten to "blow up" the building. However, it is also apparent that this witness succumbed to the pressure of the trial. Mr Dannenburg had booked a room at the LEE BELL MOTEL three days before trial, and he told the motel manager to send the bill to Basinger at the prosecutor’s office. He then stated that he was living and working in the State of Missouri and did not wish to attend the trial, but that he was only doing so for the sake of the child, because she had been raped. It explains the inducement Prosecutor Basinger used to create a hostile witness.

Finally, a Juanita Altimus testified that she was standing beside Kenny when the flat was being gutted, and that he bragged to her, "I did a good job, didn’t I?" However, Kenny was not present when the flat was being gutted. He was in the custody of the police, being questioned about the party and the whereabouts of Hope Collins.

None of the evidence relied upon to support Kenny’s conviction is sound. Neither the prosecution’s "theory", "motive" nor the circumstantial evidence survive scrutiny. Amnesty International’s Piers Bannister, who keeps tabs on America’s death row, said Kenny "has one of the most compelling cases of innocence" human rights campaigners have ever seen.

Offer your support by contacting;

Karen Torley
The Kenny Richey campaign
210 Hamilton Crescent
Cambuslang
Glasgow
G72 8TF
Scotland.

Telephone: 0141 400 7229

Ohio (born in the Netherlands to a Scottish mother)

Kenneth Richey was born in 1964 in Zeist, Netherlands, where his father was stationed with the US military. When he was a few months old, the family moved to his mother's native Scotland. His parents divorced in his late teens and his father returned to the United States. Soon after, in December 1982, Richey joined his father in Ohio in the hope of finding employment. In 1984 he joined the US Marine Corps where he served for 14 months before being honourably discharged.

In January 1987, Richey was convicted and sentenced to death in Ohio by a three-judge panel for the murder of 2-year-old Cynthia Collins in June 1986. The child died in a fire in the apartment she and her mother shared.

Although it acknowledged in open court that Richey had not intended to harm Collins, the prosecution argued that he had deliberately started the fire in an attempt to kill an ex-girlfriend and her new boyfriend as they slept in the apartment below.

That Richey made repeated attempts to save Cynthia Collins was undisputed at trial. Firemen who arrived at the scene found Richey distraught, hysterically repeating that a child was still in the apartment. Police officers were forced to overpower and restrain him after he entered the blaze in a desperate effort to rescue Cynthia.

At sentencing however, the three-judge panel found this powerful mitigating factor to be outweighed by their unsubstantiated theory (never suggested by the prosecution) that Richey had disabled the smoke detector alarm while starting the fire. Scientific evidence submitted by the defence has since challenged this assumption.

Approximately two weeks before his trial was due to begin, the prosecution offered Richey a plea bargain: in exchange for a guilty plea on four counts including aggravated arson and involuntary manslaughter, the prosecution would have recommended a maximum sentence of 11 years and 4 months. Insisting on his innocence, Richey refused to plead guilty; had he accepted the bargain he would now be free.

In August 1992, Richey's conviction and sentence were upheld in a 4-3 decision by the Supreme Court of Ohio. The dissenting judges held that Richey's death sentence was ''clearly inappropriate'' on the grounds, above all, that it was excessive and disproportionate to the penalty imposed in similar cases.

In June 1998, five days before he was scheduled to die in the electric chair, a US District Court judge issued a stay of execution pending further review.

Although his British nationality is disputed, a number of British MPs have urged the authorities in Ohio to grant a new trial in the Richey case. He has attracted substantial public and media attention in Europe as well as appeals on his behalf from Pope John Paul II and the Archbishop of Canterbury. In a resolution passed in June 1992 the European Parliament expressed its doubts concerning the validity of the sentence.