An Interesting Case...Looking back at the Campaign

Tragically, little Cynthia Collins died of smoke inhalation in this fire. That is something we never ever forget.

On 25th January 2005 Kenny's conviction was overturned and the State where given 90 days to retry him or free him.  The end looked as if it was in sight at long last.  The State of Ohio, however appear not to want to honour its own laws and it looks like sheer vindictivness on their part, that Kenny has not been retried or freed.

On 30th June 2005, Putnam Prosecutor Gary Lammer's said he would attempt to retry Kenny's case.

"The order is crystal clear," Ken Parisgian, Richey's defence lawyer said.  "It doesn't say talk about trying, it doesn't say announce that you're going to retry, it says you have to retry."

"We will seek whatever charges the facts will support," Lammer said. "The evidence supports that Mr. Richey set the fire that callously ended this little girl's life."

I beg to differ with Mr Lammers!! The evidence does not support that Mr Richey set the fire. ALL scientific evidence supports that this fire was an accidental fire.

During this wait for justice, I have had some time to think back about how things have progressed throughout all the years of campaigning for a retrial for Kenny. It has been a long hard slog, of that there is no doubt.

There have been highs and lows, times of elation and times of deep despair, but through it all the fact remained that I believed so much Kenny's innocence because I had read all of the case and all of the evidence. Facts are indeed stubborn things.

Over the years there where appeal denials, execution dates set and all that did was make me more determined that an innocent man would not be sent to Ohio's electric chair.

At times it felt like an impossible task to keep fighting but somehow with the help of other people, things began to click into place.

In the year 2000, I began to reseach arson myself and I started to look for other arson investigators to see if they would look at Kenny's case and perhaps offer some comments I could use in the media. I knew that we could not bring any more experts into Kenny's case because they where not in the record.

I contacted many arson experts with details of Kenny's case and to date have NEVER had one expert agree with the State of Ohio's "investigation and scientific evidence".

Tony Cafe, an Australian Arson Expert gave the below interview to the Edinburgh Evening News.

An Interesting Case...

11 August 2000. Edinburgh Evening News.

Forensic expert tells of Richey trial doubt
Australian backs Death Row campaign

JENNIFER VEITCH

ONE of Australia's leading forensic experts is to back Death Row Scot Kenny Richey's campaign for a retrial, it emerged today.

Tony Cafe, who has 18 years' experience as a fire investigator, is to review the forensic evidence used to sentence Kenny to death.

Kenny, 36, who grew up in Edinburgh, was convicted of causing the fire which killed two-year-old Cynthia Collins in Columbus Grove, Ohio in 1986.

His defence are still trying to bring new evidence that the fire was started accidentally to a fresh hearing.

The prosecution still maintains Kenny started the fire with gasoline and paint thinners in a bid to kill his former girlfriend and her new lover, who were sleeping in the apartment below Cynthia.

However, tests which revealed traces of accelerants were not carried out until after the carpet lay in a nearby dump for several days and was laid out in front of a petrol pump. Mr Cafe, who is a member of the Royal Australian Chemical Institute, said both these actions could have contaminated the samples.

He also argued that if gasoline and paint thinner had been used, the carpet should have burned right through.

"If an accelerant was used on a carpet, then the carpet would probably burn away, and so would not be suitable to transfer in recognisable form to a tip," he said. "Taking samples from dumped carpet at a tip and then saying the fire was deliberately lit because of positive samples is tantamount to being criminal.

"It is a totally ridiculous argument because there is a serious risk that the samples were contaminated. It really shows how flawed the investigation was. They must have been absolutely desperate to take samples from debris removed from the site."

Mr Cafe's comments follow reports from experts in the United States that the fire was started accidentally. Forensic experts Richard Armstrong and Andrew Custer have concluded that the tests used to show the fire was arson were scientifically flawed, and they believe that the fire was most likely started by discarded smoking materials.

Today campaign organiser Karen Torley said Mr Cafe could bring fresh hope to Kenny's bid for a retrial.

"If accelerants had been used on carpet there would have been no carpet to go to the tip in the first place, considering we are supposed to be talking two cans of petrol and or paint thinner," she said.

"And this man picked this up without seeing much of the material on the tests. I am sending him all the material as his opinion on this could prove very good for Kenny's case."

She added: "This is so wonderful to have people from all over the world who are willing to help Kenny.

"All of this gives us great hope that we can show conclusively that Kenny is indeed innocent. There was no crime.

"There was a tragic, terrible accidental house fire in which little Cynthia Collins lost her life due to smoke inhalation. She was a victim of all of this, as is Kenny.

"We have proof coming out of our ears here that this fire was not arson. Yet they will not so far listen."

Almost 1500 people from Edinburgh and across the world have signed the Evening News petition lobbying the US authorities to instigate an immediate re-trial.

Kenny has only two more courts of appeal left before he faces execution in Ohio's electric chair.

He has continually protested his innocence, and refused a plea bargain before his trial which would have saved him from the electric chair.

After 13 execution dates, his lawyers, based in Boston, are still trying to have new evidence presented in court to over-turn his conviction.

In April 2001, Judge Patricia Gaughan denied Kenny's appeal in the Nothern District Federal Court of Appeals.  After web surfing to try to bolster the prosecution's case she cited Mr Cafe's work as if he supported the state's theory. She was of course wrong. And due to her bringing Mr Cafe into the record, we could now bring him into it also.

See the Affidavit below.

Kenny Richey UPDATE - January 2005

As of the 25th of January 2005 the Kenny Richey case has been reversed and Tony's affidavit (reproduced below) was crucial in determining the outcome.

The June 2000 issue of "Firepoint" featured an article on Kenny Richey, who was sentenced to death in Ohio, USA after being found guilty of murder, because investigators determined the fire in which a child died, had been deliberately lit. A worldwide network of supporters believe he is innocent. The website has details of the case.

On appeal, Judge Gaughan quoted from an article by Tony Cafe, an Australian forensic scientist. Tony believes he was misquoted, and has been asked by Richey's lawyers to review the forensic evidence and prepare a submission, in a final attempt to save Kenny Richey's life. Tony believes that the forensic evidence is amongst the worst he has ever seen. The evidence is available on the web site. The case highlights the importance of an investigator's work, particularly when fatalities occur in fires. Tony's submission to the Court is reproduced below.

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
DEATH PENALTY CASE

KENNETH T. RICHEY, Petitioner-Appellant v BETTY MITCHELL, Warden, Respondent-Appellee.
AFFIDAVIT OF AMICUS ANTHONY CAFE IN SUPPORT OF PETITIONER KENNETH T. RICHEY

I, Anthony Cafe, hereby depose and say as follows:

 

1. I am the proprietor of T .C. Forensic Pty Limited in Sydney, Australia. I have been investigating the cause and origin of fires for over 18 years and have investigated over 1000 fire scenes and analyzed over 2500 fire debris samples.

2. I am the author of The Science and "Art" of Fire Investigation, Firepoint Magazine, September 1998.

3. I am also the author of Aids Used For Detecting Accelerants at Fires Scenes, Firepoint Magazine, December 1993.

4. I have reviewed the decision of Judge Patricia Gaughan in the case of Richey v. Mitchell, 98-cv-1.418 (N.D. Ohio) dated April 3, 2001. I have also reviewed the materials submitted to that court by Professor Custer and Dr. Armstrong, as well as other publicly available materials on the Richey case.

5. I have no personal interest in this matter beyond properly explaining relevant scientific principles and I am not being compensated for any involvement.

6. I believe that Kenny Richey was convicted on unsound forensic scientific opinion and has been unfairly convicted. He is an innocent man who does not deserve to be executed in prison for this crime.

7. In the opinion, Judge Gaughan miscited and misunderstood my published articles. Judge Gaughan cited The Science and "Art" of Fire Investigation, but then quoted Aids Used for Detecting Accelerants at Fire Scenes.

8. The reason why investigators believe a rapid fire indicates the presence of an accelerant is because accelerants become totally involved in fire almost instantly. But there are other materials which will initially burn very quickly such as curtains or upholstered furniture and also, when a fire reaches flashover, most combustible materials in a room will burn very quickly.

9. The speed of a fire largely depends on the availability of oxygen. Fires which are starved of oxygen, that is unventilated fires, will become rapid fires when supplied with a sudden supply of oxygen. For example, a fire smouldering in a closed room will suddenly escalate when a door is opened or glass in a window breaks because of heat.

10. Investigators are correctly told that reports of a rapid fire can indicate the presence of accelerants and the purpose of teaching this to investigators is so that they have a guide when they start their investigation. Reports of a rapid fire are only a tool which an investigator uses to plan the subsequent excavation of the scene. Such reports should not be used in an investigator's conclusion as to the possible presence of an accelerant.

11. Burn patterns can be very misleading and are not reliable in indicating an accelerant. For example, this fire had apparently reached flashover and so the floor and carpet would be exposed to high levels of radiant heat which would leave burn patterns on the floor.

12. The evidence of burning between cracks in the deck was used to indicate the presence of thinners on the deck. I always find that the fire damage around cracks in timber decking is the most severe found on the deck because the fire has a good supply of air coming up through the cracks, even when no accelerant was present.

13. It is not uncommon to find that smoke detectors have become detached from the ceiling during a fire because the heat destroys any plastic components involved in the means of securing the detector to the ceiling. It is also not unusual to find smoke detectors hanging from the ceiling by their wires because these wires are metal which can withstand much more heat than plastics.

14. The chromatograms from the Ohio Arson Crime Laboratory are of poor quality and were misinterpreted. I am familiar with gas chromatography and the methodologies in use at around the time of the fire. At that time, I was conducting research at the University of Technology, Sydney, Australia for my master's thesis analyzing fire debris with gas chromatography using methodologies that were widely used in the United States and reported in the scientific literature.

15. I agree with Dr. Armstrong's analysis of the chromatograms. I cannot see any evidence whatsoever in the chromatograms that indicate the presence of an accelerant. Simply put, the chromatograms for the samples from the fire debris do not resemble the chromatograms from the standard gasoline or standard paint thinner.

16. 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 and used to show just how wrong forensic evidence can be. It would be a great tragedy for the future of forensic science.

 

Subscribed and sworn this 20th day of July, 2002.
Anthony Cafe

Fire and Arson Investigation Message-board

On 16th December 2004 I once more contacted the Fire and Arson Investigation Message board. I wrote them a letter which I add below.

Fire/Arson Investigations

A place where those interested in fire investigations can ask questions and add to probative and informative discussions. Information posted shall be directly associated with the various aspects of the field.

These experts where going to form a commitee to submit to the courts in support of Kenny. Then a few weeks later the decision to overturn Kenny's comviction came up so there was no need to do so. Several of the experts have stated they would be willing to testify at a new trial about the arson investigation in Kenny's case if need be.

---

Dear Sirs,

I dont know if you remember me from quite a long time ago. I have been activley campaigning for a retrial for ten years now for Kenny Richey who is known as the Scot on Death Row.

He was convicted and sentenced to die for what the prosecution said was an aggravated arson and murder.

I am sure you are aware of his case. In case you aren't (which I doubt) his case is on www.kennyrichey.org

Tony Cafe supplied the 6th Circuit Court with an affidavit as well as the experts Kenny's attorneys have, Prof Richard Custer and Dr Andrew Armstrong. Tony's affidavit came about after I wrote on this forum many years ago and we got chatting. Then in 2001 at Federal court, Judge Patricia Gaughan decided to go web surfing to find experts who supported the prosecution. she didnt find any of course but used Tony's site thinking he was on the side of the prosecution:) she used his name so of course we could then bring him into the case in the form of an affidavit.

All scientific evidence points to an accidental fire and not arson.

We have been waiting now for almost 20 months for a decision from the 6th Circuit Court of Federal Appeals. If we lose here then Kenny is probably on fast track to execution.

Kenny's attorneys are Goodwin Proctor. His main attorney is Ken Parsigian.

Details to contact them are on www.gph.com

I read the article about Cameron Todd Willingham's terrible case and ultimate execution on some of the same junk science Kenny was convicted with. I also saw with delight that Ernest Willis was exonerated and freed from death row due to the tireless work put in by people like yourselves who want Fire Investigation to be done properly.

Sadly there is nothing to be done for Cameron except hopefully to have Texas acknowledge it executed an innocent man.

However, Kenny is still very much alive and has endured almost 19 years on Ohio's death row. He has suffered terribly. And I would love it for him to be home like Mr Willis is now.

I would like to have a list of Arson Experts/Investigators who have looked at the details in Kenny's case and perhaps have them offer a few words about the so called investigation and all that happened with evidence. I am aware there are some first class experts on this forum like John Lentini, Chris Bloom, Stuart Sklar, Pat Kennedy, Dr. James Munger, George Van Doren, Douglas Carpenter and Gary Haun. Many of you I spoke to via email when I began this fight for justice. If I left anyone out please forgive me.

I understand that no more investigators could possibly hand in affidavits to the court but it would be a good thing to have a list of those who support Kenny's fight for a look at his evidence in a court for the very first time. It would be something I would like to add to Kenny's website to show the world that junk science has no place in this society.

Kenny's case is known internationally and it could also help get the message out about junk science and old wives tales of arson investigations out to the world. I would add any links that I may not have on there already.

Amnesty International in London UK are interested in the idea I have about this, and due to the similarities in the Willingham and Willis cases we where wondering if anyone on here would be willing to make some comment re Kenny's case while this topic is still in the public arena. Comments that journalists can use. If you would like to speak to a journalist also then that can be arranged too.

Amnesty International supports the campaign and has itself described Kenny's case as "one of the most compelling cases of apparent innocence that human rights campaigners have ever come across".

We have several high profile supporters but the main thing I ALWAYS wanted to get out there was about the scientific evidence, and the proper art of fire investigation in his case. You guys on here have been fighting to have this happen for years. Think of the lives that could be saved from injustice if we could work together on this.

In 1997 evidence was presented to an Ohio court discrediting the original forensic testimony that the fire was caused by arson. Prosecutor Dan Gershutz said that "even though this new evidence may establish Mr Richey's innocence, the Ohio and United States constitution nonetheless allows him to be executed because the prosecution did not know that the scientific testimony offered at the trial was false and unreliable." The judge agreed with the prosecution and denied Kenny's appeal without opinion.

I am aware that you are all very busy people and probably get asked to help many people.

All I would like if you could possibly do this is for you to make a few comments re Kenny's particular case, of course mentioning Mr Willinghams tragedy also, which could be given to Amnesty International for a press release. and not forgetting Mr Willis's ultimate success at winning his freedom due to hard working people like you guys. John Maloney's case also could be highlighted with this.

Would it be possible for you guys to get involved?

Would you be willing to send me comments for Kennys site and the media?

Do you know who else I could ask?

Thank you for taking time to read this email and I do hope that you can say a few words on Kenny's case. It would mean so much to me and to Kenny also. Time is running out and as you can imagine I am trying everything I possibly can to highlight how wrong the State of Ohio is with this conviction.

Please help me before it is too late for Kenny. I truly appreciate you taking the time to read this.

Some quotes from Experts

Death sentence is never an option unless you have eye witnesses or confession. We are humans make too many mistakes and unfortunately once we put someone to death we can't 'unring' that bell. Charles Chase IAAI-CFI

I am glad Kenny's ordeal is over The Tetra Committee was asked by the Chicago Tribune to review this case and I have been batting it around on my own for two years now. The case is the poster child for how not to conduct a fire investigation this is a must read for all old and new fire investigators alike. Once again it shows it could happen to anyone even US just ask Maloney in Wisconsin

Gary Haun Jr. CFI/CFEI/CFII/CVFI

This one will probably get me into some hot water and if it does so be it. If anyone wants to take a look at a death penalty arson case where a man was convicted on the basis of junk science and more, and sits on death row, this is an opportunity for you to do that before his legally mandated murder takes place check this one out. KENNY RICHEY. You can get the jist of it on the Truth in Justice site, and I'm thinking that if you really want to go so far as taking a look at the whole case, you might be able to do that if you ask. Don't look to find a nice, one that has an exemplar character, one that you will cry for on account of his lost innocence, one that you will like to feel sorry for, because you won't find it. I think what you will find though is a capital case that you would or should be ashamed of that our profession was a part of.

"This email address is being protected from spam bots, you need Javascript enabled to view it!"

Take care

Karen xx