Another trial? Richey decision expected today

Putnam County Prosecutor Gary Lammers will make the biggest decision of his young career when he announces whether he will retry the case. Lammers inherited the case just days into his first term in office when the 6th Circuit Court of Appeals in January overturned Richey's conviction.

The 6th Circuit not only tossed out the conviction, but said Richey cannot be retried on the same statue that brought the death penalty at his 1987 trial. If Lammers decides to retry the case and wants to seek the death penalty he will have to find another statue in the death penalty law.

Richey was convicted by a three-judge panel of aggravated murder, aggravated arson, breaking and entering, and child endangering. The charges stem from the June 30, 1986, fire at a Columbus Grove apartment complex that killed 2-year-old Cynthia Collins.

At trial, prosecutors said Richey started the fire to get back at his ex-girlfriend who broke up with him. They even called witnesses who said they heard Richey threatening to burn the building.

Lammers has met with Putnam County Sheriff Jim Beutler, officials from the Ohio Attorney General's Office and State Fire Marshall's Office. They have reviewed the evidence and discussed potential weaknesses in the case in they choose to retry.

Lammers has said he would welcome the assistance of deputy attorney generals to help him try the case. Lammers also has at least one new witness who was not called at Richey's original trial.

Ohio Attorney General spokeswoman Kim Norris said Wednesday she knows what Lammers decision would be but did not want to upstage him. She said the announcement will be made by Lammers and that her agency supports his decision.

In the January ruling, the 6th Circuit said prosecutors, operating under the law at the time, would have had to show that Richey was after the little girl and wanted to kill her in order to be convicted of capital murder. The 6th Circuit also ruled Richey's attorneys at trial did not do an adequate job at trial representing him.

The state plans to ask the U.S. Supreme Court to consider the case, but its unlikely the court will take the case.

Retrying the case may prove to be difficult for Lammers. The toughest problem in trying a 19-year-old case is finding witnesses, former Allen County Prosecutor David Bowers said.

Some witnesses cannot be located or some may have died, Bowers explained.

If a witness is unavailable, that person's testimony can be read to a jury but it's not the same and affects the credibility jurors give someone, he said.

Old cases can be winnable but the time that passes usually gives defense attorneys the edge, Bowers said.

"The burden of proof always is on the prosecutor," he said.

Ohio Northern University law Professor Victor Streib said his experience handling or retrying older cases is that its hard for both sides but more so for the prosecution. He also said finding or dealing with witnesses years after the crime can be problematic.

"It's like asking you where you were last night and asking you where you were 10 years ago last night," he said.

People easily forget and may replace their memory of what actually happened with what they think happened or what they read in the paper, Streib said.

Whatever the decision by Lammers it's sure to gain worldwide headlines. Richey's case has been the subject of television documentaries. People in Britain and Scotland, countries that are opposed to the death penalty, have pushed a highly public crusade to get Richey off death row.

As it stands, the state has refused to release Richey from death row despite attempts by Richey's legal team to have him moved to the Putnam County jail.

A spokesman for the Ohio Attorney General's Office said his office will honor Lammers decision. If that decision is to retry the case, Richey would be moved to the jail.