From the A & E Television Board

Greetings,

The judge rejecting the latest appeal by Richey undoubtedly followed the body of ORC statute, ordinance and case (common) law...

The seminal issue is whether there was a crime of ?arson? in the first place... no ?arson?; no ?murder?... simple as that....

The issue above then dissolves into the forensics (interface between ?The Law? and ?Fire Science?) of the trial....

....shopping around for a ?rent-a-quack? is a common defense tactic in cases which ?expert testimony? is involved....

....another tactic by defense attorneys is to touch on areas of new science:

1. Daubert v Merrill Dow Pharmaceutical--- (novel scientific statistical analysis of medical data
2. Intermittent Explosive Disorder-- analysis of levels of precursors and metabolites (e.g.--homovanillic acid) of the neurotransmitter ?serotonin?

What distinguishes the ?Kenneth Richey? case from the ?rent-a-quack? matrix is the poor state in the 1980s(and earlier) of what was accepted as credible ?fire science? testimony...

The field was full of ?fire marshals? and ?fire science experts? using discredited methods of ?scientific testing? and being totally unaware that the methods they used were no longer accepted by the professional organization these experts subscribe to and which regulate their practice...

The Richey case

Enter Tony Cafe?s expert fire science testimony... Cafe is no ?rent-a-quack? and that issue was never raised by any other experts in the field nor the prosecution.

He?s as good as any expert in the field of ?fire science?

And tony Cafe?s involvement in the Richey case came on the heels of Federal Judge Patricia Gaughan attempting to go outside the court record to prove Richey?s guilt and referencing Tony Cafe in an attempt to bolster the State of Ohio?s case...

She involved one of the world?s top experts in an attempt to prove Richey?s guilt

...so it was not the Richey Defense team who brought Tony Cafe into the proverbial mix... it was a Federal Judge trying to prove Richey?s guilt...

...except Tony Cafe not only disagreed with the good judge... he was horrified that those chromatographs were going to support the notion that a ?crime of arson? had occurred and further that an innocent man was going to be put to death behind those chromatographic plates

What is particularly humiliating for Licking County and the State of Ohio is the attack by Cafe on the competency of the State?s expert...

Pay attention, sports fans! here?s what you?ve been waiting for:

..the very first point of attack by Cafe was that the method of testing used by the State?s expert at The Ohio Crime Lab demonstratively established his ?incompetency? since that methodology had already been discredited by the professional organization which these ?fire experts? subscribe to and which regulates their practice...

Conversely, Tony Cafe?s first point of attack on the defense expert retained by the public defender was that that bonehead was ?incompetent? because he didn?t immediately recognize the Ohio Crime Lab?s ..ahem... ?expert? was ?incompetent?... wheww!!!!

The above would be laughable if you didn?t realize a guy has lost 18 years of his life ...

..serving a sentence for ?a crime that never occurred?

Not serving an 18-year sentence for ?a crime committed by someone else? but rather for ?a crime that never occurred?

Cafe?s allegation was dispositive in terms of ?incompetency"...

...he didn?t allege the State?s expert was a drunk...
...he didn?t allege the State?s expert was ?untrained"...
...he didn?t allege the guy had a vendetta against Scotsmen for not wearing anything underneath their kilts

...he said the guy at the Ohio State Crime Lab hadn?t kept up with his ?bookwork? as it pertained to advances in the ?testing methodology? accepted by the professional organization which these ?fire experts? subscribe to and which regulate their practice....

There was no crime of ?arson? therefore no ?murder? occurred... the State?s own experts did not challenge Cafe?s findings (not unsurprisingly because Cafe was correct in his attack on the State?s case) nor did the prosecution...

The prosecution correctly argued that it did not know at the time that its own expert?s testimony was flawed and that Richey?s appeal should therefore be denied...

The judge correctly sided with the prosecution...

..yet there was no crime of ?arson"... everyone realizes that now... and no ?arson? then no ?murder"...

Why not just release Richey or pardon him then if he is truly innocent???

This is where the macabre humor comes into play... The police and prosecution truly thought this was a ?murder? attendant to a ?crime of arson? and furthermore that they had the perpetrator of the ?crime? in Kenneth Richey...

Problem is they all now know there was no crime... That?s right... the Police and Prosecution know now that no crime ever occurred.

...and this leads to what police and prosecutors often do when they have one of these ?slam dunk? cases...

...they ?fill-in-the-blanks"...

...they ?dot the i?s and cross the t?s"...

to wit, they suborn ?perjury"... ohhh! It?s nothing more blatant than ?massaging? the statements of less-than-credible witnesses ----

---who though they themselves were drunken, drug-using low life ?white trash? like Richey (who was only a ?drunken low life trash? since he abstained from drug use)---

---truly believed the Fire Marshall?s assessment of what happened and seeing a dead baby then willingly told the police and prosecutor?s what they wanted to hear and subsequently agreed to testify to what the police and prosecutors wanted them to say...

Why not??? We had a ?slam dunk? arson case... even though there was no evidence of ?arson? (nearby flammables/gas cans) nor any credible theory of how Richey gained access to the area where the fire supposedly originated...

Why not say what the police and prosecution wanted to hear???

Why not say what the police and prosecution suggested they say???

It was a ?slam dunk",correct???.... 99.99% of the time this massaging of the testimony helps put a bad guy away....

....and now the State of Ohio has come face-to-face with that 0.01% of the cases where the subornation of perjury results in the conviction of a man where it is abundantly clear no crime of ?arson? occurred..

..and the State of Ohio is folding like a cheap piece of lawn furniture as they are now faced with the horror that they not only have convicted an innocent man but also that they intend on putting him to death.

...and the problem faced by Licking County and The State of Ohio being forced to admit that they have engaged in this practice whenever they felt they had a ?slam dunk? case with just a few ragged details needing attention...

Again, Sports Fans... this practice of ?dotting the i?s and crossing the t?s? only occurs when the police and prosecution are certain they have their man...

...and they were certain that in Richey they had the ?right guy".

..the guy who committed the ?murder?

..attendant to an act/crime of ?arson? because... ahem...

..the Fire Marshall and State?s Fire Expert at the Ohio Crime Lab told them so...

..you all know who I?m talking about; the guys who didn?t keep up with the ?bookwork? on accepted ?fire science? methodology

This Kenneth Richey fellow has been in prison in the ?solitary confinement? of Ohio?s Death Row for almost 18 years for the crime of ?public intoxication? during his prime youthful years of life...

....and Governor Taft, The Attorney General of the State of Ohio and the County Prosecutor of Licking County are sitting on their hands hoping that the Federal Courts order a ?new trial? so that Licking County can decline further prosecution...

...and that they will be spared having to admit that in that 0.01% case where ?perjury? was ?suborned"...

...they went out and convicted a guy of a crime that never occurred...

...based on the testimony of a ?fire expert? too lazy to read his own profession?s journals on what constituted ?reliable testing methodology"...

and now to their everlasting chagrin, The State of Ohio and Licking County are faced with the ?sad realization? that way back in the 1980s the question of whether a crime of ?arson? had ever occurred was indeed a ?slam dunk"...

...if only someone had kept up with their reading of their profession?s journals....

D. Carmichael

So my own comments

In most cases I tend to be a skeptic about persons in official position consciously conspiring to hide mistakes of this kind even to the extent of the life of an innocent. And I would be very careful about accusing someone of doing so unless I had solid proof.

But it doesn?t follow,

that just because this process isn?t necessarily conscious, it doesn?t exist.

If Kenny would be exonerated - with actual innocence as the cause behind the ruling - it would be a Serious Embarrassment to the State of Ohio. Not to mention the police, the prosecution and the presiding judges on the panel that convicted him in the first place - based on what?

It could turn into a real nightmare PR-wise, as it probably would be found on the front-pages of more than one news-service - pertinent questions would be asked, spin-doctors would have to work overtime.

Because when the show is over...

What do you say to someone who have lost eighteen years of his life behind bars waiting for his execution? What would journalists make of the conditions that took a healthy, strong youngster and broke him down to a man with cardiovascular and respiratory issues, diabetes, and even a self-made front-tooth replacement. Imagine his doctors? verdict on the State of Ohio?s treatment of prisoners.

Best case, or worst depending on your point of view, would be that exoneration because of actual innocence made Ohio take a close look on their procedures and implementation of the DP. Can you truly argue for keeping a system that may cause such travesty of justice?

If nothing else it might stimulate reform, so that those on Death Row that are still not dead aren't treated as if they de facto where.

Evading embarrasement

But if the case is sent back for retrial, then there's a big risk that they just silently drop the case. If for no other reason to avoid embarrasment - and believe me, they would be embarrased! What then? ?We took your health, and a major chunk of your life - so long thanks for the fish.?

That might be so, an if it is, it will be a bitter pill to swallow - but it would at least fill one basic requirement - Kenny would be a free man. That folks, is accomplishment enough in my book.

D. Carmichael