Independent analysis

The analysis could originally be found at the message-board for http://www.prodeathpenalty.com/

Analysis of the Kenny Richey Case

For the last couple of weeks I've been studying the case of Kenny Richey. As most of you know, Richey was convicted by a three-judge panel in a bench trial of the first-degree murder of Cynthia Collins. Bench trials are trials where judges serve as both judge and jury. Opponents of capital punishment have made a stink of this case. Honestly, I never paid too much attention to it because anti death penalty groups make stinks of all death penalty cases. Yet, this case was different. Some pros have joined antis in their decrying of Mr. Richey's conviction and resulting death sentence. Therefore, I decided to study the case independently and free of biased sources. Actually, when I read a biased source from one side, I attempted to find a biased source on the other side to balance my analysis of the case. In order to reach my conclusion, I read the following materials:

1. The oral arguments originally presented to the Ohio Supreme Court by both Mr. Richey's attorney and by the State of Ohio.
2. The 3 opinions rendered by the Ohio Appellate Courts, which includes the Supreme Court of that State, regarding Mr. Richey's case.
3. The Federal District Court brief (Habeas) submitted by Mr. Richey's attorneys.
4. The opinion rendered by the Federal District Court.
5. The 6th Circuit Court of Appeal brief submitted my Mr. Richey's attorneys.
6. The 6th Circuit Court of Appeal brief submitted by the State of Ohio.
7. The affidavit of Peggy Villereal (Witness against Mr. Richey at trial)
8. The affidavit of Dr. Andrew Armstrong (Forensic Expert)
9. The affidavit of Richard Custer (Fire Investigator and Expert)
10. Partial trial transcript testimony of Shirley Baker (Witness against Mr. Richey at trial)
11. Statements made by Juanita Altimus (Witness against Mr. Richey at trial). Mrs. Altimus has since passed away.
12. Multiple articles published in "liberal" and "conservative" newspapers.
13. Materials posted on the "Save Kenny Richey Campaign" website.

Needless to say, I believe that I've familiarized myself with the case and its intricacies, both legal and factual. It is my opinion that as far as Mr. Richey's conviction goes, the State of Ohio by-passed the principle of guilt beyond a reasonable doubt and it is possibly holding an innocent man in one of its death row cells. Although I cannot certainly say that Mr. Richey is 100% innocent of the crime for which he was convicted, I can say this: Mr. Richey, at a MINIMUM, deserves a new trial. The events surrounding his case, (especially the ones that have occurred after his conviction) along with the law of this country, demand such an action.

The facts of the case at the time of Mr. Richey's original bench trial are as follows:

"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. Kenny Richey, Hope, Peggy Price, now known as Peggy Villereal, 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 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. Richey became upset at this news. When Candy went home, around 1:00 a.m., she asked Nichols to spend the night with her, which he did. No evidence exists to suggest that such invitation was made in the presence of Richey.

That night, Richey wore his Marine Corps camouflage fatigues and combat boots and he still had his right hand bandaged in a splint. The splint was required because 5 days prior to the incident at issue, Richey broke his hand by punching a door. He was upset after he learned that Candy had been in bed with a man named John Butler, whom he allegedly threaten with a knife. Some witnesses reported that Richey was intoxicated. As a matter of fact, a witness by the name of Dona Michaels saw Mr. Richey literally stumbling around, passing out into a bush. Jeffrey Kezar recalled a drunk Richey saying, "If I can't have her [Candy], nobody else can."

Richey told several persons that Building "A" 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., 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. Cynthia died from asphyxia related to smoke inhalation."

After an investigation, it was determined that fire accelerants, later identified by State experts as paint thinner and gasoline, were used to fuel the blaze. However, no traces of any of these substances were found on Mr. Richey's clothing. It is undisputed that Mr. Richey broke into the K&J Greenhouse where he apparently stole flowers for Candy. According to authorities, Mr. Richey stole the flammables from the greenhouse. However, the owner of the establishment could not tell whether any containers of either gasoline or paint thinner were missing from the place. Actually, no containers having traces of thinner or gasoline were ever found.

Authorities charged Mr. Richey under the theory that while trying to kill his ex-girlfriend, Candy, he ended up killing the little girl. Evidence of his intent was illustrated by his blind obsession with Candy, by his alleged multiple incriminating comments before and after the fire, and by the fact that the smoke detector in the apartment where the fire began had been disconnected. This theory is called transferred intent. It is important to point out that even today, prosecutors agree that little Cynthia was not a target in any way.

The above mentioned facts gave base to Mr. Richey's conviction. On paper, they look quite compelling. Anyone can see that Mr. Richey had a clear motive to kill Candy. A thorough reading of all materials that I reviewed painted quite a dark picture of Mr. Richey. The man, to put it mildly, had quite a nasty personality. Ironically, his worst enemy at the time of the investigation concerning Cynthia Collins' death, was himself. His unsolicited remarks before, and even after the incident served to severely damage his cause. However, the exculpatory evidence in the case, added to other compelling factors which I'll discuss below, give plenty of grounds to reasonably question his guilt and to conclusively reverse his death sentence.

My first observation of the case goes to the issue of opportunity. I will not question motive, even though there have been statements made by Mr. Richey's supporters and other former damaging witnesses to the effect that Mr. Richey's breakup with Candy was not as bitter and rancorous as portrayed by the State. I believe it was. Motive, however, goes only so far. It is undisputed that Mr. Richey was heavily intoxicated around the time when the fire started. As stated by the facts above, a witness by the name of Dona Michael saw Mr. Richey so drunk that he stumbled and collapsed on a bush. (See Ohio Supreme Court oral argument transcript). The time-line in the case suggests that a drunken individual, already handicapped by a sling on his hand, not only would have been hard pressed to carry a couple of containers of flammables up an apartment level, but his feat would have been even more difficult by not getting a drop on any of his clothing and by disposing of the incriminating containers, all in less that 45 minutes. Remember, between 3:00 and 3:30 am Richey was allegedly speaking with Hope Collins about watching Cynthia while she was out with another gentleman. The fire started around 4:15 am. Dona Michael saw Richey stumbling drunk after Ms. Collins had left. (See Ohio Supreme Court oral argument transcript). In addition, I noticed that there was no evidence at all indicating that Mr. Richey knew about the whereabouts of Candy at the time when the fire broke out. Candy left the party at 1:00 am, more than 3 hours before the blaze. On the other hand, Richey's whereabouts where known and substantiated. His location became unknown AFTER Hope Collins left around 3:30 am, 45 minutes before the fire.

The point is this: The undisputedly drunk murderer that apparently was strong enough to carry containers of chemicals with a broken hand in a sling, smart enough to avoid getting any traces of such chemicals on him and quick enough to dispose of the evidence before all of the hoopla caused by the fire began, was also intuitive enough to know that Candy was at her place with another man 3 hours after she left the party, even though there's no evidence establishing that he was told of her location by anyone. Is it possible? Perhaps. Is there a reasonable doubt about his ability to do all of these things? You bet.

How come no traces of any chemicals were found on Mr. Richey's clothing? I'm not only talking only about spills. My question is how was it possible for anyone to avoid getting traces of chemicals on one's clothing either by "after touches" or by contact with the containers while carrying them. According to the Ohio Supreme Court, perhaps because the clothing samples tested by the State did not have flammables on them. Alternatively, the Court stated that perhaps he just didn't spill any liquids on his clothes or he changed clothes. Perhaps, perhaps, perhaps. According to Dr. Andrew Armstrong, the prominent forensic expert hired by the defense AFTER the trial, the reason for the lack of scientific findings on Mr. Richey's clothes is because there were never any flammable substances at play in the fire to begin with. (See Armstrong's affidavit). To summarize, this is an excerpt from his affidavit under oath:

"Using the available reference data ( the gasoline and paint thinner standards ), I have formed the following opinions. These conclusions are based on sound scientific principles used in the forensic science community for the interpretation of gas chromatographic data. After analyzing the available data using the best scientific standard s that were available in 1986, and those standards which are currently acceptable, it is my opinion that there is no evidence of an identifiable ignitable liquid in any of the samples from the fire scene. I first summarize my opinions, and then provided a fuller explanation."

Dr. Armstrong's scientific testimony speaks for itself. Now, Dr. Armstrong is an eminence in the field of forensic chemistry. I looked him up on my ATLA (American Trial Lawyers Association) expert guide and he was rated at the top of the scales. His opinion is not only compelling, but actually quite logical. He also blasted the "fire expert" hired by the defense whose work was below mediocre. Now, what makes more sense? Theory #1 is that a drunken man with one hand in a sling carried a couple of containers of gasoline and paint thinner up a level in an apartment building without getting a single molecule of those liquids on his clothing thereafter disposing of the containers in such an efficient manner that they haven't ever been found. Theory #2 is that in fact there were never flammable liquids accelerating the fire to begin with. Is it possible that Dr. Armstrong missed the target in his evaluation of the evidence presented to him? Perhaps. Is there reasonable doubt about the fact there may have never been fire accelerants as argued by the State? You bet. In addition to the expert opinion of Dr. Armstrong, there is also the opinion of Richard Custer, fire reconstruction expert. It is important to point out that Custer is known to be used as an expert by insurance companies to prove fraud as a result of fires. The man is less than a defense-oriented witness. Yet, his affidavit testimony is an outright indictment of the testing methods used and argued by the State of Ohio in this case. According to him, the fire could have been (and in all likelihood was) caused by a variety of reasons, none of which involved accelerants. Could he be wrong? Perhaps. Does his testimony raise a reasonable doubt about the way in which the fire developed? You bet. None of these testimonies were presented at trial. Mr. Richey's attorney, well, he was less than stellar. His performance was so deficient that the State used HIS witnesses against Mr. Richey. Sad but true.

What about the testimony of the witnesses who heard Mr. Richey make threats about burning the building and even claiming responsibility for the fire. At first glance, such evidence seems insurmountable. That is until one actually reads their testimony. I wasn't surprised by what the witnesses said as much as I was surprised about what they didn't.

First, I have to start with the testimony of Peggy Villereal, formerly known as Peggy Price. During the investigation and subsequent trial of Mr. Richey, Ms. Villereal testified that Mr. Richey told her that "building A would burn" on the night of the fire. Yet, on January 24th of 1994, Ms. Villereal changed her story completely. Not only did she admit that her previous testimony of Mr. Richey telling her a bout wanting to burn the building down was false, she made a more startling admission. As the facts state, one of the reasons why the three judge panel that presided over Mr. Richey's trial found that he in fact intended to kill his ex-girlfriend was based on the smoke detector being disconnected at the time of the blaze. That, without a doubt, was quite damaging. Well, Ms. Villereal in her affidavit stated the following:
(15) "I specifically remember that the smoke alarm in Hopes apartment was hanging loose while she cooked dinner, and afterwards. I never saw anyone reconnect it.
(16) When I left Hope's apartment after dinner on June 29 1986, the smoke detector was detached, hanging loose from the ceiling.
(17) Hope's smoke detector was almost always unhooked. It was very sensitive and would go off when we were just smoking cigarettes or even when just the oven was on. So Hope kept it unhooked. She would unhook it by pulling a chair up from the kitchen and unscrewing it. Hope couldn't reach the smoke alarm from the floor."

Now, that is what I call exculpatory evidence. The point is that either Ms. Villereal was not truthful at the time of the trial or she is not being truthful today. Either way, her recanting adds up to a single concept: Reasonable doubt. In addition, Ms. Villereal's opinion was known by authorities and NOT disclosed to the defense. This is a clear violation of discovery rules, and specifically, a complete disregard of the United States Supreme Court's ruling in the case of Brady v. Maryland.

What about the testimony of Shirley Baker, who said that Richey told her "that the building is going to burn"? Well, after reading the trial transcript of her testimony, is clear that the judge panel was apparently listening to someone else speak. This is an excerpt of her testimony:

"Shirley Baker (Prosecution Witness): Yeah, they would put words . . .the words that we would put out, they would change the words. You know how people will turn things around, I do believe that's what they did on quite a few of the conversations that were made.

Question: One of the main things that came out of the trial was this phrase that a lot of people have said that Kenny had used, Kenny Richey had used on that night, that he was going to burn a building down, or the building was going to burn. Did you hear him say that?

Shirley Baker: I personally did not hear him say that. I heard them . . .people repeating that to me. That's what I heard.

Question: But you never heard Kenny Richey say that he was going to burn a building?

Shirley Baker: I did not, no. I did not."

Problematic? You bet. Finally, there was the testimony of Juanita Altimus. She stated that Mr. Richey bragged about the fire when he told her that "It looks like I did a helluva good job, don't it." This is a devastating piece of evidence. The problem is that Ms. Altimus testified that Mr. Richey uttered those words at a time where he simply couldn't have. This in an excerpt from an article in the Toledo Blade. The article was posted in the official Kenny Richey campaign site. Having said that, I checked the publication and it seems to be definitely in the pro death penalty side.

"Ms. Altimus, whom another witness and Old Farm residents described as a gossip, made one of the trial's most alarming statements. She testified that she heard Richey remark while standing beneath Ms. Collins's balcony next to a smoldering chair: ``It looks like I done a hell of a good job, didn't I?'' Ms. Altimus said the incident happened about noon on June 30, about six hours after the fire was brought under control. But Steve Stechschulte, a Putnam County sheriff's deputy, later testified that he was interviewing Richey in his apartment at that time and that Richey had been asleep on the couch when he arrived. Ms. Altimus later said the incident happened July 1. However, by then the chair she said had been nearby had been removed. She has since died."

As I said before, even more surprising than the things that the witnesses allegedly said were the things that they didn't say. Although all of these witnesses, some of which have already recanted, said that Mr. Richey stated that the building would burn or that he wanted to see the building burn, etc, NO ONE stated the reason why? Kenny Richey was tried and convicted of the murder of Cynthia Collins under a transferred intent theory. The alleged target of this fire was his ex-girlfriend, Candy. However, no one has testified that they heard him said that he was going to burn Candy or her new boyfriend. He never stated that we would burn Candy's apartment. As a matter of fact, there are not even allegations that he threaten Candy herself but instead, open ended comments about no one else having her. How Mr. Richey would have taken some sort of revenge on Candy and her boyfriend by burning ALL of section A of the building (as the witness allegedly heard him say) is something that no one has explained. Although Mr. Richey obviously knew that Cynthia was in the apartment when it burned, prosecutors have admitted that she was not a target of his actions. Strange? It is for me. I mean, the State admits that Mr. Richey did not want to kill the little girl, yet he set her apartment on fire anyway knowing that she was there. Even stranger is the fact that prosecutors made Mr. Richey an original plea offer that would have allowed him to walk in 11 years! This fact has been documented in multiple publications. Why would a man that can walk in 11 years choose a BENCH trial that could have (and so far has) cost him his life? You think about it.

I also have to comment of the legal proceedings themselves. Honestly, is does look as if Mr. Richey was doomed to be convicted. Now, I've argued 8 cases in front of 5 different Appellate Courts. I have to say that a particular Freudian slip by one of the Court Justices in this case was quite disturbing and unfortunately, representative of Mr. Richey's case. Here's an excerpt of the Oral arguments before the Ohio Supreme Court:

"The Court: What about the whole line of cases that we have about the overwhelming evidence? Isn't it fair to say in this case that the evidence against the defendant is overwhelming and how would this, if that's true, be prejudicial?
Ms. Perry: I do not agree that the evidence of guilt in this case is overwhelming. It is a circumstantial evidence case. There is no scientific or physical evidence that connects Kenneth Richey to this fire. In fact, his clothing and the boots he was wearing and the duffle bag he was carrying on the night of this fire were sent to a laboratory for testing and came back negative for the presence of accelerants, that is the materials that were used to start the fire.
The Court: For the presence of what?
Ms. Perry: Accelerants, materials that are used to start arson fires or any fires for that matter.
The Court: Well, he used kerosene, didn't he, not he, but somebody did?"

If that last line by the court is not indicative of pre-judgment and prosecutorial support, well, perhaps you all are less skeptical than I am.

The same type of prosecutorial solicitude was encountered in the Court's first opinion back in 1992. The following was interesting:

In Proposition of Law VII, Richey argues that the circumstantial evidence at trial did not establish his identity as the arsonist and killer of Cynthia Collins. Richey argues the evidence is insufficient because testing failed to show accelerants on his clothing. However, 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.
Richey challenges the accuracy of the times that Altimus gave for statements she heard. However, Altimus may have been simply confused about when she heard Richey. Richey argues that he could not have set the fire because he was intoxicated and had a splint on his hand. However, he could still use that bandaged hand, and the evidence about his intoxication was conflicting."

The Court was obviously correct when it stated that, "In a review for sufficiency [of evidence], the evidence must be considered in a light most favorable to the prosecution." However, the stacking of hypothetical inferences not supported by evidence is NOT correct. In my opinion, that's exactly what the court did. In addition, even if the evidence is considered in a light more favorable for the prosecution for purposes of testing its sufficiency, alternative scenarios go straight to the issue of reasonable doubt, which again, by the courts own writing, we could find plenty of. As for the statement that the evidence of intoxication was conflicting, it sounds to me that they were trying the case and not reviewing it. The evidence of intoxication in this case was overwhelming.

It is important to point out that the U.S. Supreme Court has stated that a defendant can bring new exculpatory evidence as long as he proves that his constitutional rights were violated at trial. The prosecutors in this case failed to disclose exculpatory evidence in the testimony of Ms. Villereal. Considering that the Ohio Supreme Court used the issue of the disabled smoke detector to impute intent to kill on Mr. Richey's behalf, it cannot be argued that testimony which totally contradicts that premise is harmless. In my view, the U.S. Supreme Court standard has been met in Mr. Richey's case.

All in all I believe that Kenny Richey's conviction cannot stand with the available evidence negating his guilt. A new trial should be granted. To execute a man under these circumstances is not only wrong but simply immoral. In the words of Justice Sandra Day O'Connor in the much misunderstood case of Herrera v. Collins:

"I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution. Regardless of the verbal formula employed ...the execution of a legally and factually innocent person would be a constitutionally intolerable event."

RED