Life and crimes of the Richey family:

CAN families be cursed?

If you had two sons who both went to America where one ended up serving a life sentence for murder, and the  other was condemned to die in the electric chair ... what would you think?

The Richey brothers from Edinburgh struggle not to be superstitious. Tom Richey, who  gunned down two people, killing one, while tripping on acid more than 20 years ago, has tried to stay clear of primitive fears and unfounded beliefs despite the Greek tragedy of his family history. Instead, he insists he's clung on to hard facts in the book he has written about his brother, Kenny - a man this country knows better by his tabloid moniker "the Death Row Scot".

Apart from the Ohio legal establishment, the rest of the world acknowledges that Kenny is innocent of the crime for which he was sentenced to death: the murder of a child.

Tommy's book is partly an investigative campaign to have Kenny freed, and partly a protracted apology to the brother he believes he helped convict through his own guilt.

Tommy never disputed his own terrible crime. "I took a life and I deserved punishment," he says. He pulled the trigger, although he has no idea why, and he is still wracked with guilt over the pointless, ugly murder; but he says he shares an equal guilt for both the killing and the effect the shooting had on his big brother.

Prosecutors in Kenny's case, who portrayed Tommy as a drug-crazed gunman, smeared Kenny with genetic guilt by association. If one brother is a psychotic killer, the thinking went, the other must be too. Tommy  believes that Kenny was "the unseen victim" of his gun. "In a way, I shot him too," he says. 

But there is something so fatalistic, so predetermined about the brothers' shared histories that they inevitably, at times, drift towards a kind of magical  thinking in attempting to understand their lives. Although Tommy's book about his brother has the dogged integrity of investigative journalism, on the telephone to me from his Washington State jail cell he recounts a tale that he finds fanciful, frightening and foolish as an explanation of their fates.

"I used to think about us being a cursed family," he says, in an accent that is working-class Edinburgh via the US jailhouse. "I try not to pay much thought  to that now. I'm too busy trying to think us both out of jail. I used to question why this happened. I couldn't blame anyone but myself about what  happened to me, but for Kenny? You can't find any meaning or reason there." 

Then he pauses, adding: "This is strange. When Kenny and I were kids, we had  a caravan in North Berwick where we went in summer. There were peacocks strutting about and they used to fight. One day there were three beautiful tail  feathers lying in the grass. Our granny warned us not to take them into our home, otherwise we'd get 13 years bad luck for each feather. We put them up on our wall. Thirteen times three is 39. If you take the time that both of us have served it'll be almost 39 years to the day by the time we get out." 

Tommy - initially given 65 years for his crimes - is likely to be freed and returned to Scotland sometime during the coming winter. His lucky break has come thanks to a US supreme court ruling against excessive sentencing. Kenny, after at least two dozen appeals to the US appeal courts, has finally been granted a retrial. Only the prosecutors in Ohio seem to think they have any chance of upholding the conviction. Across the world, from the last Pope to the British parliament and Amnesty International, Kenny's is considered an open and shut  case. He will walk the retrial and be home by the end of this year. Tommy sees the brothers' imminent freedom as "nothing short of a miracle".

So after the curse and the miracle, what remains? This isn't a fairy story with good conquering evil. Tommy remains marked forever as a bloody murderer, and Kenny is a man ruined by 20 wasted years in prison - his health shot, his heart wrecked, his body pummelled by diabetes. Tommy's victim is still in a grave, and the child who died in the fire for which Kenny was blamed is still dead. What abides, beyond this tragic but fairly commonplace litany of human suffering, is a disturbing question mark over the US justice system.

Tommy recalls Kenny comparing what happened to him to an event in the film The Matrix. In one letter, he wrote: "A scene really epitomised the past 18 years of my life. It's when they have Neo, Keanu Reeves, in a room and his lips suddenly stick together and he fights to stretch them apart. He gets up from the table, trying to speak, and he's wrestled down by the bad guys in suits and sunglasses. It's been like that for me for as long as I can remember. And I'm  bitter, Tom, I'm so damn bitter." 

At 18, Kenny was just a big kid when he arrived in the States to hook up with his American father. In Edinburgh, the family had slipped down the economic ladder when their business failed and they were forced to move to poorer, working class housing. The financial troubles took their toll and their father, James, threw in the towel and returned to the USA, leaving his wife and sons behind. Kenny and Tommy soon decided to follow him . Kenny joined the marines, screwed his military career and then screwed up a marriage and fatherhood.

He drifted into a twilight existence, hanging out with low-lifers who fed their children tranquillisers to keep them quiet, slept and screwed all day then smoked dope and drank cheap beer and whiskey all night. One night, a fire broke out killing a two-year-old girl in a nearby apartment block. That's when the legal system walked into Kenny's life wearing a suit and sunglasses.

The prosecution case was this: in 1986 Kenny had had a brief affair with a girl called Candy Barchet. They separated and she began seeing someone else. One night, drunk and angry, he clambered into the apartment above where Candy and her new lover were sleeping, threw petrol around, disconnected the fire alarm and torched the place, hoping that the floor would burn through and kill Candy sleeping beneath. During the blaze in the top flat, two-year-old Cynthia Collins, who'd been left alone by her mother, died from smoke inhalation. 

What we now know is this: the child had a history of starting fires; Candy and Kenny had split up amicably; the fire alarm was disconnected by someone else. Forensics now shows, contrary to the entire thrust of the prosecution case, that no accelerants were used to start the fire; Richey had a broken hand on the night of the arson and couldn't have climbed into the apartment; claims that he'd made threats were shown to be false and Richey had, at the time of the fire, risked his own life to save the child. 

There is, at least according to Tommy Richey, a movie quality to Kenny's life. There's a power-hungry prosecutor fighting his last case and running for election as a judge. He has a keen eye to the PR possibilities of putting an out-of-towner into the chair in the first capital case in his county in over 100  years. Then there's the key forensics witness, a man who Richey intends to sue for helping frame him. Next up is an allegedly incompetent defence attorney who couldn't free the President on a parking ticket charge; the judges who didn't know the law; the gossipy witness who fabricates and exaggerates evidence... and worst of all the many bit part actors who, had they been called to the trial as witnesses, might have ensured that Kenny spent just three days in court before walking free, rather than taking nearly 20 years fighting for his life from death row. But then in America, in Tommy's view, it's rich folks with fancy lawyers like OJ Simpson who get away with murder, not poor guys like Kenny. 

Both brothers describe the trial as a "lynching", and the prosecution case as  "an attempt to murder an innocent man". When Kenny was sentenced to death, his knees shaking under him, the crowded courthouse cheered as he was condemned. 

For Kenny, that moment of loneliness in the face of a system that wanted him dead, grew until it became his whole life; until it seemed that he was permanently faced with a crowd of cheering faces celebrating his coming extermination. Even harsher than those bystanders calling for his execution as a "baby killer", was the State of Ohio itself, which responded to Richey's appeals like this: "Even though the new evidence [discovered in Kenny's case] may establish Richey's innocence, the Ohio and US constitutions nonetheless allow him to be executed because the prosecution did not know [at the time of the initial trial] that the scientific testimony offered at trial was false and unreliable." 

"Inherently sadistic and evil" is how Tommy describes the US justice system.

On May 13 this year, Kenny found out that the Sixth Circuit Court had ordered the state of Ohio by a majority decision to either retry him or release him in  90 days. But the 90-day countdown couldn't start until all 12 judges signed the order. One judge withheld her signature.

In his book, Tommy depicts a cruel system run by petty, malicious people, such as the guards who happily deprived a prisoner like Kenny - a man thousands of miles from home - of his single permitted annual food parcel from his mother in Edinburgh, filled with Scottish sweets and shortbread. Eventually, Kenny was told it had been returned to sender as it wasn't addressed properly.

Five months later the box arrived back at his mother's Edinburgh home, containing nothing but the wrappers of the food that the guards had eaten. 

Yet this was a comparatively minor torment. In earlier letters to me, Tommy told of having to fight for his life against a cell-mate intent on raping him.

He makes light of it now: "That shit still happens." 

In 1997, a riot broke out on the Ohio death row. Kenny, suffering from ill health, took no part in it . To the shout of, "Get the f*** away from the window, you piece of shit", Swat teams fired 15 CS gas canisters into the cell in which Kenny and three fellow inmates were sitting. They were then stripped, cuffed and according to Kenny: "They beat the shit out of us."

"One guard stomped once on my head and once on my face, then stood on my face, ground his boot into my face and then kicked me in the face. Meanwhile, his fellow guards stomped on my bare feet, on my legs and kicked me in the ribs. Another one knelt on my back and sprayed a whole can of mace into my face. My  skin actually blistered."

One of Kenny's friends had his skull fractured. They were finally cuffed to a cement floor dressed in Guantanamo Bay jumpsuits and kept like that for five hours. "Two inmates pissed themselves," Kenny wrote to Tommy. Kenny said he was then taken from the room to a toilet, where he was punched and elbowed in the mouth until he lost a tooth. When the prison dentist refused to replace his tooth, Kenny made one from a melted plastic fork and some bits of wire. "America has convinced itself that it is the champion of liberty - that's nonsense , and my brother's story exposes that," says Tommy. 

Tommy found a hero in his big brother, Kenny. As the international clamour over his sentence grew, embarrassed Ohio officials repeatedly offered Kenny his freedom on condition he admitted his guilt. He refused, preferring, he said, to die for his principles. "I couldn't walk down the street and have people point and say, "There goes that man who got off scot-free from Death Row for murdering that wee lassie,"" he wrote. "I couldn't live without exposing the lynching that happened in that courtroom in January 1987." Tommy says of Kenny: "He had an indomitable spirit in the face of his own execution. He is a true Scottish hero." 

When they are released, the brothers might start a real estate business in Edinburgh. Tommy will continue with his writing career. He once sent me a few chapters of his prison memoirs and they showed the makings of a gifted, and very angry, writer. On freedom, Kenny wants a big party; Tommy doesn't. "Kenny's the  extrovert," Tommy says. "I bottled up all my anger and he let his fly. I just exploded one day like a shaken-up can of Pepsi."

Kenny is likely to move in with Karen Torley - the Scottish woman who campaigned for his release and has now become his long-distance lover. Tommy meanwhile hopes that the girl he left behind in Edinburgh 20 years ago - the one love of his life - stays true to her recent promises that they can make a go of life together when he is freed. 

They were always close, but two decades of letter-writing between prison cells, 2000 miles apart, have brought the brothers closer still. That's the one good thing that the pair of them have taken away from all this - their unconditional love for each other and their shared vow to never again make their parents suffer on their behalf. There are really no other lessons to be learned, according to Tommy. But then he pauses and says: "Well, the only other lesson is "stay away from America", I suppose. And when I get back to Scotland, I don't  think I will be picking up any peacock feathers in North Berwick."

Kenny Richey: Death Row Scot is published by Black & White publishing,  £9.99

07 August 2005