MOTION TO ISSUE CONDITIONAL WRIT IMMEDIATELY

Judge Patricia A. Gaughan

THIS IS A DEATH PENALTY CASE

MOTION TO ISSUE CONDITIONAL WRIT IMMEDIATELY AND

REQUIRE TRIAL WITHIN 90 DAYS

This case has now returned to this Court following reversal by the Sixth Circuit Court of Appeals. Over four months ago, on January 25, 2005, the Sixth Circuit ordered that "the case is REMANDED with instructions that a conditional writ of habeas corpus, giving the State of Ohio ninety days to attempt to retry Richey or release him from custody, be GRANTED." On May 16, 2005, the Sixth Circuit Court of Appeals issued its mandate, transferring the case back to this Court. On May 26, 2005, this Court denied Respondent's Motion to Stay Execution of the Writ "in light of the Sixth Circuit's ruling denying a stay of its mandate." Petitioner Kenneth T. Richey ("Richey") respectfully requests that this Court immediately issue an order that the State must retry or release Mr. Richey within 90 days of the issuance of the mandate on May 16,

Case 1:98-cv-01418-PAG Document 147-1 Filed 06/01/2005 Page 1 of 3

Deadline may loom in fire case, Toledo Blade, May 14, 2005 (attached as Exhibit A).

Contrary to the plain language of the Sixth Circuit's order, in statements to the press, the State has indicated that it believes it need only begin the process of retrial within 90 days of the issuance of the conditional writ. In the May 14, 2005 edition of the Toledo Blade, Jim Canepa (identified as Ohio's chief deputy attorney general of criminal justice), was quoted as follows:

What that means is the state has to start the process of retrying him. That could mean the setting of bond, appointing of lawyers, beginning the discovery process, ordering jurors. It doesn't mean we have 90 days to come up with a jury verdict.

Such a position is contrary to the plain language of the Court of Appeals decision, which concludes with the following "instructions":

the case is REMANDED with instructions that a conditional writ of habeas corpus, giving the State of Ohio ninety days to attempt to retry Richey or release him from custody, be GRANTED.

The Order does not say "begin the process of retrying Richey" or "appoint an attorney for the retrial." The Order is clear - the state has ninety days to "attempt to retry Richey or release him from custody." This Court's Order should make express that the State's interpretation of the Order is incorrect and that the State must begin the retrial of Mr. Richey within 90 days or set him free. The Court subsequently vacated that order, pending the issuance of the mandate. The mandate has now issued and this Court must immediately issue the conditional writ.

The Order should also require that Mr. Richey's trial begin within 90 days of the issuance of the mandate from the Sixth Circuit. By requesting that this Court stay the issuance of the writ without even informing the Court that the Sixth Circuit had already denied a request to stay the mandate, the State has further delayed the issuance of the conditional writ. During this time, Mr. Richey has continued to languish on Ohio's death row. Should this Court start the 90-day clock from the date of the issuance of the conditional writ, the State will have obtained a stay even though both the Sixth Circuit and this Court have refused to grant one. Consistent with the intent of the Sixth Circuit's order, this Court should therefore start the 90 day clock for Mr. Richey's retrial as of the date of the issuance of the mandate - May 16, 2005.

2005, the day after the Sixth Circuit's original decision, giving the State ninety days to retry Mr. Richey or set him free. Consistent with the ministerial nature of entering such an order, this Court entered an order on January 26,

Case 1:98-cv-01418-PAG Document 147-1 Filed 06/01/2005 Page 2 of 3

Respectfully submitted,
Paul E. Nemser (admitted pro hac vice)
Kenneth J. Parsigian (admitted pro hac vice) LLP

GOODWIN PROCTER
Exchange Place
Boston, MA 02110
Telephone: (617) 570-1000
Facsimile: (617) 523-1231
E-mail address: "This email address is being protected from spam bots, you need Javascript enabled to view it!"
E-mail address: "This email address is being protected from spam bots, you need Javascript enabled to view it!"
Scott E. North (0028043)
James A. King (0040270)

PORTER, WRIGHT, MORRIS & ARTHUR
41 South High Street
Columbus, OH 43215
Telephone: (614) 227-2000
Facsimile: (614) 227-2100

COUNSEL FOR PETITIONER

DATED: June 1, 2005

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing Motion was served by Federal Express upon Michael L. Collyer, Esq., Capital Crimes Section, State Office Building, 615 West Superior Avenue, 12th Floor, Cleveland, OH 44113-1899, counsel for Respondent, on this 1st day of June, 2005.

Daryl L. Wiesen

LIBA/1544964.2

COLUMBUS/1231436 v.01

Case 1:98-cv-01418-PAG Document 147-1 Filed 06/01/2005 Page 3 of 3

Court could make state retry Richey in 90 days or free him

By JIM PROVANCE
BLADE COLUMBUS BUREAU

COLUMBUS - The U.S. 6th Circuit Court of Appeals could start the 90-day clock ticking any day now for prosecutors to retry Kenneth Richey for murder or set him free.

The Cincinnati-based court voted 2-1 Thursday to reject Ohio Attorney General Jim Petro's request to stay its order while he seeks an appeal before the U.S. Supreme Court of a January ruling overturning Richey's conviction and death sentence.

The court is expected to formally issue its mandate as early as next week, which would set the clock in motion, forcing the state to make its move one way or the other as early as mid-August.

Exactly what that move would be remains to be seen. The attorney general's office maintains it would only have to start the retrial process within 90 days, if the Putnam County prosecutor's office chooses that direction. Richey's attorney, Ken Parsigian, said he would argue that the ruling would require the trial to be completed within that period.

In the meantime, the attorney general's office still plans to pursue an appeal before the U.S. Supreme Court, knowing that the court is not in session and would not be able to make a decision whether to hear the case before October.

The state could ask the court to stop the clock in the meantime. Richey, 40, has served 18 years on Ohio's death row for the arson death of Cynthia Collins, a 2-year-old Columbus Grove girl whom Richey was baby-sitting.

A three-judge common pleas court panel found that Richey set the fire in an attempt to kill his former girlfriend and her lover in the apartment below, but he ended up killing the child instead.

A 6th Circuit panel voted 2-1 to overturn the conviction, in part because the state could not prove the girl was Richey's intended victim.

Richey has maintained he did not set the fire, but he has admitted that he was intoxicated that night and could not remember what happened.

"Mr. Petro is running for governor; so he might want to retry the case. If he does, we're ready," said Richey's fiancee, Karen Richey, who lives near Glasgow, Scotland. Richey, born to an American father and Scottish mother, has dual U.S.-United Kingdom citizenship.

Ms. Richey said her finance plans to return to Scotland if released.

Both sides disagree over what the 90-day deadline represents.

"What that means is the state has to start the process of retrying him," said Jim Canepa, Ohio's chief deputy attorney general of criminal justice. "That could mean the setting of bond, appointing of lawyers, beginning the discovery process, ordering jurors," he said. "It doesn't mean we have 90 days to come up with a jury verdict," he said.

Mr. Parsigian disagreed. "'Try' him does not mean 'try to try him'. It's not 'Start thinking about trying him.' It means 'try him.' The words are plain English. This is consistent with the endless delay from the government, trying to stretch this out while they try for a Hail Mary before the Supreme Court."

Contact Jim Provance at:
"This email address is being protected from spam bots, you need Javascript enabled to view it!" ,
or 614-221-0496.