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Home Kenny Richey Petro Files for En Banc hearing Petro Files for En Banc hearing
Monday, 07 February 2005
From the Ohio Attorney General site.
2005-02-07
COLUMBUS ? Attorney General Jim Petro today filed the State?s motion for an en banc rehearing of the Kenneth Richey death penalty case, seeking an additional 14 days to prepare the arguments necessary to review the 6th Circuit?s decision overturning Richey?s murder conviction and death sentence.
Noting that the three-judge panel?s January 25, 2005 opinion failed to follow the standard of review contained in the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Petro indicated that he would seek a rehearing of the case before the entire 6th Circuit Court of Appeals, which can consist of 12 judges.
Petro asked for the extension to allow the State to adequately prepare its arguments regarding Richey?s 1987 murder conviction for the arson death of 2-year-old Cynthia Collins.
The AEDPA is a federal law that requires courts to apply a deferential standard of review when reviewing state convictions and sentences.
Attorney General Petro believes that the panel failed to apply that deference in overturning Richey?s conviction.
Petro Files for En Banc (PDF)
A short explanation
To avoid misunderstandings this deserves a short explanation. First of all, a request for an "en banc" hearing means that they want the full 6th Circuit to review the case. Normally the 6th Circuit work in panels of three judges, but the State apparently hopes the full court would rule differently than the three-man panel of judges.
Secondly the AEDPA calls for appelate courts to defer to the lower courts judgement, which means that unless there are procedural or constitutional faults the appelate courts should not overturn. When considering evidence the appelate court can only adress obvious errors in the interpretation of evidence as presented in the original trial. Petro et. al. have obviously aimed their sights on AEDPA, claiming the appelate court overstepped its bounds in overturning the original judgement.
I personally doubt they can make a convincing case trying to show that the 6th Circuit failed to take the AEDPA into account. The overturning was based not mainly on new evidence, but put the application of Ohio law into question as well as the performance of the defense attorney. As I understand it, the new evidence and the interpretation of the old evidence was actually secondary to the ruling. That means that while the court aknowledged that the new evidence undermined the case, it was the dismal performance of the attorney and the questionable use of transfered intent that made the ruling.
So they have asked for an extension of two weeks to appeal the decision. I suppose the 6th Circuit could turn that down. But doing so could be seen as a serious slap on the wrist, akin to saying the OAG are dragging their feet. We'll have to see.
Marcus, KRC Webmaster