More misconduct

On July 23 1986, the State of Ohio filed a "Bill of Particulars", outlining the charges against Richey. Ex. 9. The Bill of Particulars changed the State's theory of aggravated murder from the charge contained in Count 1 of the Indictment. Whereas the Indictment charged Richey with the specific intent to kill Cynthia Collins, the Bill of Particulars charged Richey under a theory of transferred intent. The Bill of Particulars stated in pertinent part:
"The purpose to cause the death of another, to-wit: Cynthia Collins arises from the intent of the Defendant to cause the death of Candy Barchet and/or Mike Nichols." Ex. 9 at 2.

The three-judge panel's finding effectively ambushed Richey, who prepared his defence against one charge only to be convicted of another for which there was no evidence.

Records

The State's failure to record the grand jury proceedings violated Richey's rights under the Fifth, Sixth and Fourteenth Amendments, and Richey was harmed as a result of this error because it deprived him of the ability to prove that Count 1 of the Indictment was constructively amended. The testimony of certain of the grand jury witnesses who later appeared at trial concerned conversations with Richey that turned out to be crucial in the eyes of the three-judge panel in proving Richey's guilt or innocence. These individuals were key prosecution witnesses; without their testimony, Richey would not have been convicted.

Allegations of Kenny being dangerous, hearsay, and lack of physical evidence

Despite complaints from the defence, one of Richey's letters to a friend in Scotland and his threats to Mr. Basinger, were admitted as evidence during the sentencing hearing to demonstrate, the prosecutors said, a lifelong pattern of violent and unstable behaviour.

A panel departed from long-standing local policy and ordered that deputy sheriffs providing security for the proceedings could wear their firearms in the courtroom. Trial Tr. at 14-15. The panel also ordered the deputy sheriffs to search anyone entering the courtroom. Trial Tr. at 3-4.

The prosecutor persuaded the three-judge panel to act on information that it provided concerning whether Richey was dangerous to himself or to others.

In this case, there was no physical evidence linking Richey to the fire in Hope Collins' apartment. The only evidence relied upon by the prosecution to link Richey to the fire was alleged verbal statements by Richey preceding the fire. However, the testimony of witnesses who allegedly heard these statements was filled with contradictions and inconsistencies.

During its presentation of evidence against Richey, the prosecution repeatedly brought to the court's attention irrelevant, immaterial and incompetent information that Richey had allegedly threatened the prosecutor and potential witnesses while he was in custody. The admission of such evidence destroyed the constitutionally required reliability and fairness of Richey's trial.

On the basis of the irrelevant evidence presented by the prosecutor, the panel became so convinced of Richey's dangerousness that they ordered him to be shackled throughout the trial.

Unsupported attacks on character

Throughout its closing argument, the prosecution made repeated references to Richey's mental condition, even though no evidence of Richey's mental condition was introduced at trial. The prosecution stated to the three-judge panel that Richey was a "sociopathic killer," a "psychopathic killer," had committed a "sociopathic act," and had acted in a "sociopathic rage." The prosecution committed misconduct when it characterized Richey's mental condition without any record evidence to support its allegations. In effect, the prosecution "testified" as an unsworn expert witness against Richey.

The prosecution also committed misconduct when it hypothesized before the three-judge panel about the last minutes of Cynthia Collins' life. The prosecution engaged in an imaginary monologue describing Cynthia Collins' thoughts, feelings, and actions at the time of her death. Trial Tr. at 1017-1020. Over objections by Richey's defence counsel, the prosecution pretended to describe Cynthia Collins being trapped in her bedroom by "the smoke of the raging inferno," and dying from the "smoke and the heat and the fire and the confusion...." Trial Tr. at 1019-1020. The prosecution asked the three-judge panel to "[t]hink in your mind, if you will, those last few moments of Cynthia Collins' life, getting up, calling for someone perhaps, calling for her mother, calling for her father, calling for anyone, being alone in an apartment with a raging fire caused by this psychopathic killer." Trial Tr. at 1020. The prosecution's improper comments, unsupported by any evidence in the record, served no purpose other than to inflame the passions and prejudices of the panel and to divert it from deciding the case based on the evidence. Berger v. United States, 295 U.S. 78, 85-89 (1935); United States v. Payne, 2 F.3d 706, 710-16 (6th Cir. 1993); Sizemore v. Fletcher, 921 F.2d 667, 669-671 (6th Cir. 1990)