Prejudiced by false scientific testimony

The "Preservance" of Evidence

Cryer did not discount Samples 5 and 7 because Sample 4, taken from the patio deck, also allegedly revealed the presence of an accelerant, namely, paint thinner. Trial Tr. at 806.

According to Cryer, the evidence of paint thinner on both Sample 7 taken from the living room carpet, and Sample 4 taken from the patio deck, could not be dismissed as mere coincidence. Trial Tr. at 806.

Therefore, the false scientific testimony of Gelfius that samples taken from both the living room carpet and the patio deck were positive for paint thinner had a persuasive effect on the prosecution's star "expert" witness, thereby infecting Cryer's testimony.

Second

Cryer's testimony that the smoke detector had been disconnected before the June 30, 1986 fire ultimately proved to be a debilitating blow to Richey's defense. The three-judge panel accepted Cryer's testimony wholesale, and from that testimony alone, without logical or evidentiary basis, extrapolated that Richey himself had disconnected the smoke detector.

The panel used this unsupported conclusion to discount completely Richey's mitigation evidence that he twice fought through the smoke and flames in an attempt to save Cynthia Collins. Ex. 8 at 3.

Third

DuBois' testimony, coming from an "expert" who had originally been retained by defense counsel and therefore was presumably not biased in favor of the prosecution, could only have bolstered the three-judge panel's determination that Richey was guilty beyond a reasonable doubt.

Finally

Because the only evidence against Richey was circumstantial, the seemingly "scientific" analyses of Cryer, Gelfius, and DuBois must have been of even greater persuasive, if not dispositive, weight to the three-judge panel. Indeed, without the false testimony of Cryer, Gelfius, and DuBois, there was no record evidence to support a finding that the fire was caused by arson.

Consequently, it would have been virtually impossible to convict Richey without the false testimony of Cryer, Gelfius, and DuBois.

In summation:

Based on the new expert evidence introduced by Richey, he has conclusively demonstrated that:

• The State convicted Richey on the basis of false scientific testimony of arson which lacked any reliable scientific basis; and
• A competent expert would have concluded that, according to sound scientific principles, the physical evidence retrieved from the fire scene did not contain evidence of arson; to the contrary, the evidence was actually consistent with a fire caused by discard of smoking materials.

Based on this new evidence, Richey's execution would violate the Eighth and Fourteenth Amendments.

Our experts do not state categorically that the fire could not have been arson. That is because the State did not retain adequate samples to confirm to that degree of scientific certainty what happened. Hence since the fire scene can no longer be examined (indeed, because the State did not maintain the crime scene for even 24 hours, it could not have been examined by Richey's experts or the State's even at the time of trial), no one can be absolutely certain what happened.

But that is not the legal standard for reversing his conviction or his death sentence.

What Richey's experts ? the top experts in the country who are often sought out by the police and are not just professional testifiers for defendants ? do say is that the scientific evidence presented at trial is false and based on scientifically discredited and faulty analysis.