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Home Kenny Richey The Case The Attorney - William F. Kluge, Esq. The Attorney - William F. Kluge, Esq.
Wednesday, 21 April 2004
Crucial evidence was given to Kenny Richey's lawyer, Public Defender, William Kluge, before the trial that never made it to trial.
Kluge advised Kenny to opt for a three-judge panel instead of a jury.
As a public defender in a death penalty case, if zero is bad and 10 is good, where was Bill Kluge's performance?
Ken Murray (Public Defender): "My opinion then was probably he was around two or three in that particular case."
Ken Murray: "His position on the ineffectiveness claims was that I should not raise this. He told me: "Do the best you can, but don't raise the ineffectiveness claims against trial counsel". Talking of Mr Stebbins, head of Public Defenders Office."
Mr. Kluge in retrospect
In retrospect, Mr. Kluge says he wishes he had chosen a jury trial. But he says he felt at the time, considering the community's feelings about Cynthia's death and his belief that he could not get the trial venue changed, that his decision for a three-judge panel was sound.
On the subject of Gregory DuBois, he agrees with Mr. Parsigian (Kenny's present lawyer). He should have found a better expert. "That has come back to haunt me, too." states Kluge.
The hiring of a defence "Fire Expert"
Kluge had a chance to challenge the arson theory and called on the services of an expert. Except, Gregory DuBois wasn't a fire expert - metal fatigue was his field.
He never challenged the Ohio Arson Crime Laboratory's report, or carried out any independent examination of his own. And, to cap it all, this potentially vital defence witness ended up giving evidence for the prosecution.
DuBois experience in fire investigation was limited to four days training with the very department that was claiming the fire was arson. He never challenged their report, or carried out his own examination
What Bill Kluge did, because he had no consistent strategy, was to keep Gregory DuBois on his witness list even after he said - "Oh, I agree with the prosecution".
Even though DuBois tried to fight it, Kluge didn't fight it, and the State wound up getting to put him on.
William Kluge failing to tell him that the central piece of evidence - the living room carpet - was cleared from the burnt out apartment within hours, and taken to the county dump further hampered Gregory DuBois. The carpet then spent some time in the yard of the local Sheriff's Office next to a petrol pump. It was only then that fire investigators examined it and found traces of inflammable substances - something a fire expert would have jumped on.
A failiure in research
Mr. Kluge failed to interview several key witnesses.
For instance, had he talked to Ms. Peggy Villearreal, he might have learned that Cynthia Collins once had set Ms. Villearreal's sofa on fire with a burning cigarette and that she had played with matches on other occasions - something the prosecutors have said they were aware of.
Moreover, Mr. Kluge did not even ask Hope if she disconnected the fire alarm the night of the fire.
Defaitism?
In December 1986, prosecutors offered Richey a plea bargain that could have freed him after 11 years and four months. Mr. Kluge told Richey to accept the offer.
The prosecution called 34 witnesses, Mr. Kluge six - Kenny Richey did not testify.
"I think about it all the time," he says as he lifts his 6-foot-4 frame from the chair. "I'm never reluctant to talk about it." Even his harshest critics give him (Kluge) that.
The central defect at Richey's trial was that there was no expert testimony for the defence to contest prosecution claims that the fire - which led to the girl's death - was, in fact, arson. Gregory DuBois, the defence's expert on the fire, ended up testifying for the prosecution.
A nationally qualified expert who has since reviewed the matter fully is prepared to testify that all the expert testimony at trial was scientifically flawed.
A Brief Definition Ineffective Assistance Of Counsel
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the defence. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 US 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984)