This thread discusses the Content article: British-U.S. citizen on death row fights to live
Killer Richey makes legal maneuver
Technicality allows bid to elude death penalty
Richey
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By JIM PROVANCE
BLADE COLuMBUS BUREAU
CINCINNATI - A year after the U.S. Supreme Court reinstated his conviction, lawyers for U.S.-British citizen Kenneth Richey tried yesterday to take advantage of a narrow window left open by the court to prevent his execution for the 1986 arson-murder of a 2-year-old Columbus Grove girl.
Richey's fate rides on a technical legal question that the high court sent back to the 6th U.S. Circuit Court of Appeals for further exploration.
His lawyers appeared yesterday before the same three-judge panel that voted 2-1 nearly two years ago to vacate Richey's conviction and set a 90-day deadline for Putnam County to retry him or set him free.
Born to a Scottish mother and American serviceman father, Richey, 42, was convicted of setting the fire on June 30, 1986, that killed Cynthia Collins, whom he was baby-sitting. The prosecution contended that Richey set the fire to kill an ex-girlfriend and her lover in the apartment below, but accidentally killed the tot instead.
Richey has said he was intoxicated and could not remember what happened that night, but he has denied setting the fire. He has spent 20 years on death row, having turned down a plea bargain that would have freed him after 11, according to his Boston attorney, Ken Parsigian.
In overturning Richey's conviction, the 6th Circuit determined he couldn't be convicted for the girl's murder when she was not his intended victim. The court also agreed that Richey's original trial lawyer was ineffective for failing to aggressively challenge questionable arson evidence.
The Supreme Court later reversed the ruling, determining that it was irrelevant who the intended victim was as long as murder was the goal. But it sent the ineffectiveness-of-counsel claim back to the 6th Circuit for another look.
The state argued before the Supreme Court that the 6th Circuit shouldn't have considered new evidence in support of the ineffectiveness-of-counsel claim because it wasn't presented at the state-court level. Richey's lawyers, in turn, contend the state lost its right to make that argument before the high court because it didn't raise it before the 6th Circuit and specifically waived it in writing before the U.S. District Court.
"How can we waive in district court procedural defense arguments he had yet to make?" asked Assistant Attorney General Michael Collier. "He didn't come up with these arguments until his briefing before this court."
Regardless of how the 6th Circuit decides, another Supreme Court appeal is likely.
Judge R. Guy Cole asked Mr. Parsigian about the state's argument that the scientific evidence was just one piece of its case.
"The state argues, I think, that it had all this other evidence - evidence that Mr. Richey said something to the effect that Building A, this particular building, would burn and the building did burn, that he was in that unit that evening, and that he made some comment the next day, I believe, of something to the effect that 'I did not do a good job,' and that that in itself was enough to convict," said the judge.
Mr. Parsigian, however, responded that those issues aren't before the court.
"The point is, if the jury had heard evidence from a competent expert ... that there was no arson and the evidence was inconsistent with arson, was there a reasonable probability that they would have found reasonable doubt," he said. "The answer is yes."
Contact Jim Provance at:
jprovance@theblade.com
or 614-221-0496.
Oh, Great Spirit, grant that I may not criticize my neighbor until I have walked a mile in his moccasins." - Old Indian Prayer My dad told me!! |
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