American Justice? The Ken Richey Case

IF he had only admitted that he started the fire that killed two-year-old Cynthia Collins, Kenny Richey would have been a free man six long years ago. Instead, the 39-year-old from Edinburgh protested his innocence - and has continued to do so unswervingly for almost 17 years on Ohio’s Death Row.

One way or another, campaigners working to free him predict that Kenny will not be there for much longer.

The latest in a long line of appeals to overturn Kenny’s conviction is due to conclude within weeks and the result will be crucial. If the appeal succeeds, his lawyers will secure a retrial and will at last present the new evidence they believe proves that Kenny could not have started the fire that led to Cynthia’s death.

If it fails, Kenny could be given his 14th - and possibly final - date for execution.

Only one higher court of appeal would remain - the US Supreme Court. But its judges are not under any obligation to hear an appeal and, at any rate, they overturn very few convictions. Thereafter, only appeals for clemency would remain.

Those who have followed Kenny’s case since the late 80s may well be wondering what is taking so long. If Kenny is indeed innocent - and the evidence is compelling - why aren’t the United States authorities convinced?

Campaigners argue that the American system of justice does not allow for this new evidence to be introduced - to secure a fresh hearing, Kenny’s lawyers must instead prove that he did not receive a fair trial at the outset.

As for the lengthy delay, ironically it is often said that the US courts are weighted in favour of those convicted in death penalty cases, as it takes so long before they are executed.

But those who are not guilty - and there is a growing concern in more liberal states about the safety of many convictions - can face an agonising wait for justice, if indeed they can prove their innocence before their execution.

Amnesty International has described Kenny’s conviction as "the most compelling case of innocence human rights campaigners have ever seen".

They argue that it is "typical" of many US Death Row cases "where a poor quality trial has left somebody facing execution in defiance of international legal standards".

The current appeal, to the 6th Circuit Court of Appeals, is trying to prove that Kenny’s trial lawyer, William Kluge, was ineffective. They believe Kluge made fundamental errors including advising Kenny to accept a three-judge panel instead of a jury trial.

While the court will not consider new evidence, Kenny’s counsel, the Boston-based firm of Goodwin Procter - who took on his case free of charge because it was so convinced of his innocence - has nevertheless argued that there are two critical elements which seriously under-mine his conviction.

The first is that under Ohio law, there should have been proof beyond reasonable doubt that Kenny had actually intended to kill Cynthia. In fact, the prosecution had claimed he started the fire in a bid to kill his former girlfriend Candy and her new lover in the apartment below. The three-judge panel which presided over the original trial had also used a justification of "transferred intent" for passing a sentence of death. They assumed that because the smoke detector in the apartment where Cynthia died had been disconnected that Kenny must have tampered with it.

Yet the prosecution had not accused Kenny of having done so - and at least one witness had seen Cynthia’s mother, Hope, disconnect the smoke detector herself on several occasions.

The defence’s second serious concern regards the forensic evidence used to convict Kenny. Some of the world’s leading arson experts are willing to testify that the fire was started accidentally; there is also evidence that Cynthia had a fascination with matches and a history of starting fires.

In fact, the fire was initially ruled an accident and the apartment was gutted - the carpet was tested for traces of paint thinner only after it was retrieved from the county dump. No traces of accelerant were ever found on Kenny’s clothes.

Bizarrely, in an earlier appeal, Judge Patricia Gaughan accepted that Kenny had not disconnected the smoke detector. However she refused to recognise that this was what had directly led to Kenny’s death sentence.

As time runs out for Kenny’s legal team to prove his innocence, the campaign to free him is gathering some political pace. An early day motion has been put down in the House of Commons with cross-party support from MPs, calling on the Government to "make direct and robust representation to the state authorities, the Governor of Ohio and the President of the United States on behalf of Kenny Richey at the earliest opportunity, the eventual objective being to secure clemency."

But Karen Torley, of the Kenny Richey Campaign, says political pressure is needed now and not when it is too late for Kenny to be granted a retrial.

"Arguing for clemency is too late - we want the Government to ensure Kenny has a safe and fair trial to prove his innocence," she says.

"If this appeal is denied, then we can go to Supreme Court, who never do much, and then our only option to ask for clemency. We have about a year left now either way.

"I do not believe Kenny will be executed, but stranger things have happened. We must assume they intend to kill him because he is still on Death Row when there is such compelling evidence of his innocence.

"But what people don’t realise is that once you are convicted and sentenced to death being innocent is not enough. They don’t look at innocence as an issue - they look to see if the trial was fair."

Lothians Independent MSP Margo MacDonald, who published the results of a reinvestigation into the case last year, says: "Having taken advice from senior legal figures, we are absolutely convinced that there should at the very least be a retrial.

"If there is a retrial, we are absolutely convinced that the forensic evidence that was used to convict Kenny Richey by the three-judge panel would be revealed as so flawed it would cast a huge shadow of doubt over his conviction.

"I personally believe that he should be freed without having to undergo another trial."

Edinburgh North and Leith MP, Mark Lazarowicz, who is backing the early day motion, says: "There is now a compelling case for this conviction to be looked at again. I hope the US authorities will pay heed to the worldwide protests in favour of Kenny Richey’s release."

THE UK Government has had little success in securing clemency for Britons on Death Row in the past. Nevertheless, there are signs that the Foreign Office is preparing to speak up on Kenny’s behalf. A spokeswoman insists that everything possible will be done to help prevent Kenny’s execution.

"We cannot speculate on what representations we might make in any case. Our policy is to make representations at a level that is deemed most appropriate.

"We are opposed to the use of the death penalty in all circumstances. We very much hope that Kenny’s sentence of death will be overturned.

"We are following his case closely. As he has a dual nationality and is in the country of his second nationality we do not have rights to consular access to him. But that does not affect our following of the case or what we would do.

"Now that he has UK nationality our deputy consul general in Chicago, Mr Jonathan Derby, attended the hearing when Mr Richey applied for a retrial in May. He was there to observe and to register the Government’s interest. He has also met with staff at the Governor’s office in Ohio and with various organisations in Ohio.

"Our consular staff in Ohio and in London will continue to follow developments closely."

The case is being watched closely by human rights campaigners and Kenny’s supporters all over the world. Yet outside the sleepy backwater of Columbus Grove, where Cynthia died, most people in Ohio are not aware of the global protests against Kenny’s conviction - they don’t even know who Kenny Richey is.

Inmate A194-764 is among hundreds awaiting execution in a conservative state which is staunchly in favour of the death penalty, and one of more than 3500 on Death Row in the US.

But concern is growing in some more liberal states about the safety of such convictions. Earlier this year, the Governor of Illinois overturned 167 death penalty convictions because of revelations of mistakes.

Campaigners hope that Kenny’s case will soon become part of such statistics. The growing number of celebrities who are supporting his case probably can’t hurt. These now include Susan Sarandon, who played Sister Helen Prejean in the film Dead Man Walking, and Trainspotting author Irvine Welsh.

Welsh recently wrote: "A fair judicial system should not be condemning an innocent man to death. Nothing good is served by the tolerance of such a blatant miscarriage of justice.

"Clearly somebody should be on trial here, but it shouldn’t be Kenny Richey."

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The Wrongful Conviction of

Kenny Richey

by John Albert

In the early morning hours of June 30, 1986, a fire engulfed the second floor apartment of Hope Collins. Her three-year-old daughter, Cynthia Kay, died of asphyxiation. Hope was away, partying with friends. She had left about 40 minutes earlier. The fire department investigator in Columbus Grove, Ohio, and the Assistant State Fire Marshall, both concluded that the fire was an accident. The evidence points to little Cynthia starting the fire herself, accidentally. Cynthia was alone and she had started three other fires recently by playing with matches and lighters. She was fascinated by fire.

Hope often left her daughter home alone. She had a busy social life, she was a heavy pot smoker, a drug user and party goer. She often gave her daughter sleeping pills or tranquilizers when leaving her and sometimes, but not always, asked friends or neighbors to watch the child. Later, when police investigators suggested that she was responsible for leaving the child unattended, she said that she had asked her friend, Kenny Richey, to watch her child. Kenny does not recall that, but he was too drunk at that time to know what was happening. The two witnesses who were with Hope that night did not hear her ask Kenny to watch the girl.

In January, 1987, at the trial of Kenny Richey, the prosecution presented a unique theory of the incident. There was no credible evidence to support any aspect of this theory. It was wholly preposterous, but the panel of three judges accepted it and convicted Richey of first degree murder.

There was a crime committed alright, but Kenny Richey was the victim not the perpetrator. It appeared as though the Putnam County Prosecutor, Randall Basinger, conspired with the Assistant State Fire Marshall, Robert Cryer, and other witnesses to present false testimony in order to convict Richey. They also appear to have had significant help from the defense attorney, Bill Kluge, and the judge, Michael Corrigan in succeeding with this false conviction.

The prosecution's case was based upon the claim that it was arson and that Richey started the fire. The prosecutor introduced the testimony of Robert Cryer that the carpet contained the flammable accelerants, gasoline and paint thinner; however, since Cryer had originally determined, on the morning of the fire, that it was accidental, the carpet had been removed and hauled to the city dump. It remained there at the dump until the police recovered it 36 hours later. The police then brought it back, unrolled the carpet on a stained pavement area in front of a gasoline pump where they took samples which were sent to be tested. The carpet had been contaminated, there was no chain of custody and it never should have been allowed into evidence. The tainted carpet was the only evidence offered to support the charge of arson so the entire prosecution case fails for lack of proper evidence.

After the trial the carpet and the carpet tests were re-examined by Professor Richard Custer and Andrew T. Armstrong, both nationally recognized experts in fire and arson investigations. They determined that there was no evidence of arson, no evidence of flammable accelerants and that the previous tests presented in evidence at the trial were flawed. The previous test results that Robert Cryer testified to at the trial were false and all of the testimony offered to prove arson was false testimony.

According to the statement of Judge Corrigan, the sole factor that persuaded him to invoke the death sentence was that Richey had disconnected the smoke detector alarm in Hope Collins' apartment. He felt that showed a callous disregard for the lives of the tenants. No evidence had been presented to show that Richey did that. The prosecutor never accused him of that. It was never mentioned. In fact, the prosecutor and the defense attorney both had information from Hope Collins' friends and neighbors that Hope herself usually kept the smoke alarm disconnected, as did many other residents of that apartment complex. One friend said she saw Hope disconnect it 12 hours before the fire. Hope was a heavy cigarette and pot smoker and frequently cooked food on the stove which caused smoke. The alarm would have been ringing constantly. None of that information was put on the record, however. Those potential witnesses were not asked to testify. That single factor that the judge relied upon to justify the death penalty was unsupported speculation on the part of the judge.

A neighbor testified at the trial that she was standing next to Richey as the fire department was cleaning up the mess that morning when she heard Richey say, "I really did a hell of a job of it, didn't I?". It was un-refuted, damaging testimony. The neighbor, Juanita Altimus, could not have heard that because at the time she said she heard him say that, Richey was at his father's home being questioned by police. Juanita's daughter says that her mother, who was then 70 years old, had a failing memory and her mind was very confused. She was an extremely unreliable witness but that did not disturb the prosecutor.

The prosecution theory was that Kenny Richey stole cans of gasoline and paint thinner from the nursery greenhouse nearby, carried them up on top of the shed roof, then reached across to the balcony railing of Hope Collins' apartment, climbed in, emptied the cans on the carpet, lit the fire and left the way he came. No trace of those liquids was found on Richey's clothing, the cans were never found and the nursery owner said nothing was stolen from his greenhouse. There was no evidence of anyone climbing onto the shed roof. The roof is steeply sloped and difficult to traverse. Richey was drunk, had a broken wrist in a cast and could not likely have carried the two cans on to the shed and across that roof that night. The front door of the apartment was unlocked so there was no need to get in from the balcony. Kenny and all the neighbors knew about that. It was an implausible, convoluted theory with no basis in fact.

According to the prosecutor Richey's motive in starting the fire was to harm the tenants in the apartment below. That is similarly implausible since the second story apartment floor is solid concrete.

The defense counsel should have found it an easy task to disprove such a flimsy, unsupported case as the prosecution presented. But Bill Kluge did not make a sincere effort to defend his client. It appeared that he believed his client to be guilty.

There is something else troubling and inexplicable about prosecutor Basinger's values. Two weeks before the trial, he had offered a plea bargain of a maximum sentence of eleven years and four months, with a parole within six years if Richey would plead guilty to lesser charges. Richey was only 21 years old at the time, naive about the criminal justice system and believed that since he was innocent he could not be convicted. He elected to plead not guilty and go to trial, so he was sentenced instead to death.

He is now 35 years old, he has been in prison 14 years and has had every appeal to date denied. The appellate courts have not been willing to allow him to present exculpatory evidence. They insist upon protecting the integrity of the original conviction and preserving the injustice. That is what appellate courts usually do.

There is no proof that the prosecutors entered into a conspiracy to convict Richey. Or that they suborned perjury. Or that the defense attorney was complicit in the deceit. Or that the judges were biased in favor of the prosecution. Those are all reasonable inferences based upon the facts but they cannot be proven.

It is highly likely that these authorities considered that the town was greatly distressed over the tragic death of the three-year-old girl. They probably felt a need to exercise their power to find someone responsible for this painful death. The truth that it was an accident would not assuage the community sorrow. The truth would not have advanced their careers as much as a conviction. So they did what they felt they had to do in order to convict Richey. Perhaps, at some point, they convinced themselves that Richey was responsible. It is more likely, however, that Richey was simply their only suspect. And they were willing to sacrifice this young man's life to satisfy the exigencies of their positions.

Kenny Richey has many pleasant and redeeming qualities but he is not a sympathetic character. He was a drug user, a heavy drinker, at times, a temperamental loud mouth and he had previous minor brushes with the law. He has made some poor choices about his lifestyle. He was a troubled young man but he is not an arsonist or a murderer and he does not deserve to be put to death. He is entirely innocent of this tragedy. The evidence of actual innocence is overwhelming. The wrongful conviction of Kenny Richey is a crime against society.

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