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I just got back from Kenny Richey's oral argument.
A three judge panel, Judge Bryant, Judge Shaw, and Judge Evans, sat on the large wooden bench where the proceedings took place at the Lima Court of Appeals.
Kenny's lawyers presented the new evidence from Drs. Armstrong and Custer, as one cited the Schlup Case in South Carolina, showing clear evidence of innocence. He further stated that it would be a "fundamental miscarrige of justice to defeat this constitutional claim." Further he stated, "If this evidence was brought before a jury, the jury would not convict." Kenny's lawyer also cited that there was ineffective assistance of counsel on Kenny's behalf at his orginal trial.
It was the State's turn, and a young Mike Collure who stated this was his first time at speaking at such a hearing at this level, stated that the new evidence hearing is on post conviction review as an attempt to say that the 1st time was not good enough to get Kenny off, so Kenny is trying again. His arguments were 1) in State v. Perry - post conviction could have been raised at trial, and it was not; 2) that the State does not go by newly discovered evidence but by evidence presented at the time of the trial; 3) that the Con. Court of Appeals found that it has to be new evidence, not new testing on evidence and thus, the State will not consider the new evidence as presented by Armstrong and Custer; and 4) there was also no evidence of ineffective assistance or counsel.
Then the other State Attorney stood up for the five minutes remaining and clearly told the three judge panel that, " This is not an innocent man, but a man convicted of a brutal murder." He stated further that the State will not retry the case, and the defense should be arguing clemencey, not post conviction. "Kenny Richey is a brutal murderer", then he sat down.
Judge Evans stated that the response will be submitted and would be forthcoming.
All we can do from here on . . . is pray. Do that readers. Pray for Kenny Richey's life.
The State is relying on old arguments of rules of evidence admissible into appeals proceedings. Yet, with DNA testing allowed for rape cases, and a full ONE-FIFTH of those proving the innocence of the wrongfully convicted man, new testing of old evidence is allowed. Why then would new testing of old evidence be disallowed when a man is facing the certainty of death? Each of the State's attorneys, were he in Kenny Richey's shoes, would beg with every fiber of his being for the new testing to be allowed. Where is JUSTICE in our courtrooms?
Given that the below story reflects yet another case of Ohio jurisprudence in which the accused must prove his innocence, the power of the APA is enormous. In most states, when the governor recommends clemency, the parole boards rubber-stamp this intent, and the prisoner is shown mercy. It long has been known by state authorities that the State has the responsibility to show, by example, respect, not only for the statutory laws written by men and women, but also for the practice of universal laws, among which forgiveness and mercy are prime. Citizens who are part of a merciless and unforgiving State inculcate this survivalist thinking into their everyday actions and are all the more ready to exact personal vengeance for perceived wrongs. Such "reasoning" is a danger to all of society, and when a state body practices it, the message is clear: "Vengeance Is MINE, saith the STATE."
Kenny Richey's case depicts a situation that anyone could find him/herself in without a clue as to the long-range consequences for not having been in the right place at the right time. The story demands your attention, Ohioans, because this young man's life forever has been altered by a judicial system that was too concerned with getting a conviction to bother with a search for the truth. Even now, with evidence pointing to his conclusive innocence, the State may still take Kenny Richey's life. While his every breath has been a precious gift to him even from within the cages of Ohio's Death Row, Kenny has been in the none-too-accurate sights of the Attorney General's office for many years now. One must not look for mercy to issue from that office, an office that claims to represent the will of the people of OHIO.
With the recent execution of Harold McQueen in her sister state, Kentucky, Ohio is closer to performing the actual state-sanctioned killing of human beings. This Attorney General has displayed no mercy in her ambition to become the first Ohio AG in more than 34 years to preside over a "No Mercy" killing. The APA seemingly does not recognize the word "mercy" in numerous dealings with men and women not on Death Row, and every bid for commutation from a sentence of death to life without parole was denied in 1995. The governor is denied the effective power to exercise mercy. The Supreme Court of Ohio has already made its ill-considered finding, denying Kenny the real justice that was forfeited to him by an underzealous defense attorney during his first trial. Yet, there is hope that Kenny may yet find another chance to prove his innocence.
We, at FADS, and the Death Row Support Project, are urging you to read the below findings and to use your innate sense of good reasoning, your personal understanding of human nature, and your unbiased regard for the truth in determining for yourself if this man, whom the State wants desperately to kill, is deserving of another trial that could conclusively prove his innocence or his guilt. After you have read and pondered the facts ask yourself this: Which way will I sleep better at night: Knowing, without a reasonable doubt, that a guilty man is being punished or believing that an innocent man may die because his innocence was not proved? And ask this: What if this were my son who was the prey of politically ambitious prosecutors and less than veracious investigators? Would I not seek any avenue that could enable my child to prove his innocence? And then, get busy. Write to those listed at the end of this article and let your beliefs be made known. Even the APA responds to public pressure. YOU, OHIOANS, have the POWER that the APA denies everyone else. EXERCISE it before You too, must be forced to prove your innocence, for if You are ever caught up in the criminal justice system, May God have Mercy on Your Soul, for the State of Ohio knows NO MERCY.
A native Scotsmen, born in Edinburgh, is sitting on Death Row in Ohio waiting for a new evidentiary hearing in the Spring of 1998. Kennth Richey was tried for the murder of two-year-old Cynthia Collins, who died of smoke inhalation in her mother’s apartment in the town of Columbus Grove, Ohio, on June 30th 1986.
The prosecution alleged Mr. Richey had started the fire deliberately, by pouring gasoline and paint thinners on the carpet, because his estranged former girlfriend - supposedly the real target of the attack - lived in the apartment beneath the Collins apartment.
There were no witnesses to his presence and no trace of fire accelerates on his clothing; moreover Mr. Richey had broken his hand which was in plaster. After his arrest he demanded but was refused a lie-detector test.
Protesting his innocence, he refused a plea bargain which would have reduced his jail sentence to 11 years, if he admitted he was guilty of second degree murder. It was then his murder trial began and ended with the death sentence.
Two crime-laboratory technicians said that they had found traces of fire accelerates in carpet samples taken from the apartment, and that the pattern and speed with which the fire spread suggested arson. Richey was unable to challenge this evidence because his then defence failed to carry out its own tests.
New tests by two of America’s leading scientists in the field, Professor Richard Custer and Dr. Andrew Armstrong, have produced two important results. First, the course of the fire was consistent not with arson, but with an accident - and it has emerged that the child who died had started three accidental fires in the weeks before her death.
Second, the carpet samples contained no ignitable substances at all.
BUT, the carpet in question, was taken from the Collins apartment and placed in the dump the next day without taking any samples. It was not until 36 hrs later that the carpet was removed from the dump, stretched out to dry in the parking area where police cars are fueled. Only then were the samples taken for testing - leaving this evidence contaminated.
Shortly after the fire, Hope Collins, mother of the child, was charged with child endangerment as she had left shortly before the fire to spend the evening with her boy friend. Hope was known to give little Cynthia drugs to have her sleep while she was out in the evenings. Hope claims she asked Mr. Richey to baby-sit. Mr. Richey was drunk from the party and declined to do so. Hope left little Cynthia in the apartment alone anyway, without a baby-sitter.
Mr. Richey’s death sentence rested on a smoke alarm being pulled down and disconnected from the ceiling. It was reported that Hope often disconnected the smoke alarm while she smoked marijuana so that it would not go off and alert the neighbours. A friend, who was in Hopes apartment just hour before the fire, was not allowed to testify that Hope had disconnected the smoke alarm due to smoke from burning pork chops.
Witnesses that testified for the prosecution have recanted their testimony, one stating she was very nervous and agreed with what she thought the prosecution wanted. Another witness stated that he came from Missouri, and did not want to come and testify but when he heard that the little girl was raped, he had to come back for the sake of Cynthia. Autopsy reports show that little Cynthia was not sexually assaulted.Who informed him the girl was raped? One can only assume that there is a possibility that it came from the prosecutor’s office to induce the witness to return for the trial.
A seven judge panel, with a vote of 4 to 3, handed down the death sentence to Mr. Richey. Of the three judges that dissented, Sweeney, Wright, and Brown stated that their dissension was due to the fact that the majority did not have significant evidence that proved the guilt of Mr. Richey. From the analysis given by the three judges it states, "No evidence of any animus toward Cynthia was presented. In fact, the prosecutor admitted in oral argument before this court that there was no evidence that Richey had any intent to kill Cynthia." Also included in the Analysis was the statements:
"Several cases are cited by the majority to show the proportionally of the death penalty in this case. However, if one reads those cases (which are merely listed and not analyses by the majority), it is obvious that not one is remotely similar to this one."
Further stating: " Under the Eighth and Fourteenth Amendments to the US Constitution as well as R.C 2929.05 we are obligated to perform a meaningful proportionality review of the death penalty in every case. Such a review deserves more than lip service and listing of cases which are in no sense comparable to this one. There has been no meaningful proportionality review in this case. The death penalty is not warranted, and I must dissent."
The judges also added: "The fact that Richey actively tried to save Cynthia Collins, he put his own life in danger by physically being in a burning apartment. He repeatedly and hysterically told firemen and anyone else nearby, 'There’s a baby in there.' The majority cruelly misconstrues the evidence when it asserts that the defendant’s efforts interfered with those of the firemen.."
The innocence of Kenneth Richey can be proven beyond a shadow of doubt, but as Prosecutor Dan Gershutz stated, " The State claims that even if this new evidence conclusively establishes Richey’s innocence, the Ohio and the United States Constitution nonetheless allow him to be executed because the prosecutor did not know that the scientific testimony he offered at trial was false and unreliable." And without setting out any reasons, Judge Corrigan agreed; he decided not to hold an evidentiary hearing and dismissed the last appeal. Mr. Richey did not give up, and was awarded a new evidentiary hearing.
The courtroom in Putman County is small but ornate with oak panels on all walls and stain glass windows in the ceiling. On the wall behind the judge’s bench is a carved ribbon banner with an inscription "Justice for All."
References:
1. Thames TV documentary "Brit on Death Row"
2. Personal conversations with Mr. Jim Richey, Kenny’s father.
3. Court documents and Affidavits of Dr. Armstrong and Richard Custer.
Please send Letters to:
Governor Ohio Ohio
George Voinovich
77 South High Street
Riffe Center, 30th Floor
Columbus Ohio 43266-0601
Attorney General
Betty D. Montgomery
State Office Tower
30 East Broad Street
Columbus Ohio 43215-3428
Supreme Court of Ohio
30 East Broad Street
Columbus Ohio 43266-0419
Mr. Kenneth Richey #194-764
Mansfield Correctional Inst.
PO Box 788
Mansfield, OH 44901
With this article, FADS starts a new section that will cover the issue of the Death Penalty as it is legislated in Ohio. Marianne Kruse-Blanchong shall be a regular contributor to this section. Direct your comments, either in support of or against the position taken on the cases that appear here, to the email address currently provided, and they shall be forwarded to Ms. Kruse-Blanchong. Also, if a case ever is presented that you have information about that could prove the claim of innocence of someone scheduled to die, please do not hesitate to contact your local authorities and/or this site manager. A proof of innocence is extremely difficult to come by once one is convicted of a crime. And as in Kenny's case, not even such proof is enough to ensure justice in Ohio courtrooms.
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