Kenny Richey - Defense Case

Defense Case

The central premise of Richey's appeals was that no arson took place, and therefore no crime. Richey's counsel argued that the death of Cynthia Collins was instead a tragic accident. According to this view, dubious and conflicting circumstantial evidence combined with widely discredited forensic evidence resulted in an unsafe conviction.

Richey steadfastly maintained his innocence throughout his incarceration. Before his trial, he declined a plea bargain involving pleading guilty to involuntary manslaughter in return for a lesser sentence of eleven years and four months. Had he accepted, he would have been released by 2000. In the late 1990s he also rejected an offer of transfer to a Scottish jail and eventual release under Scottish probation law. Meanwhile, concern surrounding the evidence and the perceived incompetence of Richey's counsel during the original trial led to an international campaign to secure his exoneration and release. A central issue for believers in Richey's innocence was the prosecution's controversial interpretation of forensic evidence, particularly chromatograms—and expert witness incompetence on both sides. Prosecution witness Mr. Dan Gelfius used a chromatogram analysis technique that had never been reviewed by any of his peers to conclude that carpet samples from Collins' living room contained gasoline, and that wood samples from the balcony contained paint thinner — allegedly the accelerants used by Richey. In a later commentary on Mr. Gelfius' testimony, submitted as an affidavit at the appeal stage, Mr. Tony Cafe, an Australian international authority on forensic laboratory analysis of fire debris, stated: "I am sure that most of the world's leading forensic scientists in this field would be horrified if they saw the chromatograms used to convict Kenny Richey. If Kenny Richey were executed on the basis of this scientific evidence, then these chromatograms will become historical documents, examined by scientists all over the world to show just how wrong forensic evidence can be. It would be a great tragedy for the future of forensic science."

Unfortunately for Richey, the defense counsel at his original trial had used a newspaper advertisement to hire Mr. Gregory DuBois, a metallurgist specializing in metal fatigue, as its expert witness. Mr. DuBois, who had undergone only four days training in arson investigation, was ordered to limit his investigation to ten hours to save costs. Without carrying out tests of his own, DuBois' conclusions mirrored the prosecution's to such an extent that during the trial he was called to give evidence for the prosecution, which defense counsel William Kluge failed to prevent. During Richey's appeals, Richard Custer, a specialist in fire reconstruction, testified that the burn pattern at the apartment could have resulted from a fire that occurred naturally, and that Mr. Gelfius' theory of the accelerant's pour pattern and location would have required 10 gallons of fuel.

Following the original trial, conflicting and inconclusive witness evidence was further undermined by recantations. Price submitted an affidavit in which she reversed her trial testimony that she heard Richey threaten to burn down the apartment building, and recalled how Cynthia Collins played with matches and lighters, once placed a lit cigarette between sofa cushions, and had twice set fire to her bed.

Richey's campaigners also asserted the following points of fact:

• No traces of flammable materials were found on Kenny's trousers or boots, despite the assertion he had splashed such materials over the carpet.
• The defense was not told that the local fire chief had been called to the flat on three separate occasions in the preceding weeks to investigate mysterious appearances of smoke.
• Kenny had broken his hand a week earlier and it was in a plaster cast. A witness saw him collapse in bushes drunk—raising doubt that he could climb onto a shed to gain access to the apartment holding petrol cans without making any noise. His-ex girlfriend and her new boyfriend claimed to be light sleepers but heard nothing.
• Fire Marshall Cryer, who investigated the fire, declared that the fire had started accidentally and authorized the building owner to gut the flat. Had he suspected arson, the flat would have had to be sealed for investigation. Instead, vital evidence was removed—first to the dump, and then to the local sheriff's forecourt where it was placed near a petrol pump.

A local newspaper, the Toledo Blade, investigated in 1998, and pointed to "crucial errors" in the trial proceedings:

• In writing the three-judge panel's opinion on why Richey deserved the death penalty, Judge Michael J. Corrigan, the presiding judge, cited "unrefuted evidence" that Richey disconnected a fire alarm in the apartment. In fact, no evidence linking Richey to the fire alarm had been raised, only the fact that the alarm was disconnected. Judge Corrigan inferred two things—that Richey did the disconnecting, and that he did it to prevent the fire's discovery—from the neutral fact that the alarm was disconnected.
• Richey's attorney, public defender William Kluge, admitted to mistakes. The petition by his new attorney, Ken Parsigian, makes a compelling case that there were numerous errors in Richey's defense.
• Attorney Kluge's most obvious mistake was not asking Richey's neighbor Price how the fire alarm had been disconnected. She now says she and other residents of the apartment complex regularly disconnected the alarms in their own apartments.

This evidence would undermine Judge Corrigan's crucial conclusion regarding Richey's "responsibility for disconnecting the fire alarm".

Internationally, Richey's case attracted appeals on his behalf from Scottish celebrities such as Irvine Welsh, Robbie Coltrane, Charlie and Craig Reid, members of the Scottish Parliament, Pope John Paul II, former British Home Secretary Jack Straw (who promised to intervene on his behalf), former UK Prime Minister Tony Blair, actress Susan Sarandon, and organizations such as the European Parliament and Amnesty International.