Kenny Richey - Trial and Appeals

Trial and Appeals

A grand jury indicted Richey for aggravated murder, with a specification alleging murder in the course of arson, aggravated arson, breaking and entering (the greenhouse where he is alleged to have obtained gasoline and paint thinner to start the fire), involuntary manslaughter, and child endangerment. A panel of three judges, without a jury, convicted Richey of all charges, save the manslaughter charge, which was dropped. Following a pre-sentence investigation, mental evaluation, and mitigation hearing, the panel sentenced Richey to death for aggravated murder and consecutive prison terms for the other offenses.

In 1992 a direct appeal was lodged with Ohio Supreme Court and denied by four votes to three. In March 1997 an appeal lodged with the same judge who sentenced Richey to death was rejected. A 1998 appeal to the Ohio Supreme Court was also denied.

Throughout the appeals process, the prosecution resisted efforts by Richey's counsel to re-examine the forensic evidence that convicted him. At one stage, prosecutor Dan Gershutz commented, "Even though this new evidence may establish Mr. Richey's innocence, the Ohio and United States Constitutions nonetheless allow him to be executed because the prosecution did not know that the scientific testimony offered at trial was false and unreliable."

In June 1998, a stay was granted for the last in a series of 13 scheduled execution dates, and the case was transferred to the federal courts. During this stage of appeal, on 25 January 2005, the United States Court of Appeals for the Sixth Circuit overturned his conviction and sentence, ruling firstly that Richey's original legal counsel had been incompetent, and secondly, questioning the application of the principle of 'transferred intent.'

Subsequently, on November 28, 2005, the United States Supreme Court partially reversed the appellate court's decision, following an appeal by the prosecution—upholding the prosecution view that the Sixth Circuit ignored a constitutionally valid state law, and thus overstepped its authority.

In upholding the prosecution's argument on the legal principle of transferred intent, the Supreme Court stated that the, "...explanation of Ohio law was perfectly clear and unambiguous. We have repeatedly held that a state court's interpretation of state law ... binds a federal court sitting in habeas corpus."

In light of the new instructions, it remanded the case to the Sixth Circuit for reconsideration. On September 5, 2006, the Sixth Court scheduled oral arguments on the remanded issue of ineffective counsel for January 24, 2007. Under this procedure, the Sixth Circuit panel of three judges heard arguments for one half hour each by the Ohio Attorney General and Richey's defense counsel, Mr. Ken Parsigian.

On August 10, 2007, the United States Court of Appeals for the Sixth Circuit upheld its January 2005 overturning of Richey's conviction and death sentence due to ineffective counsel, and once again ordered Kenny Richey re-tried or released within 90 days.

On August 24, 2007, Brian Laliberte, Ohio deputy first assistant attorney general announced that the prosecution had decided not to appeal the Court of Appeals' ruling to the Supreme Court, and therefore accepted a retrial. Richey was moved off death row and back to the Custody of Putnam County Jail.

Richey's second trial was scheduled to commence at Putnam County Common Pleas Court on March 28, 2008. At a bail hearing in Putnam County on October 2, 2007, the court set bail of $10 million for Richey to be released, under strict limitations, until his new trial. Despite an anonymous donation of $900,000 and his father and brother's willingness to sell their homes to raise bail, Richey's counsel accepted that because any bail bond is non-refundable, they would not be able to secure his release until the new trial was held.

Richey's counsel originally applied for a change of venue to Columbus instead of Putnam County. Arguing that media attention made a fair trial impossible, Richey's counsel presented 426 newspaper articles, letters to the editor, and editorials about the case. Putnam County Prosecutor Gary Lammers resisted this application, arguing that it was premature, and that the proper way to handle the matter is to try first to seat a jury to determine whether the jury pool has been tainted.

On October 26, 2007, Richey's counsel requested that the prosecution provide an account of what they intend to prove at trial, and applied for funds to hire an investigator and a mitigation expert, to be used only if Richey was re-convicted on death penalty charges and his case proceeded to the penalty phase. In response, the prosecution filed a list of evidence that they intended to use at the trial. Prosecution witnesses would have included Cynthia Collins' mother, members of the emergency services at the scene, and former neighbors and friends of Richey. Statements from five witnesses who had died since 1986 were to be read to the jury. Richey's clothing from the time and items from his days in the US Marine Corps were to be submitted as evidence, together with Cynthia Collins' medical records and death certificate.