Ohio-Based U.S. Appeals Court: Tells D.C. Supremes We're Not Changing Death Case Ruling

CINCINNATI (TDB) -- The death row conviction of Kenneth Richey, a Scot who has been locked up awaiting execution in Ohio for 20 years, has long stirred a row in Europe and Britain. Officials on the other side of the Atlantic view capital punishment as barbaric, and it has been outlawed within the European Union.

Today, the 6th Circuit U.S. Court of Appeals in Cincinnati refused to back off a Jan. 25, 2005 ruling that ordered a new trial for Richey on grounds his original defense lawyer was ineffective. In December 2005, the Supreme Court reversed the 6th Circuit's holding that Richey had been deprived of constitutionally effective representation. Now a 2-1 majority of the 6th Circuit has responded by saying "the record supports our original conclusion granting Richey habeas relief because his trial attorney did not function as counsel guaranteed by the Sixth and Fourteenth Amendments."

The full text of the 19-page decision is available here. It includes a dissent by U.S. Circuit Judge Eugene E. Siler Jr., of London, Ky., who voted to uphold the conviction.

Amnesty International says Richey has "one of the most compelling cases of innocence it has seen" and the British government of Tony Blair intervened legally on behalf of the former Edinburgh, Scotland resident. The British government has also consulted with Richey's legal team.

He was convicted of setting an arson fire that killed Cynthia Collins, a 2-year-old, after a night of partying, drinking and smoking marijuana in Columbus Grove, a small town in northwest Ohio. According to prosecutors, the fire was intended as revenge at Richey's girfriend, who had recently broken up with him and wanted to begin a romantic relationship with another man. Richey was described as acting in a jealous rage.

The appeals court said Richey's trial lawyer declined to present expert testimony that could have disputed arson as the cause of the fire. There is some evidence that the apartment blaze was not set, but came from cigarette left smoldering in the cushions of a couch. The appeals court said:

"There can be little doubt that Richey was prejudiced by his counsel's deficient performance. There is a reasonable probability that had counsel mounted the available defense that the fire was caused by an accident, and was not the result of arson at all, the outcome of the guilt or the penalty phase would have been different. Although the circumstantial evidence alone might have led to a conviction, the question before us is not the sufficiency of the evidence, but of undermining our confidence in the reliability of the result. Confronted with evidence debunking the state's scientific conclusions, the trial court might have had a reasonable doubt about Richey's guilt, especially where the prosecution's case depended on a cast of witnesses whose lives revolved around drinking and partying and some of whom might have had their own motives for implicating Richey."

U.S. Circuit Judge R. Guy Cole Jr. of Columbus wrote the decision.