Marine's last stand on death row

Kenny Richey has faced execution in the US for 20 years. Tomorrow will be his final appeal

David Rose
Sunday January 21, 2007
The Observer

Kenny Richey will this week reach an unenviable anniversary - 20 years on death row. And tomorrow he will reach another landmark when he fights his last-chance appeal. But one way or another the Scottish former marine is convinced he has not got long to live.

Speaking by phone from his prison in Mansfield, Ohio, Richey, 42, said his last year in jail - since the US Supreme Court reinstated his sentence in December 2005, three days before he was due to be released - had been by far the toughest.

Last July, he suffered his second heart attack, and is on heavy medication. 'Doctors have told me I need to reduce my stress. How can I do that when I'm facing death for a crime I didn't commit?

'After 20 years in this hell, it's finally starting to beat me down, and if I don't get out soon, I won't get out at all. I'm overwhelmed by the feeling that I'm nearing the end of my life.'

Richey was 18 when he left his mother's home in Edinburgh to live with his American father in Ohio, where he joined the US Marines. He was planning to return to Scotland in July 1986 when he was arrested for the murder of two-year-old Cynthia Collins, who died in a fire in her mother's apartment in Columbus Grove.

The prosecution claims Richey started the fire because his estranged former girlfriend and her new lover - supposedly the intended targets of the attack - lived in the apartment beneath. It says he poured turpentine on to a carpet, and left a trail of it from the flat to the wooden verandah outside, where he set it alight. No one saw him at the scene and he had no trace of turpentine on his clothing.

Protesting his innocence, Richey refused a plea bargain which would have led to an 11-year sentence for arson and manslaughter. Tried by a court that sat without a jury, he was found guilty and sentenced to death on 27 January 1987. His case since then has resembled a labyrinthine game of snakes and ladders, in which his hopes have been repeatedly raised, then once again crushed.

Fighting a long series of appeals in state and federal courts, his new lawyers, led by Clive Stafford Smith, legal director of the British charity Reprieve, have compiled a dossier of evidence that supports his claim of innocence. It includes the fact that after the fire, the local fire brigade chief, who believed it began accidentally, had the carpet thrown on a rubbish dump. Days later it was recovered, but kept outside the sheriff's office next to some petrol pumps. Scientific tests, say Richey's defence, show that the carpet bore traces of petrol not turpentine.

In 2004, the Sixth Circuit US Court of Appeals, one tier beneath the Supreme Court, ruled that this evidence, coupled with his trial attorney's failure to adduce it, was enough to quash Richey's conviction, and gave the prosecution 90 days either to appeal or to start proceedings for a re-trial.

'I was packed and ready to go home,' Richey said. 'I'd already sent my CDs, tapes and clothes back to my brother in Scotland by post. The prosecution had indicated there would be no retrial. Then the axe fell. It was devastating in so many ways.'

Richey's fate now turns on highly technical interpretations of procedural law. At this week's hearing, the prosecution will argue that the defence has no right to use the new evidence because it should have argued it earlier. The defence will respond that the prosecution has no right to make this objection, because it in turn should have done so at one of Richey's previous appeals. But if Richey wins this argument, his conviction will be quashed again - though the prosecution would almost certainly go back to the Supreme Court yet again in a further bid to have him killed.

Stafford Smith said: 'Kenny has had to deal with so much, and sadly it appears that the prosecutors wish to prolong this even longer. The US has lost sight as to the reason why criminal justice systems exist. Innocent people should not be in prison, let alone awaiting execution.'

Richey added: 'I sit on my bed and dream of Scotland. I miss fish and chips and haggis, white pudding, brideys. I miss the rain, the mist, the dreary weather. My dearest wish before I die is to stand outside in Scottish rain and to feel it soak me.'