Man sent to death row is acquitted in retrial
Original conviction thrown out on appeal; defendant was
17 when Whitley couple slain
|Larry Osborne, 22, was ''still in shock'' after his acquittal yesterday,
his lawyer said. He spent two years on death row after being convicted
of the December 1997 murders of an elderly Whitley County couple.
Larry Osborne -- the youngest person on Kentucky's death row -- was
acquitted yesterday at his retrial in the December 1997 murders of an elderly
Whitley County couple. He was freed immediately and left the courthouse
with his father.
Osborne, 22, whose 1998 conviction was overturned last year by the state
Supreme Court, becomes the first person in Kentucky on death row to be
found innocent since the state reinstituted the death penalty in 1976.
''We are very happy,'' his lawyer, Gail Robinson, said yesterday. ''The
jury did the right thing.''
Whitley Commonwealth's Attorney Allen Trimble could not be reached for
comment late yesterday. There was no answer in numerous calls to his home.
Osborne, who had been held since his arrest on Dec. 31, 1997, when he
was 17, spent two years on death row.
He walked out of the courtroom a free man yesterday, Robinson said.
She said he broke down when the jury returned the innocent verdict yesterday
afternoon after about four hours of deliberation.
''He just sat there sobbing,'' Robinson said. ''He's still in shock.''
Osborne was not available for comment yesterday. Robinson said he was
with his father and was still working out plans on where to stay.
Osborne won a retrial after the Supreme Court ruled last year that Whitley
Circuit Judge Paul Braden was wrong to allow into evidence at the first
trial a statement made by a witness who later died, Osborne's alleged 15-year-old
accomplice. That witness, Joe Reid, drowned in a swimming accident five
months before Osborne's first trial.
Death penalty opponents said yesterday that the case underscores their
argument that innocent people risk conviction and execution in Kentucky.
''Huge, huge mistakes -- like innocent people going to death row --
do occur,'' Robinson said.
The Rev. Patrick Delahanty, chairman of the Kentucky Coalition to Abolish
the Death Penalty, said it's an example of how the system fails people
''This guy was innocent and they put him on trial, they didn't have
the evidence and they convicted him,'' Delahanty said. ''That's the system
Howard Mann, who helped prosecute Osborne in the first trial, said Trimble
had a difficult case to make without the testimony of Reid. But he said
Trimble was able to present new evidence at the retrial, including a pair
of pliers found at Osborne's home. The victims' son testified he had left
the pliers at his parents' house the day before they were killed.
Mann said the new evidence ''didn't compel the jury to go either way.''
Frankfort lawyer Kevin McNally, Robinson's husband and a national expert
on capital cases who represents people appealing the death penalty, said
Osborne becomes the 102nd person on death row nationwide to be acquitted
since the U.S. Supreme Court reinstated the death penalty in 1976.
''I think what it means is that there are so many questionable cases
on death row,'' McNally said.
Delahanty and other death penalty opponents have long pushed unsuccessfully
for a Kentucky law to ban the death penalty for defendants who were juveniles
at the time of the crime. Yesterday, they said Osborne would have been
spared a death sentence if Kentucky had such a law.
''We shouldn't have a death penalty -- particularly for teen-agers,''
Osborne was charged with the Dec. 14, 1997, slayings of Sam Davenport,
82, and his wife, Lillian Davenport, 76, after a break-in at the home where
the couple had lived for 46 years. The prosecutor said someone disabled
the elderly couple, possibly hitting them on the head, then set the house
The Davenports died of smoke inhalation.
Osborne became a suspect after his mother, Pat Osborne, called police
to report that her son had heard breaking glass as he and Reid rode past
the Davenport home on a motorbike, according to the court record and testimony
at the first trial.
Authorities said the break-in occurred on the evening of Dec. 13 and
the murders early on Dec. 14; Pat Osborne called police around 1 a.m. on
Dec. 14. The Davenports died around 12:30 a.m. on Dec. 14, court records
On Dec. 31, police began questioning Reid, who insisted as he had previously
that neither he nor Osborne had anything to do with the crime. He stuck
to that story for most of the interview.
But at the end of a four-hour interview, Reid changed his story and
told police that Osborne had committed the crime while Reid watched from
outside, according to court records. Police told him afterward they would
assure prosecutors that Reid had cooperated with them.
''Is this going to get me out of all this stuff?'' Reid asked, according
to court records.
Osborne was arrested the same night.
Before Reid could testify at trial, he drowned while swimming in Jellico,
Tenn. His death was ruled accidental.
But the prosecution presented Reid's statement at trial anyway, over
objections of defense lawyers who argued it was wrong to present evidence
from a dead witness who couldn't be cross-examined. They also argued that
Reid's statement was full of inconsistencies.
Osborne was retried this time without Reid's statement. Robinson said
that substantially weakened the prosecution's case.
She said Osborne took the stand at the five-day trial and testified
on his own behalf.
''He said what he's said from day one,'' Robinson said. ''He said, 'I
didn't have anything to do with this.' ''
Staff writer Joseph Gerth contributed to this story.