Man sent to death row is acquitted in retrial
Original conviction thrown out on appeal; defendant was 17 when Whitley couple slain
By Deborah Yetter
The Courier-Journal
August 1, 2002
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 like Osborne.

''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 in Kentucky.''

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,'' Robinson said.

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 on fire.

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 said.

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.

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