Killing Time: Transcript

This is the full transcript of Frontline Scotland's Killing Time programme which was broadcast on 31 October, 2000.

KENNY RICHEY: I'm innocent, 100%. It's an injustice, plain and simple. I didn't start the fire.

ROSS: The chair where the American State of Ohio wants to end the life of a young Scot.Kenny Richey was convicted of starting a fire that killed a little girl. He's been on death row for the past 14 years waiting to be executed.

KENNY: There's always a part of me that dies, always a part of me that gives up hope, and a major part of me that says no, bring it on, you know, just kill me now, put an end to it. It's dragging on 14 years, that's too long.

JIM RICHEY (Kenny Richey's father): I haven't touched him since 1986. No one in his family has. There's a lot of pain in that.

KEN PARSIGIAN (Appeal Attorney): If I could just hit the reset button and go back, turn the clock back, and try this case myself, I'd bet my house that Kenny gets off.

TITLES: "KILLING TIME"

ROSS: killing the killers has been high on the agenda during the race to become the next president of the United States. Both Al Gore, for the Democrats, and not surprisingly, Republican George Bush, with his Texas roots, support the death penalty. But, one of the country's top law experts claims the system is broken.

Prof. JIM LIEBMAN (Dept of Law, Columbia University): In essence our capital punishment system in this country is a machine for making mistakes and then trying to correct those. Any system that generates almost seven out of 10 duds is one that a manager or a public official would consider to be a very seriously flawed system, and that's what we are finding in our capital system in this country.

ROSS: Tonight, Frontline reveals how that flawed system failed Kenny Richey and condemned him to death. It's all a far cry from Kenny Richey's boyhood days in Edinburgh. He was to grow up into a teenager who was constantly in trouble. His parents' divorce didn't help. The young Kenny followed his American father to the States hoping for a fresh start. He got married, and joined the Marines. Both ventures ended in failure. He turned, once again, to his father, now living in the small conservative town of Columbus Grove in rural Ohio. But trouble was never far away. There was a conviction and a jail term for assault. After getting out of prison he moved back in with his father.

JIM RICHEY: He met the people here, and they loved to party, and that was right up Kenny's alley, so, he joined in the fun. And unfortunately, that fun ran to rapid and downhill road for him in prison.

ROSS: The night of June 30 in 1986 was one of those parties. But this heavy drinking session at apartments on the edge of town was to end with the death of two-year-old Cynthia Collins, and Kenny Richey being blamed for starting the fire that killed her. The prosecution claimed the case against him was simple. Kenny Richey was drunk and very angry. His girlfriend had gone off with someone else. Revenge was called for. So, after removing the smoke alarm he armed himself with cans of petrol and set fire to the flat above the apartment where his former lover, Candy Barchette, was sleeping with her new boyfriend.Jim Richey is scathing of the prosecution story of what happened that night in flat A13. He claims his son, drunk and with a broken wrist, wasn't capable of starting the fire.So this is where the prosecution allege that your son Kenny climbed on to the balcony to start the fire in completely believable circumstances?

JIM RICHEY: Oh, absolutely believable. I mean, after all, I mean, carry these two gallon cans up to this shed while he had a broken hand that was in a cast. So he had to climb over the railing, the top railing while still holding on these two cans, with the broken hand in a cast, quietly got over there, quietly opened that sliding glass door, went there, spread the accelerants all about, started the fire, silently came back out shutting the door, climbing over the railing again, down on to the shed, and jumping down here, and never making a noise, never spilling one little bit of accelerants on his clothing. Why - it's absolutely believable.

ROSS: An innocent young girl was dead and Kenny Richey was the only suspect. But he says rather than trying to kill Cynthia he remembers trying to save her.

KENNY RICHEY: I remember Cynthia was in there, so I tried to get in. I called out for Cynthia, and about choked to death, my lungs just felt that they were on fire, I couldn't breathe. I was forced out, and when I got out they tried to hold me back.

JIM RICHEY: Instead of being cheered as a hero he was screamed at for being a killer.

ROSS: There are several conflicting accounts of what happened on that fateful night. In particular there's the crucial issue of the smoke alarm. The judges believe that Kenny Richey had removed it before setting fire to Hope Collins' apartment. It was that that earned him the death penalty.They believed that disconnecting the smoke alarm showed the murder was calculated and pre-meditated. But could there be another explanation? A neighbour of the Columbus Grove apartments remembers visiting Cynthia Collins and her mother Hope just hours before fire ripped through their flat.

PEGGY VILLEARREAL (Prosecution Witness): Well, it was in the evening, and Hope had come over and asked me if I wanted to have dinner with her. So, em, we got some food together. So maybe two or three minutes while it was warming up the smoke detector went off in the hallway, which was right around the corner of the kitchen. So, she dragged a chair, a kitchen chair back there and stood on it, and just twisted it off and let it hang there by the wires, and then just forgot about it, because I watched her do it, you know, I was standing there talking to her while she did it.

ROSS: And was that a common occurrence, were people removing their smoke alarms a lot?

PEGGY: We all did it.

ROSS: That crucial evidence was given to Kenny Richey's lawyer, public defender, William Kluge, before the trial. But the defence team was badly organised and inexperienced, and it never made it to court. It wasn't William Kluge's only mistake. He opted for a three-judge panel instead of a jury. Kenny Richey's present lawyer, based in Boston, says that was an unbelievable mistake. In a legal system where out of a jury of 12, just one juror with doubts would have saved Kenny Richey from the death penalty.

KEN PARSIGIAN (Appeal Attorney): I mean, one out of 12 is just such a wonderfully powerful standard. You know, you can. . .you can talk to the jury for a while, put on witnesses for a while, and you see who you're making eye contact with. In your closing argument you lean forward and you look at that juror, you're talking to that juror, that's the only one I know I've got to convince, and he or she is going to go on the jury room and try to convince everybody else. You lose all that when you with a three-judge panel, that's a lot to lose. I think if you were to pull successful criminal defence attorneys you probably would find . . . I wouldn't be surprised if you found a 100 for a 100 who said they would never have given up a jury in this case. It's unfathomable the errors that he made in this case. I mean, they're that bad.

KENNY RICHEY: There was a lot of major mistakes made in the trial.

ROSS: Were you aware of those mistakes at the time?KENNY RICHEY: I was. A lot of them. And a great many have come out since then that I didn't know about. There was nothing that I could do about it though. My attorneys, my life was in the hands of my attorneys. They controlled my future, my destiny, my life.

ROSS: Getting Kenny Richey's trial lawyer to answer those criticisms proved to be impossible.
Ross trying to contact trial lawyer:"Good morning, could I speak to William Kluge please.""I'm sorry, he's now available right now, can I take a message?""Yes, do you know he might be available, how long he's going to be in court?""My name if Ross McWilliam, I'm phoning from BBC Television, I rang earlier and left my number, and he was going to call me back.""I telephoned yesterday, my name's Ross McWilliam, I'm phoning from BBC Television, and I left a number asking him to call me."

Kenny Richey feels he was the wrong man, in the wrong place, at the wrong time. It didn't help that his brother, an American soldier, was serving 65 years in jail for shooting dead a stores clerk. 

Feelings in Columbus Grove were running high. A child had died, and angry residents wanted someone to pay. Kenny Richey was that man. His defence was failing him, and to make worse he faced a young prosecutor, Randall Basinger, who had a point to prove. He was part of the team pushing for the first death penalty in Putnam County since 1874. 

He had an eye on higher office, and was running for County Judge while the trial was going on. He desperately wanted a result. Prosecution witnesses were left in no doubt about what was expected of them.
Did you feel during the trial that prosecution were putting any pressure on you, they wanted to hear only a certain type of answer, they wanted you to deliver a certain type of answer?

SHIRLEY BAKER (Prosecution Witness): Yeh, they would put words . . .the words that we would put out, they would change the words. You know how people will turn things around, I do believe that's what they did on quite a few of the conversations that were made.

ROSS: Shirley Baker was sworn in and put on the witness box. Prosecutor Basinger asked her what Kenny Richey had said on the night of the fire. She answer him: "A building was going to burn." It's an answer she now regrets, and retracts.One of the main things that came out of the trial was this phrase that a lot of people have said that Kenny had used, Kenny Richey had used on that night, that he was going to burn a building down, or the building was going to burn. Did you hear him say that?

SHIRLEY BAKER: I personally did not hear him say that. I heard them . . .people repeating that to me. That's what I heard.

ROSS: But you never heard Kenny Richey say that he was going to burn a building?

SHIRLEY: I did not, no. I did not.

ROSS: Another prosecution witness, Peggy Villearreal had made the same claim at the original trial. Since then, she has also signed an affidavit saying she was wrong: "Kenny Richey never said 'The building was going to burn'."One of the main pieces of evidence against you were witnesses saying that they heard you claiming . . .you were going to burn that building, did you say that?

KENNY RICHEY: No, I didn't. You have to read different variations of what was said, or four actually, four people saying they heard it was going to be torched . I was going to torch the building some day, another one saying that I was going to burn the building down that night, and another one saying I was going to use my Marine Corps tactics to blow the bloody building up.

ROSS: Why did they give evidence at the trial saying that you said that?

KENNY RICHEY: Personally, I think they were pressured into it by the prosecution. One of them already said that. I think the prosecution had a lot to do with it.

ROSS: Kenny Richey's place on death row was never a foregone conclusion though, even in the eyes of the prosecution. Before the trial, they offered him a deal - admit the murder and serve a prison sentence. He would have escaped the death penalty, and have been a free man by now, a point not lose on his present lawyer.

KEN PARSIGIAN: They were willing to have a plea bargain for 11 years in this case. That does not say they were really confident that they would win. You go around, you find out how many times somebody gets a plea bargain of 11 years or the death penalty. Usually, the plea bargain is: 'We'll give you life in prison without parole if you plead guilty, otherwise the death penalty'. It's not usually 11 years. That's because they knew they had a weak case.

ROSS: They gave you a chance to back down with a plea bargain.

KENNY RICHEY: They never gave me a chance, 10 years..

ROSS: You'd be free by now.

KENNY RICHEY: It would have been three years ago.

ROSS: Do you regret not making that.

KENNY RICHEY: No, absolutely not. It's a matter of pride and a matter of honour. I'm also stubborn. I'm not about to admit to something I didn't do, not for anything, even my own life, the cost of my own life. I didn't do it - period.

ROSS: The trial was Kenny Richey's best chance for justice. But his shambolic defence had failed to convince three judges of his innocence. Now his hopes lay with a young appeals lawyer. Ken Murray was looking after the all important first appeal. He knew he faced an uphill struggle after the performance of State Public Defender William Kluge.So, as a public defender in a death penalty case, if zero is bad and 10 is good, where was Bill Kruge's performance?

KEN MURRAY (Public Defender): My opinion then was probably he was around two or three in that particular case.

ROSS: Ken Murray felt his best chance in the appeal was to highlight those faults and claim the defence had been ineffective. But his boss, David Stebbins, a close friend of William Kluge, had other ideas.

KEN MURRAY: His position on the ineffectiveness claims was that I should not raise this. He told me: "Do the best you can, but don't raise the ineffectiveness claims against trial counsel".

ROSS: Did you feel that David Stebbins' friendship with William Kluge influenced what he was saying to you at this time?

KEN MURRAY: Em, yes, I said back then, and I've told him that I thought his position for not raising . . .for telling me not to raise ineffectiveness against trial counsel was affected by his friendship, that I thought and I perceived that he had with Mr Kluge.ROSS: David Stebbins has a different view of events. He says he doesn't recall telling attorneys not to raise certain arguments. Kenny Richey's present defence team don't accept that.

KEN PARSIGIAN: It is shocking to me that somebody whose life was dedicated to the law and to criminal defence appeals, that's what Stebbins did for a living, that he would tell somebody to pull their punches. An ineffectiveness assistance of counsel here, given what a poor job Kluge did, was clearly one of their strongest arguments.

ROSS: But even more damning than that, Kenny Richey's lawyer says it shouldn't have been necessary for the case to go to appeal in the first place. He had new evidence that the fire that killed Cynthia Collins wasn't arson. Again, William Kluge was at fault. 

He had a chance to challenge the arson theory and called on the services of an expert. Except, Gregory DuBois wasn't an expert, metal fatigue was his field. His experience in fire investigation was limited to four days training with the very department that was claiming the fire was arson. He never challenged their report, or carried out his own examination. And, to cap it all, this potentially vital defence witness ended up giving evidence for the prosecution.

KEN PARSIGIAN: What Bill Kluge did again, because he had no consistent strategy was, even after Gregory DuBois said: 'Oh, I agree with the prosecution', he still kept his name on his witness list. 

So he put the name out to the prosecution: 'I'm going to call this guy'. Then, at the last minute, he told them: 'No, I'm not going to call him', so they said: 'Huh, I wonder why that is, why was he on his list but now he's not going to call him?' 

I guess that because his opinion wasn't very helpful to him. So then they went and tried to get him, and Kluge didn't fight it very hard. Even though DuBois tried to fight it, Kluge didn't fight it, and the State wound up getting to put him on. 

ROSS: Gregory DuBois was further hampered by William Kluge failing to tell him that the central piece of evidence, the living room carpet, was cleared from the burnt out apartment within hours, and taken to the county dump. He then spent some time in the yard of the local Sheriff's office next to a petrol pump. It was only then that fire investigators examined it and found traces of inflammable substances - something a fire expert would have jumped on. Investigator Dick Custer is known and respected around the world. His new evidence sheds a very different light on events. 

DICK CUSTER (Fire Investigator): What we have here is a photograph of the living room carpet from the apartment. This carpet shows an irregular burn pattern of the type that's frequently interpreted by investigators as being evidence of a flammable liquid having been used as an accelerant . 

This type of pattern is entirely consistent with a furniture fire as well. In my best analysis of the fire situation on the evidence that I've seen so far I would say it's most likely to be a match or cigarette. Finally, the patterns that are evident at the end of the fire are just as easily caused by in a furniture fire, and as they are by an arson fire. 

ROSS: Cynthia Collins, the little girl who died in the fire, was a bright and streetwise two-year-old. She also had a fascination for matches.

PEGGY: On one evening I was baby-sitting Cynthia, and I had sat down to read a newspaper. I lit a cigarette, and I was sitting at the end of the couch, and had my cigarette over here in the ash tray on the end table. And I was cooking dinner at the same time, and I got up to go in the kitchen just to check on my food, see how it was coming along. 

And I came back in, I went to pick up my cigarette and it was gone. And, I knew I lit a cigarette, I couldn't find it. So, I looked to the couch, I looked down on the floor, I didn't see it anywhere. And I thought, well, maybe I put it out, you know. So then I sat back down reading the newspaper, and all of a sudden next thing I know I see smoke coming out beside me. 

So I jumped off the couch and here it had burned, like smouldering in the side of my couch. So I went in the kitchen and grabbed a pitcher, I just kept dumping water on it, and I tipped the couch over to make sure it was over. I called the Fire Department to make sure. I didn't want my apartment to catch on fire. 

ROSS: And do you know of any other incidents like that happened as well? 

PEGGY: Well, Cynthia was always playing with matches, or tried to. But she loved lighters. Hope used to ask me over in the mornings to drink coffee, and we had to watch our lighters. Hope always used matches, I always bought lighters. But Cynthia loved to play with matches, and tried to strike lighters. 

ROSS: In fact, the local Fire Brigade had been called out to the apartment on three occasions. That was never heard in court. All this evidence would appear to be good news for Kenny Richey, but there's no place for it in the American appeal system. Defence mistakes at the original trial can prove to be extremely costly. 

KEN MURRAY: It's absolutely important to get it right at the trial because they've got so many legal barriers, so many procedural things that they've written into the law that stops anybody from revealing it or making any changes at a later date. They're so much concern in our system with finality of the decision instead of the accuracy of the decision. 

ROSS: That state of affairs outrages Ohio Democrat Shirley Smith. 

SHIRLEY SMITH (Ohio State representative): What angers me is that we are so arrogant in our own rights that we won't just look at the system and say 2Maybe there is something wrong, maybe Kenny Richey is innocent. Why are we so arrogant to say that our system is OK because of the appeals, because of the noble review, because of procedural default. How can we be such an arrogant people that we don't go back and look at these peoples' cases case by case and say maybe there's something that we did wrong. Yeh, it does anger me. 

ROSS: Kenny Richey's case is far from isolated. This is Columbia University in New York, and we've come to speak to the author of a disturbing report which clearly illustrates that America's death penalty system is collapsing under the weight of its own mistakes. 

Professor Jim Liebman is one of America's leading law experts. He's carried out the first ever study into the country's death penalty system. Even he was shocked by the findings. 

Prof JIM LIEBMAN: What we did was to look at every death sentence imposed in the country between 1973 and 1995, and over that 23-year period ask how many of those passed inspection in the system's own inspection system. 

And what we found was that 68 per cent of all of those death verdicts were found to be so seriously flawed by the courts that they could not be carried out. When those cases that we looked at went back on re-trial we found that over 80 per cent of them ended up with a sentence less than death when the errors were cured. 

ROSS: If we take an example of Kenny Richey, who is on death row in Ohio, the problem there appeared to be that he was convicted on circumstantial evidence. He had by all accounts a very poor state defender. And there was prosecutor who looked to be politically ambitious. Is that kind of thing what you've been finding in errors in the system? 

Prof LIEBMAN: The profile of a case where problems get into the case, and where reversal is likely is one where the prosecutor is under a lot of public pressure to get a death sentence. Where the evidence is weak often circumstantial, oftentimes certain kinds of weak forensic evidence, hair evidence, shoe prints evidence, and that kind of evidence. 

And then a weak lawyer on the other side, so that you have a prosecutor pushing very hard, and a defence lawyer not pushing very hard back. And that's where problems tend to in to these case.

ROSS: Prof. Liebman's report has forced politicians to look long and hard at a deeply flawed death penalty system that is certainly convicting, and possibly killing, innocent people. With the American appeal system stacked against him Kenny Richey is running out of time. One of his few remaining hopes is Shirley Smith, who is calling for a moratorium on all death penalty cases in Ohio.There's no doubt there are serious concerns amongst many politicians and lawyers about Kenny Richey's conviction and sentencing. Across American opinion on the death penalty is changing, but that could all prove academic for a young Scotsman who came to America to start a new life. At the moment the State of Ohio is committed to ending his.And what do you think of American justice, the justice that you were brought up to believe in so strongly?

JIM RICHEY: I have no faith in it, none whatsoever . . . I am not optimistic about his walking free. I know he's innocent, and many others that know he's innocent, but they're not about to admit it. They would rather kill him than admit that they made a mistake.

KENNY : There's nothing on death row to do but sit in your cell and wait, and wait, and wait, and I hope that the waiting comes to an end sooner or later, Hopefully sooner. There's always a part of me that dies, always a part that gives up hope, and a major part of me that says: 'No. Bring it on. Just kill me now'.

Innocent Imprisoned
Truth in Justice