Jan. 26 NEW YORK: Death penalty foes have their say ----Opponents of capital punishment outnumber supporters at hearing If you are murdered in Manhattan, District Attorney Robert Morgenthau will almost certainly not seek the death penalty for your killer if the state reinstates capital punishment. But if you are killed across the East River in Brooklyn, there's a better chance your assailant will be put to death. This disparity between counties in seeking capital punishment is just one of the issues being debated as state lawmakers consider rewriting and reinstating the state's death penalty, knocked down by the state's top court in June. On Tuesday, a panel of state Assembly members heard hours of testimony during a hearing on the issue at the Legislative Office Building that drew a standing-room-only crowd. Those in attendance included members of the clergy, parents of murder victims, professors, prosecutors, and even wrongly convicted men. The debate over the law has shifted from the morality of killing New York's worst criminals to include other issues: the fairness, the cost and the need. "We urge you to embrace a culture of life and not a culture of death," said Albany Bishop Howard Hubbard, speaking for the state Catholic Conference. "What we are saying is that there are ways short of taking life that society should choose," Hubbard said, drawing sustained applause from the 250 or so people crammed into a hearing room. Hubbard was one of 38 people scheduled to testify who oppose the death penalty. Only four proponents were slated to speak. Onondaga County District Attorney William Fitzpatrick, who won one of the state's seven successful death penalty cases since the law was passed in 1995, spoke as a death penalty supporter. But he was critical of one aspect of the law as written because he said it allows inconsistencies. "There are no guidelines," he said. "You didn't give us any guidelines." Fitzpatrick and the state's 61 other district attorneys have total discretion over which cases they seek the death penalty in. The 1995 law gave no clear guidelines on what cases should be tried as capital murders, and some district attorneys are more likely to seek death than others, he said. Fitzpatrick's case against James Cahill, who poisoned his estranged wife with cyanide as she was recovering in a Syracuse hospital from his attack on her with a baseball bat, was an example of why the district attorney believes New York should bring the death penalty back. "Do I think in my heart what James Cahill did merited the death penalty? -- yes," he told the panel, adding that capital punishment can be a deterrent to crime. "Of course it is," Fitzpatrick continued. "James Cahill didn't think he was going to get caught." But opponents said the costs of lengthy appeals should discourage the reinstatement of capital punishment. They argued that New York has a sentencing option of life without parole that wasn't available in 1995. And they noted the advanced use of DNA to clear some suspects. "If there was a death penalty at the time I caught this case, I wouldn't be here talking to y'all," Jeffrey Blake, a 35-year-old Brooklyn man, said at an anti-death penalty news conference preceding the hearing. Blake served 8 years in prison after being convicted of a 1990 double homicide. He was later exonerated. Joining him were 2 other wrongly convicted men, the father of a woman killed at the 1994 Oklahoma City bombing, and Bruce and Janice Grieshaber of Syracuse who spearheaded a campaign to end parole for violent felons in New York after their daughter was murdered. "Our stance takes some people by surprise," Janice Grieshaber said. "When people tell me the death penalty is the only option for violent felons, I don't buy that." The prosecution of the worst criminals also can become a political issue, especially if the case is particularly newsworthy and the district attorney is up for re-election. The state's Capital Defender's Office, created under the 1995 death penalty law, found that after 8 years in practice the death penalty was not being fairly sought. Upstate counties, for example, had 20 percent of the state's homicides but 65 % of the death penalty cases. One Long Island county, Suffolk, sentenced 3 of the 7 men who went to death row. "This is a system that is imperfect at best," said Gerald Kogan, a retired chief justice on the Florida Supreme Court, who, during his career, prosecuted death penalty cases, defended them and finally presided over them. Last year the Senate passed a bill to shore up the law, but the Assembly said it wouldn't move on a new law until it looked back over the nine years the death penalty was in place. Assembly Speaker Sheldon Silver, D-Manhattan, has been a supporter of the death penalty, and Senate Majority Leader Joseph Bruno, R-Brunswick, and Republican Gov. George Pataki want to see the law back on the books. Assemblyman Joseph Lentol, D-Brooklyn, co-chaired Tuesday's hearing and said at least 2 more are planned before any legislation is introduced. Sen. Dale Volker, R-Depew, has not reintroduced his bill into the Senate. A spokesman for Volker said the two houses of the Legislature could hold conference committee meetings to create legislation supported by both houses. (source: Times-Union) OHIO: Death penalty and conviction of Briton tossed; blaze killed Columbus Grove girl in 1986 The state must retry Ohio death row inmate Kenny Richey within 90 days or release him from prison, a federal appeals court ruled yesterday.A 3-judge panel of the 6th Circuit U.S. Court of Appeals in Cincinnati threw out Richey's 1987 conviction and death sentence in the arson death of 2-year-old Cynthia Collins of Columbus Grove in Putnam County. The appeals court said prosecutors failed to offer evidence that Richey, who was convicted of setting the fatal fire, intended to kill the girl. Also, Richey's court-appointed attorney, William Kluge of Lima, was "outside the wide range of professionally competent assistance," in large part because he failed to challenge what the state called its evidence, the majority decision said. "The record indicates that a competent arson expert - fully informed and supervised, and using the methods available to him at the time of the trial - would have all but demolished the state's scientific evidence, and with it a large part of the case against Richey," wrote Judge R. Guy Cole, who was joined in the 2-1 decision by Judge Martha Craig Daughtrey. Judge Eugene Siler dissented. He wrote that Richey failed to raise the issue of insufficient evidence at his trial or in his initial appeals. As the sole Briton on death row in the United States, Richey has gained international attention. In 1992, the European Parliament approved a resolution urging that Richey's life be spared, and Pope John Paul II has made an appeal on his behalf. In 1995, Karen Torley, a 39-year-old mother of 4 children from Glasgow, started a campaign to free Richey. Yesterday, Amnesty International UK called on Ohio to release Richey soon. "Nobody should be sent to the living hell of death row, but Kenny Richey's 18-year ordeal has come after a flawed trial and serious concerns about the Ohio justice system," said Kate Allen, director of Amnesty International UK. In an interview in May, 2003, with WLIO-TV in Lima, Richey called the U.S. justice system a "joke." "There are better systems around the world. ... You did me wrong. You stole 17 years of my life for nothing," he said. Reaction in Britain A member of the British Parliament who met in February, 2004, with Richey on death row at the state prison in Mansfield said yesterday's ruling was "excellent news for all of us who have campaigned to highlight the flaws in the conduct of Kenny Richey's initial trial. "Where so much doubt exists about the safety of a conviction it would be an offense against humanity to carry out a death sentence," said Alistair Carmichael, a Liberal Democrat from Scotland who opposes the death penalty. "It now remains to be seen exactly what attitude the [attorney general's office] will take. But in reaching their decision I hope that they will bear in mind that Kenny already has spent 18 years on death row, when the prosecutor at the time of Kenny's trial was prepared to offer a plea bargain which would have involved Kenny spending 11 years in custody," Mr. Carmichael said. Richey, 40, was born in the Netherlands to a Scottish mother and American father and grew up in Edinburgh. He moved to Putnam County in 1982 at the age of 18 to be with his father, who was divorced from his mother. Paul E. Nemser, who began to represent Mr. Richey in 1993, called on the state to not retry Richey. "An injustice was done here," Mr. Nemser said. If he is released, Richey would return to Scotland, Mr. Nemser said. Richey was "very happy" when another of his attorneys, Kenneth Parsigian, told him in a phone call about yesterday's appeals court decision, Mr. Nemser added. The state attorney general's office, which repeatedly has said it has no doubts about Richey's guilt, said it was consulting with the Putnam County prosecutor's office on the next step in the case. The attorney general could ask the entire 6th Circuit U.S. Court of Appeals to review yesterday's decision by the 3-judge panel. If so, that could freeze the 90-day deadline to retry Richey. Any decision by the entire appeals court could be taken to the U.S. Supreme Court. Until yesterday, state and federal courts had agreed that evidence against Richey "proved his guilt in committing this terrible crime that killed" young Collins, said Kim Norris, an attorney for Attorney General Jim Petro. "At least 3 people heard Ken Richey threaten to burn down the building. Richey admitted to 1 person after the fire that he set it. ... Ohio law allowed for the death penalty based on these facts," Ms. Norris said in a written statement. Putnam County Prosecutor Gary Lammers, who took office this month, said he was weighing whether to appeal yesterday's decision to the U.S. Supreme Court. "We still view this as a viable conviction. It has been upheld in many previous forums. We will look long and hard before we wash our hands on it," he said. Fatal fire breaks out At about 4:15 a.m. on June 30, 1986, 2-year-old Cynthia Collins was asleep inside a Columbus Grove apartment when a fire broke out. Robert Cryer, assistant state fire marshal, ruled the next day that he believed the fire was arson because some of the burn patterns he found at the apartment showed the presence of accelerants. But Mr. Cryer didn't find any empty containers of flammable liquids. Richey - who was arrested for arson - told investigators he was drunk on June 30 and didn't remember much, but he denied starting the fire. Richey waived his right to trial by jury. The charges included aggravated felony murder, which if proven carried the death penalty. According to state law, an aggravated felony murderer must have "specifically intended to cause the death of the person killed - the prosecution must prove the specific intent of the person to have caused the death by proof beyond a reasonable doubt." A three-judge panel ruled that Richey, who prosecutors said was baby-sitting the 2-year-old girl for her mother, Hope Collins - who was out with a friend - started a fire in the apartment to murder his former girlfriend, Candy Barchet and her new boyfriend, Mike Nichols. Ms. Barchet and Mr. Nichols were in the apartment below. The state retrieved 6 samples of debris from the fire, but several of those samples were in a garbage dump because the state fire marshal's office had allowed the building's owners to clean up the apartment. The samples were placed in the parking lot of the sheriff's department - about 40 feet from gasoline pumps - for 3 weeks before they were taken to the state arson lab for testing. A state forensic chemist testified at Richey's trial that a sample from Ms. Collins' living room and a sample of wood from her balcony contained paint thinner and another sample of the living room carpet contained gasoline - but there were no traces of accelerants on the other 3 samples from the apartment: the clothing and boots that Richey wore or the bandage that covered his broken hand. Evidence unchallenged The state appeals court said the state's scientific evidence went "unchallenged at trial" because Richey's attorney, Mr. Kluge, hired L. Gregory DuBois of the firm CTL Engineering. Mr. DuBois had no accreditations in arson or fire investigations, didn't do any independent testing of the samples, didn't interview the assistant state fire marshal, and Mr. Kluge didn't cross-examine him when he testified for the prosecution against Richey, the appeals court said. "Counsel adopted a defense that rendered Richey a sitting duck," the appeals court wrote. Mr. Kluge yesterday said the three judges who presided at Richey's trial gave him a budget of $3,000 to hire an arson expert. He said the federal appeals court "made me out to be the bad guy, and I will have to take responsibility for that," but he said the resources available to public defenders in death penalty cases now far exceed the 1980s. Mr. Kluge said he never thought Richey was guilty of murder or should have received the death penalty. "He put his own life at risk to rescue the girl. The firefighters had to restrain him from rescuing her," he said. In 1992, after the Ohio Supreme Court upheld Richey's conviction in a 4-3 decision, Richey hired new attorneys who investigated the crime and hired new scientific experts. Richey's attorneys submitted an affidavit from Peggy Villearreal - who lived next door to Hope Collins - that recanted her trial testimony that she had heard Richey threaten to burn down the apartment building. Ms. Villearreal also recalled in her affidavit how Cynthia Collins played with matches and lighters, once placed a lit cigarette between sofa cushions, and had twice set fire to her bed. Richard Custer, a specialist in fire reconstruction hired by Richey's attorneys, testified during Richey's appeals that the burn pattern at the apartment could have resulted from a fire that occurred naturally and that the assistant state fire marshal's "theory of the accelerant's pour pattern and location would have required the use of 10 gallons of fuel." The appeals court also said the state erred in using a common-law theory - called "transferred intent" - in an aggravated felony murder case to present evidence that Richey had a motive to kill Candy Barchet and Mike Nichols - and that intent transferred to trying to kill Cynthia Collins. "Based on the state of the law at the time of his actions, the only way that Richey could have been constitutionally convicted of aggravated felony murder would have been upon a showing that Richey intended to kill the person that actually died. Because it is undisputed that there was no evidence to this effect, Richey's conviction necessarily lacked the support of sufficient evidence," the appeals court said. The appeals court said the court-appointed attorneys who represented Richey at trial and in state appeals were ineffective because they "failed to grasp that the state did not prove that Richey specifically intended to cause the death of Cynthia Collins." (source: Toledo Blade) *************** Death Row Briton's conviction overturned There was cautious celebration in Scotland and in the US last night after a federal appeals court overturned the 1986 murder conviction of a Scottish native who has been on death row in Ohio for nearly two decades in spite of lingering doubts about his case. Kenny Richey, who has dual American and British citizenship, learnt in prison that the court had overturned his conviction. Mr Richey was found guilty of murdering 2-year-old Cynthia Collins, who died after somebody set fire to her mother's apartment in Columbus Grove, Ohio. State prosecutors in Ohio were given 90 days by the judges to decide whether they would proceed with a new trial for Mr Richey. If not, the state will be obliged to set him free. Defence lawyers expressed optimism that the state would forgo the opportunity and allow their client to go free on time already served. Richey's partner, Karen Torley, from Cambuslang on the outskirts of Glasgow, said: "I have just heard from the lawyer and am trying to download the judgment. I am shocked but obviously delighted." Mr Richey, who has lived through 13 dates for his execution and at one point was an hour away from dying, had moved to America from Scotland when he was 18 years old to live with his American father. He was arrested for the murder of the child just one week before he was due to return to Britain. At his trial, prosecutors said he had intended to kill her mother, his former girlfriend. But the Circuit Appeals Court ruled yesterday that the original trial had been flawed, in part because of incompetent representation of Richey by his defence lawyers. The judges said the handling of the case in 1986 "undermined our confidence in the reliability of Richey's conviction and sentence", and went on to say that "we find that counsels' incompetent handling of the sole forensic expert in this case fell far below the wide range of acceptable professional standards." In its ruling, the court added that had the trial been properly conducted, the 3-judge panel at the time would have "at least had a reasonable doubt as to whether Richey set the fire that ultimately caused the death of Cynthia Collins". The decision was welcomed by Amnesty International Scotland. Rosemary Burnett, the programme director, said she was "absolutely thrilled", adding that prosecutors have "14 days to appeal but we imagine they won't appeal because the trial was flawed". There will be no certainty as to Mr Richey's fate until prosecutors reveal their intentions, however. Meanwhile, Kenneth Parsigian, the defence lawyer who has spearheaded his appeal efforts since 1993, said Mr Richey was "very excited" by the news. Mr Parsigian also expressed his delight. He said: "It's been a long time. The evidence has been badly undermined. It would be a real injustice at this point to put Mr Richey through this again, based on what the court has said." (source: The (UK) Independent) *************** Vindicated by his own determination Kenny Richey was prepared to go to the electric chair while maintaining his innocence rather than come to a plea bargain with prosecutors that would have spared him. The Scot was subjected to a tortuous legal process which saw him go through 12 appeals until his 13th and last attempt to convince a court of his case. He never wavered, maintaining the steely determination that saw him turn down the plea bargain and a sentence which would have seen him released years ago. The case against Richey - that he had climbed over a shed, into a flat and set fire to it, killing a 3-year-old girl in Columbus Grove, Ohio - was flawed from the start. The prosecution alleged he had climbed the steep roof of the shed on to a balcony while holding petrol cans without making any noise that would have alerted people in the apartment block. Yet Richey had broken his hand a week earlier and it was in a plaster cast. He was also seen by a witness as he collapsed drunk in some bushes nearby. His former girlfriend and her new boyfriend - said to be the target of the arson attack - claimed to be light sleepers and their bedroom window, just a few yards away from the shed, was open. No traces of accelerants were found on his clothes although, the prosecution said, he had splashed these over the carpet and floor. It was decided that the crime was premeditated - and therefore worthy of the death penalty - because a smoke alarm had been deactivated. But no evidence Richey did this was presented during his original trial. The local fire chief was also reported to have initially said the fire was the result of an accident, a statement he later denied making. The flat was not sealed off for investigation and the owner was given permission to start cleaning up - extremely unusual if police thought a crime had been committed. Evidence then had to be collected from the local rubbish dump. Unfortunately, the police transferred the charred remains of the contents of the flat on to a local sheriff's forecourt - near a petrol pump. In March 1997, an appeal court was told of new tests by some of America's leading scientists - including Professor Richard Custer, who advises the FBI - which showed that the carpet did not contain any ignitable substances at all. They concluded the characteristics of the fire were consistent with an accident, but not arson. The original forensic tests on the carpet were deemed to be unreliable. However, this particular appeal court decided the new evidence was inadmissible because it should have been submitted before. But if Richey did not start the fire, who did? The most likely candidate was the 2-year-old girl who was killed. Cynthia Collins was known to have a tendency to play with matches and had started fires in the flat previously. However, the defence was not told during the original trial that firefighters had gone there 3 times in the weeks before the toddler's death to investigate smoke coming from the flat. Whether this would have made much difference to the outcome of the trial is hard to tell, because it was handled by an inexperienced lawyer called William Kluge, who was working on his 1st capital case. Like many defendants who find themselves on death row, Richey had not been able to afford his own lawyer and one was provided for him by the state. The prosecution produced 34 witnesses to prove their case, while the defence called just six. They did not include Richey or any expert on fires. Numerous inconsistencies in the prosecution case also went largely unchallenged. Mr Kluge has publicly admitted that he did not do his job properly and, before yesterday's decision, said he was "haunted" by Richey's plight. (source: The Scotsman) ***************** Draconian system must end 10 years ago Kenneth Richey came within an hour of being executed. He had said his last goodbye to his mother and his head had been shaved, ready for the electric chair, when he was granted a stay of execution. Yesterday, after 18 years on death row in Ohio and numerous failed appeals, the Scotsman had his conviction and sentence overturned. Though technically he could face a retrial, the likelihood is that he will soon be a free man. His case has attracted widespread support from MPs, MSPs, lawyers and human rights organisations and Foreign Secretary Jack Straw made representations on his behalf last year. The focus of concern was the clear inadequacy of Mr Richey's original defence counsel, in particular in the handling of forensic evidence which has since been called into question. Eventually his case was taken up by the British lawyer, Clive Stafford-Smith, who spent 26 years campaigning for American death row prisoners after becoming convinced that the quality of the defence in many trials was so poor that many of them were resulting in miscarriages of justice. Most death row inmates are not so fortunate. We should welcome yesterday's ruling. However, in an inverted version of the Biblical parable, we should not rejoice over the one who has (probably) been saved as lament the 3500 who have not. That is the number currently on death row. Since capital punishment was reinstated in the United States in 1976, nearly 1000 prisoners have been executed, including a 74-year-old so stricken by dementia that he did not know who he was, and a man with the mental age of seven. The US is up there with China, the Congo, Iran and Saudi Arabia in the global league table of executions, despite scant evidence that capital punishment is a deterrent to violent crime. Furthermore, around 3.5% of those sentenced to death in the US have subsequently been proved innocent and DNA technology is likely to increase this percentage. Paradoxically, its use may strengthen the hand of the execution lobby as it reduces uncertainty. Abolitionists argue simply that it is morally wrong for a government or state to take life. Mr Stafford-Smith believes that hate lies at the root of America's draconian penal system. "People are inspired to hate small groups to distract them from the real problems of life," he said in a recent interview. Kenneth Richey can only count himself lucky that he was in Ohio. As governor of Texas from 1995 to 2001, George Bush authorised a record 152 executions and granted just one of 57 appeals for clemency. In Texas, the chances are that, guilty or otherwise, Kenneth Richey would have been dead for years. (source: Editorial, The Herald) KANSAS: Opponents call for end of death penalty The death penalty simply doesn't work in Kansas, capital punishment opponents told a Senate panel today. "This penalty in a Christian state, in a Christian nation, is an immoral contradiction," said Sen. David Haley, D-Kansas City, who sponsored a bill that would abolish the death penalty in Kansas. The Senate Judiciary Committee heard testimony on the bill today as part of a weeklong analysis of several death penalty proposals. Kansas' 1994 law re-establishing the death penalty was struck down in December by the Kansas Supreme Court as unconstitutional. The court downed the law on a technicality, and the state is appealing to the U.S. Supreme Court. Among the bills before the Legislature to correct the apparent error in the law and to limit who can be executed in Kansas is one that simply would end the death penalty in Kansas. Today, the Senate panel heard testimony from former Topeka television newsman Bill Kurtis. Unable to attend, Kurtis sent his younger sister, Sen. Jean Schodorf, R-Wichita, as his surrogate. Schodorf said Kurtis -- who was made famous by warning Topekans during the 1966 killer tornado that ravaged the city -- had long held the belief that the death penalty was a good idea. But on one occasion several years ago, Schodorf heard Kurtis telling former Gov. Bill Graves that he had questions about it. Since then, Kurtis has written a book picking apart capital punishment. Schodorf handed out 20 copies of the book to the judiciary committee today, using it for her brother's testimony. In the book, Kurtis noted that DNA technology from the last decade was showing more and more mistakes in investigations. Kurtis wrote, "The statistics became disturbing to me. One hundred eighteen death row inmates were released because of wrongful convictions. Headlines seem to come daily about exonerations. I concluded there became too much of a risk of sending innocent men and women to death row and possible execution to continue the death penalty." As for Schodorf herself, she said after the committee hearing her brother had raised some good points. "I am questioning it," she said. (source: Topeka Capital-Journal)
