July 15 TEXAS: 'Injustice' system a crime He's feeling some satisfaction The July 10 Outlook article "The scope of the scandal" by Barry C. Scheck and David R. Dow, and the July 11 Chronicle editorial "State of injustice / You v. Texas," truly gave me some satisfaction that this scandal is finally getting some headlines. I was outraged when it first leaked from the shadows of the district attorney's office and the Houston Police Department. The lack of public outrage is due to the lack of public knowledge about the corruption, collusion and cover-up that is going on. This story should become a daily update column on Page One until it is cleaned up. How could any prospective juror called for jury duty in our criminal courts be called an unbiased juror? If a person believes the police are fabricating evidence, how can there even be a trial? This smacks of Third World justice systems. The Texas attorney general needs to step in and take over. BILL STIETENROTH, Houston ---- No bargain in agreeing to plead The most unfair part of the Texas judicial system is allowing judges in criminal cases to appoint attorneys for indigent defendants. The lawyers are then more beholden to the judge than to their clients. Most judges want fast-moving, plea-bargain verdicts. Defendants get offered a 3-year sentence if they agree or else are threatened with a 10-year sentence if they have to go to trial. Most defendants - whether guilty or innocent - will usually accept the plea bargain in order to avoid the possibility of 10 years behind bars. Texas should establish a public defenders office that would provide attorneys for poor people and to help level the playing field. JIMMY DUNNE, Houston ---- Where's the human kindness? Thanks to the Chronicle for its editorial series on the Texas criminal justice system's current policies that are clearly wasteful of our precious lives and resources. This long overdue reality check is a step toward positive change. Constitutional social policy would be about truth, not moral judgment. It would concentrate on harm reduction and preservation of the family when at all possible. Our present system seems bent on destroying families and all that America once stood for. The system has attracted a lot of people willing to work in a corrupt system, milking it for all it's worth. Constitutional social policy would run with the milk of human kindness as our Founders intended. COLLEEN MINTER, Stephenville (source: Letter to the Editor, Houston Chronicle) ******************* County jail conditions condemned in report----Crowding woes enumerated, but local officials say the state's to blame A lack of guards has led to dangerous conditions in the Harris County Jail, where inmates are packed into cramped quarters, risking disease and violence among Texas' largest county jail population, says a state report. Noting that almost 1,300 inmates are sleeping on mattresses on the floors while large sections of the jail sit empty because of a guard shortage, the Texas Commission on Jail Standards has decertified Harris County's lockup for the second year in a row. While the action does not mean the jail could be closed anytime soon, the commission's executive director says county officials must show they are working to remedy the problem or they may be called onto the carpet. County officials aren't in the mood for a scolding, however. Calling the panel "a bunch of arrogant fools," Precinct 3 County Commissioner Steve Radack said Friday that the Texas prison system helped cause the problem by failing to take inmates off the hands of Harris and other counties on schedule. "The state wants to send a proctologist down here to see what the problem is. And the problem is, (state officials) are the ones that have stacked up the system," Radack said. "If the state of Texas got its prisoners out of our jails and kept them themselves, we wouldn't have all these problems." But commission Executive Director Terry Julian maintains that the problem lies with Harris County. "They need to get adequate staff in there so that they spread those inmates out," he said, noting that some inmates sleep next to toilets and there is not enough room in the dining areas for all inmates to eat at tables. Julian added, however, that the county's jail system is relatively clean and in good condition overall. He warned that the commission's findings could expose the county to lawsuits and jeopardize the liability insurance of the Sheriff's Department, which operates the jails. If county officials don't respond adequately, Julian said, they could be called before the commission in August. Not the only one But Harris County is far from alone in being cited by the commission, which oversees 265 county-level detention facilities. Currently, jails in 40 counties are listed as noncompliant, largely because of staffing and safety concerns. Radack and others maintained, however, that the failing of the state prison system has caused the problem here and in other counties. "The state's not taking its prisoners," said Sheriff Tommy Thomas. "And that's not just here; it's statewide." A spokesman for the Texas Department of Criminal Justice denied that. Under an agreement between the state and the counties, TDCJ has a 45-day window to transport prison-ready inmates to state facilities. The prison system's Mike Viesca says the state is averaging 22 to 23 days in getting county inmates moved to state custody. "That may be true and that may not be true," replied Precinct 1 Commissioner El Franco Lee. "I'm afraid this is on the verge of being the same problems we had before." He was referring to the 23-year period in which Harris County was involved in a federal lawsuit filed by an inmate in connection with overcrowding at the jail. The county was released from the control of a special master overseeing reforms in 1995. State Sen. John Whitmire, D-Houston, expressed concern this week about a possible return to overcrowding in state prisons and county jails. Whitmire, chairman of the Senate Criminal Justice Committee, noted that TDCJ recently leased space for 300 inmates to deal with its expanding population. He also voiced disappointment about Gov. Rick Perry's recent veto of Whitmire's legislation that would have lowered mandatory probation terms from 10 years to 5 - a measure that Whitmire said would have reduced the prison population. However, a spokesman for Perry said the governor could not agree to certain aspects of the bill, such as reduced probation for offenses such as assaults on peace officers. In January, Texas prison officials told state lawmakers they expected to run out of prison space this year and may need an emergency appropriation to lease space in county jails. The prison system was at 97 % of capacity then, with more than 150,000 inmates. Overcrowding in state prisons is caused in part by incarcerating high numbers of former inmates who violate probation or parole, a legislative report concluded this year. Of the 77,000 offenders who entered prison in fiscal 2004, 11,311 were incarcerated because of parole violations and 24,490 because of probation infractions, prison officials told lawmakers. In January, nearly 500 of the more than 8,000 inmates in the Harris County Jail system were former state prison inmates picked up for such parole violations as missing a meeting, a county jail official has said. On Friday, the system had 9,127 prisoners, records showed. The Harris County Jail has a total capacity of 9,372 inmates in four downtown facilities. But the county has closed almost 1,600 jail beds, including two floors at its 1200 Baker Street facility, because of a staffing shortage, according to the commission report. Seeking more jailers Thomas, the sheriff, conceded that the county doesn't have enough jailers to deal with its prisoner population. He also acknowledged that he has not asked county commissioners for money to hire more jailers but said he now believes he must. However, a deputies union official said jailers already are being forced to work overtime. "We have deputies complaining that they can't get time off," said Sgt. Humberto Barrera, vice president of the Harris County Deputies Organization. In an interview Friday at the county's downtown Baker Street Jail, inmate Margaret Brown said she and about 45 others are imprisoned in a cell designed to hold 24. "It's extremely crowded. There isn't any walking space. It's a literal human carpet," said Brown, who was sentenced to 90 days after pleading guilty to driving while intoxicated. Brown - who says a psychiatrist has concluded that she has dissociative identity disorder, formerly known as multiple personality disorder - is suing the county, calling the jail conditions cruel and unusual punishment. County Attorney Mike Stafford said he expects to deny all of Brown's allegations. Sheriff's Maj. Don McWilliams said the jails are crowded but that the lawsuit does not accurately describe the conditions. "This is not an environment here where things are just horrible, like in some prison movie out of the '40s," he said. "The typical inmates in the county jail are better fed, better clothed and have their medical needs better attended to than when they are not in jail." Julian, the jail commission's executive director, said he hopes the county finds a way to hire more jailers so the panel won't have to take remedial action. That action could include closing the jail, he said, although he could recall only once in the commission's 30-year history when that has happened. The panel permanently shut down the Calhoun County Jail in Port Lavaca in June 2002 because of mold. The new jail is under construction. Meanwhile Friday, an American Civil Liberties Union official charged that no one is dealing seriously with Harris County's problem. "Harris County needs to step up and address this issue," said Alison Brock, director of the Prison and Jail Accountability Project for the ACLU of Texas. "People are worried about the situation getting back into crisis mode. But you know what? It's already in crisis mode." (source: Houston Chronicle) TENNESSEE: Trial Date Next April Set For Former Death Row Inmate Criminal Court Judge Doug Meyer has set a trial date of next April 17 for Michael McCormick, who spent 17 years on death row for the 1985 Valentine's Day murder of pharmacist Donna Jean Nichols. Judge Meyer in October 2003 threw out some key evidence against McCormick after he had won a new trial. He was allowed out of prison after that ruling. Defense attorney Karla Gothard said earlier that the evidence that convicted McCormick of the slaying was faulty and should not have been allowed in the original trial. The state had mainly convicted McCormick based on a hair found on the victim that was linked to him and on statements police got from him through an undercover operation. The defense earlier got the hair evidence thrown out, based on a new DNA test that said it did not come from McCormick. In the later ruling, Judge Meyer threw out the evidence obtained from the undercover operation, citing "police misconduct." Judge Meyer had heard extensive testimony on the issue of whether certain tapes should be allowed in a retrial of McCormick. Ms. Nichols was a 23-year-old pharmacist at Revco. (source: The Chattanoogan) VERMONT: Executing justice: A murder trial reignites Vermonts death penalty debate It has been almost 50 years since the death penalty was imposed in Vermont, and that 1957 sentence was commuted. Thirty years later, the state Legislature officially abolished capital punishment. After the murder of a Vermont woman in 2000, lawmakers seriously considered reinstating it, and although that effort failed, the crime led to a federal trial in Burlington over the past month that has made the issue difficult to ignore. The victim was Tressa "Terry" King, a 53-year-old grandmother from North Clarendon who was kidnapped on Nov. 27, 2000, as she arrived for an early shift at the Rutland Price Chopper. Several hours later, King was beaten to death over the border in New York. One of her killers, Donald Fell, came from Pennsylvania, where he was subjected to beatings and sexual abuse as a child, saw his parents stab each other at age 5, and started drinking from a basement beer keg before he was 10. In June, forced to act by former U.S. Attorney General John Ashcroft, a Vermont jury convicted Fell, and on July 14, after a day of deliberations, decided that the 25-year-old murderer deserves death for his crime. The decision comes as juries across the United States increasingly have become reluctant to impose capital punishment and surveys indicate that support is growing for life in prison without parole as an alternative. Even Texas, which is responsible for a third of all U.S. executions, and Florida, which once led the nation, have passed laws approving that option. U.S. death sentences have declined from 300 in 1998 to 125 in 2004. Last year, there were 59 executions in the United States, for a total of 944 since the U.S. Supreme Court lifted a moratorium on executions in 1976. As of June 30, there were 27 executions this year, including 9 in Texas, according to the Death Penalty Information Center. As the Fell trial opened, death penalty opponents in Vermont argued that putting criminals to death is both uncivilized and ineffective as a deterrent. Joseph Gainza, director of the Vermont chapter of the American Friends Service Committee, told the press, "Many people are feeling that this is Vermont, and we made the decision that we dont want to have the death penalty. Vermonters on the jury should not decide whether or not a person dies at the hand of the state." Burlington Mayor Peter Clavelle went even further, claiming that residents "reject the death penalty." Former Gov. Madeleine Kunin called the trial "a federal intrusion" and noted that no politician who supports capital punishment has recently been elected. Despite such arguments, public opinion across the state has not been convincingly assessed in years. The most recent published poll, taken by State Sen. William Doyle on Town Meeting Day 1999, suggested that the state is divided: 48 percent of those who responded said the death penalty should be restored, with 41 % opposed. Although Doyles poll reached thousands of people, it only included the opinions of those who chose to participate, and the question was posed as neighboring Massachusetts debated a death penalty bill. Sensing the absence of a statewide consensus, recent Vermont governors have straddled the fence. In the midst of the states 2001 debate on the issue, then-Gov. Howard Dean said he wouldnt introduce a death penalty bill, but added that he wouldn't veto one that reached his desk. In 2003, during his bid for president, Dean told Meet the Press, "The problem with life without parole is that people get out for reasons that have nothing to do with justice." As the penalty phase of the Fell trial began, Gov. Jim Douglas adopted a similar position. At a June 30 press conference, Douglas said that although he has no plans to propose capital punishment, he also isnt "unalterably opposed." According to Vermont Law School Prof. Michael Mello, a death penalty expert, once the Fell trial ends, the victims family, whose strong support for the death penalty is said to have influenced Ashcrofts decision to reject a life without parole plea agreement for Fell, could turn their attention to the Legislature. "They may say that what we need to do in memory of their relative is pass 'Terrys Law,'" Mello noted. Facts and moral judgments The defense team did not dispute the grim details of the case during the guilt phase of the trial. Fell and a friend, Robert Lee, came to Vermont on Nov. 27, 2000, from Wilkes-Barre, PA. Fells mother, Debra, had contacted him after a 7-year separation. On Christmas Day in 1993, she had left their home, ostensibly to buy a ham, and didnt come back. On an audiotape played in court, which was recorded during the hunt for Kings body, Fell couldnt explain why things turned bad during the reunion. But he acknowledged that he killed his mothers boyfriend, Charles Conway, while Lee stabbed Fells mother to death. Before he hanged himself in custody, Lee told a different story, placing most of the responsibility on Fell, according to an investigation. The 2 had been drinking and using drugs. Around 4 a.m. the next morning, they grabbed King, stole her car, and drove her at gunpoint into New York. Crossing the border made the case a federal crime. Hours later, they stopped in Dover, NY, where the two beat her to death. "I was getting nervous," Fell said on the tape, "and wanted to set her free. But Bobby had a different idea." Whatever the truth, the two then drove south, and were apprehended in Arkansas. Before he was caught, Fell said, he wanted to kill himself with a heroin overdose. Since state lines were crossed, federal authorities claimed jurisdiction and decided to put Fell on trial for kidnapping and carjacking with death resulting. But when the U.S. attorney's office made a plea agreement to spare Fells life, offering a lifetime jail sentence with no chance for parole, Ashcroft rejected it. "The charitable explanation is national uniformity," Mello explained. "Justice shouldnt depend on whether you live in Vermont or Pennsylvania. The federal government has strong interest in national uniformity." But theres a less charitable explanation as well. "Bush and Ashcroft are true believers. They have a missionary evangelical impulse to bring the benefits of capital punishment to the states that dont have it," Mello said. Ruling on a motion in 2002, Federal District Court Judge William K. Sessions III declared the Federal Death Penalty Act of 1994 unconstitutional. He argued that this Clinton-era law deprives defendants of their rights under the Fifth and Sixth amendments to the Constitution. But the 2nd U.S. Circuit Court of Appeals overruled him and sent the case back, setting the stage for a courtroom drama in which a jury of Vermonters would have to decide whether Fell should be executed. The trial was conducted in two phases: guilt and penalty. The 1st took only 4 days, and the jury deliberated less than 2 hours before finding Fell guilty. But the real decision still lay ahead. As the penalty phase opened, prosecutor William Darrow argued that Fell had "earned the ultimate punishment" and that mitigating circumstances such as his troubled childhood were outweighed by the "savagery and senseless brutality" of the crime. Defense lawyer Gene Primomo responded by outlining what family members, teachers, and a social worker would later describe: a childhood rife with exposure to violence, drugs, alcohol, and abuse. "Donny Fell is pleading 'dont kill me," Primomo added, noting that Fell "offered to plead guilty to these crimes in return for his life. But the government seeks death. Thats why were here." Instructing the jury, Sessions said that if they could not agree, life without parole was the sentence he would impose. "To the extent that theres a standard playbook, this is it," Mello said. "The problem is that it also doesnt always work." Criminal trials, especially capital cases, rest largely on facts, but the decision to impose a death sentence is a moral question. "Is death the appropriate punishment? It's a moral and ethical more than legal judgment," Mello explained. "Has he [the defendant] lost his moral entitlement to live?" Death penalty opponents also see the issue in moral terms. Catholic Bishop Kenneth Angell issued a statement in June calling for "solutions that are not as uncivilized" as putting people to death for crimes, while Burlington Rabbi Joshua Chasan called capital punishment "ethically unacceptable." Supporters of capital punishment dispute such arguments. "Murder and executions are only the same to those people who see crime and punishments as moral equivalents," writes Dudley Sharp, a Houston-based activist who debunks abolitionists in articles and TV appearances. He notes that "81 % of Americans thought that Oklahoma City bomber Timothy McVeigh deserved to be executed. I suspect 99 % of Americans do not equate McVeighs slaughter of innocents to his judicially imposed execution." For the jury, the issue was complicated further by conflicting testimony about Fells character and behavior both before and after the murders. Witnesses, including Fells sister Teri, described incidents in which their mother cut and stabbed her husband, and a generally chaotic home life that involved excessive drinking, frequent and violent family arguments, and young Donnys sexual abuse by babysitters. Teachers described the boy as an eager learner who responded well to structure and encouragement. Nevertheless, Fell became aggressive and violent by the time he was a teen and was sentenced to 18 months at a school for troubled youth. Prosecutors were able to use some of the same witnesses called by the defense to show that programs and counseling were available, and that Fells mother made efforts to improve her behavior before she left the family. Defense witness James E. Aiken, a prison management consultant with 30 years experience, put Fell at the "lower range of even being disruptive, and nowhere near the range of being a predator." But prosecutors used Aikens appearance as an opportunity to present Fell's disciplinary record in jail, including nearly 20 incidents that ranged from fighting and spitting at prison guards to drug possession. "Conventional wisdom holds that you don't make arguments in the penalty phase that the other side is going to be able to blow apart. It makes you look dishonest, shifty," Mello observed. "On the atmospheric level, contradictory evidence says you cant believe anything these guys are telling you. Whats troubling is that the defense did a good job in the opening argument, going into the penalty phase with a level playing field." The politics of death Although the national mood may be shifting slightly away from capital punishment, some politicians continue to capitalize on the issue, and federal pressure is building to speed up the post-conviction appeals process. In Massachusetts, Republican Gov. Mitt Romney has introduced a bill aimed at reinstating the death penalty. The last execution in that state was in 1947, but the topic has been hotly debated since the state Supreme Court abolished it in 1984. Romney, who is testing the waters for a 2008 presidential run, has described his approach as "a model for the nation." If approved, his so-called "kinder, gentler" version would re-impose capital punishment for acts of terrorism resulting in death, killing sprees, murdering police, and murders involving torture. For anyone hoping to head up the national GOP ticket, endorsing the death penalty is considered a requirement. In Congress, Republicans have launched a new effort to speed up executions by limiting the ability of those sentenced to death to appeal in federal courts. Introduced in the U.S. House by Rep. Dan Lungren, R-CA, and in the Senate by Jon Kyl, R-AZ, the Streamlined Procedures Act of 2005 would limit the ability of defendants facing death sentences to have their cases reviewed in habeas corpus appeals. Opponents see little chance of blocking the measure in the House. In any case, such efforts have faced only limited opposition from Democratic officeholders, many of whom have been hesitant to appear soft on crime. Habeus corpus (Latin for "you have the body") gives defendants the right to have their imprisonment reviewed by a court. For defense lawyers, it has been a vital weapon. A study of 5,826 death sentences imposed in the United States between 1973 and 1995, spearheaded by Columbia University political scientist Andrew Gelman, found that 68 % were reversed on appeal. The most common reasons were incompetent legal defense, prosecutorial misconduct, suppression of evidence, poor jury instructions, and biased judges or jurors. Mello believes that the current push for streamlined appeals could have the opposite result. "The last time they did this, in the 1996 Anti-Terrorism and Effective Death Penalty Act, everyone predicted the end of habeus corpus," he noted. "It didn't happen. What did happen was that the pre-1996 act was just settling down. Things were moving faster. Everyone had figured out how to get it done. Then Congress changed the rules, and lower courts are still flummoxed over what the 1996 act means." Opponents of capital punishment also fear that the Fell case and the May execution of multiple murderer Michael Ross in Connecticut - New Englands 1st execution in 45 years - may spark reconsideration of the death penalty elsewhere in the region. Mello disagreed. "Before New England will execute you, you must be white, a serial killer, and volunteer" to die, he claimed. The federal death penalty was authorized for certain cases in 1988, with the approval of Justice Department lawyers and the U.S. attorney general. The Federal Death Penalty Act of 1994, signed by Clinton, added many new circumstances in which death sentences could be applied, including killing in the course of another serious offense and non-homicide offenses such as treason and espionage. There are currently 37 federal death row inmates. A change in the composition of the U.S. Supreme Court could further complicate the issue. Although Mello said retiring Justice Sandra Day OConnor proved to be an unreliable fifth vote in many death penalty cases, he still views her as preferable to "an ideological 'hang hard' who just wants to kill your client." And although U.S. Attorney General Alberto Gonzales, a possible Bush nominee to replace OConnor, has been criticized by death penalty opponents for his handling of Texas cases as chief counsel to then-Gov. George W. Bush, Mello sees Gonzales as preferable to another Clarence Thomas or Antonin Scalia. "On paper he's a nightmare," Mello admits, "but hes not Ashcroft. I don't think hes an ideologue, and his record as attorney general hasnt been so bad. He doesnt strike me as the true believer that Ashcroft was. In testimony before Congress, hes a got a temperance and open-mindedness that I find guardedly non-pessimistic." A more serious national conversation about the death penalty has emerged over the last decade, in part due to the increased use of DNA evidence and the 118 cases in which factually innocent people have been released from death row. "That started the conversation," Mello argued. "It would be deliciously ironic if DNA technology, which allows for a degree of certainty, did in the death penalty." Fells guilt isn't a matter of doubt, however. Instead, what a Vermont jury has faced over the past month is essentially a matter of moral judgment, colored by the terrible nature of the crime and the hardships experienced by a relatively unremorseful perpetrator. To a limited extent, class also has figured in the equation, since the case has pitted well-funded federal prosecutors against an indigent defendant who long ago slipped through society's safety net. "The idea that whether you live or die depends on your resources resonates with a lot of Americans," Mello noted. In Fells case, however, the jury apparently determined that this did not weigh heavily enough to spare his life. Like it or not, Vermont has been compelled by Fell's senseless crime to grapple with an issue that will continue to stimulate heated debates at dinner tables, in legislative chambers, and perhaps even on the campaign trail for years to come. (source: Vermont Guardian) ******************** Enter vengeance Somewhere, John Ashcroft is smiling. The former attorney general was a strong proponent of the death penalty. He made it a priority to push for as many federal capital trials as possible, particularly in states that have outlawed capital punishment, such as Vermont. Because of one man's political agenda, Donald Fell is going to die. Fell, who was convicted last month of the November 2000 kidnapping, carjacking and killing of Terry King of North Clarendon, agreed in 2001 to enter a guilty plea for the federal crime in exchange for a sentence of life imprisonment without parole. That plea agreement was rejected by Ashcroft, who insisted on the death penalty. Ashcroft's insistence on a capital trial had little to do with the heinous nature of Fell's crime and had everything to do with Vermont's resistance to the death penalty. It was more important to advance Ashcroft's pro-death penalty agenda than it was to reach a just punishment for Fell's crimes. The Fell case should serve as a warning to those who believe that capital punishment is barbaric and should be banned, as it is in most of the civilized world. The forces that believe otherwise are on the march and are seeking to break down the inhibitions to the death penalty in states such as Vermont, which hasn't had an execution in nearly a half-century. The death penalty is not a deterrent to criminals. Texas leads the nation in executions. It also has one of the highest rates of violent crime in the nation. A similar correlation exists in other states with the death penalty. Vermont, on the other hand, has one of the lowest rates of violent crime in the nation. Donald Fell is going to die. Some would say that he deserves it. We believe, however, that the state should not be in the vengeance business. Life without parole is a sufficient enough penalty for murder, and states such as Vermont should not have to fear the federal government interfering with its justice system to impose its own view of crime and punishment. (source: Brattleboro Reformer) ****************** Federal Death Penalty Verdict in Vermont Unfortunate USA Must Dispel Myth That Justice and Executions are Synonymous, Says Amnesty International USA Today Dr. William F. Schulz, Executive Director of Amnesty International USA (AIUSA), released the following statement regarding Donald Fell being sentenced to death in Vermont for the murde of Terry King: "This entire process has been extremely unfortunate, and is another missed opportunity for the United States to act as a global leader in the fight to protect human rights. Instead of wasting valuable resources looking for new opportunities to invoke the death penalty, the US government would better serve its citizens by educating them about the pervasive, systemic flaws that are inherent in this antiquated form of punishment, making it highly susceptible to errors and bias. Our national leaders must set a positive example by dispelling the myth that justice and federally funded executions are synonymous and instead look for ways to eliminate this useless and ineffective practice." (source: Amnesty International) OHIO: RICHEY CASE----Ohio asks high court to reinstate conviction; no decision likely before arson retrial As prosecutors prepare to retry Kenneth Richey for murder in the 1986 arson death of 2-year-old Cynthia Collins, Ohio Attorney General Jim Petro yesterday asked the U.S. Supreme Court to reinstate his conviction. The clock at this point favors Richey. The U.S. Supreme Court has recessed for the summer, raising questions as to whether any decision could be made in time to affect the retrial already announced by Putnam County Prosecutor Gary Lammers. "The court won't rule until the first week of October," said Kenneth Parsigian, one of Richey's appeal attorneys. "They had it well within their power to get a ruling earlier if they had filed their petition back in April. "They had time to get the case heard before the court and not create the potential of the state releasing [Richey] in September before they get a hearing before the Supreme Court," he said. "It's a problem of their own making." Yesterday was the deadline for filing the appeal request. Richey, 41, the son of a Scottish mother and American father, has dual British-U.S. citizenship. He wishes to return to Scotland if released. His attorneys have asked that he be transferred to the county jail pending retrial, but he remains on death row at the Mansfield Correctional Institution. He has served 19 years for the death of the Columbus Grove tot. A 3-judge common pleas court sentenced him to death after determining Richey set the fire with the intention of killing his former girlfriend and her lover in the apartment below but ended up killing the child, whom he was baby-sitting. Richey has denied setting the fire but has admitted being intoxicated that night. "We hope the court will accept review of this important case to provide some measure of justice to Cynthia Collins' family," said Mr. Petro. The U.S. 6th Circuit Court of Appeals overturned Richey's conviction and gave Ohio 90 days to retry Richey or set him free. The court determined the state failed to prove the child was Richey's intended victim and that his defense lawyer was ineffective in failing to challenge questionable arson evidence. The appeal filed yesterday asks the nation's high court to determine if the 6th Circuit overstepped its authority by substituting its interpretation over that of the Ohio Supreme Court when it came to Ohio's law dealing with an offender's intent. "The state's evidence showed Richey intended to kill his girlfriend, not 2-year-old Cynthia," reads the state's appeal. "Thus, the [6th Circuit] majority concluded, the state had failed to establish a necessary element of the crime under state law, rendering Richey's conviction constitutionally defective." The appeal also claims the federal court erred when it did its own review of the effectiveness of Richey's attorney, rather than determine if the Ohio Supreme Court had failed to do so when it denied a similar claim. (source: Toledo Blade)
