COLUMBUS - Kenny Richey may stay on Ohio's death row for the foreseeable future after the U.S. Supreme Court yesterday lifted a federal deadline to release him or retry him for the 1986 arson murder of a 2-year-old Columbus Grove girl.
The order, signed by Justice John Paul Stevens, buys the high court time to consider the state's request for appeal filed earlier this month seeking to reverse a decision by the U.S. 6th Circuit Court of Appeals overturning Richey's conviction and death sentence.
The Supreme Court is in summer recess and would not decide whether to hear the appeal until the first week of October at the earliest.
In light of the decision, Ohio Attorney General Jim Petro plans to ask a state appeals court to put a hold on last week's order requiring the state to move Richey, 41, to a Putnam County jail cell by Aug. 3.
"This ruling stays the mandate and keeps Richey on death row where we believe he properly belongs for his just conviction and sentence for the murder of 2-year-old Cynthia Collins," Mr. Petro said.
A three-judge common pleas court panel convicted Richey of setting the fire that killed the child. The judges determined that Richey, who has dual British-U.S. citizenship, set the fire with the intention of killing his ex-girlfriend and her lover in the apartment below, but killed the child instead.
Ken Parsigian, Richey's Boston attorney, said that, at worst, he believes this creates a 30-day delay in the process, assuming the Supreme Court refuses to hear the appeal in early October, automatically restarting the clock for Putnam Prosecutor Gary Lammers to proceed with his announced retrial.
Mr. Lammers could not be reached for comment.
"This decision is absolutely, unequivocally wrong," Mr. Parsigian said.
"If Justice Stevens looked at the papers, it would take him one second to decide this was wrong. The Supreme Court should only do this in extraordinary circumstances of last resort, and the state didn't attempt to show that," he said.
The 6th U.S. Circuit Court's ruling overturning the conviction and requiring the state to retry or release Richey remains in effect, but the 90-day clock it created and a federal judge in Cleveland subsequently set in motion has been stopped.
"The problem was that, if the mandate stayed in effect, there was a possibility the whole case would have been moot before the court acted on the [appeal] petition," said Assistant Attorney General Douglas Cole. "Recalling the mandate freezes things where they are."
In a 2-1 ruling, the Cincinnati-based 6th Circuit Court ruled that the prosecution failed to prove at the trial that the child was Richey's intended victim, and that his defense lawyer was ineffective when it came to challenging questionable arson evidence.
"We're not very happy, but we expected they would do something like this. We're sure they would drag it out as long as they can," said Karen Torley Richey, Richey's Scottish fiancee who has adopted his name.
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