Supporters of Ohio death-row inmate Kenny Richey were elated last month after the U.S. 6th Circuit Court of Appeals ruled that the state had 90 days in which to retry him or set him free.
The mood has turned sour in recent days.
A U.S. District Court judge who once ruled against Richey in one of his appeals has yet to sign the document that would start the 90-day process.
Meanwhile, the attorney general's office maintains that if the state begins trial proceedings, the 90-day deadline set by the court of appeals is moot.
Yesterday, Richey's attorneys filed a motion asking District Judge Patricia Gaughan to issue the conditional writ in the Richey case and for the state to retry Richey within 90 days - retroactive to May 16 - or release him.
Concerning Judge Gaughan's inaction and the state's interpretation of the appellate court's ruling, Paul Nemser, one of Richey's Boston attorneys, said: "Based on logic and facts, it just doesn't make a lot of sense in light of the [court's] ruling. I think [Judge Gaughan] is under obligation to issue the conditional writ and do so right now."
Phone calls to the judge's office yesterday were not returned.
Richey, 40, has been on death row since 1987 for the arson death of 2-year-old Cynthia Collins at an apartment complex in Columbus Grove, Ohio. A three-judge panel in Putnam County Common Pleas Court found that Richey set the fire in an attempt to kill his former girlfriend and her lover, who were in the apartment below.
Richey rejected a plea bargain that would have resulted in his release from prison after 11 years. He repeatedly has denied setting the fire, but admitted being drunk the night of the incident.
Raised in Scotland, Richey holds U.S. and British citizenship. His case has gained international attention. His supporters believe he was poorly defended and that there were numerous inaccuracies in the prosecutor's case.
Over the years, Richey lost numerous appeals, including a 4-3 decision in 1992 by the Ohio Supreme Court, which upheld his conviction.
In 2001, Judge Gaughan denied Richey's request for a new trial on grounds that his constitutional rights were not violated. But, in her opinion, she conceded that new scientific evidence in the case undermined the state's arson evidence.
On Jan. 25, a 6th Circuit panel in Cincinnati, in a 2-1 decision, overturned the conviction, ruling that prosecutors failed to prove Richey should have been convicted, that his attorney during the trial, William Kluge of Lima, Ohio, did not provide him with a competent defense, and that the state could not prove Cynthia Collins was Richey's intended victim.
The same court told the state last month to either retry Richey or release him and turned the case over to Judge Gaughan for her to sign off on. The appeals court on May 26 rejected a state request for a stay on its mandate.
Kim Norris, a spokesman for the attorney general, said her office will soon confer with Putnam County Prosecutor Gary Lammers to decide whether to retry Richey.
"That decision has yet to be made. [We still believe] his actions resulted in the death of a little girl," she said.
Richey's supporters are growing impatient.
"The [court] ruling is crystal clear," said his fiance, Karen Torley, of Glasgow, Scotland, who has led the campaign to free him. "[It] said that Kenny should be retried or freed within 90 days."
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