Prosecutor Gary Lammers says justice demands that the victim, a 2-year-old girl, should not be forgotten.
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OTTAWA, Ohio - Jim Richey was nothing short of elated to hear that after nearly 19 years in prison, his son Kenny would be getting a new trial for the 1986 death of a 2-year-old Putnam County girl.
"I feel fantastic. We've tried for 19 years, and we've finally got it," Mr. Richey said from his home in Washington state. "They don't have a leg to stand on, so I'm thanking them very much for giving Kenny this opportunity. Gary Lammers isn't so bad after all."
Mr. Lammers, the Putnam County prosecutor, announced yesterday that despite the overturning of Richey's conviction by a federal appeals court, he would seek new charges against Richey, 41, and retry him for setting the June 30, 1986, fire that killed Cynthia Collins in a Columbus Grove, Ohio, apartment.
Prosecutors said at the time that Richey set the fire in an attempt to kill his ex-girlfriend and her lover, who lived in the apartment below Cynthia and her mother, Hope Collins.
The case has received wide attention, particularly in Great Britain where Richey's Scottish mother lives along with his fiancee, Karen Torley Richey, a Scottish woman who began a campaign to free him in the mid-1990s.
Mr. Lammers declined to say what charges he would seek from a Putnam County grand jury but said he would present the death penalty as an option for the panel to consider.
"I'm not saying this is necessarily a death penalty case today," Mr. Lammers said. "We will look at that and present it to the grand jury and let them decide."
No date has been set for the grand jury hearing, but Mr. Lammers said he expected to hold it "within 60 days."
Ken Parsigian, Richey's Boston-based attorney, called the prosecution's quest to get a new capital conviction "just bloodthirsty."
"Given that the state has been fighting tooth and nail on every single point, I can't say I'm surprised to see they would not back down now," he said. "The surprising thing to me is they would take the extreme position of saying they would go back to a grand jury and get a new indictment on a new theory 19 years later just to get the death penalty."
In January, the U.S. 6th Circuit Court of Appeals in Cincinnati threw out Richey's 1987 conviction and death sentence, saying prosecutors failed to offer evidence that Richey intended to kill the young girl. They also said Richey's defense attorney at the time, William Kluge of Lima, Ohio, was "outside the wide range of professionally competent assistance," in part because he did not challenge the state's evidence.
That ruling was upheld June 3 by a federal judge in Cleveland who gave the state 90 days to retry Richey or release him.
Mr. Lammers said before making his decision he spoke with witnesses who testified in the first case, investigators, and the lawyers with the Ohio attorney general's office who have worked on the appeals cases for the last several years.
He admitted that trying a case 19 years after a crime occurred is "an issue and a concern," but said "there are a lot of witnesses who were intimately involved who are still in the area. I'm sure that is a night or a day that will stand out in their minds forever. It's not something you would easily forget."
Just one witness who testified at Richey's first trial - an elderly woman who lived at the apartment building where the fire occurred - is deceased, Mr. Lammers said.
Mr. Parsigian said prosecutors will face numerous other problems in trying to prove their case beyond a reasonable doubt.
A key witness, Robert Cryer, an assistant state fire marshal at the time, is in poor health and had almost no memory of the case when defense attorneys deposed him about four years ago, Mr. Parsigian said.
At least one witness recanted testimony she gave about Richey making incriminating statements, and the scientific evidence in the case "we destroyed in the appeal," he said.
"There are a number of things that make their case much, much, much weaker. At the time when it was stronger, they were willing to give him 11 years," Mr. Parsigian said, referring to a plea deal Richey was offered at the time and refused.
Mr. Parsigian said he and partners at his law firm, Goodwin Proctor, are prepared to mount a new defense for Richey, although they intend to try to get the new indictment thrown out before the case even gets to the trial stage.
"They have a number of obstacles to overcome just to get to trial," he said. "We expect to be fighting very hard to prevent them from ever getting to a trial."
Kim Norris, spokesman for the attorney general's office, said Attorney General Jim Petro will assist Putnam County in prosecuting the case.
"I wouldn't say it's unheard of to have a case where you've had both the conviction and the sentence overturned. It's sent back and it's retried and the individual is resentenced to death," she said.
If the case is tried in Putnam County, the lone Common Pleas Court judge, Randall Basinger, would not hear the case. Judge Basinger, who was an assistant prosecutor when Richey was tried the first time, said he would not hear the case because of his prior involvement. He declined to comment further.
By late yesterday afternoon, Mr. Parsigian still had not spoken with Richey, who remains in the Mansfield Correctional Institution, but predicted he would "be of two minds" about the prosecutor's decision to retry him.
"Part of him will be [thinking] they'll never give up," Mr. Parsigian said. "Kenny turned down a deal that would've had him out and living his life eight years ago. He turned it down because he has always maintained his innocence. So I think another part of him will be saying, 'Bring it on. I've got real lawyers now.'●"
Richey's father agreed.
"We know that the truth will come out and so we're not worried one bit," he said. "This might just reinstate a little faith in the justice system that I've lost for the past 19 years. I'm excited about it. I'm sure that Kenny's excited about it. He's been fighting for 19 years to prove he's innocent after the kangaroo trial that he received previously. Let's get on with it."
The victim, Cynthia Collins, would have been 21 had she lived. Mr. Lammers said he met with her family before making his decision to retry Richey.
"They expressed their feelings. They were understanding of the dilemmas I'm faced with," he said. "They are not happy with the court of appeals decision. To some extent, they have to relive it, but that's our judicial system and we have to live with it."
While Richey's attorneys have been fighting to get him moved to the Putnam County jail, Mr. Lammers said Richey would stay put for now. He would be moved to the jail in Ottawa "if he's indicted," Mr. Lammers said.
The prosecutor, who is in his first year in office, said that while Richey has gotten a groundswell of support from many corners of the world, the victim in the case should not be forgotten.
"In the interests of justice, I cannot ignore the facts and cruel acts which led to the death of this child," he said in a statement.
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