COLUMBUS - 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 three-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.
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