From his sixteenth floor office, attorney Ken Parsigian looks out on Boston’s Old State House, a building that has seen much history, including the infamous ‘Boston massacre’ of citizens by provoked British troops in 1770. Parsigian is a senior partner in Goodhew Procter, one of the bluest of THE US’s blue-blood law firms.

Parsigian is the principal counsel representing tobacco giant Philip Morris at government level in much of the seemingly unending litigation that is the lot of tobacco companies in this anti-smoking era. That is the day job. In his spare time, Parsigian has another battle on his hands: for 12 long years he has fought to save the life of Scotsman Kenny Richey, a prisoner on Ohio’s death row. Noel Young interviewed Parsigian in the week it seemed he might be about to make his own bit of history by winning Richey’s release.

It was a routine circular from the American Bar Association, inviting lawyers to consider taking on death penalty cases on a pro bono basis. The challenge is not always tempting. “In some death penalty cases, the facts are just gruesomely awful – and the person actually did it. All you are arguing about is the penalty itself,” said attorney Ken Parsigian.
“I am opposed to the death penalty, but I accept that is not a majority view in my country.”
But this case was different and caught the attention of the team at Goodwin Procter, in Boston. The alleged killer, Scotsman Kennneth Richey, was on death row in Ohio: sentenced to the electric chair after a two-year-old girl living in the apartment above his ex-girlfriend died in a fire. The prosecutors said the fire had been started by a vengeful – and intoxicated – Richey.
“Not only was there a real doubt as to whether he did it; it should never been a death penalty case in the first place,” said Parsigian.
“Even if you believed every word of the state’s case, what you had was a drunk guy starting a fire in a cockamamie scheme to burn through the floor of an apartment and kill his ex-girl friend below.
“That’s just not a death penalty case, no matter what else it is.
“Even people I know in favour of execution thought it was a weird use of the death penalty. So that’s what attracted me, and Goodwin Proctor, to this case.”
Today, Richey, now aged 40, is on the verge of a return to Edinburgh as a free man after a massive campaign involving MPs, MSPs, the Blair government and thousands of ordinary Scots, led by his fiancée in Cambuslang. In Boston, Ken Parsigian – who has led the pro bono legal fight to save Kenny, as he calls him – talked frankly to The Firm about the long and painstaking road to get justice for the Scot – and the mistakes made at almost every level of the US legal profession.
The keynote of the Boston team’s effort from that day 12 years ago was thoroughness from top to bottom – conspicuously missing in Richey’s first defence effort.
“We hired an investigator to go back and talk to all the witnesses in Ohio. We wanted to see if they stood by their testimony. Had anything changed? Were there any facts that didn’t come out at trial? Did they get pressured to tell their story? Had they thought of something new since the trial? Remember this was years down the road. We re-investigated everything.
“We went out and got two of the best experts we could find in forensic chemistry – to look at the scientific evidence of arson in the case. We went through all the factual evidence, all the expert evidence, we looked at the decisions, we pulled the statute, we pulled the indictment, we looked at the bill of particulars. We read the whole file – the transcript of the case. What did Kenny’s original lawyer do? How well did he prepare the case? Did he miss anything? We read the appeal, we read every piece of paper we could to start building our best arguments.
“Our conclusion after all that work was that there were some amazingly bad decisions by his trial counsel and, frankly, some amazingly bad misses by his counsel from the public defender’s office at his appeal.
“It was just glaring to us. One of the first things we noticed was that under this particular statute, you could not convict somebody on a ‘transferred intent’. Transferred intent means that if I throw a knife at you, and you duck, and it hits the person behind, it means that we will take the intent that I had to kill you and we will transfer it to the person behind you and hold you guilty of first degree murder. That is accepted law in this country.
“But the particular statute Kenny was convicted under did not allow that. He was convicted under an aggravated murder statute, which means a murder that occurs in the course of some other crime.
“The section he was convicted under had two sections; both said you had to have the intent to cause the death of another, and that can still incorporate transferred intent.
“But two sections down it said a jury had to be instructed that they had to be certain beyond reasonable doubt that the accused intended to cause the death of the person who actually died. They just missed it. His trial lawyer missed it. The court missed it. His appeal lawyer missed it. The Ohio Supreme court missed it.
“We said, ‘Whoa, we have all these great arguments about his innocence and the science – but this is staring you right in the face: you can’t convict him!’”
That blunder was one of the grounds for the ultimately successful appeal in January. The demolition of the state’s scientific evidence was also a factor in clearing Kenny.
Originally Parsigian’s primary focus was not even Kenny’s innocence:
“I have said to him for 12 years, ‘We want to get you out. We don’t care how we get you out. Once you are out, you can write a book, you can go on the talk show circuit, you can tell everyone why you are innocent. But we can’t make the only reason you get out “innocence”. You get out for whatever reason you get out. First get out. Deal with the rest later.’”
Parsigian and his colleagues were puzzled that his original lawyer, Bill Kluge, had waived a jury trial.
“We thought, ‘In a murder case? If you waive the right to a jury, you have given up the right to say, “Even if one juror out of 12 has a reasonable doubt, I have a mistrial.”’ You have given that up. That just doesn’t make sense.
“We thought it was very strange. It suggested Mr Kluge might not have done a very good job in the rest of the case.
“As we investigated, we found a myriad of mistakes. The prosecution planned to call a state expert who would say that gasoline and turpentine were used to start the fire. So who did Bill Kluge get as a rebuttal expert? A metallurgist who had taken two two-day courses in gas chromatographs – taught by the state’s expert.
“Kenny’s lawyer asked him what he though about the state evidence and he said, ‘These are the guys who taught my course. I can’t argue. They’re right.’
Mr Kluge gave up after that, said Parsigian.
“What did we eventually prove, years later? We had one of the of experts in the world examine wood from the floor where the fire started. He said there was no evidence of gas and turpentine, just naturally occurring substances in the wood.
“For years we wondered how the state’s expert came to his conclusion. Had he just misread something? Finally in federal court a couple of years ago we finally got a deposition. The state’s expert admitted he used his own method of testing that had never been peer-reviewed, his own idiosyncratic method that he thought better than the one all the experts use in the field.
“That’s not admissible evidence. But none of that came out at the trial. Kenny’s lawyer didn’t know enough to ask the questions. He didn’t hire an expert who could help him figure it out. I laugh now when people ask me are they going to retry the case.
“I say, ‘With what evidence?’ You can’t get that evidence in. We destroyed it. It’s not even admissible evidence, if you admit your method has never been published or peer-reviewed? It shouldn’t even come into the case, let alone be persuasive.
“There were just so many errors by Kenny’s attorney. Over time, it just got worse and worse. But, the problem for us, was although you have a constitutional right to a competent attorney, you don’t have the same right to a competent expert. So we had to argue that the incompetence of the attorney produced the incompetent expert on scientific issues. And that’s what the court ultimately accepted.”
There were many reasons to doubt the evidence, said Parsigian.
“We found that the fire marshal first wrote in his report that the fire was caused by a defective electric fan. So he let them clear out the apartment. They took the rug and everything to the dump. It sits at the dump and then they collect it from there and take it to the sheriff’s office where it sits by some gasoline pumps for a couple of weeks. Then they test it and say there is evidence of gasoline and turpentine. When we found that out, we said, ‘This is pathetic.’”
Police investigating the blaze and the little girl’s death found Kenny in the same clothes he had worn all night.
“His arm is in a sling. He has no gasoline or turpentine on his clothes or his shoes. Yet the state theory is that Kenny with his arm in a sling had stolen the gasoline and turpentine, gone to the apartment over his ex-girl’s, dripped out the petrol/turps from the living room to the deck, lit a fire, jumped over the railing on to a shed roof, and to the ground. And he didn’t spill a drop of the liquid on his clothing anywhere.
“If Kenny’s lawyer had attacked the scientific evidence, had shown the expert didn’t know what he was talking about, there wouldn’t be any evidence.
“One woman witness, a neighbour, told us that she had informed Kenny’s lawyer that the little girl who died had a fascination with matches and had previously started two fires that the fire department had to come and put out. That didn’t come out at trial. Nobody knew that.
“The lawyer heard it but decided not to use it. He thought it would look bad, as if you were blaming the little girl.
“When the fire department arrived, Kenny was standing in the street with everybody else and he said, ‘Oh my God there’s a little girl in there. He threw a coat over his head and ran in through the smoke and flames – twice. The state agrees that he did that.
“Normally, that would be unbelievably good mitigating evidence that would cause you not to give the death penalty. But what the court said was, ‘Because of the undisputed evidence that Mr Richey himself disconnected the smoke alarm outside the little girl’s bedroom, we can ignore this evidence that he tried to save her.’
“There was no evidence Kenny detached the smoke detector. When the fire marshal walked through the burned-out apartment, the smoke detector was hanging down from the ceiling. But a neighbour told us she and the little girl’s mother were having dinner. ‘We were making steak and we disconnected the smoke detector.’
“She told Kenny’s lawyer and he didn’t put it in the evidence. This guy just didn’t do a good enough job.”
Parsigian said he wouldn’t say for definite that the little girl started the fire, but evidence of the previous fires should have been presented. As a lawyer, your job is to present plausible alternatives, something that will create reasonable doubt; it doesn’t have to be the explanation.
“I would have said, ‘There is serious doubt that this was even arson, there’s no evidence that accelerants were used. None. There’s evidence that: the little girl had previously started two fires. It might have been the electric fan, as the fire marshal thought at first. They all smoked. Someone could have left a cigarette smouldering in the sofa.’ You lay out all the pieces and you say, ‘It’s not my job to prove how it happened. It’s the state’s job.’ Have they proven it beyond a reasonable doubt? The answer is, no. They couldn’t have.”
Parsigian was unsurprised that the state is seeking a rehearing.
“They are angry. They think Kenny really did it. They believe that. They believe that this ruling was unfair to them.
“Originally Kenny was a very angry young man. Of course, I don’t know how much of that anger was being wrongly convicted. But over the years he has grown a lot. He has become more philosophical. He’s refused a plea bargain in the past. He didn’t waver, not for a second, ‘I won’t plead to something I didn’t do.’
“The Kenny of 18 years ago would have felt like, ‘I want to go punch that prosecutor on the nose.’ The Kenny of today, the first thing he wants to do is go hug his mother and hug Karen, his fiancée. That’s a good way to define the difference.
“Kenny is of course anxious about what he does with his life. What do I do? What job do I get? In prison he has written poetry, he has written stories, he has been doing some painting. You can see them online on Karen’s website.”
Remarkably Parsigian has never met Kenny face to face, “Although I talk to him all the time on the phone, twice this week already, sometimes four times a week. I went out to Ohio once and that day the prison was in lockdown. No visitors, not even attorneys.
“Twelve years ago I asked Kenny what he missed the most. He said, ‘the first thing I want is a good Scottish beer. So I told him last week, when they let you out, I will be standing there with a cold bottle of McEwans. One for you, and one for me. I’ll be there.”

What happens next?
Courts of appeal in the US sit in panels of three judges, said Parsigian. “After a three-judge panel rules, that’s the ruling of the court. But the losing side can request that the whole court, 12 judges in all, rehear it. It’s called ‘en banc’. That’s what has happened here. The state has asked for 14 days extra to make their case for a rehearing by the full bench. Most of the time, the court says no these pleas.
“If our victory stands, the Court of Appeals will send an order to the District Court. They then tell the state of Ohio it has 90 days to release Kenny, or retry him.”
Parsigian said he thought there would be no retrial for four reasons:
1 The fire marshal who originally testified
was diagnosed with Alzheimer’s disease five years ago. He will not be a witness.
2 Peggy Valerio has changed her
testimony. She now says she never heard Kenny say he was going to burn the building down. She says she was pressured by the prosecutor.
3 Their scientific testimony has been
decimated.
4 The death penalty is out of the case, no
matter what. The aggravated murder count was thrown out because they couldn’t meet this element of intending to kill the person killed. They can’t try that one again. That is double jeopardy.
Parsigian said they could retry arson, which Kenny was convicted of, “But their scientific evidence has been destroyed. Plus, Kenny has been in jail for 19 years. How much time are you going to get?
“I really think it would be irresponsible to retry this case. A prosecutor has to believe that he can prove the case beyond a reasonable doubt. I do not see, in good faith, how you could prove this case beyond a reasonable doubt.”

Ken Parsigian on the merits of pro bono work
Ken Parsigian talks about the Richey case with the passion of a legal evangelist: “The pro bono work we have done for Kenny Richey may well save his life. But the work also counts in my life. It lets me feel I can make a difference.
“We took the case 12 years ago, after Kenny had been convicted of aggravated murder and lost his appeal in the Ohio Supreme Court by a four to three vote. The case has been fascinating and challenging.
“Over the years, more than 15 lawyers have been part of the team, and the firm has devoted literally millions of dollars to the defence.” Parsigian is passionate about the re-invigorative powers of pro bono work, both for himself and his fellow lawyers. “I tell associates, when they ask where to find the time for pro bono work, ‘It’s your time. You need to make it.’ Of course, it comes out of your family time. You are saying, ‘I want to give something back.’
“I have been given this ability to be in a profession where we are self-licensing, because we get to control who gets to be in the profession, I make a lot more money than I ever thought I’d make in my life, and this is one way of giving back; by providing some of those services to people who can’t afford them. You just have to make a commitment to it.
“My wife can tell you all about that. I remember being on vacation in Rhode Island. We were staying at a small inn and they had one fax machine and at two in the morning, after everybody went top bed at 11.00pm, I stayed up and worked on the Richey brief. At 2.00am I was faxing back to the office in Boston, on their old-fashioned fax machine. You’ve got to take that time – vacation or no vacation – because (a) you owe it, and (b) once you take on a case like this, nothing is more important.
“It is enormously frustrating that indigent criminal defendants like Kenny almost never get top quality representation at trial. I have no doubt that if Kenny had the money to hire Goodwin Procter or any of a thousand other firms, he would not have been convicted. His conviction could well have meant his life because he didn’t have the money to hire a good lawyer, and that’s why it’s so important that we take on cases like these.”

Will kenny be a millionaire?
The question of eventual compensation for a Kenny win has been the subject of much speculation. The Scotsman reported that similar miscarriages of justice had generated pay-outs of up to £3.2million.
The least he would stand to receive in a successful claim against Ohio for wrongful imprisonment, said the paper, would be £385,000, or £21,000 for every year inside. Parsigian said: “The truth is that the mere fact that your conviction is overturned does not mean you have a claim. I can tell you this has not been at the top of Kenny’s list. The top thing is to get out, to breathe free air, to see his mom – sorry mum – to see Karen, to have a beer with his friends. If Kenny chooses to bring a claim, it would involve re-living a lot of things. It would involve coming back to the US. I can see why someone might say to themselves, ‘That’s a bad part of my life I don’t want to revisit. I don’t want to fight about whether they had enough evidence. I don’t want to fight about any of that. I want to move on.’
“I don’t know what Kenny is going to do. We haven’t looked at what his chances of success are. We haven’t talked about whether he wants to do it, or whether he should do it. We’ve both said, ‘That’s something for down the road.’
“Once he gets out and gets on the plane to Scotland, that’s my job done. I hope to keep in touch with Kenny, to hear that he’s got his life back together.”