Nicholas Kristof on Kevin Cooper: Framed for Murder?

The following is a piece in support of California death-row inmate Kevin Cooper, by the New York Times Op-Ed columnist Nicholas Kristof.

“California may be about to execute an innocent man.”

That’s the view of five federal judges in a case involving Kevin Cooper, a black man in California who faces lethal injection next year for supposedly murdering a white family. The judges argue compellingly that he was framed by police.

Mr. Cooper’s impending execution is so outrageous that it has produced a mutiny among these federal circuit court judges, distinguished jurists just one notch below the United States Supreme Court. But the judicial process has run out for Mr. Cooper. Now it’s up to Gov. Arnold Schwarzenegger to decide whether to commute Mr. Cooper’s sentence before leaving office.
This case, an illuminating window into the pitfalls of capital punishment, dates to a horrific quadruple-murder in June 1983. Doug and Peggy Ryen were stabbed to death in their house, along with their 10-year-old daughter and an 11-year-old houseguest. The Ryens’ 8-year-old son, Josh, was left for dead but survived. They were all white.

Josh initially told investigators that the crime had been committed by three people, all white, although by the trial he suggested that he had seen just one person with an Afro. The first version made sense because the weapons included a hatchet, an ice pick and one or two knives. Could one intruder juggling several weapons overpower five victims, including a 200-pound former Marine like Doug Ryen, who also had a loaded rifle nearby?

But the police learned that Mr. Cooper had walked away from the minimum security prison where he was serving a burglary sentence and had hidden in an empty home 125 yards away from the crime scene. The police decided that he had committed the crime alone.
William A. Fletcher, a federal circuit judge, explained his view of what happens in such cases in a law school lecture at Gonzaga University, in which he added that Mr. Cooper is “probably” innocent: “The police are under heavy pressure to solve a high-profile crime. They know, or think they know, who did the crime. And they plant evidence to help their case along.”
Judge Fletcher wrote an extraordinary judicial opinion — more than 100 pages when it was released — dissenting from the refusal of the United States Court of Appeals for the Ninth Circuit to rehear the case. The opinion is a 21st-century version of Émile Zola’s famous “J’Accuse.”

Mr. Fletcher, a well-respected judge and former law professor, was joined in his “J’Accuse” by four other circuit judges. Six more wrote their own dissents calling for the full Ninth Circuit to rehear the case. But they fell just short of the votes needed for rehearing.

Judge Fletcher laid out countless anomalies in the case. Mr. Cooper’s blood showed up on a beige T-shirt apparently left by a murderer near the scene, but that blood turned out to have a preservative in it — the kind of preservative used by police when they keep blood in test tubes.
Then a forensic scientist found that a sample from the test tube of Mr. Cooper’s blood held by police actually contained blood from more than one person. That leads Mr. Cooper’s defense team and Judge Fletcher to believe that someone removed blood and then filled the tube back to the top with someone else’s blood.

The police also ignored other suspects. A woman and her sister told police that a housemate, a convicted murderer who had completed his sentence, had shown up with several other people late on the night of the murders, wearing blood-spattered overalls and driving a station wagon similar to the one stolen from the murdered family.

They said that the man was no longer wearing the beige T-shirt he had on earlier in the evening — the same kind as the one found near the scene. And his hatchet, which resembled the one found near the bodies, was missing from his tool area. The account was supported by a prison confession and by witnesses who said they saw a similar group in blood-spattered clothes in a nearby bar that night. The women gave the bloody overalls to the police for testing, but the police, by now focused on Mr. Cooper, threw the overalls in the trash.

This case is a travesty. It underscores the central pitfall of capital punishment: no system is fail-safe. How can we be about to execute a man when even some of America’s leading judges believe he has been framed?

Lanny Davis, who was the White House counsel for President Bill Clinton, is representing Mr. Cooper pro bono. He laments: “The media and the bar have gone deaf and silent on Kevin Cooper. My simple theory: heinous brutal murder of white family and black convict. Simple as that.”

That’s a disgrace that threatens not only the life of one man, but the honor of our judicial system. Governor Schwarzenegger, are you listening?

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Another Setback for Kevin Cooper

From the Riverside (CA) Press-Enterprise]

Condemned prisoner Kevin Cooper was denied a rehearing Monday by a federal appellate panel in a 114-page order that bristled with dissents, one of them claiming that "the state of California may be about to execute an innocent man." [Full text at http://www.ca9.uscourts.gov/datastore/opinions/2009/05/11/05-99004o.pdf]

Another judge defended the decision, saying evidence and post-conviction forensic tests only point to Cooper, now 51, as the 1983 knife-and-hatchet slayer of three family members and a houseguest in a Chino Hills home.

With the denial of an "en banc" rehearing before an 11-judge judicial panel of the 9th U.S. Circuit Court of Appeals, Cooper has 90 days to ask the United States Supreme Court to review his case, the first step toward getting an appeal.

He has applied for relief nine times previously to the nation's high court.

Up to 28 of the 9th Circuit's judges can vote on an en banc hearing application. Published dissents indicate at least 11 were in favor of rehearing the case. One judge said the vote was closer than that.

Cooper's lead attorney, David Alexander, declined comment Monday.

Supervising Deputy Attorney General Holly D. Wilkens said her office agreed with the denial of a rehearing. "We have no doubt as to Cooper's guilt," she said.

Executions in California are on hold while issues about lethal injection protocol are resolved. The last execution took place in 2006.

Cooper's case has been in some form of appeal since his 1985 death sentence. The 9th Circuit in February 2004 granted him a last-minute stay of execution and ordered a hearing into his claims of evidence tampering and police misconduct.

U.S. District Judge Marilyn Huff in San Diego conducted the hearing and oversaw forensic tests. She ruled they did not prove Cooper's claim of innocence and police misconduct. She was upheld in late 2007 by the 9th Circuit.

But then there was an unusually long wait for a decision on whether the 9th Circuit would rehear the case. The California attorney general's office last March filed papers complaining about the nearly 500-day wait for a decision.

Delay explained

The length and language of the order issued Monday seemed to explain the delay.

Orders denying en banc hearings are sometimes accompanied by dissents, but rarely with the number -- four -- or the passion -- "There is no way to say this politely. The district court failed to provide Cooper a fair hearing" wrote Judge William A. Fletcher in the longest of the dissents, at about 100 pages.

There also were sharp ideological lines. Ten of the 11 judges who wrote or joined in the dissents were either Carter or Clinton administration appointees.

One Republican appointee, Chief Judge Alex Kozinski, was among the dissenters. Kozinski, named by Reagan, joined a three-line item that "generally" agreed with Fletcher that the case should be reheard.

Issues reviewed

Fletcher's lengthy dissent reviewed issues Cooper and his attorneys have raised since his conviction and sentencing.

Those include claims of misconduct and destruction of evidence by law enforcement investigators, poor police work in looking into other possible suspects, and claims that Huff improperly oversaw the DNA and blood tests during the 2004-05 hearings in her court.

"Kevin Cooper has now been on death row for nearly half his life," Fletcher wrote. "In my opinion, he is probably innocent of the crimes for which the state of California is about to execute him. If he is innocent, the real killers may have escaped ... We should have taken this case en banc and ordered the district judge to give Kevin Cooper the fair hearing he never had."

Circuit Judge Pamela Rymer, wrote a concurrence with the denial order. "No test on any item has ever pointed to anyone else as the killer," she said. "The state courts found no evidence of tampering" with various items of evidence.

The bloody June 4, 1983, attack took the lives of Doug and Peggy Ryen; their 10-year-old daughter, Jessica; and neighbor Christopher Hughes, 11, who was staying overnight at the Ryens' home.

The boy was a friend of the Ryens' 8-year-old son, Joshua, who survived the attack with a slashed throat.

The slayings took place two days after Cooper had escaped from the nearby California Institution for Men in Chino. Cooper admitted hiding in a vacant house near the Ryen home, but he denied killing anyone.

"It seems that justice moves pretty slow," said Mary Ann Hughes, mother of Christopher Hughes. "All he has done is to throw up a bunch of smoke screens along the way ... and all of it has to do with people who oppose capital punishment," she said Monday.

"They put their ideas forward, but it's unfair to our family and the Ryen family to go through 26 years of this," she said.

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