[News] Court blocks Cooper's execution

[News at freedomarchives.org]

Court blocks Cooper's execution
Appeals panel grants a stay -- murder evidence to be tested
<mailto:begelko at sfchronicle.com>Bob Egelko, Pamela J. Podger and Chuck 
Squatriglia, Chronicle Staff Writers
Tuesday, February 10, 2004
©2004 San Francisco Chronicle | Feedback | FAQ

URL: sfgate.com/article.cgi?file=/c/a/2004/02/10/MNG6Q4T6HC1.DTL

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A federal appeals court blocked the execution of Kevin Cooper on Monday, 
less than eight hours before he was to die by lethal injection in San 
Quentin Prison for the murders of two adults and two children in 1983.

The 9-2 ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco 
sends the case to a federal judge in San Diego for testing of evidence that 
Cooper claimed could demonstrate two things: his innocence and police 
wrongdoing.

The state immediately appealed to the U.S. Supreme Court to reinstate the 
execution for 12:01 a.m. today, but the high court spared Cooper, turning 
down the state's plea at 8:19 p.m.

Cooper, 46, has spent nearly two decades on Death Row contending he was 
framed. Based on new information from Cooper's lawyers, the Ninth Circuit 
court majority said, key evidence at his 1985 trial may have been 
unreliable, and evidence in his favor may have been withheld by prosecutors.

"No person should be executed if there is a doubt about his or her guilt 
and an easily available test will determine guilt or innocence,'' the Ninth 
Circuit court said. It said the tests should be conducted promptly, but it 
set no deadline. Depending on the results, U.S. District Judge Marilyn Huff 
could order a new trial or reinstate Cooper's conviction and death sentence.

"The public cannot afford a mistake,'' observed Judge Barry Silverman in a 
separate opinion endorsing a stay of execution. "Neither can Cooper.''

When prison officials got word of the Supreme Court's decision, Cooper was 
huddling with his spiritual adviser in a death watch cell just 12 feet from 
the execution chamber where he was scheduled to die.

He declined his last meal and met through the night with his spiritual 
adviser. After a day of cross-country, rapid-fire legal maneuvers over his 
fate, prison spokesman Lt. Vernell Crittendon said Cooper "was extremely 
relieved to get a final word."

Until the moment of the Supreme Court's decision, prison officials were 
proceeding as if there would be an execution. Cooper was moved from a 
visiting room on Death Row, where he'd spent the day meeting with his 
spiritual adviser and attorneys, at 6 p.m. to a death watch cell. 
Preparations for his execution continued as planned in case the high court 
overturned Ninth Circuit's stay, prison officials said.

"He was confused that the institution was still proceeding," Crittendon said.

By 9 p.m., Cooper was headed back to his cell on Death Row, No. 1NS1.

Outside the prison's East Gates, supporters were just starting to arrive 
for a vigil for Cooper when the Supreme Court's decision was announced. The 
crowd roared its approval, exchanging hugs and waving signs that many of 
the estimated 450 supporters had marched with from the Larkspur Ferry 
Terminal.

"It was a relief for sure," said Dan Mahoney, 40, a nonprofit administrator 
who lives in San Francisco. "To walk away from a vigil happy is a rare 
occasion."

Cooper had filed eight challenges to his conviction or death sentence in 
the state Supreme Court and at least four in the federal courts. Until 
Monday, every ruling had gone against him.

The topsy-turvy day left one victim's parent disappointed but undeterred.

"If it doesn't happen this time, it will happen next time or the time after 
that, and we'll come back up here when it does,'' said Mary Ann Hughes of 
Chino Hills (San Bernardino County), whose 11-year-old son, Chris, was 
visiting overnight at a friend's home when the killer struck.

Hughes, who traveled to San Quentin with other relatives to witness the 
execution, said she was dismayed that the appeals court lent credence to "a 
new crazy theory from the defense.''

Attorney General Bill Lockyer's office, which had asked the Supreme Court 
to intervene, treated the rebuff as only a temporary setback and said it 
was confident that the court-ordered tests "will not cast doubt about 
Cooper's guilt.''

Lanny Davis, a lawyer for Cooper, issued a statement saying he hoped the 
murder victims' relatives, including one who survived the attack, "will 
support us to determine the truth.''

Cooper escaped in June 1983 from a minimum-security prison in Chino (San 
Bernardino County), where he was serving a burglary sentence.

Two nights later, Doug and Peggy Ryen, their 10-year-old daughter, Jessica, 
and Chris Hughes were viciously stabbed and hacked to death in the Ryens' 
home in nearby Chino Hills. The Ryens' 8-year-old son, Josh, had his throat 
slit but survived.

Cooper admitted hiding out in a vacant home next door but said he fled to 
Mexico the night of the murders without approaching the Ryens' house. He 
was captured in a boat off Santa Barbara 47 days later after the largest 
manhunt in state history.

The evidence against him included a blood spot on the wall of the Ryens' 
house, consistent with his blood; matching shoe prints in the Ryens' house 
and the house where Cooper hid; blood in the hideout house that could have 
come from the victims, and a hatchet with the victims' blood that resembled 
one missing from the hideout house.

With the advent of DNA testing, Cooper sought new tests of the evidence, 
and got them after the state passed a law authorizing such tests. The 
results, released in 2002, seemed fatal: His blood was on the wall of the 
Ryens' house and on a T-shirt found nearby that also contained the victims' 
blood, and his saliva was on two cigarette butts in the Ryens' stolen 
station wagon.

But Cooper and his lawyers said the evidence could have been planted, 
either before trial or in 1999 by a sheriff's technician who briefly had 
custody of Cooper's blood, one of the cigarette butts and the blood spot 
evidence.

Defense lawyers said a simple chemical test, which could be conducted in 
two weeks, could detect a preservative that would show that the DNA came 
from blood that had been drawn from Cooper after his arrest.

In Monday's ruling, the appeals court ordered a preservative test of the 
T-shirt, the one item of disputed evidence that was securely in court 
custody from the time of Cooper's trial until 2002. The court also ordered 
DNA testing of blond or light brown hairs found in one of Jessica Ryen's 
hands that could not have belonged to the African American defendant.

Cooper's lawyers have contended the murders could have been committed by 
blond-haired men seen at a nearby bar the night of the killings - wearing 
bloodstained clothes, according to a witness who surfaced only days ago.

Cooper's trial lawyer also offered evidence of multiple culprits, including 
suspicious-looking men at the same bar, but jurors decided Cooper was the 
sole killer. Five of the 12 trial jurors now favor a reprieve.

The court said the new tests were justified, in part, because of questions 
about the reliability of important prosecution evidence: testimony that the 
shoe prints in both houses came from uniquely soled shoes that had been 
issued to Cooper at the prison.

In a new declaration Jan. 30, which had not been provided to the defense 
during the trial, former prison warden Midge Carroll said the shoes 
provided to Cooper were not unique to the prison, but were commercial 
brands available to the public. The appeals court said Carroll's statement, 
if presented at trial, could have weakened the prosecution's case against 
Cooper.

Dissenting Judge Richard Tallman said most of the evidence cited in 
Cooper's latest appeal could have been presented long ago, and none of it 
could prove his innocence. In particular, he said, Carroll's declaration 
about the shoes didn't change the fact that shoe prints in the home where 
Cooper was hiding matched a shoe print in the Ryens' house.

"The majority fails to appreciate the powerful circumstantial evidence 
tying Cooper to these crimes,'' said Tallman, joined by Judge Jay Bybee.

Cooper, a prolific writer from his prison cell, has attracted support for 
his claim of innocence from anti-death penalty and prisoners'-rights 
activists, labor leaders and other national figures, including Rubin 
"Hurricane'' Carter, the former boxing contender who was wrongly imprisoned 
for murder for nearly 20 years.

Another backer was former Illinois Gov. George Ryan, who commuted all 167 
of his state's death sentences last year after revelations of police abuse 
and wrongful convictions.

----------
In dispute

Evidence the Ninth U.S. Circuit Court of Appeals in San Francisco was 
examining in the Kevin Cooper case:.



DNA

A 2002 test found Cooper's DNA in a blood spot on the wall of the victims' 
home, in two cigarette butts in their car, and on a T-shirt found at a 
roadside that also contained the victims' blood..

Defense lawyers say:

-- Cooper's blood could have been planted on the T-shirt by officers who 
had the evidence before his 1985 trial. A simple chemical test for a 
preservative could determine whether the blood was planted.

-- Police must have planted the cigarette butts because the butts didn't 
show up in an initial search of the car.

-- A criminalist who had custody of one cigarette butt and blood spot 
evidence for a day in 1999 could have contaminated them with Cooper's DNA..

Prosecutors say:

-- The T-shirt was in court custody from the time of trial until the DNA test.

-- It is implausible that officers would plant blood evidence that wouldn't 
be detected at trial but would show up in a new test 17 years later.

-- A judge found that the criminalist left the evidence undisturbed in 1999..



HAIR

Defense lawyers want: DNA tests on blond hairs found in the hand of one 
murder victim that could not have come from Cooper.

Prosecutors say: The hairs could have come from the victim or others who 
had been in the house and had no connection with the murders. The hairs 
were examined before trial by Cooper's own expert witness, who found 
nothing useful in them, a conclusion affirmed recently by a judge..



CONFESSION

A Vacaville prison inmate told authorities before Cooper's 1985 trial that 
a fellow prisoner told him he and two others committed the murders as an 
Aryan Brotherhood hit. Cooper's lawyer decided not to present the testimony.

Defense lawyers say: The inmate's statement included details of the crime 
that weren't publicly known.

Prosecutors say: Under questioning by investigators, the inmate denied his 
fellow inmate's account. A federal judge later ruled that the evidence 
would not have helped the defense..



COVERALLS

Diana Roper, who lived 40 miles from the crime scene, told officers that 
her boyfriend, ex-convict Lee Furrow, came home with blood-stained 
coveralls that she believed were connected to the murders. She turned them 
over to a sheriff's detective, who destroyed them six months later without 
testing the blood. The detective testified at Cooper's trial, but Roper 
wasn't called.

Defense lawyers say: Roper's testimony and the inmate's confession could 
have undermined the prosecutor's theory that one man committed the murders.

Prosecutors say: Roper's statement was mere speculation, and a federal 
judge who later heard her testify found nothing that would have helped 
Cooper..



SURVIVORS

Josh Ryen, the 8-year-old boy who survived the attack, testified that he 
remembered seeing only one shadowy figure in the house, but hospital 
workers who treated him testified that he described being chased by 
multiple assailants.

Defense attorneys say: Prosecutors must have influenced his testimony.

Prosecutors say: They didn't do any such thing..



SHOEPRINT

Jurors were told that shoe prints in the victims' home and the house where 
Cooper had been hiding came from distinctive prison-issued shoes like those 
that had been given to him before his prison escape two days before the 
slayings.

Defense lawyers say: Recent statements by the prison warden and a fellow 
inmate show that Cooper was issued shoes that were available to the general 
public.

Prosecutors say: Whatever the source of the shoes, their prints matched and 
incriminated Cooper.

Staff writers Charlie Goodyear, Lynda Gledhill and Joe Garofoli contributed 
to this report.E-mail Bob Egelko at 
<mailto:begelko at sfchronicle.com>begelko at sfchronicle.com

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