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<dd><font size=4>Court blocks Cooper's execution <br>
<dd>Appeals panel grants a stay -- murder evidence to be tested <br>
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<dd><font face="arial" size=1><a href="mailto:begelko@sfchronicle.com">Bob
Egelko, Pamela J. Podger and Chuck Squatriglia, Chronicle Staff
Writers</a><br>
<dd>Tuesday, February 10, 2004 <br>
<dd><a href="/chronicle/info/copyright/.htm">©2004 San Francisco
Chronicle</a> | <a href="/feedback/.htm">Feedback</a> |
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<dd><font size=2>URL:
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<dd><a href="/cgi-bin/object.cgi?object=/chronicle/pictures/2004/02/10/mn_cooperrally.jpg&paper=chronicle&file=MNG6Q4T6HC1.htm"><img src="cid:5.2.0.9.2.20040210060129.01a215f8@66.103.156.66.0" alt="19816d.jpg"></a><font size=3> <br><br>
<dd>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. <br><br>
<dd>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. <br><br>
<dd>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. <br><br>
<dd>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. <br><br>
<dd>"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. <br><br>
<dd>"The public cannot afford a mistake,'' observed Judge Barry
Silverman in a separate opinion endorsing a stay of execution.
"Neither can Cooper.'' <br><br>
<dd>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.
<br><br>
<dd>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." <br><br>
<dd>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. <br><br>
<dd>"He was confused that the institution was still
proceeding," Crittendon said. <br><br>
<dd>By 9 p.m., Cooper was headed back to his cell on Death Row, No. 1NS1.
<br><br>
<dd>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. <br><br>
<dd>"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." <br><br>
<dd>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. <br><br>
<dd>The topsy-turvy day left one victim's parent disappointed but
undeterred. <br><br>
<dd>"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.
<br><br>
<dd>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.'' <br><br>
<dd>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.'' <br><br>
<dd>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.'' <br><br>
<dd>Cooper escaped in June 1983 from a minimum-security prison in Chino
(San Bernardino County), where he was serving a burglary sentence.
<br><br>
<dd>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. <br><br>
<dd>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. <br><br>
<dd>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. <br><br>
<dd>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. <br><br>
<dd>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. <br><br>
<dd>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.
<br><br>
<dd>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. <br><br>
<dd>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. <br><br>
<dd>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. <br><br>
<dd>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. <br><br>
<dd>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. <br><br>
<dd>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. <br><br>
<dd>"The majority fails to appreciate the powerful circumstantial
evidence tying Cooper to these crimes,'' said Tallman, joined by Judge
Jay Bybee. <br><br>
<dd>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. <br><br>
<dd>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. <br>
<hr>
<dd>In dispute <br><br>
<dd>Evidence the Ninth U.S. Circuit Court of Appeals in San Francisco was
examining in the Kevin Cooper case:. <br><br>
<br>
</font>
<dd><h3><b>DNA</b></h3>
<dd><font size=3>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..
<br><br>
<dd>Defense lawyers say: <br><br>
<dd>-- 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. <br><br>
<dd>-- Police must have planted the cigarette butts because the butts
didn't show up in an initial search of the car. <br><br>
<dd>-- 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.. <br><br>
<dd>Prosecutors say: <br><br>
<dd>-- The T-shirt was in court custody from the time of trial until the
DNA test. <br><br>
<dd>-- 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. <br><br>
<dd>-- A judge found that the criminalist left the evidence undisturbed
in 1999.. <br><br>
<br>
</font>
<dd><h3><b>HAIR</b></h3>
<dd><font size=3>Defense lawyers want: DNA tests on blond hairs found in
the hand of one murder victim that could not have come from Cooper.
<br><br>
<dd>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..
<br><br>
<br>
</font>
<dd><h3><b>CONFESSION</b></h3>
<dd><font size=3>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. <br><br>
<dd>Defense lawyers say: The inmate's statement included details of the
crime that weren't publicly known. <br><br>
<dd>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.. <br><br>
<br>
</font>
<dd><h3><b>COVERALLS</b></h3>
<dd><font size=3>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. <br><br>
<dd>Defense lawyers say: Roper's testimony and the inmate's confession
could have undermined the prosecutor's theory that one man committed the
murders. <br><br>
<dd>Prosecutors say: Roper's statement was mere speculation, and a
federal judge who later heard her testify found nothing that would have
helped Cooper.. <br><br>
<br>
</font>
<dd><h3><b>SURVIVORS</b></h3>
<dd><font size=3>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. <br><br>
<dd>Defense attorneys say: Prosecutors must have influenced his
testimony. <br><br>
<dd>Prosecutors say: They didn't do any such thing.. <br><br>
<br>
</font>
<dd><h3><b>SHOEPRINT</b></h3>
<dd><font size=3>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. <br><br>
<dd>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. <br><br>
<dd>Prosecutors say: Whatever the source of the shoes, their prints
matched and incriminated Cooper. <br><br>
<dd>Staff writers Charlie Goodyear, Lynda Gledhill and Joe Garofoli
contributed to this report.E-mail Bob Egelko at
<a href="mailto:begelko@sfchronicle.com">begelko@sfchronicle.com</a></i>
<br><br>
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