[Pnews] Is an Innocent Man Still Languishing on Death Row? We’ve seen the DNA evidence in the Kevin Cooper case. It points elsewhere.

Prisoner News ppnews at freedomarchives.org
Sat Jan 23 18:45:28 EST 2021


 Is an Innocent Man Still Languishing on Death Row?

*We’ve seen the DNA evidence in the Kevin Cooper case. It points elsewhere.*

By Nicholas Kristof <https://www.nytimes.com/column/nicholas-kristof> -
Jan. 23, 2021
https://www.nytimes.com/2021/01/23/opinion/sunday/kevin-cooper-dna.html

When a neighbor arrived at the Ryen home on June 5, 1983, to pick up his
son from a sleepover, he couldn’t process what he saw through the window.
He thought all the red must be paint.

Doug and Peggy Ryen had both been stabbed to death. So had their
10-year-old daughter, Jessica, and the neighbor’s 11-year-old, Chris
Hughes. The Ryens’ son, 8-year-old Josh, had been left for dead with his
throat slashed but survived.

It was an unimaginable tragedy, and it has been followed by another
unimaginable tragedy, one that has lasted almost 38 years: A man who is
very likely innocent appears to have been framed for that crime and remains
on death row today.

The horrifying murder of a beautiful white family in Chino Hills, Calif.,
created enormous public pressure on the San Bernardino County Sheriff’s
Office to solve the crime. Although Josh had indicated that the attack was
committed by several white men, the sheriff announced just four days after
the bodies were found that the sole suspect was Kevin Cooper, a young Black
man with a long criminal record who had recently walked away from a
minimum-security prison and then hid in an empty house near the Ryens’.

I have written about Cooper before, most notably an extensive investigative
essay
<https://www.nytimes.com/interactive/2018/05/17/opinion/sunday/kevin-cooper-california-death-row.html>
in May 2018 that led two governors, Jerry Brown (reluctantly) and Gavin
Newsom (readily), to order comprehensive DNA testing in the case. The
testing has finally been completed, and I’ve obtained the lab results. So
here’s where we stand, and why Newsom should create a high-level panel to
review the Cooper case and make a recommendation about possible clemency.
It’s up to Newsom, who has imposed a moratorium on executions, to resolve
what appears to be a horrendous injustice.

Sadly, a tan T-shirt believed to have been worn by one of the killers
didn’t produce enough DNA to provide a profile. The DNA degraded over the
decades while California authorities blocked the testing that Cooper had
pleaded for, letting officials run out the clock. Likewise, hairs found
clutched in the victims’ hands weren’t Cooper’s (no hairs from an
African-American were found at the crime scene) but didn’t lead to a match
with a suspect, either.

The most significant result was from an orange towel apparently taken by
one of the murderers from the Ryens’ home, perhaps to wipe off sweat, and
then discarded. It yielded a full DNA profile, and it’s not Cooper’s or any
of the victims’ — but it hasn’t been matched to anyone else. Match that
DNA, and we may quickly solve these murders.

There was other progress while the DNA testing was underway. The pro bono
legal team working for Cooper, led by Norman C. Hile from the Orrick law
firm, has written to Newsom describing a witness willing to testify in
court that a different longtime suspect in the case recounted, not long
after the murders, how he had killed the Ryens and Chris Hughes.

Two other witnesses, also willing to testify in court, say in written
statements that this same person bragged to them more recently about having
murdered an entire family, saying, “We butchered all of them.”

This other suspect is a white man whom I’ll identify just by his first
name, Lee, for he must be presumed innocent. Lee is a convicted murderer
who had completed his sentence and been out of prison for less than a year
when the Ryens were killed.

Lee came to the attention of the authorities during the investigation after
his girlfriend, Diana Roper, fingered him as the killer: She reported that
he had returned home late on the night of the killings wearing bloody
coveralls, in a car that resembled the Ryens’ station wagon.

Roper turned Lee’s bloody coveralls over to the sheriff’s office — which
eventually threw them away without testing them. By then, the sheriff’s
office had arrested Cooper, and deputies didn’t want a complication.

The DNA on the orange towel is not Lee’s, and he has denied to me that he
was involved in the Ryen murders. It’s important not to try to free one
innocent man by rushing to judgment about another. Still, the DNA testing
and these witnesses add to the evidence that Cooper is an innocent man on
death row.

“The case gets stronger and stronger for innocence,” said Tom Parker, a
former deputy head of the F.B.I.’s office in Los Angeles, who has worked
without charge to investigate the Cooper case. He added that as a 30-year
law enforcement veteran, he is sickened by what he sees as a pattern of
racism and “institutional corruption” that led to the railroading of
Cooper. “It cuts a hole in your gut, it does,” he said.

*

There is growing recognition in criminal justice circles that Kevin Cooper
may be innocent. “The San Bernardino Sheriff’s Department framed him,”
William A. Fletcher, a distinguished federal appeals court judge, declared
in a lecture. Four other federal circuit court judges joined in a
remarkable 100-page dissent Fletcher wrote warning that California was
preparing to execute an innocent man.

The deans of four law schools and a former president of the American Bar
Association have expressed concerns about the case. An excellent book,
“Scapegoat,” has been written about it, and a documentary
<https://www.carlsonfilms.com/> is in the works. Kim Kardashian visited
Cooper in 2019 and has embraced his cause.

Yet Cooper remains in prison. That’s partly because the San Bernardino
County District Attorney’s Office continues to resist an investigation into
whether he is innocent, just as it previously resisted comprehensive DNA
testing.

The D.A.’s office notes, for example, that Cooper’s blood was found on that
tan T-shirt apparently worn by the murderer. That’s true: Testing years ago
confirmed that it is Cooper’s blood — but also suggests that sheriff’s
deputies spilled the blood on the shirt to frame him.

Deputies took a sample of Cooper’s blood after his arrest, using a chemical
called EDTA to preserve it in the test tube. Cooper’s blood on that shirt
had elevated EDTA in it; in other words, it seemed to have come not from
his body directly, but from a test tube.

In addition, before the latest round of DNA testing, a vial of Cooper’s
blood was found to be nearly empty, with just residue in the bottom.

“Based on my 25 years of experience with DNA testing, I can’t imagine any
testing that would consume that much blood, even with multiple rounds of
testing,” said Bicka Barlow, a DNA expert and lawyer who is consulting for
Cooper’s side.

Relatives of the victims are convinced that Cooper is guilty, and San
Bernardino authorities argue that there is plenty of forensic evidence
against him — a bloodstain, shoe prints, cigarette butts, and so on. If you
trust the sheriff’s office, it’s compelling. But significant questions have
been raised about every element of this “evidence,” with indications that
it was systematically planted to frame Cooper.

Could the San Bernardino County Sheriff’s Office really have planted
evidence, including placing Cooper’s blood on the tan T-shirt? We do know
that the sheriff’s office had a history of going rogue. Floyd Tidwell, the
sheriff, was himself later convicted of four felony counts for stealing 523
guns from the evidence room. Tidwell denied any wrongdoing in the Cooper
case; he died last February. Also, one of the sheriff’s lab technicians on
the case, William Baird, acknowledged to me that he had stolen heroin from
the evidence room, but denied having framed Cooper.

The injustices may go well beyond Cooper. William Richards, prosecuted by
the San Bernardino County authorities in the murder of his wife and sent to
prison for life, was exonerated
<https://californiainnocenceproject.org/read-their-stories/william-richards/>
in 2016 after junk science on bite marks was discredited and after it was
revealed that a longtime forensics expert in the sheriff’s office appeared
to have planted evidence. This was the same expert who had “found” evidence
against Cooper. At least eight other people now serving long prison
sentences may also have been framed by the same person, according to
Parker, the former F.B.I. official.

The biggest problem with the case against Kevin Cooper, though, is simply
that it doesn’t make sense.

The prosecution theory that Cooper single-handedly invaded the Ryen home
seems to me preposterous. The medical examiner concluded that at least
three weapons — a hatchet, an ice pick and one or two knives — were used to
stab the victims approximately 140 times, and the attacker(s) appear to
have discarded tan and blue shirts worn in the attack.

So as he mounted this attack, Cooper was juggling three or four weapons?
Pausing in midassault to change shirts? And how could a 155-pound man like
Cooper enter the house, with the Ryens’ dogs presumably sounding an alarm,
and then overpower both Doug Ryen, a former military policeman, and Peggy
Ryen, strong and athletic — each of whom had a loaded gun by the side of
the bed?

And even if all this somehow were possible, why would Cooper, when fleeing
in the Ryens’ car, have left bloodstains on three seats and thrown the
hatchet used in the attack out the passenger side window?

*

Yet California for almost 38 years has prepared to ignore all this and
execute a Black man who is probably innocent. Democratic and Republican
politicians alike have mostly averted their eyes, presumably in part for
fear of offending voters who might be upset at the exoneration of a Black
man convicted of a brutal crime against a white family.

So, after a year in which America has looked anew at racism in the criminal
justice system, let’s be frank about race.

“If I was a white man, or if I was a wealthy Black man, I would not be in
prison right now,” Cooper told me in a phone call from San Quentin. Of
course he’s right.

Yet fundamentally Cooper blames himself, for fleeing the minimum-security
prison. “If I had not put myself in that position for those body snatchers
to get their hands on me, I would not be here today,” he said. “I have to
take responsibility for my actions.”

This is not a case just of police and prosecutorial misconduct. The entire
system failed, decade after decade.

Conservative law enforcement officials in San Bernardino County blocked
comprehensive DNA testing for years, but so did Democratic politicians like
Jerry Brown and Kamala Harris when they were attorneys general of
California. The latest California attorney general, Xavier Becerra, a
Democrat whom President Biden has named to his cabinet, also did not
authorize testing.

Harris has told me she regrets her failure to allow testing. Cooper was
asked by a Sean Hannity representative for an interview before the
election, apparently in hopes that he would denounce her. Cooper refused.

“I got integrity,” he said. “I know those people don’t give a damn about
me, don’t care about my situation.”

One challenge in cases like this is that the criminal justice system
establishes considerable barriers to finding someone guilty in the first
place, but then after conviction places significant impediments to free
that person even when new information comes to light.

“The legal system is deeply, deeply committed to closure, finality,
procedural exhaustion, and there are some good reasons for that,” Chesa
Boudin, the San Francisco district attorney, told me. “But when it comes to
executing a man or woman who may be innocent, there’s no excuse for closing
the door because of procedural issues.”

Boudin has set up a six-member panel — with a retired judge, a forensics
specialist and other experts — to review old cases in San Francisco about
which doubts have arisen, and it’s a model for what the governor should
create to review Cooper’s conviction in Southern California.

“We have to be equally committed to doing justice retrospectively as to do
it prospectively,” Boudin told me. “Anybody who is fair-minded has to know
that the situation is not perfect, that mistakes are made.”

While running for D.A., Boudin applied to visit Cooper in San Quentin but
says he was denied permission by the California Department of Corrections.

*

Let me be honest: I don’t know for certain that Cooper is innocent. We all
need a dose of humility about our capacity to discern the truth.

What is indisputable is not Cooper’s guilt or innocence, but doubt. When
federal judges, law school deans and others believe that a man has been
framed, and when another person is said to have privately confessed to the
murders, how can we keep a man on death row because, well, it’s *possible*
he’s guilty?

Now it’s time for Governor Newsom to order an investigation to review the
Cooper case and examine whether an innocent man has been framed. We can’t
undo the tragedy that unfolded 38 years ago in the Ryen home, but we can
end another.
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