Kevin Cooper: A ‘Scapegoat’ on Death Row

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Investigative journalist Patrick O’Connor has written a new book, “Scapegoat: The Chino Hills Murders and the Framing of Kevin Cooper.” Below is the talk that O’Connor gave on a recent Northern California speaking tour.
“Scapegoat” is a book about a horrific murder case, painfully recounted. It is also about how justice can go astray. Just as it takes a village to raise a child, it takes corrupted law enforcement to frame an innocent person—corrupted investigators, corrupted crime lab personnel, corrupted medical examiners, and a district attorney’s office willing to prosecute a trumped-up case. 

In showing how the sheriff’s office and the district attorney’s office of San Bernardino County framed Kevin Cooper for these horrendous murders and how the justice system has failed him at almost every turn in his long, drawn-out appeal process, “Scapegoat” examines the broken justice system in the United States. It presents a microcosm of that broken system—a system where far too often homicide detectives and district attorneys become blinded by their goal of closing cases, particularly when the case is so high-profile, and winning convictions rather than searching for justice for both the victims and the accused. The Kevin Cooper case is a prime example of justice gone begging at both the trial and appeal levels.
If it were not for a court-ordered moratorium on executions in California over the lethal injection controversy, Cooper—with no appeals pending—would have been executed by now. It is expected the moratorium will not be lifted until at least 2013.
Two days before the murders of Doug and Peggy Ryen, their 10-year-old daughter Jessica, and 11-year-old Christopher Hughes, Cooper escaped from a nearby prison and holed up in a vacant house 125 yards below the murdered family’s hilltop house. Two days after the San Bernardino sheriff’s department established that Cooper had hidden out there, it locked in on him as the lone assailant, despite numerous eyewitness reports that implicated three young white men as the perpetrators.
From that day forward, four days after the murders were discovered, the sheriff’s department discarded information that pointed at other perpetrators, destroyed evidence that exculpated Cooper, and planted or fabricated evidence that implicated him. Looking first at the discarded information that implicated other perpetrators:
• The only survivor of the attack, 8 1/2-year-old Josh Ryen, told ER personnel and a sheriff’s deputy that his assailants were three white men. Cooper is Black.
• Around midnight on the night of the murders, a couple, attempting to exit a driveway in their truck, saw three young white men driving rapidly down the only road that leads away from the Ryens’ house in a station wagon that was stolen from the murdered family.
• Shortly after that sighting, two women in a nearby bar saw two young white men, one wearing coveralls, with blood splatter on their faces and clothing. 
• Four days after the murders, another woman turned into the sheriff’s office bloody coveralls that her boyfriend, a convicted murderer, had left on the floor of her closet. The woman stated she had other information that implicated her boyfriend in the murders but wanted to be interviewed by homicide detectives. She would have told them that her boyfriend’s hatchet was missing and that he no longer had the tan T-shirt he wore the Saturday of the murders.
• The murders were committed with at least three, and probably four, weapons: a hatchet, an ice pick and one or two knives. The theory that one perpetrator could or would use three or four weapons was counterintuitive to the nth degree. At trial the prosecutor argued that Cooper was ambidextrous, which he is not.
Nor could one person control two able-bodied adults and three children running around the house, one of whom, Jessica, made it outside the house during the attack. The adult victims were each fit, 41-year-old chiropractors and both were mobile during the onslaught and fought hard for their lives, sustaining numerous defensive wounds to their hands and arms. Doug Ryen, a former MP in the United States Marine Corps, was 6 foot-one and 187 pounds. Peggy Ryen was 5 foot 9 and 145 pounds.
• The crime scene evidence, according to the medical examiner, showed that the mother was cradling the daughter before the mother died, which meant one of the attackers had brought Jessica back into the house. More than anything else, this meant there had to be more than one assailant because each parent kept a loaded gun in the master bedroom where the assault occurred.
• There was an uncommon viciousness to the attack as though the killers meant not only to murder but to send a message of payback or retribution. The medical examiner counted 144 wounds on the four murder victims, including 28 fractures and two amputations. While Cooper’s trial was in progress, an inmate in a California prison told prison authorities and a San Bernardino County sheriff’s detective that his cellmate had confessed to the Chino Hills murders, stating it was an Aryan Brotherhood hit but the three killers had gone to the wrong house.
As for destroyed evidence:
• During Cooper’s preliminary hearing, the sheriff’s office destroyed the bloody coveralls. The sheriff’s office claimed it never conducted any tests of the coveralls and admitted it never sent homicide detectives around to interview the woman who had turned them in.
• The sheriff’s office also destroyed a bloody blue T-shirt discarded not far from the bar. Coupled with a tan T-shirt found the next day near the bar, the two bloody T-shirts were strong proof that at least two assailants had murdered the Ryens and Chris Hughes. Testing of the tan T-shirt showed the blood on it matched the blood profile of Doug Ryen and no one else.
Planting or fabricating evidence:
The prosecution’s evidentiary case against Cooper essentially consisted of three shoeprints; a tiny drop of blood collected at the Ryens’ house; a roll-your-own cigarette butt and some tobacco in the Ryens’ stolen station wagon.
• Pro-Keds Dude tennis shoes: At trial, the prosecution asserted that the footprints on a sheet from the Ryens’ master bedroom and on a Jacuzzi cover outside the master bedroom were made by a tennis shoe only available to institutions such as prisons and were not sold at retail. It did this despite Chino Prison Warden Midge Carroll’s informing one of the two lead detectives on the case that Pro-Keds Dude were not any sort of special-issued shoe and were available at retail outlets in California and through catalogue sales.
• A-41: The only serological link to Cooper at the crime scene was a small, single drop of blood at the far end of a hallway outside the Ryens’ master bedroom, near the living room, a few inches above the hallway carpeting. This isolated drop of blood was spotted by the acting head of the sheriff’s department crime lab who would be summarily dismissed—but not prosecuted—shortly after Cooper’s trial for stealing five pounds of heroin from the sheriff’s department property room to supply his own habit and to sell to drug dealers.
A criminologist in the crime lab admitted at trial he had to alter his initial reading of A-41 to get it to match Cooper’s blood characteristics and in doing the testing he exhausted the sample, thus denying the defense any independent testing of A-41.
• Cigarette butt: The initial two inventories deputies took of the interior of the Ryens’ stolen station wagon made no reference to the presence of a roll-your-own cigarette butt or loose tobacco in the car. A later inventory report—handwritten, undated, unsigned—would include both.
• Years later, in 2002, as Cooper was attempting to prove his innocence with DNA testing now afforded death-row inmates by the California legislature, his blood was now found on the tan T-shirt. To Cooper and his appeal attorneys, this showed rank tampering and planting of evidence, a belief that was greatly reinforced when it was revealed in 2004 that the vial containing Cooper’s blood, taken from him when he was arrested and kept all those years in the crime lab, was discovered now to contain the DNA of at least one other person.
• The day before it was discovered that Cooper had hidden out in a vacant house below the Ryens’ house, two detectives searched every room in the vacant house at the request of one of the house’s owners. Nothing of evidentiary value was noted. The next day, a hatchet sheath and a bloody green button from a prison jacket were found in plain sight in the bedroom where Cooper had slept his last night. Under oath at Cooper’s trial, one of the detectives denied looking in the bedroom, but crime scene technicians lifted his fingerprints from the door of the closet where Cooper slept. It would be established at Cooper’s trial that when Cooper escaped he was wearing a brown jacket, not a green one.
Habeas corpus hearings
In 2004, Cooper came within hours of being executed before an extremely rare en banc ruling by the Ninth Circuit Court of Appeals stayed his execution and granted him a successive habeas corpus hearing in federal district court in San Diego. In particular, the Ninth ordered the district court to conduct DNA testing on the numerous blonde or light brown hairs found clutched in Jessica’s hand and other similar hairs deposited on other victims.
The Ninth also ordered EDTA testing to determine if Cooper’s blood had been planted on the tan T-shirt. EDTA is an anti-clotting substance used in blood labs to preserve blood in vials, to prevent it from coagulating and breaking down. If tests conducted showed high levels of EDTA on the blood attributed to Cooper on the T-shirt, it would establish tampering. If tampering were established, it would call into question all the forensic evidence the prosecution used to link Cooper to the crime scene. Cooper, after 19 years of asserting his innocence from death row, would be vindicated. At a minimum, the district court would have had to order a new trial or exonerate him outright.
Federal District Court Judge Marilyn Huff was not going to let that happen. She had turned down both of Cooper’s previous habeas appeals, finding evidence of his guilt “overwhelming.”
Over a period of a year, Judge Huff periodically held evidentiary hearings.  As she did, she methodically thwarted Cooper’s attorneys at every turn, refusing to allow Cooper’s experts to participate in the EDTA testing. When the private lab the court had hired to test Cooper’s blood on the T-shirt found elevated levels of EDTA, Judge Huff allowed the lab to retract its findings three weeks later on the grounds the lab itself was contaminated with EDTA during the testing. 
Judge Huff dispensed with any further EDTA testing by ruling that the testing of the tan T-shirt was not conclusive and that EDTA testing in general was an unproven science and of no value. She was wrong on both counts: both Cooper’s expert and the private lab found high levels of EDTA on the samples tested from the tan T-shirt, and EDTA testing is a proven science.
The extreme bias against Cooper that Judge Huff displayed with impunity throughout the evidentiary hearings was at its most obvious when it came to the DNA testing of the hair clutched in various victims’ hands ordered by the en banc Ninth Circuit.  When a portion of those hairs had been tested in 2002, they were found to have no antigen roots, denoting that the hairs had fallen out rather than been yanked out during the assault.  Those hairs, the tests showed, were either from the victims themselves or were dog hairs.  
There could be no purpose in retesting those hairs.  Over half or more of the hairs in the victims’ hands or adhered to their bodies had not been tested in 2002 and may well have contained antigen roots. If the mitochondrial testing of those hairs resulted in a DNA that excluded all the victims and Cooper, there would be proof positive that someone other than Cooper was a perpetrator. Judge Huff, incredibly, ordered testing only of the already tested hairs.
During the evidentiary hearings, Cooper’s lawyers inadvertently learned for the first time about the bloody blue T-shirt found not far from the bar. How could Judge Huff get around the implications of a bloody blue and a bloody tan T-shirt found one day apart near the bar?  In addition, the prosecution’s not disclosing the blue T-shirt to the defense was a major Brady violation that was so exculpatory to Cooper on its own that it mandated a new trial. 
Judge Huff’s way around this inconvenient hurdle was to find that the blue T-shirt was in reality the tan T-shirt, even though the blue shirt was found the day before the tan shirt in a different location from the bar and the woman who found the bloody blue shirt testified at the hearing that the shirt she found was blue. 
Judge Huff’s handling of Cooper’s habeas proceedings led Ninth Circuit Court of Appeals Judge William Fletcher to write, “There’s no way to say this politely. The district court failed to provide Cooper a fair hearing and flouted our direction to perform the two tests.” 
At Gonzaga University School of Law on April 12, 2010, Judge Fletcher delivered a lecture on the subject of the death penalty, holding that the problems with the administration of it are widespread and endemic rather than merely regional or local.  To illustrate he cited the Kevin Cooper case, stating, “The case I am about to describe is horrible in many ways.  The murders were horrible.  Kevin Cooper, the man now sitting on death row, may well be—and in my view probably is—innocent.  And he is on death row because the San Bernardino Sheriff’s Department framed him.”
Judge Fletcher, a Rhodes Scholar who attended Oxford University with Bill Clinton, said what happened in the Cooper case “is a familiar story. It is by no means the usual story. But it happens often enough to be familiar.  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.” 
As a result, Kevin Cooper has now spent half of his life on death row for a crime he had nothing to do with.  He is, in a word, a scapegoat.
> The article above was written by Patrick O’Connor, and first appeared in the April 2012 print edition of Socialist Action newspaper.