By JEFF MACKLER
Executions are scheduled at one minute after midnight at San Quentin Prison, just over the San Rafael Bridge in Marin County and overlooking the San Francisco skyline. On the cold winter night of Feb. 10, 2004, death-row inmate Kevin Cooper was being fully prepped for the hereafter, dressed in a new set of clothes while attendants plied his arm for the proper size veins to inject the deadly chemicals that would end his life.
Outside San Quentin’s gate, standing vigil for Kevin, were some 300 supporters from the Kevin Cooper Defense Committee, Death Penalty Focus, and a spate of human rights organizations and activists rallying against the unfolding horror of the state of California’s executing an innocent man.
I was on the speaker’s platform, as director of the Mobilization to Free Mumia Abu-Jamal, yet another innocent death-row prisoner, and representing activists of Kevin’s defense committee. As soon as I stepped down from the platform, I was stunned when actor/activist Mike Farrell, who headed Death Penalty Focus, pocketed his cell phone and announced that Kevin had been granted a stay of execution by the Ninth Circuit of the U.S. District Court of Appeals.
While the stay had been issued hours earlier, prison officials declined to inform Kevin and continued with the routine pre-execution routines, an unmitigated and brutal horror in itself. Kevin was only informed that he would not be executed several minutes before midnight.
Since that stunning moment, Kevin’s attorneys from the prestigious law firm of Orrick, Herrington and Sutcliff have exhausted all appeals. His lead attorney, Norman Hile, has filed a 300-page appeal with California Governor Jerry Brown, requesting a reprieve from Kevin’s death-penalty conviction pending new DNA testing that should definitively prove Kevin’s innocence. Brown, who for the past two years has declined to respond, now says that Kevin’s request is “under consideration.”
Were it not for the front page May 20, 2018, New York Times Sunday Review article, “Was Kevin Cooper Framed for Murder?” penned by Pulitzer Prize-winning editorial page journalist Nicholas Kristof, it is highly unlikely that Kevin’s appeal to Brown would have garnered more attention than the hundreds of similar appeals filed by death-row inmates across the country. But Kristof’s championing of Kevin’s innocence has today garnered the support of people prominent in public life far beyond the usual anti-death-penalty and human-rights activists on the left. (See https://www.nytimes.com/interactive/2018/05/17/opinion/sunday/kevin-cooper-california-death-row.html )
California’s U.S. Senators Dianne Feinstein and Kamala Harris and other public officials have added their names in support of the DNA testing that is central to Kevin’s freedom. Harris was formerly California’s attorney general, who then refused DNA testing. In recent weeks, however, Harris told Kristof, “I feel awful about this.” This was followed by a public statement from Harris, to wit: “As a firm believer in DNA testing, I hope the governor and the state will allow for such testing in the case of Kevin Cooper.” The editorial board of the San Francisco Chronicle prominently announced support to Kevin’s appeal.
Below I have quoted key sections of Kristof’s arguments. With few exceptions they describe the same evidence presented by Cooper’s attorneys over three and a half decades.
Kristof’s arguments are based on his interviews with public officials involved in the case, on detailed examination of the court transcripts, on meetings with Kevin’s attorneys and Kevin himself, and with Patrick O’Connor, author of the comprehensive book, “Scapegoat: The Chino Hills Murders and the Framing of Kevin Cooper.” (See http://www.socialistaction.org for O’Connor’s summary of the case, first printed in the April 2012 edition of Socialist Action newspaper). Together they represent a powerful exposé of the racist frame-up trial and conviction that still threaten to take an innocent man’s life.
“A broken justice system”
Kristof’s passionate appeal for Kevin Cooper is unmistakable. Here’s his opening salvo: “This is the story of a broken justice system. It appears that an innocent man was framed by sheriff’s deputies and is on death row in part because of dishonest cops, sensational media coverage and flawed political leaders. … This was a failure at every level, and it should prompt reflection not just about one man on death row but also about profound inequities in our entire system of justice.”
He begins the story: “In 1983 four people were murdered in a home in Chino Hills, Calif. The sole survivor of the attack said three white intruders had committed the murders. Then a woman told the police that her boyfriend, a white convicted murderer, was probably involved, and she gave deputies his bloody coveralls. So here’s what the sheriff’s deputies did: They threw away the bloody coveralls and arrested a young black man named Kevin Cooper.”
“The first sign that something was wrong was a continuous busy signal on the home phone of Doug and Peggy Ryen. Bill Hughes, who lived nearby, wasn’t initially concerned. His 11-year-old son, Chris, had slept over at the Ryens’ and he thought maybe they had all gone out for breakfast. But finally at noon Hughes drove over to pick Chris up and, when no one answered the Ryens’ door, he peered through the sliding glass doors—and his brain couldn’t process all the red. ‘This is paint, makeup,’ he thought wildly.
“Then reality sank in, and he kicked the kitchen door in. Blood from the five victims was splattered everywhere. Hughes rushed to his son, but the body was cold. Doug and Peggy Ryen, both nude, had also been stabbed to death, and the bloody corpse of their 10-year-old daughter, Jessica, was in a doorway. But Josh Ryen, 8 years old, was moving feebly on the floor even though his throat had been slashed and his skull fractured.
“Soon sheriff’s deputies were swarming all over the Ryen house. … Several signs, including Josh’s personal account, pointed to three white attackers, and blond or brown hairs were found in the victims’ hands, as if torn off in a struggle.
“Sheriff’s deputies were also contacted by the woman whose boyfriend was a convicted murderer, recently released from prison, whom she suspected of involvement in the Ryen killings. She not only gave deputies his bloody coveralls but also told them that his hatchet was missing from his tool rack and resembled one of the weapons reportedly used in the attacks. But instead of testing the coveralls for the Ryens’ blood, the deputies threw them away—and pursued [Kevin] Cooper. After a racially charged trial, he was convicted of murdering the Ryens and Chris Hughes.”
Kristof pointed out that when sheriff’s deputies had learned that Kevin Cooper had recently escaped from a nearby minimum security prison, they decided to ignore the evidence that tended to implicate the three white men. “They examined Cooper’s file and mug shot and saw a black man with a huge Afro who fit their narrative of an incorrigible criminal. He had a long arrest record dating back to when he was 7 years old. … Still, the authorities had a problem: Although they were sure Cooper was the killer, they couldn’t find fingerprints, hairs or other evidence implicating him. So evidence began to turn up in mysterious ways.
“Consider the Ryens’ station wagon. It was found in Long Beach, 30 miles away, and inconveniently had blood on the driver’s seat, the front passenger seat and the back seat — suggesting at least three killers. A bloody hatchet was also found near the Ryen house, probably thrown out of the station wagon window—on the passenger side.
“A thorough search of the station wagon found no evidence that Cooper had used the car. That problem was remedied when a second search of the vehicle turned up some of Cooper’s cigarette butts; sheriff’s deputies had found such cigarette butts in the empty [nearby] house where he had stayed, [after he walked through a hole in the prison fence], but the butts had vanished.
“The prosecution suggested that Cooper wanted to steal the station wagon. But the Ryens kept the keys in the car; there was no need to enter the house. Nevertheless, four days after the discovery of the murders, the sheriff announced the crime had been solved: Cooper was being sought for murder.”
Kristof points out that “while the police were desperately trying to connect Cooper to the crime, another man who should have been a prime suspect was not being investigated. … Fletcher, the federal judge, wrote a long section in a judicial opinion implicating this man, whom I’ll identify only by his first name, Lee. It was his girlfriend, Diana Roper, who had alerted deputies after the murders made the news to the reasons she believed that he had participated in the Ryen murders.
“Roper and her sister said that Lee came home late on the night of the killings in a station wagon like that of the Ryens, wearing blood-drenched coveralls, and that his hatchet was missing from his tool rack and resembled one of the murder weapons described by authorities. She said that on the day of the killing she had laid out for Lee a medium-size tan Fruit of the Loom T-shirt with a pocket; she remembered because she had just bought it for Lee at Kmart. It was exactly like a Fruit of the Loom T-shirt found by the bar with blood on it; testing showed it was the Ryens’ blood.
Roper said in an affidavit: “Lee was wearing long sleeve coveralls … splattered with blood. … He did not have the beige T-shirt. Lee took the coveralls off and left them on the floor of the closet. … Roper gave deputies the bloody coveralls. But instead of testing them to see if the blood was from the Ryens, the sheriff’s office threw them out.”
Kristof reported that a new witness has emerged who saw the station wagon the day after the murders with three white people inside. She has said that she would testify under oath that the driver was driving crazily and almost crashed into her car. Her grandmother wrote down the license plate number, and after authorities broadcast on the radio the license number of the missing vehicle, they compared the numbers and “it was exactly the same.” She said that she wrote to the police with her information, but the authorities did not follow it up or share it with the defense.
Behind the cover-up
“With all these uninvestigated threads,” Kristof writes, “it’s worth considering the motives of the San Bernardino sheriff’s office, which handled the investigation. Sheriff Floyd Tidwell had recently been appointed to his position and was facing election that year, adding to the pressure to solve the most brutal crime in the county’s memory. It’s clear that the sheriff’s office wasn’t a stickler for rules. Tidwell was later convicted for stealing more than 500 guns from county evidence rooms.
“A lab technician who ‘found’ shoe print evidence [now discredited] against Cooper was later fired for stealing heroin from the evidence room. The sheriff’s office also bungled the forensics, so that 70 people trampled through the crime scene. Then, a day after the bodies were discovered, the district attorney closed the on-scene investigation for fear, he said, of gathering so much evidence that defense experts could spin complicated theories.”
“Cooper’s trial unfolded amid the ugliest racism. At a hearing, a crowd displayed signs reading “Hang the Nigger. One man displayed a noose around a stuffed gorilla. Newspapers carried inaccurate reports, apparently based on prosecution leaks, that tied Cooper to the murder scene and suggested falsely that he was gay (seizing upon 1980s homophobia as well as racism).
After the Ninth Circuit granted the 2004 stay of execution, Kristof writes, “Cooper was now permitted to conduct a new test on the tan T-shirt, and this time the labs found something extraordinary. Yes, that may have been Cooper’s blood on it—but the blood had a chemical preservative called EDTA in it. That suggested that the blood came not from Cooper directly but from a test tube of his blood. Sure enough, the sheriff’s deputies had taken a sample of Cooper’s blood and had kept it in a test tube with EDTA.
“Now the lab checked a swatch of blood from that test tube. More wonders! The test tube miraculously contained the blood of two or more people. This indicated that the sheriff’s office may have used the test tube of Cooper’s blood to frame him, and then topped off the test tube with someone else’s blood.”
Kristof notes, “The Ninth Circuit Court of Appeals en banc refused to hear an appeal by Cooper, but [Judge William A.] Fletcher wrote a remarkable 100-page dissent, concluding, “The State of California may be about to execute an innocent man.” Four judges joined in this extraordinary judicial opinion. Likewise, the Inter-American Commission on Human Rights found in 2015 that there had been profound flaws in the case and called for a review. The deans of four law schools and the president of the American Bar Association expressed concerns. At the end of his term in office, Gov. Arnold Schwarzenegger urged a “thorough and careful review” of the case.”
I have visited Kevin Cooper at San Quentin a number of times over the past decades and toured his biographer, J. Patrick O’Connor, who tirelessly campaigned for Kevin’s freedom. He has matured from a relatively non-political person to a passionate and informed fighter for human and democratic rights and social justice as well as a talented artist/painter.
Kevin is currently awaiting the outcome of various legal struggles and expected appeals regarding the constitutional validity of California’s 2016 voter-approved death-penalty ballot initiative. If the legal challenges fail, Kevin stands in first in line to be executed. Yet the national prominence given to his case by the recent Nicholas Kristof Times article has once again brought his struggle for life and freedom to the forefront of national politics.
Add your voice to Kevin’s cause. Contact Governor Jerry Brown to demand the DNA testing that will prove Kevin’s innocence. Demand that Brown grant Kevin Cooper clemency now! Call/Fax/e-mail: Gov. Edmund G. Brown c/o State Capitol, Suite 1173, Sacramento, CA 95814. Phone: (916) 445-2841. Fax: (916) 558-3160. E-mail through website: https://govapps.gov.ca.gov/gov39mail/