Is an Innocent Man Still Languishing on Death Row? We’ve Seen the DNA Evidence in the Kevin Cooper Case. It Points Elsewhere.

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By Nicholas Kristof, Opinion Editor New York Times, January 23, 2021

[Editorial note by Jeff Mackler, National Secretary, Socialist Action. Kevin Cooper, an innocent San Quentin, CA death row prisoner for the past 37 years, won an important victory on his road to exoneration and freedom when California Governor Gavin Newsom, issued a May 28, 2021 executive order appointing the Morrison and Foerster law firm to “conduct a full review of the trial and independent records in the case and of the facts underlying the conviction.” Morrison and Foerster are to “investigate, report, and make a recommendation” concerning Cooper’s application for clemency and his claims of innocence. They will also evaluate the recently conducted DNA tests relevant to Cooper’s case. After decades of Cooper languishing on death row following his 1983 sensationalist racist frame-up trial his case was brought to public attention a decade later through the efforts of Pacifica Radio KPFA’s Flashpoints and the articles by Flashpoint’s then co-host Leslie Kean, who presented new evidence that Cooper had been a frame-up victim of the brutal homicide of the Chino Hills, California Ryen family and their young house guest, Christopher Hughes. Following Kean’s investigations the Kevin Cooper Defense Committee was formed. I visited Cooper several times at San Quentin and, along with a broad range of death penalty abolitionists, helped initiate his defense efforts in the San Francisco Bay Area. Leading participants in this work included Carol Seligman, today, editor of Socialist Viewpoint magazine, which has championed Cooper’s innocence since 2000. We reprint below one of several articles on the case written by New York Times Opinion Editor, Nicholas Kristof, whose consistent research and revelations have been critical to the mounting pressures to reveal the truth about Cooper’s frame-up and efforts to win his freedom. More than likely Kristof’s articles prompted Governor Newsom’s decision to review the case, not to mention the comprehensive dissenting judges’ final court decision that argued that the State of California was about “to execute an innocent man.” Cooper himself has emerged as a leading spokesperson against the racist death penalty.]

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 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 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 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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