Opinion | One Test Could Exonerate Him. Why Won't California Do It? - The New York Times

 

"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 in
affluent, suburban Chino Hills, east of Los Angeles, that day in June
1983. 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 Cooper. After a racially charged trial, he was
convicted of murdering the Ryens and Chris Hughes and is now on death
row at San Quentin Prison.



Gov. Jerry Brown is refusing to allow
advanced DNA testing that might finally resolve the question of who
committed the murders, even though Cooper’s defense would pay for it.
Brown refuses to allow even advanced testing of the blond or brown hairs
that were found in the victims’ hands.

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 —
including Democrats like Brown and Kamala Harris, the state attorney
general before becoming a U.S. senator, who refused to allow newly
available DNA testing for a black man convicted of hacking to death a
beautiful white family and young neighbor. 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.


I’m using strong language, I know. But I went to San Quentin to
interview Cooper, reviewed trial transcripts and other documents, spoke
to innumerable people on and off the record, and in 34 years at The New
York Times, I’ve never come across a case in America as outrageous as
Kevin Cooper’s. So hear me out.



Smarter people than me have come
to the same conclusion. “This guy is innocent,” said Thomas R. Parker, a
30-year law enforcement veteran who was deputy head of the F.B.I.’s
office in Los Angeles. “The evidence was planted, he was framed, the
cops lied on the stand.”

Parker said the case involved “abject
racism,” and he has volunteered his time investigating the case for the
last seven years because he is horrified that a man he believes was
framed is nearing execution.

Or listen to Judge William A.
Fletcher of the U.S. Court of Appeals for the Ninth Circuit. “He is on
death row because the San Bernardino Sheriff’s Department framed him,”
Fletcher declared in a searing 2013 lecture.



This appears to be a
replay of a tragedy we’ve seen before: The police are under great
pressure to solve a sensational crime, they are sure they have the
culprit, and when evidence is lacking they plant it and give false
testimony. This is called “testilying,” and it’s more common than we’d
like to think. In New York City alone, The New York Times found “an
entrenched perjury problem,” with more than 25 instances of probable
testilying just since 2015.

How did we get here?

Initially, the authorities searched for three white men, which fit the evidence from the crime.


That was Cooper, and deputies who examined his file and mug shot 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.



The sheriff’s deputies were sure they had their man: an
escaped felon, one who they thought looked suitably evil. The
authorities pivoted and focused on Cooper, ignoring other threads.


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.




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 house where he had stayed,
but the butts had vanished.



Another challenge for the prosecution
was motive. After escaping from the prison, Cooper was desperate for
money, yet some cash had been left on the counter in the Ryens’ house.




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.



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.



That’s a remarkable
element of this case: Not only has the evidence against Cooper largely
been discredited, but evidence has accumulated against another
individual, who happens also to be a convicted murderer. 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. … A few days after, … Lee
had changed his appearance by cutting most of his hair off and trimmed
his sideburns and his ‘Fu Manchu’ moustache.”



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.



Roper
said she cannot be sure that Lee’s missing hatchet is the same as the
one used in the murders, but she added that “the curvature of the handle
is the same” and it had a similar “American Indian pattern to it.” Her
sister, Karee Kellison, who was with Roper, confirmed much of her story.

Then there was the peculiar matter of the recovery of the Ryens’ station wagon.


The sheriff’s office claimed that Cooper took the Ryens’ station wagon,
but aside from the witnesses who reported seeing several white men
driving it on the night of the murders, a new witness has emerged who
saw the car the next day.



The woman, who is scared of being
identified as a witness for now but says she will testify under oath if
necessary, said three white people in the Ryens’ car were driving
crazily and almost crashed into her vehicle.



Her grandmother, who
was with her that day, wrote down the license plate number. Hours
later, after the murder was discovered, the authorities broadcast a
description of the missing car with its license plate number.



“I
ran out to the car and got the slip of paper on which my grandmother had
written the license number,” the woman wrote in a formal declaration.
“It was exactly the same.” She said that she wrote to the police with
her information, but the authorities did not follow up or share it with
the defense.

Shown an old photo of Lee, this woman said that it resembled the driver but that she couldn’t be sure it was the same man.




If there’s no apparent motive for Cooper, there are only hints of one
for Lee. His previous murder, of a 17-year-old girl, was at the behest
of a gang leader, Clarence Ray Allen, who raised the same kind of
Arabian horses as the Ryens. There’s some — very squishy, unconfirmed —
evidence that Allen may have previously threatened to kill Peggy Ryen,
that they had a quarrel over a horse sale gone sour, and that she was
terrified of him.



All this said, let’s be clear that if there’s
one lesson from the Cooper case, it’s that we should be very wary of
assuming guilt on the basis of fragmentary evidence. I tracked down Lee,
now 68, and he strongly denied any involvement in the case. However, he
did not want to discuss it and asked not to be contacted again.



One point in Lee’s favor: He has avoided serious tangles with the law in the decades since the Ryen killings.




With all these uninvestigated threads, 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 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.

Concerns with the San Bernardino sheriff’s deputies have continued since then.




Almost exactly 10 years after the Ryen murders, there was another
terrible murder in San Bernardino County, and a man named William
Richards was convicted in part based on evidence “discovered” by the
same sheriff’s office lab technician who earlier had “found” evidence
against Cooper. Later, it turned out that this evidence was planted, and
Richards was eventually exonerated. (The sheriff’s office declined to
comment for this article.)



The only witness to the murders
themselves, of course, was Josh Ryen, who endured a physical and
emotional trauma that is unimaginable. By the time of the trial, he had
no clear memory of what happened or of seeing an intruder.



Yet
his first memories were clearer. I tracked down Don Gamundoy, who at the
time of the murders was a social worker at the hospital to which Josh
was rushed. “He was awake and alert,” Gamundoy recalled.

Josh
could hear but couldn’t speak because of the wound to his throat, so
Gamundoy wrote the alphabet, the numbers and the words “yes” and “no” on
a piece of paper and asked Josh to point to the letters to spell his
name, phone number and birth date. Josh did so correctly, showing that
the method worked.

Then Gamundoy asked Josh if the people who did this were black.




“He pointed to ‘no,’” Gamundoy told me. Communicating in the same way,
Josh said that the attackers were white, and that there were three or
four of them.



This was a chaotic scene unfolding as doctors were
struggling to treat the boy, but Gamundoy said he had asked each
question twice to make sure the answers were not a mistake. Sheriff’s
deputies were present and observing, he said, and in interviews with
deputies later, Josh referred to the attackers as “they,” saying that
“they” had chased him.



With a good defense, Cooper might have
prevailed. But his county public defender was overwhelmed and made a
series of practical legal mistakes.



“Kevin got convicted because
they framed him and because he didn’t have a half-decent defense,” said
Norman C. Hile, his current lawyer. Hile, now retired as a partner in
the international law firm Orrick, Herrington & Sutcliffe, has
volunteered on the case for the last 14 years because he fiercely
believes in Cooper’s innocence.



This is a familiar pattern:
Inmates have third-rate defenders at trial, but after they are sentenced
to death they get the help of brilliant free counsel; by then it is
often too late to undo the damage.

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).


Still, the trial outcome was close. The jury took a week to convict
Cooper, and one juror told reporters that there would have been no
conviction “if there had been one less piece of evidence.”



Cooper
was scheduled to be executed at 12:01 a.m. on Feb. 10, 2004. On Feb. 9,
he was offered a last meal (he turned it down), and led on the “dead
man walking” path to a holding area beside the execution cell. He was
strip-searched, given new clothes to die in, and guards searched his
arms for veins that could be used to administer lethal injections. A
pastor visited to pray with him.



Yet on what was supposed to be
his last day, the Court of Appeals for the Ninth Circuit granted a stay
of execution, and a few hours before the end, the warden halted the
machinery of death.

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.



Cooper’s case began to get traction. The
Ninth Circuit Court of Appeals en banc refused to hear an appeal by
Cooper, but 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.




Five of the original jurors signed declarations expressing concerns
about the case and calling for new DNA testing or for clemency. An
award-winning book, “Scapegoat,” concluded that Cooper had been framed.
In February 2016, Hile and the Orrick law firm submitted to Governor
Brown a 235-page clemency petition, pleading for advanced DNA testing of
evidence from the case.



Cooper’s lawyers ask above all for new
“touch DNA” testing — capable of detecting microscopic residues — of the
tan T-shirt, the hatchet and the blond or brown hairs found in the
victims’ hands. This might determine who wore the tan T-shirt or handled
the hatchet, and whom the hairs came from. Was it Kevin Cooper? Or was
it Lee?



As state attorney general, Kamala Harris refused to allow
this advanced DNA testing and showed no interest in the case (she
declined to comment for this column). As for Brown, he has not responded
in the two years since the petition was filed, and he refused to be
interviewed. His spokesman, Gareth Lacy, told me that the petition
“remains under review.” Brown leaves office in January, and I think he
is running out the clock.



One reason Brown may be hesitant to
weigh in: For four years before becoming governor, he was attorney
general, and during that time he suggested that no one on death row was
innocent. I hope that this won’t keep him from allowing advanced DNA
testing.



California voters in 2016 approved a ballot measure to
hasten executions. So, depending on how litigation unfolds, Cooper could
again be led to the execution chamber sometime in the next year or so —
and even if he delays execution, he feels he is wasting away.


“Look at how white my hair is,” Cooper told me, bending over to show how
his hair is graying. “I don’t have as much time left. Every day is one I
won’t get back.”



I was speaking to him in San Quentin Prison, in
a cage where inmates are allowed to meet outsiders. Cooper lives on
death row in San Quentin, in a 4.5-foot-by-11-foot cell.

Cooper
told me about his abusive and troubled childhood in Pennsylvania, where
he was adopted as a baby. When prosecutors said that Cooper had tangled
with the law since the age of 7, they were right, but he says that the
reason is that he was running away from home to escape beatings. His
childhood involved shoplifting, marijuana smoking, juvenile detention
and negligible education; he never graduated from high school.




These days in prison, Cooper has remedied his lack of education with a
G.E.D. diploma and comes across as smart, passionate and articulate. But
he’s not optimistic that the governor or courts will block his
execution.

“I don’t have any confidence,” he told me. “I don’t
believe in the system.” He also spends his time writing a memoir, which
now stands at more than 300 pages. “That’s my motivating factor to get
out of here, to tell my story and tell the truth about this rotten-ass
system,” he said.



I asked Cooper whom he blamed. The sheriff? The
jury? “I blame myself first and foremost, for walking out of Chino
prison, for letting those people get their hands on me,” he said. “I
regret that every day of my life.”



Time and again, Cooper came
back to a larger point: The criminal justice system is unfair to poor
people and members of minorities.



“I’m frameable, because I’m an uneducated black man in America,” he said. “Sometimes it’s race, and sometimes it’s class.”




“The only people here on death row to my understanding are the poor,”
he added. “Even the white people on death row, they’re poor. If they’re
white, racism goes away and classism jumps in and takes its place.”


Although Cooper’s defenders note that before the murders he had never
been convicted of a violent offense, or even charged with one, it’s a
bit more complicated: He has been accused of rape without being charged.




I’m particularly troubled by one episode. Cooper admits forcing a
17-year-old girl into a vehicle in 1982. She says that he also hit her,
threatened to kill her and raped her, and she went afterward to a
hospital to seek treatment; he flatly denies hitting or raping her. Hile
says that if the evidence had been strong, Cooper would have been
charged with rape. For my part, I can’t think why the girl would have
lied, and although it’s impossible to know after 36 years what happened,
it bothers me.

It’s obvious to you by now that this is not a
usual column — I’m not sure The Times has ever published a column of
this length — so why am I exploring the case with such passion? I became
interested primarily because Fletcher and other respected federal
appeals judges had said he was framed. That just doesn’t happen.




I’m also haunted by something else. In 2000, I proposed reporting a
lengthy piece about doubts about the conviction of Cameron Willingham,
who was then on death row in Texas for the arson murder of his three
children. An editor talked me out of it, and I never did write about
Willingham, who was executed in 2004. Since then, growing evidence has
emerged that he was innocent, and perhaps it’s partly to atone for my
earlier failure that I’ve taken up Cooper’s case.



If Cooper is
innocent, he would have plenty of company. The Death Penalty Information
Center says that since 1973, at least 162 people sentenced to death
have been exonerated. One peer-reviewed study estimated that at least
4.1 percent of those sentenced to death in the United States are
innocent; that would mean that on California’s death row alone, where
746 people await execution, about 30 have been wrongfully convicted.




Moreover, there’s abundant evidence that executions in America are
linked to race: One study in Washington State found that jurors were
three times as likely to hand down a death sentence for a black
defendant as for a white defendant in a similar case.



Decades
after Cooper’s trial, many of the people involved have died or didn’t
want to talk to me. Some who were willing to talk insist that the trial
was fair and Cooper was properly convicted.



William Baird, the
sheriff’s office lab expert who in 1983 found suspicious shoe print
evidence supposedly linking Cooper to the crime scene, told me that the
evidence was real. He acknowledged having stolen heroin from the
evidence room but said that had nothing to do with the evidence against
Cooper.



I also spoke to Bill Hughes, who discovered the bodies of
the Ryens and of his son, Chris. He is certain that Cooper is
responsible: “There is no doubt in my mind that he did that.” His wife,
Mary Ann, is equally passionate: She spoke of her family’s suffering as
the case drags on without closure, of her certainty that Cooper is
simply trying to distract from overwhelming evidence against him, of her
frustration at calls for further testing when there has already been
forensic testing for 35 years.



I told Bill and Mary Ann Hughes
that my heart breaks for them. And of course, I can’t be sure that Kevin
Cooper is innocent. One lesson to absorb from the criminal justice
system’s past mistakes is that we need some humility about our own
ability to ferret out truth.



That’s why the governor should allow
advanced DNA testing, especially of the hairs and of the T-shirt and
hatchet, and why Kamala Harris, Dianne Feinstein, Gavin Newsom and other
California politicians should back the call.



I know readers will
ask me what they can do, and I don’t have a good answer beyond
contacting Brown’s office or signing a petition calling for clemency.
Another takeaway is to regard our criminal justice system, especially in
its interactions with the poor or racial minorities, with greater
skepticism.



Maybe in the grand scheme of things, the fate of one
man on death row doesn’t seem so important; innumerable people die
tragically every day. Yet we aspire to be a nation where we are all
equal before the law, and if we execute a man in so flawed a case
without even bothering to test the evidence rigorously, then a piece of
our justice system dies along with Kevin Cooper.



Governor Brown,
if you’re reading this, I understand that you may believe that Cooper is
guilty. But other smart people, including federal judges and law school
deans, believe him innocent. So how can you possibly execute him
without even allowing advanced DNA testing, at the defense’s expense, to
resolve the doubt? What’s your argument for refusing to allow testing?




The former Supreme Court Justice Sandra Day O’Connor once wrote that
“the execution of a legally and factually innocent person would be a
constitutionally intolerable event.” She’s right: It is not just
Cooper’s life that is at stake, but also the legitimacy of our system of
laws. This is a test of Governor Brown, of our justice system, of our
politicians, and of us.



“This is bigger than me,” Cooper told me in our prison meeting. “This is bigger than any one person.”

Opinion | One Test Could Exonerate Him. Why Won't California Do It? - The New York Times: Kevin Cooper is awaiting execution for a quadruple murder. But he may have been framed.