22 December 2009 By Stephen Lendman
On November 30, the US Supreme Court denied Kevin
Cooper justice by not reviewing his wrongful murder
conviction despite overwhelming evidence of his
innocence. Cooper is Black and was framed for a
multiple homicide he never committed. He's imprisoned
on death row at San Quentin State Prison, Marin
County, CA, a victim of American injustice.
Savekevincooper.org documents his case and efforts to
exonerate and release him, so far in vain and unlikely
unless a new governor grants clemency or pardons him
after taking office in January 2011.
On January 30, 2004, Governor Arnold Schwarzenegger
denied him clemency, saying at the time:
"I have carefully weighed the claims presented in
Kevin Cooper's plea for clemency. The state and
federal courts have reviewed his case for more than
eighteen years. Evidence establishing his guilt is
overwhelming (and despite his) mentoring of others
(and other) commendable (acts his) is not a case for
clemency."
On November 30, 2009, Los Angeles Times writer Carol
Williams broke the bad news headlining, "Death Row
inmate Kevin Cooper loses last appeal," then adding
background on his case. More on that below.
In 1991, the California Supreme Court upheld his
conviction, then denied his habeas petition in 1996.
In 2001, a three-judge federal 9th Circuit panel
affirmed his habeas petition denial. On February 9,
2004, on the eve of his scheduled execution, an en
banc (full court) 9th Circuit panel reversed the
earlier denial by granting him a stay of execution
until his new federal habeas application could be
considered.
On May 11, 2009, the US 9th Circuit Court of Appeals:
"voted to deny (Cooper's) Petition for Rehearing and
Petition for Rehearing En Banc. The full court was
advised of the petition for rehearing en banc. A judge
requested a vote (for it, yet the) matter failed to
receive a majority of the votes, (therefore both
petitions) are DENIED."
Eleven of the 27 judges dissented, some warning that
"The State of California may be about to execute an
innocent man."
Eight judges agreed on a dissenting opinion
(identified only by their last names) - Fletcher,
Wardlaw, Fisher, Reinhardt, Rymer, Pregerson, Paez,
and Rawlinson.
After the US Supreme Court's denial, Cooper's
execution is more likely, and threatens other innocent
Black prisoners, the most famous being Mumia
Abu-Jamal, falsely convicted in July 1982, thereafter
on death row, and in April 2009 denied a new trial by
the High Court despite prosecutorial discrimination in
striking Blacks from his prospective juror panel to
get enough Whites on it to convict.
Timeline of the Case
-- on June 4, 1983, Douglas and Peggy Ryen, their 10
year old daughter Jessica, and 11 year old house guest
Christopher were murdered inside their Chino Hills, CA
home;
-- on June 9, San Bernardino County prosecutors
charged Cooper with four counts of murder and one
count of attempted murder; a warrant was issued for
his arrest, and his whereabouts was sought;
-- on June 30, Santa Barbara County sheriff's deputies
arrested Cooper following a rape accusation, not
proved and never charged;
-- on August 1, he plead not guilty to murder charges;
-- on April 23, 1984, his trial was moved from Ontario
to San Diego due to biased publicity;
-- on October 23, his trial began;
-- on February 19, 1985, he was convicted of multiples
murders;
-- on March 1, the jury recommended the death penalty;
-- on May 15, he was sentenced to death;
-- on May 16, 1991, the California Supreme Court
upheld the conviction;
-- on May 10, 2001, the state agreed to allow
post-conviction DNA testing on a blood-stained t-shirt
found on a roadside leading away from the murder site
to prove Cooper's innocence;
-- on October 3, 2003, state authorities said it
confirmed Cooper's guilt, even though, according to
the above named dissenting judges:
initial tests showed it "contained blood consistent
with one of the victims and not consistent with
Cooper. (He) maintained (and still does) that his
blood was planted on the t-shirt. (If true), the only
possible source was blood taken from Cooper by law
enforcement authorities. A vial of blood was taken
from Cooper by San Bernardino County Sheriff's
Department (SBCSD) personnel on August 1, 1983, two
days after his arrest. That blood contained an added
preservative called EDTA....The presence of such a
preservative would show that (Cooper's) blood was not
on the t-shirt at the time of the killings."
-- the judges added:
"There is no way to say this politely. The district
court failed to provide Cooper a fair hearing and
flouted our direction to perform" the proper tests. It
"also impeded and obstructed Cooper's attorneys at
every turn as they sought to develop the record."
Unreasonable testing conditions were imposed, as well
as "refused discovery that should have been available
as a matter of course, limited testimony that should
not have been limited, and found fact unreasonably,
based on truncated and distorted record."
"The most egregious, but by no means the only, example
is the testing of Cooper's blood on the t-shirt for
the presence of EDTA. (The district court) so
interfered with the design of the testing protocol
that one of Cooper's scientific experts refused to
participate in the testing. (It let) the
state-designated representative (choose) samples to be
tested." Cooper's experts were refused the right to
participate in choosing samples or "even to see the
t-shirt."
Yet the test result showed "an extremely high level of
EDTA in the sample that was supposed to contain
Cooper's blood. If that test result was valid, it
showed that Cooper's blood had been planted on the
t-shirt, just as Cooper maintained."
A subsequent analysis confirmed the test's validity,
yet the district court let "the state-designated
law....withdraw the test result on the ground of
claimed contamination in the lab," with no allowed
inquiry to prove it. In addition, the "court then
refused to allow further testing on the t-shirt, even
though such testing was feasible."
The above judges had just cause to believe Cooper was
framed, falsely convicted, and deserves redress. Yet:
-- on December 17, 2003, a San Diego County judge
signed his death warrant and scheduled execution for
February 10, 2004;
-- on January 9, 2004, his attorney petitioned
Governor Schwarzenegger for clemency;
-- on January 30, it was denied;
-- on February 9, Cooper was scheduled for execution
at one minute past midnight on February 10, but was
stayed after the 9th Circuit Appeals Court ruled 9 - 2
to return the case to a San Diego federal judge
because of new information that the San Bernardino
police planted and tampered with evidence to frame
him;
-- on April 22, 2005, a federal judge upheld the death
penalty and refused requests for further blood testing
to exonerate him;
-- on May 9, 2009, the 9th US Circuit Court of Appeals
denied Cooper's rehearing petition despite 11 of the
27 judges dissenting; and
-- on November 30, the US Supreme Court decided not to
review his case despite overwhelming evidence of his
innocence.
Background
Late at night on June 4, 1983, Doug and Peggy Ryen,
their daughter and house guest were brutally murdered
in their home. Their eight year old son, Josh,
suffered severe injuries but survived. According to
the above dissenting judges:
"The victims had numerous chopping, cutting and
stabbing injuries, caused by several different kinds
of weapons," including ones inflicted after they died.
"Two days earlier, (Cooper) had escaped from the
minimum security section of the nearby California
Institute for Men (CIM)....by walking across an open
field. He had been serving a four-year sentence for
burglary."
He stayed in a vacant house near the Ryens, and
according to the State, "acted alone in killing the
four victims....to facilitate his escape," although
for what purpose wasn't plausibly explained.
Cooper testified that after two days he left the house
at night and hitchhiked to Mexico. "There is
undisputed evidence that (he) registered at a hotel in
Tijuana at 4:30 PM on June 5....The Ryens' white
wood-paneled station wagon had been parked in (their)
driveway (with) the keys in the ignition, throughout
the entire evening of June 4. On June 11, (it) was
discovered in the parking lot of a Long Beach church,
where it had been for several days. Tijuana is 125
miles south of the Ryen house. Long Beach is 45 miles
west (of it)."
Clear Evidence Suggests Other Killers
Shortly before his scheduled execution date, Cooper's
now-retired CIM prison warden, Midge Carroll, provided
a sworn declaration saying that her staff informed her
that shoes issued prisoners "were not prison
manufactured or specially designed prison-issue shoes
(but, rather, were) common tennis shoes available to
the general public through Sears and Roebuck and other
such retail stores."
She told investigators prior to trial, and it was
critical to Cooper's defense. Key to prosecutorial
charges was that "identical shoeprints at the crime
scene and in the house where Cooper had been staying
were made by Pro-Ked Dude tennis shoes, and that these
shoes were distributed only to prisons and other
institutions."
According to the dissenting judges:
"Warden Carroll's information, though clearly
exculpatory, had not been provided to Cooper prior to
trial." They didn't elaborate, but apparently meant he
was wearing different shoes when arrested, shoes he
owned didn't match the murder scene footprints, and/or
multiple footprints indicated more than one killer,
not one as prosecutors charged.
Later, however, it was learned that the shoeprint
wasn't discovered at the Ryen home, but suspiciously
in the SBDSD Crime Lab. In addition, after testifying
at trial that he issued Cooper Pro-Ked Dude tennis
shoes shortly before his escape, CIM inmate James
Taylor recanted in a sworn declaration supporting
Cooper's second habeas petition.
It was also learned that because of his medical
problem with one foot, Cooper got a "chrono" entitling
him to wear special soft-sole shoes, not standard
issue for other prisoners, and more proof that the
crime scene footprints weren't his.
Overall, "substantial evidence (showed) that three
white men, rather than Cooper, were the killers. Some
of the evidence was introduced at trial. Some of (it),
even though exculpatory, was deliberately destroyed by
the SBCSD and was therefore not available for use at
trial." More as well was concealed from Cooper and
unavailable. "Given the weakness of the evidence
against Cooper, if the State had given (his) attorneys
this exculpatory evidence it is highly unlikely that
(he) would have been convicted."
"Josh Ryen, the only survivor of the attack, first
(told) SBCSD Deputy Sharp that the murderers were
three white men," and this statement was entered into
the June 5 PM police log. Further, "The injuries to
the victims were consistent with the use of multiple
weapons. The number of victims, and the number and
nature of the wounds, led the coroner to conclude that
there was more than one killer."
Cooper also had no motive for the killings, and none
was established at trial.
When Josh was shown his picture, he said he was not
one of the killers. They were White, not Black, as
confirmed by clumps of long blond hair found in one of
the victim's hands.
A week after the murders, a woman named Diana Roper
told police that her boyfriend, Lee Furrow, came home
wearing blood-spattered coveralls the night of the
crime, and gave them to police believing he was one of
the killers. Yet records show they were disposed of
without testing. Roper also said, Furrow was wearing a
beige t-shirt the night of the incident, apparently
the one later found near the scene, stained with Doug
Ryen's blood and later claimed to have Cooper's but
not when first tested.
Roper told police that Furrow owned a hatchet, missing
from his tool belt after the murders. In addition,
eyewitnesses saw three or four people speeding away
from the Ryen home in the family's car shortly after
the crime. A convicted felon, Kenneth Koon, told his
cellmate, Anthony Wisely, that he and two other men
killed the Ryens. Koon and Furrow knew each other.
According to Wisely, on the day of the incident,
Furrow bailed someone out of jail. None of this was
introduced at trial, so jurors never heard it. An
angered 9th Circuit judge said:
"Kevin Cooper may be executed without any court
considering the merits of colorable evidence that
another individual, Kenneth Koon, confessed to the
murders." In addition, the crime scene was destroyed,
making it impossible to reconstruct the murders. The
evidence was so corrupted that the trial judge said:
"(w)ithout any criminalistics experience at all,
(anyone) could have gone in there and done a better
job" than the police in collecting and preserving the
evidence. It made the defense's job impossible.
Police lied about the evidence, concealed everything
exculpatory to frame an innocent man. False evidence
was planted, including cigarette butts with Cooper's
DNA in the Ryen car, not there when first examined,
then mysteriously turned up later.
Evidence Presented at Trial
Prosecutors called it "overwhelming." Jurors disagreed
saying they barely had enough to convict, but
practically nothing exculpatory was introduced,
including that a convicted criminal later confessed.
After deliberating, they reported that:
"If there had been one less piece of evidence, Kevin
Cooper would today be out on the streets. In (our)
mind, (prosecutors) had barely enough evidence."
The blond hair at the crime scene was never tested or
compared to other potential killers. Brown hair was
also found and not tested. Forensic experts said a
hatchet, knife and ice pick killed or wounded the four
victims within minutes of each other, so multiple
assailants were involved.
Prosecutors claimed Cooper killed the Ryens to steal
their car and money. Yet, outside their home, the keys
were in the ignition, and a substantial amount of
money and other valuables were found in the home
untouched.
Unknown to the defense, samples of Cooper's blood and
saliva were secretly given the prosecution's
technicians for 24 hours with no court order. At
trial, it was claimed they were at the crime scene and
matched Cooper's DNA. Clearly they were planted.
UPI reporter Kristina Rebelo-Anderson, who covered the
trial, said in sworn deposition that a former
confidential police informant, Albert Anthony Ruiz,
told her that he and others were instructed by
sheriff's deputies and DEA agents to plant evidence to
convict Cooper. She added that the killings "were a
hit on the wrong family," intended against a cocaine
trafficking ring involving local police. Ruiz also
told US Justice Department officials that Cooper was
an innocent scapegoat.
None of this came out at trial. Instead falsified
evidence was presented in a racist witch-hunt climate,
including graffiti around the court house demanding
"Kevin Cooper Must Be Hanged," and "Hang the Nigger!"
Not sequestered, jurors saw it, including racist media
accounts, that, of course, biased them to convict or
face a public backlash, including from family and
friends.
With it all, jurors barely convicted, six later
writing Governor Schwarznegger to halt his execution
because of "too many unanswered questions," and if
they knew then what they believe now, they never would
have convicted, let alone impose the death penalty.
At the same time, full page ads in major California
newspapers and The New York Times asked, "Does
California have the wrong man?" Hundreds of people
signed them, including dozens of California
legislators; nine members of the European parliament;
six labor leaders; members of the clergy; Jesse
Jackson; various celebrities; other prominent figures;
and former Illinois Governor George Ryan who declared
a moratorium on all state executions after courts
found 13 death row inmates innocent.
Some Final Comments
In January 2003, Illinois Governor George Ryan saved
163 men and four women on death row announcing:
"The facts that I have seen in reviewing each and
every one of these cases raised questions not only
about the innocence of people on death row, but about
the fairness of the death penalty system as a whole.
Our capital system is haunted by the demon of error:
error in determining guilt and error in determining
who among the guilty deserves to die."
"The Legislature couldn't reform it, lawmakers won't
repeal it, and I won't stand for it - I must act.
Because our three-year study has found only more
questions about the fairness of the sentencing,
because of the spectacular failure to reform the
system, because we have seen justice delayed for
countless death row inmates with potentially
meritorious claims, because the Illinois death penalty
system is arbitrary and capricious - and therefore
immoral."
It overwhelmingly affects people of color and got the
US Supreme Court (in Furman v. Georgia, 1972) to say:
"the imposition and carrying out of the death
penalty....constitutes cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments,"
and, in how they're applied, so "harsh, freakish, and
arbitrary" to be constitutionally unacceptable. The
decision voided 40 death penalty statutes, thereby
commuting the sentences of over 600 death row inmates
nationally.
In 1976 (in Gregg v. Georgia, Jurek v. Texas, and
Proffitt v. Florida, collectively called the Gregg
decision), the High Court reinstated the death penalty
and let states impose it. The Court held that new
death penalty statutes in these states were
constitutional under the Eighth Amendment, containing
the cruel and unusual punishments clause that should
effectively have prohibited it.
In Gregg v. Georgia, the Court held that the death
penalty is not inherently cruel, but is "an extreme
sanction, suitable to the most extreme of crimes."
In fact, it's cruel and unusual, a barbaric relic. It
defiles due process, judicial fairness, and humanity.
It violates equal constitutional protection under the
law. It disproportionately affects people of color,
the poor, and disadvantaged. It legitimizes the
illegitimate, what's prohibited by fundamental
religious teachings stating "thou shall not kill." It
justifies an eye for an eye, what Gandhi said makes
the whole world blind, is ineffective in deterring
crime, and unconscionable by a society calling itself
civilized.
Further, who can judge fairly in light of clear
evidence of numerous wrongful convictions, framed
defendants, and the most disadvantaged denied due
process and judicial fairness - to wit, Kevin Cooper,
an innocent man, framed by state officials who may die
for the crimes of three others.
In his own words, ahead of his scheduled February 2004
execution, he said:
"This is Not My Execution and I Will Not Claim It,"
adding he's "an innocent man about to be murdered by
this state (and) realize(s) that innocence makes no
difference to the people who control the criminal
justice system, including this prison. This is the
same system that has historically and systematically
executed men, women and children who look just like
me, if only because they can (and do it to) poor
people all over this world....If I must be murdered by
the state, then I will do so with my dignity in tact
(and knowledge that) This guilt that the criminal
justice system has put on me will be questioned by
anyone and everyone who finds out the whole truth of
this case," and spreads the word widely.
Still on death row, activists nationally support
Cooper's struggle after many years of wrongful
imprisonment for a crime he didn't commit, yet may pay
for it with his life.
Stephen Lendman is a Research Associate of the Centre
for Research on Globalization. He lives in Chicago and
can be reached at lendmanstephen@sbcglobal.net. Also
visit his blog site at sjlendman.blogspot.com and
listen to the Lendman News Hour on
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