COMMENTARY:

Kevin Cooper: Victimized by American Injustice

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.

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)."

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.

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.

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 Global Research News Hour on RepublicBroadcasting.org Mondays from 11AM to 1PM US Central time for cutting-edge discussions with distinguished guests on world and national topics. All programs are archived for easy listening.

Mr. Lendman's stories are republished in the Baltimore Chronicle with permission of the author.