Criminal
Feb. 12, 2004
Condemned Man Deserves New Trial With All Evidence
Forum Column - By Stephen F. Rohde - If the state of California had had its way yesterday, Kevin Cooper would have been executed by lethal injection at San Quentin Prison. Instead, a last-minute stay was granted.
Stephen F. Rohde
Email: rohdevictr@aol.com
Stephen is a retired civil liberties lawyer and contributor to the Los Angeles Review of Books, is author of American Words for Freedom and Freedom of Assembly.
By Stephen F. Rohde
If the state of California had had its way yesterday, Kevin Cooper would have been executed by lethal injection at San Quentin Prison. Instead, a last-minute stay was granted.
Imagine that you were one of the 12 jurors who convicted Cooper in 1985 and sentenced him to death for the murders of Douglas and Peggy Ryen, both 41, their 10-year-old daughter, Jessica, and her 11-year-old friend, Christopher Hughes.
Cooper, a 46-year-old African-American, steadfastly has proclaimed his innocence. There is no question that, shortly before the murders, Cooper escaped from a minimum-security prison in Chino Hills, where he was serving a four-year sentence for robbery, and that he hid in a vacant house near the Ryens'.
At trial, you took your duty as a juror seriously and listened to all the evidence admitted by the trial judge. You did your best to ignore the racist graffiti around the courthouse, including a toy gorilla hanging in effigy with a sign: "Hang the Nigger." You trusted that the prosecution and defense would present all the evidence that pointed to Cooper's guilt or innocence.
You learned that the only surviving victim, Joshua Ryen, had told police that his family and friend were murdered by not one, but three, white or Mexican assailants. Hospital staff testified that, right after Joshua was brought in, he communicated that there were three assailants, who had his skin color. Joshua is white. Notes taken by Joshua's psychiatrist reveal that he stated, "Three Mexicans chased us around the house."
When Joshua saw a picture of Cooper on television during the manhunt, he said, "That was not the person that did it." But the prosecution downplayed Joshua's statements by saying that "he was only eight years old, had suffered incredible shock, and thus, his statement was not credible."
Without any corroborating evidence, you discounted what the young eyewitness had to say. It was a close call, and one of your fellow jurors even said, "If there had been one less piece of evidence, Kevin Cooper would today be out on the streets." With a heavy heart, but with a sense of duty and a belief in the fairness of California's criminal-justice system, you joined all the rest in voting to convict Cooper of the four murders and condemn him to death.
But how would you feel if, years later, you learned that you had not heard and seen all of the evidence surrounding this brutal crime? At trial, none of the following evidence was presented to you:
• Large clusters of blond hair were found in one of the victim's hands, which were never tested or compared to other potential perpetrators of the crime. Cooper is African-American, so the hairs are clearly not his. Another victim was clutching a lock of brown hair, also clearly not from an African-American man.
• A week after the murders, Diana Roper contacted police to report that her boyfriend, Lee Furrows, came home wearing blood-splattered coveralls the night of the murders. Roper, believing that Furrows was involved in the crimes, gave the coveralls to the police. The police destroyed the coveralls without testing them and without disclosing them to Cooper's defense team. Roper also told police that Furrows owned a hatchet that was missing from his tool belt after the murders.
• A convicted felon, Kenneth Koon, confessed to his cellmate, Anthony Wisely, that he was involved with two other men in the Ryen family murders. Koon and Furrows (Roper's boyfriend) knew each other. According to the cellmate, on the day of the murders, Furrows bailed an individual named Michael Darnell out of jail. Furrows, Darnell and Koon were three white men, all of whom share a violent criminal history, including one being convicted of a grisly knife murder. Koon told his cellmate the Ryen murders were an Aryan Brotherhood "hit" gone wrong.
• Kristina M Rebelo-Anderson, a former reporter for United Press International, who covered Cooper's 1985 trial, has given a sworn deposition stating that Albert Ruiz, a former police informant, told her that the police planted evidence in Cooper's case and that the murders were a "hit on the wrong family on that hill."
In fairness, prosecutors also would want you to consider the fact that, recently, under a new law and at Cooper's request, the blood on certain evidence at the crime scene was subjected to DNA testing and was identified as Cooper's.
But, here again, you would also have to know that:
• Although blood was everywhere at the crime scene, only a single drop was tied to Cooper. That single drop was found far away from the rest of the crime scene. This was the prosecution's most important piece of evidence and the prosecution's investigators essentially used all of it before the defense experts could fully test the sample to determine how it got there. The police took a sample of Cooper's blood from him when he was arrested and stored it in a test tube containing ethylenediaminetetraacetic acid (EDTA) preservative. The single drop of blood evidence was in the hands of the prosecution crime lab for months after they took the sample from Cooper. No tests have been done to discover whether the single drop of blood contained any trace of EDTA, which would prove that the police planted it.
• Post-trial DNA testing on a blood-stained T-shirt matched Cooper's blood. Testing performed on the shirt at the time of trial found no blood consistent with Cooper's. EDTA preservative testing has never been done.
• The prosecution contends that cigarette butts containing Cooper's DNA were found in the missing Ryen family car. The DNA-matched cigarette butts were not in the initial police report listing the contents of the car. Cigarette butts that were identified in the abandoned house where Cooper was known to have stayed are unaccounted for.
Given all this, are you still convinced beyond a reasonable doubt and to a moral certainty that Cooper committed those dreadful crimes? Would you sleep better if there were a new trial where all this evidence was presented?
So would six of the jurors at Cooper's 1985 trial. Four members wrote to Gov. Arnold Schwarzenegger urging that Cooper's execution be canceled or delayed until the questions raised by the evidence they didn't get to see at trial are answered. Two other jurors have requested further testing.
Jetalyn Kahloab Doxey, one of those jurors who thinks that Cooper is guilty, said, "I have questions, and I hate to think they'll put this person to death with these questions unanswered. The time is here for him to die, and this is tormenting me. It's grueling to think about, and if he's executed now, I'll be devastated."
Is California's death-penalty system fatally flawed? As California prepared to execute its 11th prisoner since reinstatement of the death penalty in 1977, a new study comparing the state's death penalty with the system in Illinois shows that suspects here face many of the same injustices and inequities that led to the collapse of the system in Illinois.
Last year, former Illinois Gov. George Ryan commuted the death sentences of 167 people to life without the possibility of parole, after 17 people on death row were found to be wrongfully convicted.
The California study, conducted by death-penalty lawyer Robert Sanger, reveals that California's death-penalty system fails to provide basic legal and procedural safeguards for people facing the ultimate punishment. Robert Sanger, "Comparison of the Illinois Commission Report on Capital Punishment with the Capital Punishment System in California," 44 Santa Clara L. Rev. 101 (2003).
"This is an important study that every prosecutor and judge should pay particular attention to before seeking the death penalty," says Donald Polden, dean of Santa Clara University School of Law. "The question of life or death demands the highest standards of justice, and this report clearly shows that California's death penalty system falls far short of such a standard."
Will an independent study of California's system come too late?
"This system is the same system that historically murdered men, women and children who look just like me," Cooper recently wrote. "While times have changed, the end result is the same.
"This is not my execution, and I will not claim it as mine."
Stephen Rohde, a constitutional lawyer and author of "American Words of Freedom," is vice president of Death Penalty Focus and president of the Beverly Hills Bar Association.
Submit your own column for publication to Diana Bosetti
For reprint rights or to order a copy of your photo:
Email
jeremy@reprintpros.com
for prices.
Direct dial: 949-702-5390
Send a letter to the editor:
Email: letters@dailyjournal.com