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Kristof: Death row case reveals broken justice system

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Monday, May 21, 2018 6:24 PM

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 that morning. His 11-year-old son, Chris, had slept over at the Ryens’, and he thought maybe they had all gone out for breakfast. But at noon Hughes drove over to pick Chris up, and when no one answered the 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 in the kitchen door. 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, Jessica, was in a doorway. But Josh Ryen, 8, was moving feebly on the floor even though his throat had been slashed. Soon sheriff’s deputies were swarming all over the Ryen house in affluent, suburban Chino Hills, in Southern California, on that day in June 1983. Fortunately, there were strong leads. Josh survived and said three or four white men had committed the murders. Several people had seen three white men in the Ryens’ missing station wagon, and blond or brown hairs were found in the victims’ hands, as if torn off in a struggle. Then a woman named Diana Roper told the deputies that she thought her boyfriend, a white man and convicted murderer, had participated in the Ryen murders. Roper and her sister said the boyfriend came home late on the night of the killings in a station wagon like the Ryens’, wearing blood-drenched coveralls, and his hatchet was missing from his tool rack and resembled one of the murder weapons. Roper gave the deputies his bloody coveralls. So here’s what the San Bernadino County Sheriff’s Department did: It threw out the coveralls and arrested a young black man named Kevin Cooper. After a racially charged trial, Cooper was convicted of murdering the Ryens and their young neighbor; he is now at San Quentin Prison awaiting execution. Gov. Jerry Brown is refusing to allow advanced DNA testing of the hatchet, the recovered hairs and a T-shirt worn by the killer, even though Cooper’s defense would pay for it. This is the story of a broken justice system. It appears that an innocent man was framed by sheriff’s deputies and is now on death row in part because of dishonest cops, sensational media coverage and flawed political leaders — including Democrats like Brown and Kamala Harris, who was California’s attorney general before being elected to the U.S. Senate. They both refused to allow advanced DNA testing for a black man convicted of hacking to death a beautiful white family. This was a failure at every level, and it should prompt reflection about profound inequities in our 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. 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 FBI’s office in Los Angeles. “The evidence was planted, he was framed, the cops lied on the stand.” Parker has volunteered his time investigating the case for seven years — and found a great deal of exculpatory evidence. Or listen to Judge William A. Fletcher of the 9th U.S. Circuit Court of Appeals. “He is on death row because the San Bernardino Sheriff’s Department framed him,” Fletcher declared in a searing 2013 lecture. Yet Cooper is still facing execution. How did we get here? It’s a replay of a tragedy we’ve seen before: Police are under great pressure to solve a sensational crime, they think they find the culprit, and when evidence is lacking, they plant it and give false testimony. This is called “testilying” and 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. Initially, the authorities searched for three white men, based on Josh’s description of the killers and the sightings of white people in the car stolen from the Ryens’ home. In addition, the coroner at first determined that there had been several assailants using a hatchet, an ice pick, and either one or two knives to stab and slash the victims some 140 times, and it was difficult to imagine a single person using multiple weapons. Notably, the hatchet had apparently been thrown out of the window of a car leaving the Ryen home — on the passenger side. Moreover, Doug Ryen was a 6-foot 2-inch former Marine and military police officer, and he had a loaded rifle a few feet from his bed. Peggy Ryen was also strong and athletic and had a loaded pistol in her bedside drawer. It seemed that there must have been multiple attackers to overpower the Ryens — not a lone 155-pound individual like Cooper. Then, on the second day of the investigation, the Sheriff’s Department made what it thought was a breakthrough discovery: A 25-year-old black man who had been arrested for burglary had escaped from a minimum security Chino prison by walking through a hole in the fence, and he had holed up for two days in an empty house just 125 yards from the Ryens’ home. That was Cooper, and sheriff’s deputies who examined his file and mug shot saw a black man with a large Afro who fit their narrative of an incorrigible criminal. He had a long arrest record dating back to age 7. The sheriff’s deputies were sure they had their man. The authorities focused on Cooper, ignoring other threads. The San Bernardino County sheriff, Floyd Tidwell, was facing election that year, adding to the pressure to solve the most brutal crime in the county’s memory. Four days after the discovery of the murders, Tidwell announced that Cooper was being sought for murder. Still, the authorities had a problem: They couldn’t find fingerprints, hairs or similar evidence from Cooper at the murder scene. So evidence began to turn up in mysterious ways. Although the home that Cooper had been staying in had already been thoroughly searched, a bloody green button from a prison uniform materialized on the floor. Cooper would have been expected to wear just such a prison jacket — but much later it turned out that he had instead been wearing a brown jacket with different buttons. Or consider the Ryens’ station wagon. Cooper had made his way south to Tijuana, Mexico, arriving by the evening after the killings. Yet the station wagon didn’t turn up until six days later, far to the north in Long Beach (near the home of the stepmother of the convicted murderer’s boyfriend). The car had blood not just on the driver’s seat but also on the front passenger seat and on the back seat — suggesting three killers. A thorough search found no evidence that Cooper had used the car, but that was remedied when a second search of the station wagon turned up Cooper’s cigarette butts; sheriff’s deputies had found such cigarette butts in the empty house where he had stayed. It’s clear that the Sheriff’s Department wasn’t a stickler for rules. Tidwell, who oversaw the investigation, was later convicted of 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. Somewhat inconveniently, investigators found two bloody shirts, one tan and one blue, apparently discarded after the murders. Even if a single killer had managed to juggle three or four weapons, it was difficult to imagine that he had paused to change shirts — so the blue shirt, like the bloody coveralls, vanished. Another challenge for the prosecution was motive. After his escape, Cooper was desperate for money, yet 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. 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,” says 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 14 years because he fiercely believes in Cooper’s innocence. Cooper’s trial unfolded amid the ugliest racism. Crowds at the courthouse showed signs reading “Hang the Nigger.” 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.” DNA testing wasn’t available for the trial, but as appeals dragged on, the technology improved and the defense asked for testing of the tan T-shirt. That led in 2002, after Cooper had been jailed for 19 years, to the most devastating blow of all for him: Testing had found the blood of Doug Ryen on the tan T-shirt — along with Cooper’s blood. At first, this seemed proof that he was guilty after all. Cooper was scheduled to be executed at 12:01 a.m. on Feb. 10, 2004. Just hours before, the 9th Circuit Court of Appeals granted a stay of execution. 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 that test tube. A swatch from 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 9th Circuit Court of Appeals en banc refused to hear an appeal by Cooper, but Fletcher wrote a remarkable 100-page dissent, outlining in detail the evidence that Cooper had been framed and concluding: “The State of California may be about to execute an innocent man.” Four judges joined in this 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. 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 Brown a 235-page clemency petition on the case, pleading for advanced DNA testing. 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 testing might determine who wore the tan T-shirt or handled the hatchet, and from whom the hairs came. As state attorney general, Kamala Harris refused to allow this advanced DNA testing. (After the online publication of this column, Harris called me and said, “I feel awful about this,” and put out a statement saying, “As a firm believer in DNA testing, I hope the governor and the state will allow for such testing in the case of Kevin Cooper.”) Brown has not responded in the two years since the filing, and he refused to be interviewed. His spokesman, Gareth Lacy, told me that the petition “remains under review.” One reason Brown, who leaves office in January, 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. 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 his date with the executioner, he feels he is wasting away. “Look at how white my hair is,” Kevin 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 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’s because he was running away from 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 GED and comes across as smart and passionate. 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. 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 minority groups. “I’m frameable, because I’m an uneducated black man in America,” he said. “Sometimes it’s race, and sometimes it’s class.” 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 incident. In 1982, Cooper admits forcing a 17-year-old girl into a vehicle. She says he also hit her, threatened to kill her and raped her, and afterward she went to a hospital to seek treatment; he denies hitting or raping her. Hile, Cooper’s lawyer, 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. If Cooper is innocent in the killings, 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. There is also 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. Almost 10 years after the Ryen murders, there was another brutal murder in San Bernardino County and a man named William Richards was convicted in part based on evidence “discovered” by the same lab technician who had “found” evidence against Cooper. Later, it turned out that this evidence was planted, and Richards was eventually exonerated. (The Sheriff’s Department declined to comment for this article.) If I had been on Cooper’s jury, I might have voted “guilty” based on the evidence supposedly found by deputies. But since the trial much of that evidence has been discredited. The Sheriff’s Department claimed that Cooper took the Ryens’ station wagon, but aside from the witnesses who reported seeing several white people in the car on the night of the murders, a new witness has emerged who saw the car the next day. The woman, who is afraid of being identified as a witness for now but would be willing to testify under oath, says in a formal declaration that 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 the missing car’s license plate number — and it was the number her grandmother had written down. A remarkable element of this case is that not only has the evidence against Cooper largely been discredited, but evidence has accumulated against another named individual, who happens also to be a convicted murderer. I’ll identify him only by his first name, Lee. That said, let’s be clear that if there’s one lesson from the Cooper case, it’s that we should be 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 but did not want to discuss it and asked not to be contacted again. If there’s no apparent motive for Cooper, there are only hints of one for Lee. His 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 — 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. Diana Roper, Lee’s girlfriend at the time, says that on the day of the killing, she laid out for Lee a medium-size tan Fruit of the Loom T-shirt with a pocket that she had just bought for him at Kmart. That’s exactly like the T-shirt later found with the Ryens’ blood. Roper said in an affidavit that Lee came home in the early morning hours after the Ryen murders had been committed: “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’ mustache.” Roper’s sister, who was with her, confirmed much of her story and added that Lee arrived at the house in a station wagon similar to the one stolen from the Ryens. The only witness to the murders themselves, of course, was Josh Ryen, who endured a 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. Josh 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, his 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 recalled. Communicating in the same way, Josh said that the attackers were white, and that there were three or four of them. Decades after the 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 properly convicted. William Baird, the Sheriff’s Department lab expert who in 1983 found that suspicious shoe print evidence supposedly linking Cooper to the crime scene, told me that the evidence was real. He did acknowledge having stolen heroin from the evidence room. 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.” And 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 Brown should allow advanced DNA testing, especially of the hairs and of the T-shirt and hatchet, and why Dianne Feinstein, Gavin Newsom and other California politicians should back the call. 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. “This is bigger than me,” Cooper told me in our prison meeting. “This is bigger than any one person.”

Nicholas D. Kristof is a columnist for The New York Times. Reach him at Facebook.com/Kristof, Twitter.com/NickKristof or c/o The New York Times, Editorial Department, 620 8th Ave., New York, NY 10018. © 2018 New York Times News Service

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