From Op-ed in the New York Times
Framed for murder?
Published: December 8, 2010
“California may be about to execute an innocent man.”
That’s the view of five federal judges in a case involving Kevin Cooper, a black man in California who faces lethal injection next year for supposedly murdering a white family. The judges argue compellingly that he was framed by police.
Mr. Cooper’s impending execution is so outrageous that it has produced a mutiny among these federal circuit court judges, distinguished jurists just one notch below the United States Supreme Court. But the judicial process has run out for Mr. Cooper. Now it’s up to Gov. Arnold Schwarzenegger to decide whether to commute Mr. Cooper’s sentence before leaving office.
This case, an illuminating window into the pitfalls of capital punishment, dates to a horrific quadruple-murder in June 1983. Doug and Peggy Ryen were stabbed to death in their house, along with their 10-year-old daughter and an 11-year-old houseguest. The Ryens’ 8-year-old son, Josh, was left for dead but survived. They were all white.
Josh initially told investigators that the crime had been committed by three people, all white, although by the trial he suggested that he had seen just one person with an Afro. The first version made sense because the weapons included a hatchet, an ice pick and one or two knives. Could one intruder juggling several weapons overpower five victims, including a 200-pound former Marine like Doug Ryen, who also had a loaded rifle nearby?
But the police learned that Mr. Cooper had walked away from the minimum security prison where he was serving a burglary sentence and had hidden in an empty home 125 yards away from the crime scene. The police decided that he had committed the crime alone.
William A. Fletcher, a federal circuit judge, explained his view of what happens in such cases in a law school lecture at Gonzaga University, in which he added that Mr. Cooper is “probably” innocent: “The police are under heavy pressure to solve a high-profile crime. They know, or think they know, who did the crime. And they plant evidence to help their case along.”
Judge Fletcher wrote an extraordinary judicial opinion — more than 100 pages when it was released — dissenting from the refusal of the United States Court of Appeals for the Ninth Circuit to rehear the case. The opinion is a 21st-century version of Émile Zola’s famous “J’Accuse.”
Mr. Fletcher, a well-respected judge and former law professor, was joined in his “J’Accuse” by four other circuit judges. Six more wrote their own dissents calling for the full Ninth Circuit to rehear the case. But they fell just short of the votes needed for rehearing.
Judge Fletcher laid out countless anomalies in the case. Mr. Cooper’s blood showed up on a beige T-shirt apparently left by a murderer near the scene, but that blood turned out to have a preservative in it — the kind of preservative used by police when they keep blood in test tubes.
Then a forensic scientist found that a sample from the test tube of Mr. Cooper’s blood held by police actually contained blood from more than one person. That leads Mr. Cooper’s defense team and Judge Fletcher to believe that someone removed blood and then filled the tube back to the top with someone else’s blood.
The police also ignored other suspects. A woman and her sister told police that a housemate, a convicted murderer who had completed his sentence, had shown up with several other people late on the night of the murders, wearing blood-spattered overalls and driving a station wagon similar to the one stolen from the murdered family.
They said that the man was no longer wearing the beige T-shirt he had on earlier in the evening — the same kind as the one found near the scene. And his hatchet, which resembled the one found near the bodies, was missing from his tool area. The account was supported by a prison confession and by witnesses who said they saw a similar group in blood-spattered clothes in a nearby bar that night. The women gave the bloody overalls to the police for testing, but the police, by now focused on Mr. Cooper, threw the overalls in the trash.
This case is a travesty. It underscores the central pitfall of capital punishment: no system is fail-safe. How can we be about to execute a man when even some of America’s leading judges believe he has been framed?
Lanny Davis, who was the White House counsel for President Bill Clinton, is representing Mr. Cooper pro bono. He laments: “The media and the bar have gone deaf and silent on Kevin Cooper. My simple theory: heinous brutal murder of white family and black convict. Simple as that.”
That’s a disgrace that threatens not only the life of one man, but the honor of our judicial system. Governor Schwarzenegger, are you listening?