By David M. Greenwald
Sacramento, CA – While the death penalty has effectively ceased in California, there remain people on death row. One of higher profile remaining death row incarcerated people is Kevin Cooper, who has long claimed innocence despite a complicated case.
On Friday, Governor Newsom signed an executive order to launch an independent investigation of death row inmate Kevin Cooper’s case as part of the evaluation of Cooper’s application for clemency.
The investigation will review trial and appellate records in the case, the facts underlying the conviction and all available evidence, including the results of the recently conducted DNA tests previously ordered by the governor to examine additional evidence in the case using the latest, most scientifically reliable forensic testing.
Cooper was convicted in 1985 for murdering Douglas and Peggy Ryen, their 10-year-old daughter Jessica, and 11-year-old house guest Christopher Hughes. The Ryens’ 8-year-old son Josh survived, following critical injuries sustained during the commission of these crimes. Cooper was sentenced to death.
In 2016, he submitted an application for executive clemency to former Governor Jerry Brown.
On his way out, in December 2018, Governor Brown ordered new DNA testing of some of the items of evidence and, a few months later, Governor Newsom, having taken office in February 2019, ordered additional testing of the items of evidence.
In his order, Governor Newsom indicated that he was taking the action, in particular, because the San Bernardino County district attorney’s office and Cooper’s defense attorneys “have starkly different views” on the interpretation of the new DNA evidence and the reliability and integrity of that evidence.
Newsom notes that “the People contend that the evidence does not support Mr. Cooper’s claims of innocence and that overwhelming evidence establishes that Mr. Cooper committed the murders and attempted murder of which he has been convicted and sentenced.”
They also believe “that a jury, after hearing all of the evidence, found Mr. Cooper guilty and that all State and Federal courts have affirmed his conviction and death sentence after conducting exhaustive reviews of the evidence and of Mr. Cooper’s allegations of evidence tampering and other law enforcement and prosecutorial misconduct.”
However, Cooper maintains his innocence.
He believes “the evidence introduced at trial against him was manufactured, mishandled, planted, tampered with, or otherwise tainted by law enforcement.”
The governor acknowledges that “questions about the evidence introduced at trial against Mr. Cooper have come to light, including through post-conviction proceedings, as addressed by the United States Ninth Circuit Court of Appeals.”
He has reviewed the record in the case and said, “I continue to take no position regarding Mr. Cooper’s guilt or innocence, or whether to grant executive clemency.”
However, he takes the position, “especially in cases where the government seeks to impose the ultimate punishment of death, I need to be satisfied that all relevant evidence is carefully and fairly examined.”
Thus he has appointed the law firm of Morrison & Foerster “to serve as Special Counsel to the Board of Parole Hearings for the purpose of conducting an independent investigation in connection with Mr. Cooper’s application for clemency and claims of innocence.”
Attorneys for Cooper applaud Newsom’s action.
“We are gratified that the governor has ordered an independent investigation,” said Norman Hile, an attorney representing Cooper. “We are confident that a thorough review will demonstrate that Kevin Cooper is innocent and should be released from prison.”
On the other hand, San Bernardino County DA Jason Anderson believes the new DNA evidence simply confirms the guilt of Cooper and criticized Newsom for ignoring the findings of the jury as well as judicial decisions.
“We would ask the executive branch to respect the findings of 38 years of decision making within the judicial branch that’s confirmed Kevin Cooper’s guilt beyond a reasonable doubt every time,” Anderson said. “There are no unanswered questions. So for this to be ordered is inappropriate.”
But this is an unusual case–which Newsom acknowledged in his order. Cooper has maintained his innocence throughout and accuses law enforcement of planting evidence while ignoring critical exculpatory evidence.
Three months ago, the NAACP urged Governor Newsom to launch an “innocence investigation,” saying there was mounting evidence that cast doubt on Cooper’s guilt and the impartiality of the investigation and prosecution.
“Mr. Cooper is a Black man who has served over 35 years on death row, notwithstanding serious concerns about the integrity of the state’s case and the risk that it was marred by racial discrimination. The grave doubts about Mr. Cooper’s guilt have only worsened over time,” the letter, from the NAACP’s Legal Defense and Educational Fund, stated.
In 2018, Cooper in an interview with the LA Times argued, “They framed me because I was framable.”
Even family members of the victim have doubts, one stating, “it seems impossible that he could have done all of that destruction by himself.”
A federal appellate judge, in a vigorous 2009 dissent, warned that the state might have the wrong man.
“The State of California may be about to execute an innocent man,” Judge Fletcher wrote at the time.
Judge Fletcher believes Cooper’s claims were plausible, arguing that the evidence was at the very least tainted by bumbling and misconduct and that blood apparently linking Cooper to the crime may have been “planted by overzealous investigators.”
“There is no way to say this politely,” he wrote. “The district court failed to provide Cooper a fair hearing and flouted our direction to perform the two tests.”
Now, the governor hopes, they can get to the bottom of this rather unusual case.
—David M. Greenwald reporting
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