Kevin Cooper: A ‘Scapegoat’ on Death Row

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Investigative journalist Patrick O’Connor has written a new book, “Scapegoat: The Chino Hills Murders and the Framing of Kevin Cooper.” Below is the talk that O’Connor gave on a recent Northern California speak­ ing tour.

“Scapegoat” is a book about a horrific murder case, painfully recounted. It is also about how justice can go astray. Just as it takes a village to raise a child, it takes corrupted law enforcement to frame an innocent person—corrupted investigators, corrupted crime lab personnel, corrupted medical examiners, and a dis­ trict attorney’s office willing to prosecute a trumpedup case.

In showing how the sheriff’s office and the district attorney’s office of San Bernardino County framed Kevin Cooper for these horrendous murders and how the justice system has failed him at almost every turn in his long, drawn-out appeal process, “Scapegoat” ex­ amines the broken justice system in the United States. It presents a microcosm of that broken system—a sys­ tem where far too often homicide detectives and dis­ trict attorneys become blinded by their goal of closing cases, particularly when the case is so high-profile, and winning convictions rather than searching for justice for both the victims and the accused. The Kevin Coo­ per case is a prime example of justice gone begging at both the trial and appeal levels.

If it were not for a court-ordered moratorium on ex­ ecutions in California over the lethal injection contro­ versy, Cooper—with no appeals pending—would have been executed by now. It is expected the moratorium will not be lifted until at least 2013.

Two days before the murders of Doug and Peggy Ryen, their 10-year-old daughter Jessica, and 11-yearold Christopher Hughes, Cooper escaped from a near­ by prison and holed up in a vacant house 125 yards below the murdered family’s hilltop house. Two days after the San Bernardino sheriff’s department estab­ lished that Cooper had hidden out there, it locked in on him as the lone assailant, despite numerous eyewit­ ness reports that implicated three young white men as the perpetrators.

From that day forward, four days after the murders were discovered, the sheriff’s department discarded information that pointed at other perpetrators, de­ stroyed evidence that exculpated Cooper, and planted or fabricated evidence that implicated him. Looking first at the discarded information that implicated oth­ er perpetrators:

• The only survivor of the attack, 8 1/2-year-old Josh Ryen, told ER personnel and a sheriff’s deputy that his assailants were three white men. Cooper is Black.

• Around midnight on the night of the murders, a couple, attempting to exit a driveway in their truck, saw three young white men driving rapidly down the only road that leads away from the Ryens’ house in a station wagon that was stolen from the murdered fam­ ily.

• Shortly after that sighting, two women in a nearby bar saw two young white men, one wearing coveralls, with blood splatter on their faces and clothing.

• Four days after the murders, another woman turned into the sheriff’s office bloody coveralls that her boy­ friend, a convicted murderer, had left on the floor of her closet. The woman stated she had other informa­ tion that implicated her boyfriend in the murders but wanted to be interviewed by homicide detectives. She would have told them that her boyfriend’s hatchet was missing and that he no longer had the tan T-shirt he wore the Saturday of the murders.

• The murders were committed with at least three, and probably four, weapons: a hatchet, an ice pick and one or two knives. The theory that one perpetrator could or would use three or four weapons was coun­ terintuitive to the nth degree. At trial the prosecutor argued that Cooper was ambidextrous, which he is not.

Nor could one person control two able-bodied adults and three children running around the house, one of whom, Jessica, made it outside the house during the attack. The adult victims were each fit, 41-year-old chi­ ropractors and both were mobile during the onslaught and fought hard for their lives, sustaining numerous defensive wounds to their hands and arms. Doug Ryen, a former MP in the United States Marine Corps, was 6 foot-one and 187 pounds. Peggy Ryen was 5 foot 9 and 145 pounds.

• The crime scene evidence, according to the medi­ cal examiner, showed that the mother was cradling the daughter before the mother died, which meant one of the attackers had brought Jessica back into the house. More than anything else, this meant there had to be more than one assailant because each parent kept a loaded gun in the master bedroom where the assault occurred.

• There was an uncommon viciousness to the attack 8 SOCIALIST ACTION APRIL 2012 as though the killers meant not only to murder but to send a message of payback or retribution. The medi­ cal examiner counted 144 wounds on the four mur­ der victims, including 28 fractures and two amputa­ tions. While Cooper’s trial was in progress, an inmate in a California prison told prison authorities and a San Bernardino County sheriff’s detective that his cellmate had confessed to the Chino Hills murders, stating it was an Aryan Brotherhood hit but the three killers had gone to the wrong house.

As for destroyed evidence:

• During Cooper’s preliminary hearing, the sheriff’s office destroyed the bloody coveralls. The sheriff’s of­ fice claimed it never conducted any tests of the cov­ eralls and admitted it never sent homicide detectives around to interview the woman who had turned them in.

• The sheriff’s office also destroyed a bloody blue Tshirt discarded not far from the bar. Coupled with a tan T-shirt found the next day near the bar, the two bloody T-shirts were strong proof that at least two assailants had murdered the Ryens and Chris Hughes. Testing of the tan T-shirt showed the blood on it matched the blood profile of Doug Ryen and no one else. Planting or fabricating evidence:

The prosecution’s evidentiary case against Cooper essentially consisted of three shoeprints; a tiny drop of blood collected at the Ryens’ house; a roll-your-own cigarette butt and some tobacco in the Ryens’ stolen station wagon.

• Pro-Keds Dude tennis shoes: At trial, the prosecu­ tion asserted that the footprints on a sheet from the Ryens’ master bedroom and on a Jacuzzi cover outside the master bedroom were made by a tennis shoe only available to institutions such as prisons and were not sold at retail. It did this despite Chino Prison Warden Midge Carroll’s informing one of the two lead detec­ tives on the case that Pro-Keds Dude were not any sort of special-issued shoe and were available at retail out­ lets in California and through catalogue sales.

• A-41: The only serological link to Cooper at the crime scene was a small, single drop of blood at the far end of a hallway outside the Ryens’ master bedroom, near the living room, a few inches above the hallway carpeting. This isolated drop of blood was spotted by the acting head of the sheriff’s department crime lab who would be summarily dismissed—but not pros­ ecuted—shortly after Cooper’s trial for stealing five pounds of heroin from the sheriff’s department prop­ erty room to supply his own habit and to sell to drug dealers.

A criminologist in the crime lab admitted at trial he had to alter his initial reading of A-41 to get it to match Cooper’s blood characteristics and in doing the testing he exhausted the sample, thus denying the defense any independent testing of A-41.

• Cigarette butt: The initial two inventories deputies took of the interior of the Ryens’ stolen station wagon made no reference to the presence of a roll-your-own cigarette butt or loose tobacco in the car. A later inven­ tory report—handwritten, undated, unsigned—would include both.

• Years later, in 2002, as Cooper was attempting to prove his innocence with DNA testing now afforded death-row inmates by the California legislature, his blood was now found on the tan T-shirt. To Cooper and his appeal attorneys, this showed rank tampering and (Left) After a frame-up and botched trial, Kevin Cooper hears death sentence in a San Diego court, May 1985.

planting of evidence, a belief that was greatly reinforced when it was revealed in 2004 that the vial containing Cooper’s blood, taken from him when he was ar­ rested and kept all those years in the crime lab, was discovered now to contain the DNA of at least one other person. • The day before it was discovered that Cooper had hidden out in a vacant house below the Ryens’ house, two detectives searched every room in the vacant house at the request of one of the house’s own­ ers. Nothing of evidentiary value was noted. The next day, a hatchet sheath and a bloody green button from a prison jacket were found in plain sight in the bedroom where Cooper had slept his last night. Under oath at Cooper’s trial, one of the detectives denied looking in the bed­ room, but crime scene technicians lifted his fingerprints from the door of the clos­ et where Cooper slept. It would be estab­ lished at Cooper’s trial that when Cooper escaped he was wearing a brown jacket, not a green one.

Habeas corpus hearings

In 2004, Cooper came within hours of being exe­ cuted before an extremely rare en banc ruling by the Ninth Circuit Court of Appeals stayed his execution and granted him a successive habeas corpus hearing in federal district court in San Diego. In particular, the Ninth ordered the district court to conduct DNA test­ ing on the numerous blonde or light brown hairs found clutched in Jessica’s hand and other similar hairs de­ posited on other victims.

The Ninth also ordered EDTA testing to determine if Cooper’s blood had been planted on the tan Tshirt. EDTA is an anti-clotting substance used in blood labs to preserve blood in vials, to prevent it from coag­ ulating and breaking down. If tests conducted showed high levels of EDTA on the blood attributed to Cooper on the T-shirt, it would establish tampering. If tamper­ ing were established, it would call into question all the forensic evidence the prosecution used to link Cooper to the crime scene. Cooper, after 19 years of asserting his innocence from death row, would be vindicated. At a minimum, the district court would have had to order a new trial or exonerate him outright.

Federal District Court Judge Marilyn Huff was not go­ ing to let that happen. She had turned down both of Cooper’s previous habeas appeals, finding evidence of his guilt “overwhelming.”

Over a period of a year, Judge Huff periodically held evidentiary hearings. As she did, she methodically thwarted Cooper’s attorneys at every turn, refusing to allow Cooper’s experts to participate in the EDTA test­ ing. When the private lab the court had hired to test Cooper’s blood on the T-shirt found elevated levels of EDTA, Judge Huff allowed the lab to retract its findings three weeks later on the grounds the lab itself was contaminated with EDTA during the testing.

Judge Huff dispensed with any further EDTA test­ ing by ruling that the testing of the tan T-shirt was not conclusive and that EDTA testing in general was an un­ proven science and of no value. She was wrong on both counts: both Cooper’s expert and the private lab found high levels of EDTA on the samples tested from the tan T-shirt, and EDTA testing is a proven science.

The extreme bias against Cooper that Judge Huff displayed with impunity throughout the evidentiary hearings was at its most obvious when it came to the DNA testing of the hair clutched in various victims’ hands ordered by the en banc Ninth Circuit. When a portion of those hairs had been tested in 2002, they were found to have no antigen roots, denoting that the hairs had fallen out rather than been yanked out dur­ ing the assault. Those hairs, the tests showed, were either from the victims themselves or were dog hairs.

There could be no purpose in retesting those hairs. Over half or more of the hairs in the victims’ hands or adhered to their bodies had not been tested in 2002 and may well have contained antigen roots. If the mi­ tochondrial testing of those hairs resulted in a DNA that excluded all the victims and Cooper, there would be proof positive that someone other than Cooper was a perpetrator. Judge Huff, incredibly, ordered testing only of the already tested hairs.

During the evidentiary hearings, Cooper’s lawyers in­ advertently learned for the first time about the bloody blue T-shirt found not far from the bar. How could Judge Huff get around the implications of a bloody blue and a bloody tan T-shirt found one day apart near (continued on page 11, in “Shakespeare on war & rebellion”)

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Some are already calling it the New Liberal Democratic Party. That’s clearly premature. The New Democratic Party of Canada remains a working-class, labour-based, mass electoral party. One glance at the 4000-plus del­ egates at its March 23-24 convention in Toronto con­ firmed it. The insignia of labour unions, progressive causes, and social justice movements permeated the crowd.

But the election of Thomas Mulcair as NDP federal Leader, via a delay-plagued electronic poll, raises many white (not red) flags. Did the majority of those 60,000 “instant” and other New Democrats who e-voted for Leader surrender the party to the capitalist establish­ ment, or did they just unwittingly grease the skids that way in a hasty bid for government in 2015?

(On May 2, 2011, the NDP made an historic break­ through to capture 103 seats and become the Official Opposition, the second largest contingent in Parliament. The death of Leader Jack Layton last August necessitat­ ed the race to replace him.)

Mulcair, the Montreal MP who won the top post with 57.2 per cent of the votes cast, urged the party to move “to the center,” but has ruled out an alliance with the big business Liberal Party—so far. Brian Topp, the veteran party strategist, placed second with 42.8 per cent on the final tally. Nathan Cullen, the British Columbia MP who promotes an electoral pact with the Liberals and Greens, disturbingly came third with 24.6 per cent on the third ballot.

So, if the consensus was to move more rapidly to the right, why did the election go four rounds? Because there is no such consensus. Because the party and la­ bour bureaucracies were divided, chiefly between Topp, and the former CAW negotiator and current Toronto area MP Peggy Nash who garnered 16.8 per cent on the second ballot. The inability of the top brass to settle early on one candidate fragmented the old-line social democratic faction, much to the chagrin of party icon Ed Broadbent who publicly questioned Mulcair’s commit­ ment to “NDP values.”

The fluently bilingual Mulcair tried to shore up his labour credentials by having UFCW National President Wayne Hanley nominate him. But the ex-Liberal Quebec cabinet minister harvested support extensively from a wider pool of veterans and neophytes who see Mulcair as the political pro who can take on Conservative Prime Minister Stephen Harper and win.

That proposition hinges, of course, on retaining most of the NDP’s 58 seats in Quebec. Yet Mulcair’s tenuous grip on the French-speaking nation relies on the Que­ becois’ latest gamble on Canadian federalism. It is a spontaneous version of the electoral “beau risque” of 1984, which temporarily benefited the Conservatives under Brian Mulroney. The moment there is a swing in Quebec towards national liberation and sovereignty, the staunchly federalist Mulcair, who is considerably to the right of the (resurging) Bloc Quebecois on foreign policy (especially on Israeli apartheid), will sink with the NDP like a stone.

An early signal of Mulcair’s inclination to follow a Tony Blair-like path was his stated intent to remove “demo­ cratic socialism” from the preamble to the party con­ stitution. The federal NDP executive, over which Nash presided, and then included Topp, failed to excise the term at the June 2011 federal convention in Vancouver. Mulcair also made it clear that his cap-and-trade carbon emissions policy will not impinge on the Alberta tar sands.

For the first five of the six months leadership campaign it was a race of the resumes. Most of the candidates made no mention of the Occupy movement or antiwar public opinion. They downplayed labour resistance to attacks on jobs, services, and pensions (like the wild­ cat strike by Air Canada baggage handlers) and barely mentioned 300,000 Quebecois students and other op­ ponents of major university fee hikes marching in the streets of Montreal.

The exception, and the only candidate not aligned with any faction of the NDP or the labour establishment, was Niki Ashton. The 29-year old Manitoba MP (who speaks French, English, Spanish and Greek) raised the banner of “new politics”—an appeal to youth, immigrants, work­ ers, and victims of increasingly mobile, exploitative, transnational capital.

In contrast to the other candidates, Niki campaigned for closer NDP identification with the working class. She rejects any electoral pact with the parties of big busi­ ness. She denounces the imperialist war drive, insisting that Canadian troops “be brought home now.”

Although Ashton did not demand “Canada Out of NATO,” at the March 1 Socialist Caucus-sponsored lead­ ership debate in Toronto she denounced Israeli Prime Minister Benjamin Netanyahu’s recent visit to Ottawa, and defended freedom of speech for advocates of Boy­ cott, Divestment and Sanctions aimed at the Zionist apartheid state. While Ashton does not advocate public ownership, she praised the successful effort of the So­ Tyler Anderson / National Post (Left) New Democratic Party Leader Thomas Mulcair.

Ocialist Caucus to keep “socialism” in the par­ ty’s constitution. She advocates the creation of a public corporation to provide generic medical drugs. She cited Manitoba’s practice of no public funding for Catholic or any reli­ gious schools as a model for Canada.

Ashton has been willing to rock the boat. She challenged an NDP incumbent MP in 2005 who opposed equal marriage rights for same-sex couples. Niki won the nomina­ tion, and was elected MP in 2008, and again in 2011. The NDP Socialist Caucus endorse­ ment of her can be seen at www.ndpsocial­ ists.ca.

Sadly, Niki Ashton received only 5.7 per cent of the votes on the first ballot. How much better would she have done, indeed what impact would a properly funded So­ cialist Caucus candidate for Leader have had, if more of the radical left outside the party joined the struggle?

On the convention floor, where for the first time in CCFNDP history there was no policy debate or discussion, it took a cyber attack that disrupted voting for hours to highlight a serious flaw in the One Member One Vote mechanism. It isolates voters and it invites e-mischief on a grand scale. Still, there is an even more compelling reason to dump OMOV. It is the need to raise the level of political discourse, and to give some substance to party membership and to meaningful participation in policy direction. That’s why the Socialist Caucus campaigns for a return to delegated conventions, where delegates elected by active NDP members at riding association, youth club, or affiliated union meetings gather to debate resolutions proposed by grassroots organizations.

Less than 50 per cent of the current 131,000 members voted for a new Leader, and one can only guess at how many were more influenced by the commercial media in making their choice, rather than by any knowledge of, or commitment to working-class principles.

Undemocratic obstacles proliferated in the period preceding the vote. To run for Leader a candidate had to pay $15,000 to register, plus turn over 40 per cent of all campaign contributions to party headquarters. No serious campaign could get off the ground for less than $100,000. No group in the NDP could have a display booth at the convention without paying $1500 for the privilege.

Any member who paid up to $400 for a delegate’s badge could attend the convention in Toronto—where there was no microphone, no policy debate, and no vot­ ing on issues on the floor. Not counting travel, housing and food, that’s a rather pricey admission just to be able to wave a sign or bang a drum.