Two-and-a-half years ago, Kevin Cooper’s lawyer, Norman Hile, submitted to Governor Jerry Brown a 235-page clemency petition, pleading for advanced DNA testing of evidence from the quadruple murder that sent Cooper to death row in 1985. The appeal garnered enormous support, from former American Bar Association President Paulette Brown and four California law school deans, to five of the original jurors who signed declarations expressing concerns about the case.
Last week, Brown finally agreed to consider the petition. “Your allegations clearly deserve the serious consideration they have received and we now request more information in order to complete our evaluation of your requests for additional testing,” Peter Krause, Brown’s legal affairs secretary, wrote in a letter to Hile. The letter lists 19 questions concerning issues such as why the defense thinks evidence was tampered with, how it was tampered with, and what advanced DNA testing — “touch DNA” as it’s called — will reveal, with a request that Hile respond no later than August 17.
Cooper has legions of supporters, and they have never flagged in believing in his innocence and demanding that advanced DNA testing be done now that he has exhausted all appeals. But interest in his case intensified in May after New York Times columnist Nicholas Kristof published an exhaustive review of the case and wrote, “In 34 years at the New York Times, I’ve never come across a case in America as outrageous as Kevin Cooper’s.”
Almost immediately after the column was published, both California Senators Dianne Feinstein and Kamala Harris (who declined to allow testing when she was California’s attorney general) as well as at least two major California newspapers, called on Brown to grant the petition.
Cooper, who is 60, was sentenced to death for the murder of four people and the attempted murder of a fifth person, in a suburb of Los Angeles in June 1983. Prosecutors said Cooper, who had escaped from a minimum-security prison and had been hiding out near the scene of the murder, killed Douglas and Peggy Ryen, their 10-year-old daughter, Jessica, and 10-year-old Chris Hughes, a friend who was spending the night at the Ryen’s. The lone survivor of the attack, eight-year-old Josh Ryen, was severely injured but survived.
Investigators arrested Cooper after they said they found a bloody footprint, blood, and a cigarette paper at the scene that tied him to the crime. The problem was that Josh Ryen, the only eyewitness to the murders, initially told police that three white or Latino men had attacked the family, and did not identify Cooper, who is African-American, as the killer.
For 33 years, Cooper, who had never been convicted of a violent crime prior to being sent to death row, has insisted he is innocent, and there are serious questions about evidence that was missing, tampered with, destroyed, possibly planted, or hidden from the defense.
Cooper has filed multiple appeals, all of which have been denied. However, in May 2009, when the Ninth Circuit Court of Appeals denied a request for a rehearing of the full court (en banc) of its 2007 denial, five of the judges filed dissents, with six judges joining, and the judge who wrote a denial in 2007 filed a concurrence.
In his dissent, Ninth Circuit Judge William A. Fletcher wrote, “Kevin Cooper has now been on death row for nearly half his life. In my opinion, he is probably innocent of the crimes for which the State of California is about to execute him.” (In 2014, in the New York University Law Review, Fletcher wrote, “Kevin Cooper . . . is on death row because the San Bernardino Sheriff’s Department framed him.”)
That Brown is indicating he is at least open to considering new testing is welcome news, albeit long overdue. In a new column in Thursday’s Times, Kristof wrote, “Let’s hope that Brown proceeds soon with the advanced DNA testing. I’m betting that testing will not only free an innocent man but also lay bare police corruption and a criminal justice system that too often doesn’t have anything to do with justice.”