Probe Sought in Death Row Case

A day after a federal appeals court spared the life of convicted killer Kevin Cooper and ordered further testing of evidence, the death row inmate’s defense team called Tuesday for an independent investigation of the case.

State and local prosecutors who have been pushing for Cooper’s execution “are not in a position to conduct a fair and comprehensive investigation,” said Lanny Davis, the former counsel to President Clinton who heads Cooper’s defense.

Davis said the defense team would send a formal written request to Gov. Arnold Schwarzenegger and California Atty. Gen. Bill Lockyer, urging them to name an outside investigative agency, such as the FBI, the U.S. Justice Department or a federal district court special master to lead an independent inquiry.

Cooper was convicted of the brutal slayings of four people: Doug and Peg Ryen, their 10-year-old daughter, Jessica, and Christopher Hughes, an 11-year-old houseguest. All four were killed with a knife and hatchet in the Ryen home in Chino Hills in 1983. Cooper has maintained his innocence during 18 years on death row.

Margita Thompson, a spokeswoman for Schwarzenegger, said the governor had not yet received the request. But, she quickly added, “based on [Davis’] unsupported claims to the press, we believe his request has no merit.”

The debate over Cooper’s case centers primarily on four pieces of evidence: a blood spot and a shoe print found in the home of the murder victims, a bloody T-shirt found near the scene, and blond hairs found clutched in Jessica Ryen’s hand.

Legal proceedings and further tests of that evidence will almost certainly take months and could stretch into next year, legal experts said.

That prospect brought anguished complaints from relatives of the victims. Cooper’s supporters, by contrast, said his close approach to death -- and the last-minute court decision that kept him alive -- illustrated fundamental problems with the death penalty.

“There’s no justice for victims in the U.S., and we’re fed up with the system right now,” said Mary Ann Hughes, Christopher’s mother. “We think the system has failed our son completely.”

Lockyer said state officials “will comply with the court’s order, and we will do everything possible to ensure that further litigation is concluded as expeditiously as possible.”

“The families and friends of the four murdered victims deserve a swift resolution to this case,” Lockyer said.

But Greg Evans, one of Cooper’s lawyers, said the case shows that “our system of justice is not perfect; it is open to misconduct by prosecutors.”

“What gives us hope for Kevin Cooper is that our system is willing to correct its own errors,” Evans said.

Members of the defense team said they relish the opportunity to pursue the court-ordered evidence testing. In addition, defense lawyer David Alexander declared, “there is no question we will be presenting new evidence never heard by any jury or considered on the merits by any court.”

“This is the best method of getting to the truth,” Davis said.

Cooper was less than eight hours from being executed when the U.S. 9th Circuit Court of Appeals ordered his lethal injection postponed.

The Rev. Jesse Jackson, who recently got involved in the case and met with Cooper four times in the last week at San Quentin prison, said Cooper had been moved to a holding cell to get him ready for the execution when the news came.

“He was putting on his best face,” Jackson said. “At 6:30 p.m., he was still believing he could die” at one minute after midnight, the scheduled time of the execution.

But at 8:24 p.m., the U.S. Supreme Court, in a one-paragraph order without explanation, declined to overturn the 9th Circuit’s action and guaranteed Cooper another day in court.

The next step will be for the case to return to U.S. District Judge Marilyn Huff in San Diego, who will decide how to proceed with the testing the court of appeals has ordered.

The appeals court ordered testing to determine whether a blood drop left outside Doug and Peg Ryen’s bedroom had been treated with a preservative known as EDTA, commonly used to take calcium out of solutions.

A DNA test has shown that the blood was Cooper’s. But defense lawyers argue that the blood could have been planted by investigators. If the blood contains significant amounts of EDTA, that would indicate it was taken from the police laboratory and placed in the home, the defense maintains. The defense makes a similar argument about the blood on the T-shirt, which was found by the side of the road leading from the Ryen’s home.

In arguing for the reliability of the evidence, prosecutors say the blood near the bedroom was marked as evidence before Cooper was even caught, and that the T-shirt blood was introduced in Cooper’s trial and preserved throughout by the San Diego County Superior Court evidence clerk.

Defense lawyers said they wanted an independent laboratory to conduct the testing because they lacked confidence in the laboratories that have been used in the case.

The defense wants “reliability, verifiability and accountability,” Evans said.

Who does the testing will be up to Judge Huff.

Peter DeForest, professor of criminalistics at the John Jay College of Criminal Justice in New York, said that at the very least, “you would want someone who has experience” in this kind of testing.

“It is important to look at the nature of the bloodstains, including their shape,” DeForest said. “Are they stains that are suggestive of someone dropping something” from a test tube “or a spatter that would be consistent with a violent act? It needs to be looked at in the total context.”

DeForest added that trace amounts of EDTA can show up in someone’s blood because the chemical is used in household products, such as contact lens solution and some laundry detergents. But if a high level of EDTA is found in the blood sample, that could indicate that the blood had been planted, he said.

The hairs found in Jessica Ryen’s hand have been a persistent subject of debate. Cooper is black, and defense lawyers argue that the blond hairs in her hand indicate that she was trying to fend off a blond attacker.

Potential witnesses have come forward, stating in sworn affidavits that two or three white men “covered in blood” entered a Chino Hills bar near the Ryen home on the night of the murders. The men had blond hair, the witnesses say.

Prosecutors dismiss that contention. A bartender and waitress from the bar testified during the trial and provided contrary information about the men, saying they were not covered in blood, said John Kochis, San Bernardino County’s chief deputy district attorney.

“Our statements came from employees paid to notice what was happening in their business, not those having a good time and drinking, who I don’t believe ever contacted law enforcement before this last minute,” Kochis said.

Prosecutors say they believe the hairs were Jessica Ryen’s own or belonged to family members. Earlier in the case, the defense had hired an expert to analyze the hairs found in her hand, and that expert could not disprove the prosecution’s contention because of the chaotic crime scene and the home’s dirty carpet, Kochis said.

The fact that the hairs did not have pieces of skin attached to the roots reduced the possibility that they were pulled from the girl’s attacker, he added.

Another point of contention is the shoe prints found at the murder scene. At trial, the prosecution said Cooper was wearing a type of tennis shoe that could have been worn only by a prisoner. A company representative testified that the shoes were manufactured by Stride Rite solely for distribution in prisons and other institutions. Cooper had escaped from the California Institution for Men, in Chino, on June 2, 1983, and the murders occurred two nights later.

Defense lawyer Davis said the prosecution statement that the shoes were worn only by prisoners was not true and that prosecutors “knew that was not true” during the trial.

The appeals court’s decision went into considerable detail on the shoes, which played a key role in the court’s decision.

The majority cited two sworn declarations, signed last month, that were filed by Cooper’s defense team. One was a declaration by Midge Carroll, former warden at the Chino prison. Carroll said she had told a leading prosecution investigator that “the notion that the shoe prints in question likely came only from a prison issue tennis shoe was inaccurate.”

Staffers had told her that the shoes used in the prison “were common tennis shoes available to the general public through Sears and Roebuck and other such retail stores,” Carroll said. “Had I been contacted, I would have testified to this on behalf of either the prosecution or defense, and I would have provided supporting documentation.”

The appeals court ruled that prosecutors were required to turn Carroll’s statement over to the defense because it provided potential evidence in favor of Cooper. The fact that they did not could have violated Cooper’s rights to a fair trial, the court said, noting that the bloody shoe print was one of only two pieces of evidence showing that Cooper had been in the Ryen home.

The appeals court directed Judge Huff to determine whether the failure to turn over the statement by Carroll violated Cooper’s rights.