End to California execution moratorium raises controversial death penalty case

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Man on Death Row Appeals to CA Governor

California lifted a moratorium on executions in November and is now set to execute Kevin Cooper — even though several federal judges say he may be innocent.

Having exhausted all his options in court, Cooper, 57, is about to file a last-ditch appeal with Gov. Jerry Brown. In a new interview from death row, Cooper says he is pleading with Brown to bring "an open mind" about the evidence in his case.

"I am the only person in the history of the state to have five federal circuit judges say that 'the state of California may be about to execute an innocent man,'" Cooper told NBC News.

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End to California execution moratorium raises controversial death penalty case
Religious and community leaders, along with protesters gather Tuesday, Feb. 3, 2004, in front of the church that California Gov. Arnold Schwarzenegger attends. They held a news conference to protest the scheduled execution of Kevin Cooper, calling on the governor to halt the execution. Cooper, scheduled to die by lethal injection next week for the 1983 slaying of four people, challenged California's method of execution in federal court here Monday. (AP Photo/Ric Francis)
Former boxer, Rubin, "Hurricane" Carter, who spent nearly 20 years in prison after being falsely convicted of a triple murder, holds up the writ of habeas corpus that freed him from prison,during a news conference held in Sacramento ,Calif., Thursday Jan. 29, 2004. Carter and others urged Gov. Arnold Schwarzenegger to delay the execution of Kevin Cooper who is scheduled to be executed Feb. 10th for the murder of four people in 1983. Carter said that in Cooper's case, like his own, the prosecution ignored and withheld evidence that might prove Cooper did not commit the crime. (AP Photo/Rich Pedroncelli)
Mary Ann Hughes holds a photo of her late son, Christopher, Friday, Jan. 30, 2004, in her home in Chino Hills, Calif. Kevin Cooper was convicted in the 1983 murders of Douglas and Peggy Ryen, both 41, their 10-year-old daughter, Jessica, and her 11-year-old friend, Christopher Hughes. California Gov. Arnold Schwarzenegger on Friday denied clemency to Cooper. (AP Photo/Damian Dovarganes)
Mary Ann Hughes, poses with a photo of her late son Christopher, then six, Friday Jan.30, 2004, at her home in Chino Hills, Calif. On a June night in 1983, her son Christopher was having a sleepover at the sprawling, hill-top Chino Hills home of Douglas and Peggy Ryen with their two children, Jessica, 10, and Joshua, 8, when they were attacked by someone using a hatchet and a knife. Twenty-one years later, she said she has reserved seats to the convicted killer's execution. And she's keeping her fingers crossed last ditch efforts by celebrities such as Denzel Washington and Mike Farrell to keep Kevin Cooper alive won't get his Feb. 10 execution date postponed.(AP Photo/Damian Dovarganes)
Actor Mike Farrell, right, and the Rev. Jesse Jackson, chat before addressing a group of protesters Tuesday, Feb. 3, 2004, in front of the church that California Gov. Arnold Schwarzenegger attends. They held a news conference to protest the scheduled execution of Kevin Cooper, calling on Schwarzenegger to halt the execution. Cooper is scheduled to die by lethal injection next week for the 1983 slaying of four people. (AP Photo/Ric Francis)
** CORRECTS TO MIKE FARRELL ** Actor Mike Farrell, right, addresses a group of protesters as Rev. Jesse Jackson, left, and other religious and community leaders listen Tuesday, Feb. 3, 2004, in front of the church that California Gov. Arnold Schwarzenegger attends. They held a news conference to protest the scheduled execution of Kevin Cooper, calling on Gov. Schwarzenegger to halt the execution. (AP Photo/Ric Francis)
Jonathan Richman, at left, was among a group of anti-death penalty advocates attending a rally in downtown San Francisco, Tuesday, Feb. 3, 2004. Anti-death penalty advocates are gathering in San Francisco for the Feb. 10 execution of Kevin Cooper at San Quentin. Cooper was convicted of murdering two children and two adults in a Chino Hills home shortly after escaping from the California Institution for Men in nearby Chino in 1983. (AP Photo/Marcio Jose Sanchez)
Activist Jahahara Alkebulan-Ma'at, left, leads a chant denouncing the death penalty at a rally in downtown San Francisco, Tuesday, Feb. 3, 2004. Anti-death penalty advocates are gathering in San Francisco for the Feb. 10 execution of Kevin Cooper at San Quentin. Cooper was convicted of murdering two children and two adults in a Chino Hills home shortly after escaping from the California Institution for Men in nearby Chino in 1983. (AP Photo/Marcio Jose Sanchez)
Protesters attend a rally in downtown San Francisco, Tuesday, Feb. 3, 2004, to denounce the Feb. 10 execution of Kevin Cooper at San Quentin State Penitentiary. Cooper was convicted of murdering two children and two adults in a Chino Hills home shortly after escaping from the California Institution for Men in nearby Chino in 1983. (AP Photo/Marcio Jose Sanchez)
Former United Press International reporter Kristina Rebelo-Anderson speaks at a news conference, Thursday, Feb. 5, 2004, in Los Angeles, as Attorney Greg Evans, left, who represents convicted killer Kevin Cooper, looks on. Attorneys for Cooper released sworn statements from Rebelo-Anderson, who covered Coopers murder trial in 1984-85, that point to alleged planted evidence in the investigation of the murder of a Chino Hills, Calif., couple, their 10-year-old daughter and their daughter's 11-year-old friend in 1983. Cooper is scheduled to be executed for the crimes Feb. 10. (AP Photo/Nick Ut)
The Rev. Jesse Jackson, left, and actors and activists Mike Farrell, foreground right, and James Cromwell, background right, listen as David Alexander, center, one of Kevin Coopers' lawyers speaks Sunday, Feb. 8, 2004, outside the home of California Gov. Arnold Schwarzenegger in the Brentwood section of Los Angeles. Approximately 80 activists gathered at the site to protest the scheduled execution of Kevin Cooper, calling on governor Schwarzenegger to halt the execution. (AP Photo/Ric Francis)
The Rev. Jesse Jackson calls for another look into the evidence against death row inmate Kevin Cooper, during a news conference in Sacramento, Calif., Monday, Feb. 9, 2004. Cooper, who is scheduled to be executed at 12:01a.m. Tuesday, was convicted of the 1983 slayings of four people in Southern California. The 9th U.S. Circuit Court of Appeals granted a stay of execution Monday, to consider whether DNA evidence connecting Cooper to the crime should be retested. (AP Photo/Steve Yeater)
** ADVANCE FOR WEEKEND EDITIONS, FEB. 14-14 AND THEREAFTER ** Attorney Lanny Davis, a former White House special counsel, poses next to pictures of him with President Bush and former President Clinton in his Washington office, Thursday, Feb. 12, 2004. Condemned murderer Kevin Cooper would almost certainly be dead today if it weren't for an unorthodox dream team of lawyers, a commercial litigator, a corporate trial lawyer, and Davis, who stepped in just weeks before his scheduled execution and won him a rare stay. (AP Photo/Manuel Balce Ceneta)
** ADVANCE FOR WEEKEND EDITIONS, FEB. 14-14 AND THEREAFTER ** Attorney Lanny Davis, a former White House special counsel, works the phone in his Washington office, Thursday, Feb. 12, 2004. Condemned murderer Kevin Cooper would almost certainly be dead today if it weren't for an unorthodox dream team of lawyers, a commercial litigator, a corporate trial lawyer, and Davis, who stepped in just weeks before his scheduled execution and won him a rare stay. (AP Photo/Manuel Balce Ceneta)
Chino Hills, Feb. 03, 2004 ÂÂÂÂ Bill (Cq), 61, and Mary Ann Hughes (Cq), 54, at their home in Chino Hills where their murdered son Christopher Hughes's photos adorn the walls. Hughes family is awaiting the Fe. 10 execution of convicted killer Kevin Cooper, who mudered three members of the Ryan family and their 11ÂyearÂold house guest Christopher Hughes in 1983. (Photo by Irfan Khan/Los Angeles Times via Getty Images)
Religious leaders stage a vigil and news conference outside St. Monica's Church in Santa Monica to call on Governor Arnold Schwarzenegger to halt the execution of Kevin Cooper for murder 02/03/2004. Cooper is scheduled to be executed Tuesday 02/10/2004 at midnight. Here younsters from New Roads Middle School in Santa Monica listen to the rally. (Photo by Bob Chamberlin/Los Angeles Times via Getty Images)
SAN QUENTIN, CA - FEBRUARY 9: A dog named Governor sits in a car outside of the California State Prison at San Quentin February 9, 2004 in San Quentin, California. A decision by an 11-judge panel of the 9th U.S. Circuit Court of Appeals on Monday barred the execution of convicted killer Kevin Cooper saying evidence in his case should get a fresh look after 18 years of appeals. Cooper was to be executed by lethal injection for hacking four people to death in 1983. (Photo by Justin Sullivan/Getty Images)
SAN QUENTIN, CA - FEBRUARY 9: Muranda Jacques and Leo Lopez of San Jose rest outside of California State Prison at San Quentin February 9, 2004 in San Quentin, California. The pair walked with other protestors from San Francisco in opposition to the execution of convicted killer Kevin Cooper. A federal appeals court today granted a stay of Cooper's execution scheduled on February 10, saying that evidence in the case deserves a fresh look after 18 years of appeals. Cooper was convicted of hacking to death four people in 1983. (Photo by Justin Sullivan/Getty Images)
SAN QUENTIN, CA - FEBRUARY 9: Reverend Jesse Jackson waits to enter the California State Prison at San Quentin for a meeting with convicted killer Kevin cooper February 9, 2004 in San Quentin, California. A decision by an 11-judge panel of the 9th U.S. Circuit Court of Appeals on Monday barred the execution of convicted killer Kevin Cooper, saying evidence in his case should get a fresh look after 18 years of appeals. Cooper was to be executed by lethal injection for hacking four people to death in 1983. (Photo by Justin Sullivan/Getty Images)
SAN QUENTIN, CA - FEBRUARY 9: Melanie Bostic (L) of Lancaster, California and Michael Wharton of San Leandro, California hold a sign outside of the California State Prison at San Quentin February 9, 2004 in San Quentin, California. A decision by an 11-judge panel of the 9th U.S. Circuit Court of Appeals on Monday barred the execution of convicted killer Kevin Cooper, saying evidence in his case should get a fresh look after 18 years of appeals. Cooper was to be executed by lethal injection this evening for hacking four people to death in 1983. (Photo by Justin Sullivan/Getty Images)
Convicted killer Kevin Cooper listens with closed eyes as a judge in San Diego, Ca., sentenced him to death, Wednesday, May 15, 1985, for the slaying of four Chino Hills residents. (AP Photo)
Kevin Cooper, center, a suspect in connection with the slashing death of four people in Chino, is escorted to a car for transport to San Bernadino from Santa Barbara, Calif., after he was arrested by police at Santa Cruz Island, July 31, 1983. (AP Photo)
San Bernardino County Sheriff Floyd Tidwell examines blood stains found on the doorway leading into the master bathroom in the home of F. Douglas Ryen and his wife Peggy, in Chino, Calif., June 8, 1983. The Ryens, who along with their daughter and a neighborhood friend, were found brutally murdered, early morning June 5. The Ryen's son, Joshua, remains hospitalized after being critically injured in the attack. (AP Photo/Reed Saxon)
San Bernardino County Sheriff's investigators head into the master bedroom of the home of F. Douglas Ryen and his wife Peggy, in Chino, Calif., June 8, 1983. The Ryens, who along with their daughter and a neighborhood friend, were found brutally murdered, early morning June 5. The Ryen's son, Joshua, remains hospitalized after being critically injured in the attack. (AP Photo/Reed Saxon)
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Cooper is referring to rulings by the top federal court in California, the Ninth Circuit, which found prosecutors illegally withheld evidence that cast doubt on his guilt. Still, the court upheld his conviction for an infamous quadruple murder.

It all began in June 1983, when four people were found brutally murdered in a ranch house in Chino Hills, a Los Angeles suburb.

Douglas and Peggy Ryen, their 10-year-old daughter Jessica, and 10-year-old Chris Hughes, who was staying at the house, were all hacked and slashed to death. They received over 144 wounds in four minutes, according to the coroner. Josh, the Ryens' 8-year-old-son, was found with his throat slit but managed to survive.

The boy's memory of the murders would prove to be pivotal in the case, cited by prosecutors to prove Cooper was the killer — and by those who insist Cooper is innocent.

Ryen initially said that three white or Latino men murdered his parents. That account, combined with physical evidence that suggested multiple killers, led police to release a criminal bulletin seeking three suspects who were "white or Mexican males."

Other early clues supported that theory.

On the night of the murders, two witnesses saw three white men driving a station wagon down the dead-end road away from the house. The family's station wagon was stolen that night.

Then a local woman, Diana Roper, told police she thought her estranged husband was involved in the "Chino Murders," according to records from the sheriff department.

The man, Lee Furrow, was a white convicted murderer. She said his hatchet was missing. And, most critically, she told police he left coverall pants, splattered with blood, at her house on the night of the murder.

Roper gave police the bloody pants, but they did not test them.

Instead they threw the pants out in a dumpster.

Destroying evidence was not only bad police work — it was also illegal, as the Ninth Circuit court would later rule.

But why did police scuttle a potential lead? They had begun zeroing in on Cooper. And they had a reason.

Police discovered that before the murders, Cooper escaped a minimum-security prison and hid out at a house right by the Ryen residence. As a local NBC anchor reported during at the time, police began to think "the murderer may have stayed in the house next door," then attacked the Ryens.

That led to a new theory: fugitive Kevin Cooper as the sole killer.

Authorities began with circumstantial evidence for the theory. It was undisputed that Cooper was nearby, had a criminal record of burglary convictions, and was on the run from the law. Prosecutors, however, usually need more than circumstance for a murder conviction.

At trial, they offered other evidence to physically link Cooper to the crime, such as blood, shoeprints and testimony from Josh Ryen, the 8-year-old survivor.

When Cooper was first arrested and his face was shown on TV in June 1983, Josh Ryen said that was not the man who killed his parents. On two occasions, in fact, he told his grandmother and a sheriff's deputy that Cooper was not the killer.

At trial, however, prosecutors were able to present different testimony.

Prosecutors said Ryen no longer thought three white or Latino people killed his family, and that he had come to realize there was one killer — Kevin Cooper. They introduced that version of the testimony at trial. (In later hearings, Cooper's lawyers would argue that he was denied the right to fully cross examine the one eyewitness accuser).

Prosecutors also argued that crucial shoeprints at the scene must be from Cooper, because they were prison-issued shoes which he owned that were not for sale to the general public.

It sounded like damning evidence — although the warden at Cooper's own prison said it wasn't true. Prosecutors hid that rebuttal from the jury, which an appeals court later held was illegal.

Finally, prosecutors said they had Cooper's blood in the house. They alleged that a drop on the wall matched Cooper's blood sample — a crucial allegation, since he claimed he had never been in the house, or met the Ryen family.

After seven days of deliberation, the jury found Cooper guilty and he was sentenced to death.

"I MET THEIR VOLUNTEER EXECUTIONERS"

Cooper maintained his innocence, but state courts rejected all his appeals.

Then-Governor Arnold Schwarzenegger declined to intervene, saying evidence of Cooper's guilt was "overwhelming," and Cooper's execution was scheduled for Feb. 10, 2004. His only hope was intervention by a federal court.

As the date approached, that seemed increasingly unlikely, and Cooper recalls being led into the death chamber that day.

"I met their volunteer executioners," Cooper said. "They had me stand there butt-naked in that death chamber."

"You watch the clock as your life goes off, minute by minute," Cooper told NBC News. "I was ten feet away from being murdered."

Then with three hours left, the Ninth Circuit halted the execution.

The judges decided to convene a special review of the case by every member of the court — which happens in less than one percent of cases — and then they ruled that some evidence used against Cooper was flawed and illegal.

The court found that the warden of the prison where Cooper served, in 1983, said that prison did not give out special prison shoes. That undercut the prosecution's claim. And the warden said he told investigators that fact before the original trial, which they hid.

The court ruled prosecutors broke the law by withholding that evidence, and "Cooper was almost certainly not wearing" the shoes from the crime scene.

If they weren't Cooper's shoeprints, whose shoes were they? That question has never been answered.

The judges went further, probing the police destruction of Lee Furrow's bloody coveralls. They also noted a new jailhouse confession from an associate of Furrow's, who said he did the crime part of an attempted revenge killing, but it mistakenly "hit the wrong house."

The court ordered new proceedings and blood testing, noting that "no person should be executed if there is doubt" about guilt.

MORE EVIDENCE, MORE QUESTIONS

As the evidence in the public record shifted, some jurors from Cooper's original trial expressed doubts.

"I let the police misconduct go and sentenced Mr. Cooper to death," one wrote in 2004. "I now regret that decision."

Others involved in the case vigorously disagreed.

Dennis Kottmeier, the district attorney who prosecuted Cooper, maintained it was "the strongest evidentiary case" he "had ever seen."

Bill Hughes, the father of victim Chris Hughes, said the 2004 ruling was "unfathomable."

"We know he's guilty," he said after the ruling. "We know that we have the truth on our side."

The Court's decision did not overturn Cooper's conviction. It stayed the execution pending further tests and fact-finding by a lower court. That process unearthed more irregularities.

A "STARTLING" BLOOD DISCOVERY

It turned out that the state's original test on blood in the house did not match Cooper. Then a later test did, and the state changed the criminologist's original notes about the shift.

Then, when the state lab provided material for new tests under the 2004 court order, it accidentally sent out Cooper's original blood sample, drawn in August 1983, for testing. This was the first time that blood evidence was ever examined by independent experts who did not work for the prosecution.

What they found was, as a judge would later write, "truly startling."

The blood which had always been presented as a sample of solely Cooper's blood, drawn from his body, actually contained DNA from two different people.

That meant either the original blood sample was compromised, such as by lab error, or someone with access to the sample deliberately, illegally tampered with it.

When Cooper's lawyers asked for a hearing on this discovery — that the blood sample supporting his murder conviction was flawed — the judge denied any further inquiry into the issue.

Speaking from death row now, Cooper says that evidence is critical.

"We now know that was not my blood, it had somebody else's DNA in it," he said. "They put my blood in that container" for blood found at the crime scene, he alleged, "and that's why you've got two DNAs in there. That's what I believe."

The issues with the blood evidence could raise reasonable doubts, but in the new proceedings, the state emphasized other evidence that it said proved Cooper's guilt, from cigarettes found in the Ryen family car to Josh Ryen's testimony.

"HE SLIT MY THROAT"

Ryen, then an adult, spoke at the new hearings and offered a powerful recollection of the crime.

"The first time I met Kevin Cooper, I was eight years old and he slit my throat," Ryen said.

The judge did not allow Cooper's lawyers to cross-examine Ryen, who gave unsworn testimony. The judge also denied fact-finding on the reliability of Ryen's original memories, or the impact of police interviews when he was a child.

The state insists Ryen's testimony, both from the original trial and as an adult, speaks for itself. Cooper's lawyers say experts suggest Ryen's initial account — of three white or Latino killers — is probably more accurate than a story which shifted after interrogation.

When asked about Ryen's testimony, Cooper says "I don't blame him."

"He told the truth — he saw my picture on TV and said, 'No that's not him,'" Cooper says, citing Josh's first reactions as an 8-year-old. "They manipulated him... So I am not angry with him, I understand what they did to him."

The district court ultimately upheld Cooper's conviction. The Ninth Circuit again reviewed the case in 2009, this time upholding the conviction.

That ruling featured an unusually blunt and vigorous dissent by five judges, which not only said Cooper may be innocent — as he has highlighted — but also suggested the lower court judge defied its 2004 order for new tests.

"There is no way to say this politely," the judges wrote. "The district court failed to provide Cooper a fair hearing and flouted our direction" on testing.

On the critical questions regarding Josh Ryen's memories, the judges wrote that police "misrepresented his recollections and gradually shaped his testimony so that it was consistent with the prosecution's theory that there was only one killer."

To be clear, no court has ever established that the state framed Cooper, but the judges did call out California prosecutors for suspicious activity regarding the spot of blood at the crime scene.

"The drop of blood has a history of being 'consumed' during testing," they wrote, "and then inexplicably reappearing in different form for further testing when such testing would prove useful to the prosecution."

Taken together, the judges concluded the evidence against Cooper was so weak, it's "highly unlikely that Cooper would have been convicted" if prosecutors had not illegally denied exculpatory evidence at trial.

It's a rare and detailed dissent — but in the end, more judges on the court upheld Cooper's conviction.

That majority opinion stressed that the questions in Cooper's case are mostly old, known, and have been extensively litigated; that the California Supreme Court ruled the "volume and consistency of the evidence is overwhelming" for Cooper's guilt; and that any shortcomings discovered did not put that in serious doubt.

Cooper has no more court appeals, so barring intervention by Gov. Brown, he will be executed. No date has been set; Cooper is one of 28 convicts on the state's death row who have exhausted all court appeals.

"I AM INNOCENT"

Cooper says he is hopeful the public or Gov. Brown will focus on the evidence, not no him.

"I'm not asking America as a whole, or any one person in particular, to believe me. Forget what I say," he told NBC News. "I'm asking people to believe those [judges]," he said.

When asked about the murder and his criminal record, Cooper says he did not kill the Ryen family or enter their home, and that he didn't lie about his earlier crimes.

"When I was convicted of burglary, I pled guilty to those," Cooper said, "because I did them."

Asked about what he's learned through this process, Cooper said he thinks the justice system discriminates based on money.

"The only people who are on death row are poor people," he says. "No matter what their culture, or their skin color, or their religion, we're all poor."

Finally, when asked what he would want people to know about his case if he is executed, Cooper was unequivocal.

"I am innocent," he said. "And it's not my execution, it's my murder."

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