Jewish World Review Feb. 13, 2004 / 21 Shevat, 5764
Debra J. Saunders
The flimflam defense
Dr. Edward T. Blake boasts that he has been "involved in more post-conviction exonerations than anybody in the world." Blake has worked for Barry Scheck's The Innocence Project. Blake also did forensic testing for Death Row inmate Kevin Cooper whose execution was stalled this week by the 9th Circuit U.S. Court of Appeals starting when the trial began for the 1983 Chino Hills, Calif., murders of Doug and Peggy Ryen, their 10-year-old daughter, Jessica, and 11-year-old Christopher Hughes, and near-fatal attack of young Joshua Ryen.
With those credentials, you would expect Blake to be the last man to object to the 9th Circuit's ruling to postpone the Cooper execution pending what the court termed "an easily available test (that) will determine guilt or innocence." But Blake told me over the phone Wednesday: "What is going on here is an outrage. It's an abuse of process. The reason that I'm outraged is, when you abuse the process, you no longer have a legitimate process that's out there to save people who are actually innocent."
"People who are actually innocent" which I take means not Cooper.
To the uninitiated, the court's move seems benign. "No person should be executed if there is doubt about his or her guilt and an easily available test will determine guilt or innocence," the court argued. Who wouldn't agree? But, as Blake well knows, the two tests ordered by the federal court can't deliver as promised.
There is a test that can determine guilt. Four years ago, Cooper demanded DNA tests that he said would exonerate him. When the tests were done, Cooper's DNA was found on a T-shirt discovered away from the crime scene, in the Ryens' house (which he swore he never entered) and in the Ryens' car (which he said he never drove). So Cooper's story changed.
Now, Cooper's latest crop of lawyers argues that investigators tampered with the DNA evidence, which can be proved by the "presence" of the blood coagulant EDTA on the T-shirt, according to the clemency petition. If EDTA is "present," the court parroted, "that will show that his blood was placed on the T-shirt after the fact by someone who had access to drawn blood."
The court was snookered. EDTA can be found in detergents, hand creams and other products. An expert has to establish a forensically significant level of EDTA to establish tampering a "virtually impossible" feat, Blake said, when the blood on this shirt was but a thin smear.
Blake said it was he who, when prosecutors finally relented to DNA tests in 2000, conducted the DNA testing of the T-shirt with an expert for the prosecution. The judges, Blake marveled, are actually taking seriously the proposition that criminologist Dan Gregonis, acting in concert with the court clerk of the San Diego County Court, put a minuscule amount of Cooper's blood on that shirt in anticipation of the day when there would be technology available to prove that Cooper's blood was on a shirt "that the state never took seriously in 1983." It's preposterous.
For dessert: Dr. Kevin Ballard is the expert who wrote Cooper's declaration pushing for EDTA tests. In 1997, a New Jersey Superior Court excluded Ballard's testimony after finding that "Ballard skewed the presentation of his (EDTA) data, obscured the significance of his findings and changed his hypotheses to suit defendant's tampering theory."
Last year, Missouri prosecutors released a Veterans Affairs nurse who had been charged with murdering 10 patients after Ballard declared that tests he conducted were flawed.
The 9th Circuit also ordered mitochondrial DNA testing of "blond or light brown hair in Jessica Ryen's hand." "They didn't even ask (Cooper attorney David) Alexander to specify a particular hair," said Blake in disgust.
It so happens that Blake tested some of the thousand or so hairs found stuck to the bloody limbs of the Ryens and Hughes. Blake said he conducted nuclear DNA tests on three hairs with roots and found "nothing." Mitochondrial DNA tests might yield information but at a cost of $2,500 per hair, it gets expensive.
And for what? In that Cooper is black, it's clear the hair is not his.
"That's the preposterous thing here," said Blake. "Nobody has assessed whether or not it can be determined, which it cannot be, that the hairs are important to the identity of the assailant." There were dog hairs on the bodies, but the dogs didn't kill two adults and two children.
Cooper attorney David Alexander told me that it wasn't clear if the defense would ask to test for EDTA or another chemical. If the test showed no chemical, "there would be issues related to that." If it tested positive, it would prove tampering, or it could be "inconclusive."
Or, as Cooper's forensics czar put it, "They got them to open up the door, and now, they're changing everything. That by itself should be a clue to the 9th Circuit. (The judges) just got outfoxed. They just got played for fools."
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© 2003, Creators Syndicate