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Jewish World Review Feb. 17, 2004 / 25 Shevat, 5764

Debra J. Saunders

Debra J. Saunders
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The court that cried wolf | "No person should be executed if there is doubt about his or her guilt and an easily available test will determine guilt or innocence," wrote the 9th Circuit U.S. Court of Appeals when it stayed the execution of Death Row inmate Kevin Cooper for the 1983 slaying of two adults and two children. The court was correct, in principle.

But the court was wrong to stop what Cooper apologists call a "rush" to kill an innocent man before a test is conducted that could establish his innocence.

There were tests conducted after Cooper had asked for DNA testing of the evidence that convicted him. Those tests further implicated Cooper by tying him to the home of the victims — Doug and Peggy Ryen, their daughter Jessica, age 10, and house guest Christopher Hughes, 11 — to their car and to a T-shirt with a victim's blood on it.

So now defense lawyers are asking for other tests. Why not? They have nothing to lose, especially since they've — quite conveniently — asked for tests that cannot further implicate Cooper. The compliant 9th Circuit suggested that crime-scene hair, which clearly isn't his, be tested. (You don't need a forensic scientist to prove that, as the hair is light while Cooper's is black.) Defense lawyers also want to test the incriminating DNA to see if it contains a chemical used in stored blood — which they say would show that investigators tampered with the evidence. It's a safe request, as the chemical could show up because it is found in household detergents and other products.

Somehow, the 9th Circuit didn't seem to notice that the "easily available test" — tests really — cannot resolve the case.

In a 9-2 ruling that resulted in an 11th-hour reprieve, the 9th Circuit highlighted two pieces of "new evidence." One focuses on a declaration by a former warden at the prison from which Cooper escaped. The warden said that the prison-issue shoes that matched a bloody footprint on one of the Ryens' sheets also were sold to the general public. The 9th Circuit decided that prosecutors' failure to share that information with the defense constituted the withholding of vital information that the defense could not have been expected to discover on its own. That's ludicrous.

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In addition, the 9th Circuit deferred to two declarations from witnesses who both said they saw two blond, blood-spattered men in a bar near the Ryen home on the night of the murders. Their testimony is supposed to bolster the defense story that three white men killed the Ryens and Hughes. But, as the two dissenting judges noted, other witnesses from the bar testified at Cooper's trial, and by the way, they didn't testify that the men were blood-splattered.

Why does it matter that this stay was granted under misleading pretenses?

It matters because the judges and lawyers know better — or should have known better.

Team Cooper has tried to frame the argument as a battle between careful officers of the court trying to prevent a wrongful death and death-penalty proponents who are so hungry for a kill that they would execute an innocent man.

Nonsense. If I thought Cooper might be not guilty, if I believed that his defenders simply were seeking to discover information that could settle questions about his guilt, I'd be with them. I don't want to see an innocent man die. I would not want the real killers to get away with murder.

What's more, as a death-penalty advocate, I realize that if California starts executing innocent men, there won't be a death penalty in California. So in addition to humanitarian considerations, I have an ideological reason to support tests that expose the truth.

In this case, those most interested in the truth are running from the Cooper defense — including people who worked for it.

Paul Ingels was a private investigator for Cooper. In 2000, he backed Cooper's efforts to force DNA testing. A former cop, Ingels risked the wrath of local law enforcement because, he told me, "I think everyone has the right to access new evidence through new technology."

But when the tests delivered even more proof that Cooper was the killer, Ingels wanted no part of Cooper's new I-was-framed defense. "I didn't want to be a party to unprofessional and unethical things," Ingels explained.

Former Cooper defense forensics expert Ed Blake called the Cooper defense and the 9th Circuit's ruling "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."

Someday, the 9th Circuit may try to stand up for a wrongly convicted individual, but after it peddled a dishonest Cooper defense, who would then trust this court?

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© 2003, Creators Syndicate