Editorial: Gov. Brown should do the right thing and grant clemency to death row inmate Kevin Cooper

Stymied by legal challenges, the state of California has not executed any of its more than 700 condemned prisoners since 2006. But if the machinery of death ever does rev back up, Kevin Cooper will be on the short list of people to receive lethal injections. He shouldn’t be, and Gov. Jerry Brown needs to ensure that it doesn’t happen.

Cooper was convicted of horrific crimes. Douglas and Peggy Ryen, their 10-year-old daughter Jessica, and 11-year-old houseguest Christopher Hughes were hacked and slashed to death in June 1983. The Ryens’ 8-year-old son Josh miraculously survived having his throat cut.

Even though Cooper has spent more than 30 years on death row for the murders, however, serious questions have lingered.

For instance, Josh Ryen initially told hospital workers that the family had been attacked by three or four white men. Cooper is black.

What’s more, a woman said that on the day of the murders, her former boyfriend had been wearing a tan T-shirt similar to one found near the crime scene. She also said he showed up at her house wearing blood-spattered coveralls. (The coveralls were discarded by a sheriff’s deputy, the blood untested.)

The forensic evidence linking Cooper to the killings was thin, and there are strong arguments that some of it was planted after his arrest. For instance, years after Cooper’s arrest, a blood test was performed on the tan T-shirt and, according to analysts, the test detected his DNA. At first, that seemed to be the incontrovertible scientific evidence that had for so long eluded investigators — but an appellate judge noted that the blood on the T-shirt contained signs of a chemical used by the sheriff’s office to preserve blood in a laboratory for later testing. According to the judge, that suggested the blood “had been planted on the T-shirt.”

That shirt remains at the center of the current battle over Cooper’s guilt. Trace DNA tests not available at the time of the crimes or Cooper’s trial or his earlier appeals could, experts argue, determine whether Cooper or someone else had worn the shirt. But since Cooper has exhausted his appeals, prosecutors have refused to conduct the test.

There are two outrages here. First, there is no rational reason not to do the tests. A man’s life hangs in the balance. If the state wants to execute someone, it must go to extreme lengths to make certain the inmate is actually guilty. It’s true that Cooper has exhausted all his legal appeals, but that’s no reason to refuse to take another step to determine whether the state has convicted the wrong man. If it has, he should be released. It was just six weeks ago that Vicente Benavides Figueroa was freed after a quarter-century on death row when it was finally determined that the medical evidence against him was based on incomplete records. Seven months ago, Craig Coley was released from a life sentence when new DNA tests of evidence from his 1980 trial proved his innocence.

Second, there are serious accusations here about the planting of evidence and the destruction of other evidence, the failure of prosecutors to share exculpatory evidence with Cooper’s lawyer, lies by investigators and other acts of official misconduct. These demonstrate yet again why the capital punishment process is too imperfect and manipulable to be relied upon. Even if the DNA test doesn’t provide incontrovertible proof that Cooper is innocent, it is still the case that actions by police and prosecutors — such as throwing away the bloody coveralls — deprived Cooper of due process and a fair trial.

On the basis of that alone, Brown should act on Cooper’s two-year-old clemency petition. At the very least, he should commute Cooper’s sentence to life in prison without parole. (Because Cooper has prior felony burglary convictions, four state Supreme Court justices would have to approve, too.)

The Times opposes the death penalty under any circumstances in part because of cases such as this, in which a person who may very well be innocent could get executed. There is no known mechanism to ensure against that.

The governor, who also opposes the death penalty, knows the capital punishment system is inherently flawed. And the Cooper case bares those flaws in excruciating detail. The system has failed from beginning to end, and it would be both an error of judgment and a failure of morality to keep Cooper on death row any longer.

Brown has over his recent eight-year stint in the governor’s office made tough decisions on a range of issues. This one actually is easy. Brown should grant clemency and see that the DNA test is conducted.

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