California: Federal judge set to tour new San Quentin death chamber

San Quentin's new death chamber,
"built for nearly $900,000 and designed
solely for lethal injections".

Nearly 5 years ago, a San Jose federal judge went on a highly unusual expedition to San Quentin's aging death chamber, eventually finding that the converted eerie green gas chamber was outdated and replete with potential problems for carrying out executions.

On Tuesday, U.S. District Judge Jeremy Fogel will return to San Quentin, this time for a tour of the state's new and untested death chamber, built for nearly $900,000 and designed solely for lethal injections. With the visit, California will take a step toward resolving whether it can resume executions on a death row now brimming with nearly 720 inmates.

But it may prove to be a small step.

Major questions continue to surround the state's effort to revise its lethal injection procedures and end a court showdown that began in February 2006. Five years after giving death row inmate Michael Morales a late reprieve and putting executions on hold, Fogel still appears to have a lot of work to do before California prison officials can start escorting condemned killers into that new execution chamber.

Questions remain

California officials must show they've addressed Fogel's previous concerns that the state's execution method was "broken," from poor training of execution team members to an antiquated death chamber. The state, under orders from former Gov. Arnold Schwarzenegger, spent years revising its lethal injection procedures -- and now Fogel is reviewing whether the state has done enough to ensure it can carry out humane executions.

The judge's latest review starts with the trip to San Quentin, where he'll be accompanied by state prison officials, lawyers and f5 news organizations, including the Mercury News. The state unveiled the new chamber last fall, hoping to rectify the problems Fogel identified in his 2006 findings.

"The tour of the chamber is still relevant," said Elisabeth Semel, head of Boalt Hall School of Law's death penalty clinic. "The question remains whether the state has answered the questions that Judge Fogel had in 2006. The questions he had "... are very much on the table."

Drug complications

While the California case is the most exhaustive to unfold in the courts, the debate over lethal injection continues to simmer across the country. The U.S. Supreme Court upheld Kentucky's three-drug fatal cocktail in a major 2008 ruling that set the guidelines for lethal injection procedures, but many states continue to struggle with moving executions forward.

The issue has been complicated in the past year by the inability of states to secure a supply of sodium thiopental, the anesthesia used as the first drug in the three-drug combination used by California and most other states. The sole U.S. supplier of the drug has stopped producing it, and states such as California have gone overseas to get fresh doses, prompting critics to say they are getting the anesthesia from unreliable back-alley suppliers in Europe and putting inmates at risk of cruel executions.

California ran out of the drug on the eve of Albert Greenwood Brown's execution last fall, but has restocked through 2014 if the courts permit executions to resume.

In the meantime, Ohio and Washington have abandoned the use of three-drug combinations and sodium thiopental altogether, turning to fatal doses of pentobarbital, a surgical sedative, to carry out executions. Fogel, in evaluating California's new procedures, has hinted that may be a better option for California, but for now, state officials say the new procedure is constitutional and that executions should resume immediately.

Condemned await fate

Death penalty supporters insist California's method complies with the Supreme Court's standards. If executions resume, at least a half dozen inmates have exhausted their appeals, including condemned Santa Clara County killer David Allen Raley.

"I think we have a protocol that is constitutional," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, "and a stock of drugs to carry it out."

John Grele, a lawyer for 2 death row inmates challenging the method, said the state has not fixed its problem.

"What they did was take the old procedure and put a new label on it," he said.

As for Tuesday's trip to San Quentin, Grele added:

"We'll see when we get there. This is the 1st time we've been permitted to inspect it."

Source: Mercury News, Feb. 7, 2011

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Outgoing California Governor declines to act on Kevin Cooper's clemency petition

San Quentin's brand new
execution chamber

Before leaving office on 2 January, the outgoing governor of California declined to act on the clemency petition filed on behalf of Kevin Cooper, who has consistently maintained his innocence of the four murders for which he was sentenced to death in 1985.

In a letter to Kevin Cooper's lawyers and the state authorities on 2 January, the Legal Affairs Secretary for outgoing Governor Arnold Schwarzenegger acknowledged that "the clemency application raises many evidentiary concerns which deserve a thorough and careful review of voluminous records." The letter suggested however that there was not enough time for such a review before the governor left office. The letter concluded by stating that the clemency materials would remain in the Governor's office "for consideration by Governor-elect [Jerry] Brown".

The letter struck a different tone to Governor Schwarzenegger's statement in January 2004 when he denied clemency to Kevin Cooper who was then facing an execution date. Then he had said that "Mr. Cooper's conviction and sentence have been thoroughly reviewed and upheld by our highest state and federal courts... I will not second guess the decisions of these courts, and I will not disturb the jury's verdict of guilt and sentence of death".

Less than eight hours before Kevin Cooper was due to be put to death, the US Court of Appeals for the Ninth Circuit granted a stay and sent the case back to the District Court for testing on blood and hair evidence from the crime, including to establish if the police had planted evidence. The District Court ruled in 2005 that the testing had not proved Kevin Cooper's innocence – his lawyers (and five Ninth Circuit judges) maintain that it did not do the testing as ordered. Nevertheless, in 2007, a three-judge panel of the Ninth Circuit upheld the District Court's ruling. One of the judges described the result as "wholly discomforting" because of evidence tampering and destruction, but noted that she was constrained by US law, which places substantial obstacles in the way of successful appeals.

In 2009, the Ninth Circuit refused to have the whole court rehear the case. Eleven of its judges dissented. One of the dissenting opinions warned that "the State of California may be about to execute an innocent man". Regarding evidence testing, they said: "There is no way to say this politely. The district court failed to provide Cooper a fair hearing and...imposed unreasonable conditions on the testing". They pointed to a test result that, if valid, indicated that evidence had been planted, and they asserted that the district court had blocked further scrutiny of this issue.

The crime in question occurred on 4 June 1983, when Douglas and Peggy Ryen were hacked and stabbed to death in their home in Chino Hills, California, along with their 10-year-old daughter Jessica and 11-year-old houseguest Christopher Hughes. Their eight-year-old son, Joshua, was seriously wounded, but survived. He told investigators that the attackers were three or four white men. In hospital, he saw a picture of Kevin Cooper on television and said that Cooper, who is black, was not the attacker. However, the boy's later testimony – that he only saw one attacker – was introduced at the 1985 trial. The case has many other troubling aspects which call into question the reliability of the state's case and its conduct in obtaining this conviction. Since Governor Schwarzenegger denied clemency in 2004, more evidence supporting Kevin Cooper's claim of innocence has emerged, including testimony from three witnesses who say they saw three white men near the crime scene on the night of the murders with blood on them.

California accounts for 13 of the 1,235 executions in the USA since judicial killing resumed there in 1977. The last execution in California was in 2006. There were 46 executions in the USA in 2010, and there has been one so far in 2011. Kevin Cooper does not currently have an execution date, but could face one in the coming months.

Source: Amnesty International, January 12, 2011

URGENT APPEAL for Kevin Cooper on California's death row

Kevin Cooper, who has been on death row in California for 25 years, is asking the outgoing state governor to commute his death sentence before leaving office on 2 January 2011. Kevin Cooper has consistently maintained his innocence of the four murders for which he was sentenced to death. Since 2004, a dozen federal appellate judges have indicated their doubts about his guilt.

On the night of 4 June 1983, Douglas and Peggy Ryen were hacked and stabbed to death in their home in Chino Hills, California, along with their 10-year-old daughter Jessica and 11-year-old houseguest Christopher Hughes. The couple's eight-year-old son, Joshua Ryen, was seriously wounded, but survived. He told investigators that the attackers were three or four white men. In hospital, he saw a picture of Kevin Cooper on television and said that Cooper, who is black, was not the attacker. However, the boy's later testimony – that he only saw one attacker – was introduced at the 1985 trial. The case has many other troubling aspects which call into question the reliability of the state's case and its conduct in obtaining this conviction (see http://www.amnesty.org/en/library/info/AMR51/013/2004/en).

Kevin Cooper was less than eight hours from execution in 2004 when the US Court of Appeals for the Ninth Circuit granted a stay and sent the case back to the District Court for testing on blood and hair evidence, including to establish if the police had planted evidence. The District Court ruled in 2005 that the testing had not proved Kevin Cooper's innocence – his lawyers (and five Ninth Circuit judges) maintain that it did not do the testing as ordered. Nevertheless, in 2007, a three-judge panel of the Ninth Circuit upheld the District Court's ruling. One of the judges described the result as "wholly discomforting" because of evidence tampering and destruction, but noted that she was constrained by US law, which places substantial obstacles in the way of successful appeals.

In 2009, the Ninth Circuit refused to have the whole court rehear the case. Eleven of its judges dissented. One of the dissenting opinions, running to more than 80 pages and signed by five judges, warned that "the State of California may be about to execute an innocent man". On the question of the evidence testing, they said: "There is no way to say this politely. The district court failed to provide Cooper a fair hearing and…imposed unreasonable conditions on the testing" ordered by the Ninth Circuit. They pointed to a test result that, if valid, indicated that evidence had been planted, and they asserted that the district court had blocked further scrutiny of this issue.

Governor Arnold Schwarzenegger had already denied clemency in 2004 when the Ninth Circuit issued its stay. At the time, he had said that the "courts have reviewed this case for more than eighteen years. Evidence establishing his guilt is overwhelming". Clearly, a notable number of federal judges disagree. The five judges in the Ninth Circuit's lengthy dissent in 2009 stated that the evidence of Kevin Cooper's guilt at his trial was "quite weak" and concluded that he "is probably innocent of the crimes for which the State of California is about to execute him".

BACKGROUND INFORMATION

On 2 June 1983, two days before the Chino Hills murders, Kevin Cooper had escaped from a minimum security prison, where he was serving a four-year term for burglary, and had hidden in an empty house near the Ryen home for two nights. After his arrest, he became the focus of public hatred. Outside the venue of his preliminary hearing, for example, people hung an effigy of a monkey in a noose with a sign reading "Hang the Nigger!!" At the time of the trial, jurors were confronted by graffiti declaring "Die Kevin Cooper" and "Kevin Cooper Must Be Hanged". Kevin Cooper pleaded not guilty – the jury deliberated for seven days before convicting him – and he has maintained his innocence since then. Since Governor Schwarzenegger denied clemency in 2004, more evidence supporting Kevin Cooper's claim of innocence has emerged, including for example, testimony from three witnesses who say they saw three white men near the crime scene on the night of the murders with blood on them.

In 2007, Judge Margaret McKeown was the member of the Ninth Circuit's three-judge panel who indicated that she was upholding the District Court's 2005 ruling despite her serious concerns. She wrote: "Significant evidence bearing on Cooper's guilt has been lost, destroyed or left unpursued, including, for example, blood-covered coveralls belonging to a potential suspect who was a convicted murderer, and a bloody t-shirt, discovered alongside the road near the crime scene. The managing criminologist in charge of the evidence used to establish Cooper's guilt at trial was, as it turns out, a heroin addict, and was fired for stealing drugs seized by the police. Countless other alleged problems with the handling and disclosure of evidence and the integrity of the forensic testing and investigation undermine confidence in the evidence". She continued that "despite the presence of serious questions as to the integrity of the investigation and evidence supporting the conviction, we are constrained by the requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)". Judge McKeown wrote that "the habeas process does not account for lingering doubt or new evidence that cannot leap the clear and convincing hurdle of AEDPA. Instead, we are left with a situation in which confidence in the blood sample is murky at best, and lost, destroyed or tampered evidence cannot be factored into the final analysis of doubt. The result is wholly discomforting, but one that the law demands".

Even if it is correct that the AEDPA demands this result, the power of executive clemency is not so confined. Last September, for example, the governor of Ohio commuted Kevin Keith’s death sentence because of doubts about his guilt even though his death sentence had been upheld on appeal (see http://www.amnesty.org/en/library/info/AMR51/079/2010/en). Governor Ted Strickland said that despite circumstantial evidence linking the condemned man to the crime, "many legitimate questions have been raised regarding the evidence in support of the conviction and the investigation which led to it. In particular, Mr Keith’s conviction relied upon the linking of certain eyewitness testimony with certain forensic evidence about which important questions have been raised. I also find the absence of a full investigation of other credible suspects troubling." The same could be said in the case of Kevin Cooper, whose lawyer is asking Governor Schwarzenegger to commute the death sentence before he leaves office on 2 January 2011. While Kevin Cooper does not yet have an execution date, it is likely that one will be set, perhaps early in 2011.

More than 130 people have been released from death rows on grounds of innocence in the USA since 1976. At the original trial in each case, the defendant had been found guilty beyond a reasonable doubt. It is clear beyond any dispute that the USA's criminal justice system is capable of making mistakes. International safeguards require that the death penalty not be imposed if guilt is not "based upon clear and convincing evidence leaving no room for an alternative explanation of the facts". Amnesty International opposes all executions regardless of the seriousness of the crime or the guilt or innocence of the condemned.

California has the largest death row in the USA, with more than 700 prisoners under sentence of death out of a national total of some 3,200. California accounts for 13 of the 1,234 executions in the USA since judicial killing resumed there in 1977. There have been 46 executions in the USA this year. The last execution in California was in January 2006.

RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible:

- Acknowledging the seriousness of the crime for which Kevin Cooper was sentenced to death;

- Urging Governor Schwarzenegger to take account of the continuing doubts about Kevin Cooper's guilt, including as expressed by more than 10 federal judges since 2004, when executive clemency was last requested;

- Urging the Governor to commute Kevin Cooper’s death sentence.

APPEALS TO:

Governor Arnold Schwarzenegger

State Capitol Building, Sacramento, CA 95814, USA

Fax: 1 916-558-3160

Email: governor@governor.ca.gov or via http://gov.ca.gov/interact#contact

Salutation : Dear Governor

PLEASE SEND APPEALS IMMEDIATELY.

California: Reasonable doubts about executing Kevin Cooper

Kevin Cooper

The legal effort to prevent the execution of Kevin Cooper has run its course. Unless the governor of California intervenes, Cooper is likely to be put to death next year for the brutal 1983 murders of a Chino Hills couple, their 10-year-old daughter and an 11-year-old houseguest.

Just one eyewitness survived the horrific scene, a 9-year-old boy whose throat had been sliced. His initial account of the attack is one of many disturbing contradictions that led five federal judges to take issue with their colleagues' decision to put a stop to Cooper's appeals.

The boy recalled 3 attackers - all white. Cooper is black. The surviving victim later changed his story to claim that he saw a black man with a great "poof" of hair standing over his parents' bed. Cooper, who had just escaped from a nearby minimum-security prison, wore his hair in cornrows at the time.

"He is on death row because the San Bernardino Sheriff's Department framed him," federal appeals Judge William Fletcher told Gonzaga University law students in an April speech.

Fletcher and 4 fellow judges were searingly blunt in a 2009 dissent that meticulously catalogued the extent that investigators ignored and even destroyed evidence that might have exonerated Cooper.

Especially unsettling is the investigators' disregard for evidence that seemed to point to a white ex-con who had served time for murder. That potential suspect's girlfriend testified that he had come to change out of his overalls on the night of the murder. When she and her father saw they were spattered with blood, they alerted authorities. The overalls were never tested or turned over to Cooper's legal team. They were tossed in a Dumpster on the day of his arraignment.

To be sure, there is evidence linking Cooper to the crime. But when the doubts are sufficient to persuade federal judges that the case against Cooper is not only flawed - but a potential frame job - leaders have a moral obligation to intervene.

Cooper's legal team has asked Gov. Arnold Schwarzenegger to invoke his powers to commute the sentence to life without the possibility of parole. If Schwarzenegger refuses, Cooper's attorneys will then press the issue with Jerry Brown when he takes office in January.

Their legal strategy raises the question: If Cooper is innocent, why merely ask for life without parole?

"Right now, we're trying to save a man's life," said Lanny Davis, a former White House counsel to Bill Clinton and member of Cooper's legal team. "Where there's life, there's hope."

As Judge Fletcher pointedly suggested to the law-school audience, faults with the application of the death penalty do not begin and end in Texas. The problems are "widespread and endemic," he said. And they pervade the case of Kevin Cooper.

Californians cannot just look the other way while their state proceeds toward an execution that 5 federal judges have found a sound basis to halt.

It will take an act of courage to prevent a potential lethal injustice.

Gaps and contradictions

Among the flaws in the evidence used to convict Kevin Cooper of the murders of Douglas Ryen, Peggy Ryen, their 10-year-old daughter Jessica and 11-year-old Christopher Hughes:

-- DNA doubts: Was Cooper's blood planted on a T-shirt found near the scene? Lab technicians were startled to find the DNA of 2 people when they tested a vial containing Cooper's blood. Appellate Judge William Fletcher's suspicion: "Remember the trick of the teenager who takes whiskey from his parents' bottle and who then adds something to the bottle to bring it up to the right level?"

-- More DNA doubts: Fletcher questioned the efficacy of tests ordered by the appeals court to determine whether the blood identified as Cooper's on a beige T-shirt found at the crime scene contained a preservative used on samples drawn from suspects - which would have suggested the blood was planted.

-- Shoes: A key prosecution point was that footprints found at the scene matched shoes issued only at prisons - pointed to escapee Cooper. It turned out they were from Pro-Ked "Dude" sneakers widely available at retail stores.

-- Urge Gov. Arnold Schwarzenegger to prevent Kevin Cooper's execution by invoking his powers to reduce the sentence to life without parole. E-mail: governor@governor.ca.gov.

Source: San Francisco Chronicle, December 13, 2010

Framed for Murder?

Kevin Cooper

“California may be about to execute an innocent man.”

That’s the view of five federal judges in a case involving Kevin Cooper, a black man in California who faces lethal injection next year for supposedly murdering a white family. The judges argue compellingly that he was framed by police.

Mr. Cooper’s impending execution is so outrageous that it has produced a mutiny among these federal circuit court judges, distinguished jurists just one notch below the United States Supreme Court. But the judicial process has run out for Mr. Cooper. Now it’s up to Gov. Arnold Schwarzenegger to decide whether to commute Mr. Cooper’s sentence before leaving office.

This case, an illuminating window into the pitfalls of capital punishment, dates to a horrific quadruple-murder in June 1983. Doug and Peggy Ryen were stabbed to death in their house, along with their 10-year-old daughter and an 11-year-old houseguest. The Ryens’ 8-year-old son, Josh, was left for dead but survived. They were all white.

Josh initially told investigators that the crime had been committed by three people, all white, although by the trial he suggested that he had seen just one person with an Afro. The first version made sense because the weapons included a hatchet, an ice pick and one or two knives. Could one intruder juggling several weapons overpower five victims, including a 200-pound former Marine like Doug Ryen, who also had a loaded rifle nearby?

But the police learned that Mr. Cooper had walked away from the minimum security prison where he was serving a burglary sentence and had hidden in an empty home 125 yards away from the crime scene. The police decided that he had committed the crime alone.

Click here to read the full article.

Source: The New York Times, Nicholas D. Kristof, December 8, 2010