DNA

Forensic Experts Continue to Question Kevin Cooper Conviction

Written on Thursday, February 18th, 2021 by T.C. Kelly
Filed under: General

The murders of Doug and Peggy Ryen and two children in Chino Hills, California, were horrific. They were attacked with a hatchet, an ice pick, and one or two knives. A third child was stabbed but survived the brutal assault. Josh Ryen told the police that three white men had committed the crime. But Josh was only eight years old and he suffered a cracked skull during the assault. The police discounted his eyewitness account in favor of their theory that the crime was committed by a lone black man who days earlier had walked away from a minimum-security prison camp.

The physical evidence seemed to support Josh’s account. Two different T-shirts were apparently discarded at the scene. Light colored hairs were found clutched in the hands of the murder victims. A woman contacted the San Bernardino Sheriff’s Department to report her suspicion that her boyfriend (“Lee”), a convicted murderer who had recently been released from prison, had killed the Ryens. She gave the officers the blood-covered overalls that triggered her suspicions and reported that a hatchet was missing from her boyfriend’s tool rack.

Remarkably, the sheriff’s investigators threw out the overalls without testing them for the victims’ blood. They instead focused their tunnel vision on Kevin Cooper. Investigators explained that they did not want the overalls to “complicate” their case against Cooper. Having developed the theory that Cooper was the murderer, they devoted their resources to proving that the theory was correct while disregarding evidence that pointed to other suspects. That practice, all too common throughout the history of police investigations, is the formula for a wrongful conviction.

An investigative article by New York Times columnist Nicholas Kristof raised serious questions about Cooper’s conviction. Kristof asked why the police and prosecutors had failed to ask experts to test the hairs and blood found at the scene of the crime. Expert DNA analysis in criminal cases is, when properly employed, the most objective means of guiding investigations and proving guilt.

Kristof wrote that “an innocent man was framed by sheriff’s deputies and is on death row in part because of dishonest cops, sensational media coverage and flawed political leaders.” His 2018 article spurred Gov. Jerry Brown, and his successor, Gov. Gavin Newsom, to order comprehensive DNA testing of the available evidence. Kristof recently acquired the DNA test results and updated his investigation.

DNA Evidence

A torn T-shirt believed to be worn by one of the killers is key evidence in the case. The police claim that Cooper’s blood was on the T-shirt, but given the conduct of the sheriff’s investigators, neutral observers have concluded that the investigators planted the blood to strengthen their case against Cooper. That conclusion is bolstered by the presence of a preservative in the blood on the T-shirt, suggesting that the blood came from a vial of blood (now nearly empty) that was drawn from Cooper and kept as evidence.

Bicka Barlow, a DNA expert who is helping Cooper, told Kristof that she has never seen so much blood disappear from a vial. The blood testing performed in the case would not account for the loss. Planting blood on other evidence would, however, explain why the blood disappeared.

Whether Cooper ever wore the shirt might be determined by analyzing sweat stains, but that analysis was only recently performed. Police and prosecutors did little to protect the shirt’s integrity. Samples of DNA taken from the shirt have degraded. No DNA profile could be created from the samples.

Testing showed that the hairs clutched in the victims’ hands did not come from Cooper, but that was obvious from the hair color. In fact, no hairs from an African-American were found at the crime scene. The DNA testing did not produce a match to any other suspect.

Authorities found a discarded towel that had been taken from the crime scene. The towel yielded a full DNA profile. Cooper was excluded as the source of the DNA. Unfortunately, the DNA did not match anyone within a DNA database.

The Burden of Proving Innocence

Three witnesses have come to light who are willing to testify that they have recently heard Lee boast about murdering a family. Lee (the owner of the bloody overalls that sheriff’s investigators discarded) is not the source of the DNA on the towel.

It is often true that forensic evidence points in different directions. If, as Josh stated, there were three killers, the fact that Lee’s DNA is not on the towel does not exclude him as a suspect. The evidence is probably not sufficient to prove Lee’s guilt, but the question is not whether Lee killed the victims. The question is whether Cooper killed them. The new DNA evidence raises a serious doubt about Cooper’s guilt.

Prosecutors point to other forensic evidence, including a shoe print and cigarette butts that they associate with Cooper. All of that evidence has been cast in doubt by the likelihood that the San Bernardino Sheriff’s Office planted evidence to strengthen its case against Cooper. Kristof calls attention to the checkered history of that office, including previous accusations that it planted evidence to strengthen dubious proof of guilt.

Unfortunately, prosecutors are too often unwilling to admit that they might have sent an innocent person to prison (or in this case, to death row). The San Bernardino County District Attorney’s Office resisted DNA testing, challenged all of Cooper’s attempts to get a new trial, and continues to oppose investigations of Cooper’s innocence.

It seems odd that prosecutors champion the reliability of DNA testing when they use it to prove guilt but argue against DNA testing that calls their prosecutions into question. Yet prosecutors depend on the police to help them make cases. They are often reluctant to acknowledge faults in police investigations or in their own prosecutions.

Whether Cooper will ever be exonerated is doubtful. He has exhausted all of the legal remedies that are presently available. The new forensic testing, and the opinions of his forensic experts, do not indisputably establish his innocence. But the expert evidence does raise serious doubt about Cooper’s guilt — enough doubt that Cooper should certainly be removed from death row. Nicholas has urged Governor Newsom to convene a panel to review Cooper’s conviction and to make a recommendation about clemency. If Cooper is innocent — and there is good reason to question the evidence of his guilt — clemency may be his last hope for justice.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

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