March 2004

Movie stars and anti-death penalty advocates are desperately grabbing at straws in an effort to postpone the execution of condemned murderer Kevin Cooper, who faces execution at San Quentin on February 10. In addition to staging daily press events to encourage Governor Arnold Schwarzenegger to take action, lawyers representing Cooper have filed a petition with the California Supreme Court, claiming new evidence warrants a decision to spare Cooper's life.

In a statement released Friday, January 30, Governor Schwarzenegger denied clemency to Cooper.    The Governor clearly separated the claims of anti-death penalty advocates from the overwhelming evidence of guilt that resulted in Cooper's conviction and death sentence.

The condemning evidence is as follows: On June 2, 1983, Cooper, who then called himself David Trautman, escaped from the minimum security prison in Chino. Cooper had been serving a sentence for two residential burglaries in Los Angeles. One year earlier, he had left Pennsylvania where he had been suspected of the assault and rape of a teen-aged girl who had interrupted him as he was burglarizing her home.

Undisputed evidence including Cooper's fingerprints and his own statements indicate that, after his escape, he took refuge in an empty house next door to the Chino home of Doug Ryen, his wife Peggy and their two young children, ten-year-old Jessica and eight-year-old Joshua. Cooper made telephone calls from the empty house on June 3 and 4 to two women. Both women refused his requests for help or money. One, whom he had called at 7:53 p.m. on June 4, received another call from Cooper two days later from Mexico.

Between 9:00 and 9:30 p.m. on June 4, the Ryen Family and a friend of their children, 11-year-old Chris Hughes, left a barbeque to return to the Ryen home, where Chris was spending the night. The next morning, Chris's mother became worried when her telephone calls to the Ryen home were not answered. When Chris's father went to the house to investigate, he found the doors locked and their station wagon missing. From the back of the house looking through a sliding glass door, he saw the bodies of his son and Doug, Peggy, and Jessica Ryen lying on the floor. He then kicked in the kitchen door and found everyone except eight-year-old Josh dead.

The victims died from numerous chopping wounds later determined to have been inflicted by a hatchet or axe and stabbing wounds inflicted by both a knife and an ice pick. Later that day, bloodstained items were found in the vacant house where Cooper had stayed, including a button from a prison jacket identical to the one he was wearing when he escaped. A police criminologist also found evidence of blood on the carpet, in the bathroom sink and in the shower along with Cooper's footprint. Hairs from the shower drain and the bathroom sink were consistent with those from two of the victims.

A bloodstained hatchet from the vacant house was later found near the Ryen home. The sheath from the hatchet was found on the floor of the bedroom where Cooper had slept. Some hunting knives and at least one ice pick were also missing from the vacant house. A strap fitting one of the missing knives was found in the same bedroom. Shoe prints were found in the Ryen home and the vacant house next door matching the unique pattern of shoes issued exclusively to prison inmates. The prints indicated shoes of Cooper's size and brand that he had recently received in prison.

While most of the blood samples taken at the murder scene were determined to have come from the victims, one sample was conclusively determined to have come from a black person with the same blood group as Cooper. The sample was too small to determine if it was Cooper's rare blood type.

The Ryen station wagon was found several days after the killings in a church parking lot in Long Beach. Hairs found in the car matched those of Cooper. Tobacco issued exclusively to prison inmates, which Cooper smoked, was found in the vacant house and in the Ryen's station wagon.

Two days after the murders, Cooper befriended a couple in Mexico and joined them on a boat trip up the California Coast. Weeks later, Cooper was arrested on a boat off of Santa Barbara after the woman reported that he had raped her at knife point, threatening to kill her if she woke her husband. Following his arrest, several items taken from the vacant house in Chino were discovered on the boat.

At his trial, Cooper admitted staying in the Chino house but denied any involvement in the Ryen murders. Josh Ryen, who miraculously survived his injuries, testified that he awoke on the night of the murders after hearing his mother's screams. He remembered being hit from behind when trying to investigate but was unable to identify his attacker.

For the 19 years following his 1985 conviction, Cooper's claims of trial and sentencing errors have been reviewed by California and federal courts. In 2000 he won a delay of his execution so that new DNA testing could be performed on various blood and saliva samples found at the murder scene, in the stolen station wagon, and on a bloody t-shirt found near the Ryen home. The DNA from all of these samples was found to have come from the same person. This DNA was then compared to DNA from Cooper's blood. It matched. The odds of the match being by chance were 1 in 310 billion.

In their current petition, Cooper's defenders are now advancing weak claims that the evidence was tampered with or that someone else committed the murders. None are compelling and none should delay the swift execution of justice for Cooper.

The weak, last-minute claims by Cooper and his anti-death penalty colleagues are summarized and refuted as follows:

1. The girlfriend of a former inmate friend of Cooper's, thought her boyfriend might have been involved in the murder. She turned his bloody coveralls over to the local Yucaipa sheriff's substation, but they threw out the coveralls without testing them.

This girlfriend, Diane Roper, was dismissed by law enforcement as completely lacking credibility. She was a professed witch who claimed she had a vision during a trance that the murder had been committed after she heard about the Ryen case. However, she had no substantive reason to believe her boyfriend was involved with Cooper the night of the murder. In fact, she told sheriff's investigators that she did not even know to whom the coveralls belonged. She said she "just knew" from the vision that the coveralls were connected to the case. By the time the San Bernardino County Sheriff's Department heard about her fantastic story, they had Cooper in custody with mountains of evidence (see above) against him. Based on their limited resources and already having the likely killer in custody, the San Bernardino County police chose not to expend precious time and money chasing Roper's crazy story.

2. A clump of blond hair was found in the hand of Jessica Ryen. It should be DNA tested.

The hair found on little Jessica's hand was not a clump of hair desperately yanked out of a head like Cooper's defense counsel implies. It was hair or fibers of which both ends appeared to have been cut. It had no roots or bits of scalp attached, hence it could not be DNA tested. Advances in DNA testing now allow for mitochondrial testing, but this would not identify a donor without a reference sample.

Additionally, the Ryen's carpet was extremely dirty and there were many types of hair all throughout the house. The family had several cats and dogs that lived inside, and their property was a horse-breeding ranch. At trial, a criminalist testified that at least some of the hair stuck to Jessica's bloody hand was animal hair, attached to her as she crawled on the floor in a vain attempt to escape the attack.

Finally, the alleged blonde hair is irrelevant to the conviction of Cooper. DNA testing of the hair would neither exonerate nor incriminate Cooper. It is blonde, and obviously not his. Even if it were tested and shown to be that of another human being, that proves nothing. The Ryen children were blonde and surely many guests at their home were blonde. There is no other evidence from the crime scene to suggest a blonde attacker was also present, so demanding additional DNA testing is simply a red herring.

3. Josh Ryen told the police he thought three men committed the attack. He later changed his story.

When Josh was rescued the day after the murders, he could not talk because his throat had been slashed. He could only squeeze the police officer's hand in response to questions. The story that Josh was finally able to tell police was that he was awakened in the middle of the night by his mother's screams. When he and his friend Chris went to investigate, he saw the bodies of his parents and Jessica and the backside of one unfamiliar person, so he ran and hid. Then he heard Chris screaming, so Josh ran back towards his friend. At that point, something struck him in the head, knocking him unconscious. He awoke later in a pool of blood.

When later queried by investigators, Josh spoke of three Mexicans who had come to the house earlier and thought they could have done it because they had been there once before. However, Josh never said he saw three people commit the murders. He consistently told different investigators that he saw only one attacker. The triple murderer theory is merely speculation based on the visit of the three Mexicans and twisting of a little boy's words.

Additionally, Josh was an eight-year-old boy who was startled awake by a horrific murder and was brutally attacked. It is unsurprising that probing questions by adults and the power of suggestion later tried to confuse his story. Most important however, Cooper was not convicted on the limited testimony of an eight-year-old. He was convicted by the mountain of other evidence incriminating him.

4. A hatchet cover matching one of the murder weapons was not found in the initial investigation of the vacant house. Cigarette butts found in Ryen's car matching Cooper's DNA were not found in the first search of the car. Both of these items were found in subsequent searches indicating they could have been planted.

This was a major and complex crime scene investigation that involved many detectives and over 700 pieces of evidence. It took many days to gather the evidence. The process and collection of evidence was scrutinized at an extensive evidentiary pre-trial hearing and no misconduct was found by the judge. Every appellate court that subsequently looked at the allegations of police misconduct concluded that police investigators acted in good faith and did not engage in the destruction of material evidence. Even the notoriously defendant-sympathetic Ninth Circuit concluded the police acted properly and found no evidence of misconduct.

Additionally, evidence found in subsequent searches is not necessarily indicative of police misconduct. Frequently investigators find important evidence on second or third searches because they have a better idea of what they are looking for. For example, when the police first investigated the house that Cooper hid in, they had not yet found the hatchet that was later connected to the crimes. They did not know the significance of the hatchet sheath that was later found in the house.

The Ryen car was found in a church parking lot in Long Beach and was initially inspected to be certain it was the Ryen's car. It was then impounded for safety and to prevent tampering by outsiders. The cigarette butts were found when the police had the ability to go over it with their fine-toothed comb. Not until 2003 did Cooper even challenge the chain of custody of the cigarette butts -- and this only after he had lost his appeals based upon DNA evidence. At the evidentiary hearing on the butts, the judge found the chain of custody was well-established and properly documented by police. Cooper completely failed to make any showing that law enforcement tampered with or contaminated any evidence in the case.

5. A bloody T-shirt found at a nearby bar/restaurant had both Cooper and Ryen blood on it. It mysteriously disappeared from a police evidence locker in San Bernardino County for 24 hours. Cooper blood could have been planted on it during that time, so it should not have been admitted into evidence.

The bloody T-shirt was cut up when it was tested. The portion that stayed in the San Bernardino County Sheriff's Property Division showed evidence of only Ryen blood. The portion that included Cooper's blood was sent under proper chain of evidence to San Diego County Superior Court Evidence Locker where the trial was being held. The portion in San Diego was under constant surveillance and was never removed without being videotaped. The portion in San Bernardino was the piece that was removed without proper authorization for 24 hours. It is not relevant to the Cooper conviction.

6. Some of the jurors who, 19 years ago unanimously found Cooper guilty and sentenced him to death, wrote to the Governor expressing concerns about his impending execution. They indicated that if they had known then what they know today, they would not have voted for death.

These jurors were presented with one-sided information from Cooper's defense attorneys in an attempt to create doubt in their minds, 19 years after the fact. Some of the information given to the former jurors was inadmissible evidence and speculative theories that were not permitted at trial. Time has a way of fading memories of all the admissible and certain evidence that these jurors deliberated. When given just Cooper's biased version of what happened two decades ago, it's not surprising that some of the jurors had second thoughts. However, at the time of trial when everything was fresh in their minds and the jurors had the opportunity to view the evidence and deliberate together, they unanimously agreed that Cooper was guilty. And they unanimously agreed that the proper sentence was death. At this point, the defense is preying on the faded memories and emotions of the Cooper jurors.

7.  EDTA (Ethylenediaminetetraacetic) testing must be done to determine whether or not police lab analysts tampered with the blood evidence.

EDTA is a preservative that can be detected if a compound has been contaminated (touched) by an outside source.  It is used to preserve blood samples, such as the one taken from Cooper many years ago.  Cooper wants EDTA testing to be performed on the bloody T-shirt found near the murder scene to see if police lab technicians have tampered with it while in their custody.  Cooper alleges the police put blood from his test tube sample (containing EDTA) on the T-shirt to further implicate him.  He suggests that if the T-shirt shows evidence of EDTA, that proves it came from his test tube sample.

However, EDTA is a common compound found in hand creams, laundry detergents, and other everyday products.  It could show up in the test if the T-shirt had ever come in contact with any of these products. The mere presence of EDTA would be inconclusive with respect to tampering because it could show up for reasons completely unrelated to the police lab.  During the OJ Simpson trial, EDTA testing was a highly contentious issue because of its inability to show the origin of any EDTA contaminants. Since EDTA testing can neither exonerate nor inculpate Cooper, it serves no reason to postpone his execution. 

8.  A police officer involved in the original Cooper investigation changed his mind about Cooper’s guilt after looking more closely at the evidence.

Former police investigator Paul Ingels was involved in the manhunt for Cooper in 1983.  Many years later, Ingels was hired by Cooper’s defense team to investigate the case.  Ingels review of the evidence prompted him to believe that perhaps Cooper did not commit the murders. In 2000, Ingels went on national TV’s “48 Hours” expressing his skepticism and calling for more investigation.  That was four years ago.  Having followed the developments in the case and re-investigating the evidence, Ingels has since changed his mind.  He is now of the opinion, “…beyond any shadow of a doubt, that Kevin Cooper was involved in the murders.”

9.  An affidavit from the warden of the prison from which Cooper escaped said that the prison shoes issued to Cooper were not the only shoes that could have matched the bloody footprints found next door to the murder scene.

Chino Prison Warden Midge Carroll signed an affidavit on January 30, 2004, stating that during the Cooper investigation, she talked to several people at the prison and learned from them that the shoes issued in her prison were common tennis shoes available to the general public.  She said she communicated this to one of the lead Cooper investigators.  She also said she would have testified for either the prosecution or the defense at Cooper’s trial, had she been called.  Cooper alleges the police investigators never told defense counsel about the warden’s statements, thus his trial was prejudiced.

While Carroll’s testimony is intriguing, it is also hearsay from almost 20 years ago.  She did not testify to her personal knowledge at trial and was not cross-examined to whittle out the truth or her depth of knowledge.   However, both a representative from Stride Rite Shoes and an inmate shoe manager did testify -- and both were subject to cross-examination.  The shoe representative testified that the Pro-Ked Dude shoes in question were sold exclusively to state institutions and that the tread on the soles was unique.  James Taylor, an inmate responsible for issuing shoes in the Chino prison, testified that he gave a pair of the Pro-Ked Dude shoes to Cooper just before he escaped.  Bloody shoeprints found in the Ryen’s house and the house next door were consistent with both Cooper’s size and the Pro-Keds issued by the Chino prison.

Nineteen years later, Warden Carroll’s secondhand information about the shoes contradicts both these witnesses, but it cannot undermine the testimony of percipient witnesses at the time of trial, nor can it exonerate Cooper.  Neither can Carroll’s declaration undermine the undisputed evidence that the bloody shoe prints in the Ryen house matched the bloody prints in the house next door, where Cooper admitted he stayed.

10.  Two women at a local bar near the crime scene saw three white men in bloody coveralls the night of the murders.

Three days before Cooper’s February 10th scheduled execution, Christine Slonaker submitted a declaration to the court saying that she and a friend had seen three strangely-acting men at the Canyon Corral Bar in Chino Hills on the night of the murders.  Another bar patron, Mary Wolfe, submitted a similar declaration.  Both women said that these three men were loud, obnoxious, and covered with bloodstains.

The police did investigate and find many of the patrons who were at the Canyon Corral Bar on the night of June 3-4, 1983.  Several of them testified at Cooper’s trial about the three strangely-behaving men, but the jury did not connect the three with the Ryen murders.  That Ms. Slonaker and Ms. Wolfe produced conflicting reports 20 years later does not undermine the evidence from the witnesses who actually testified at trial.

Additionally, these last-minute declarations from two bar regulars are at best speculative regarding the substance on the clothing of the men and speculative regarding the nexus between the men and the murders.  The stains could have come from mud, paint, or a host of other substances splashed on the men.  The women in the bar had no scientific means to distinguish the source and could only guess it was blood.  Similarly, they could only guess that the strangers might have had something to do with the Ryen murders.  The Slonaker/Wolfe declarations do not cast doubt on Cooper’s guilt nor do they warrant re-examination of his conviction.

11. Lethal injection is cruel and unusual punishment. The drugs used to execute an inmate may cause an intensely painful death.

The "cruel and unusual" argument regarding lethal injection has been repeatedly rejected by the U.S. Supreme Court.  See for example the recent cases of John Glenn Roe (Ohio) and Edward LaGrone (Texas).  Additionally, anesthesiologists who have looked scientifically at lethal injection have come to the conclusion that it is definitely neither painful nor horrific. An article examining this issue by Kyle Janek, a Texas State senator and anesthesiologist is now available on the CJLF website.  Killers who are executed by lethal injection invariably die more peaceful deaths than their victims, indeed more peacefully than most of humanity.

San Bernardino District Attorney Brief in Response to Clemency Petition
- Table of contents
and Brief.

Compiled by the Criminal Justice Legal Foundation staff, Michael Rushford, President, and Sue Blake, Public Policy Director.