Justice delayed, with a life on the line Nicholas Kristof

Imagine being framed for a horrific crime: the fatal stabbing of a married couple and two children. You then spend 35 years in prison awaiting execution for that quadruple murder. Imagine you’re a black man and the trial was tainted by the ugliest racism. Meanwhile, federal judges and FBI investigators cite evidence that the real killer is a white convicted murderer who came home late on the night of the murders in bloody coveralls, but when his girlfriend reported him to authorities, police took the bloody coveralls and threw them away.

Imagine that evidence sits in government storage that could show who actually committed the murders, yet year after year a governor refuses to allow advanced DNA testing.

That is, I’ve argued, what happened to Kevin Cooper, now on death row at San Quentin prison. For 11 years, as attorney general and governor, Jerry Brown has refused to allow advanced DNA testing that could free Cooper or confirm his guilt.

Now I have a new argument that perhaps can move Brown. The white convicted murderer who is the other suspect in the case has voluntarily provided samples of his DNA and told me that he too wants advanced DNA testing of evidence from the murder scene.

“I had nothing to do with this crime,” the man, Lee, told me. “I want it all retested, yes. To clear my name.”

I’ve used just Lee’s first name, because he asked me not to use his full name and because enough damage has been done in this murder case by people jumping to conclusions without clear proof. Lee said his former girlfriend had fingered him to police because she was jealous of his new flame, and that the bloody coveralls were not his.

“I have no idea who did it,” said Lee, now 68. “The police need to do their job properly and find out who did it.”

So both suspects in the case are now pleading with Brown to permit advanced DNA testing of evidence from the murder scene. A towel used by the killers has never been tested at all, and a T-shirt used by a murderer hasn’t been tested for “touch DNA” to determine who wore it. Some hairs found clutched in the victims’ hands, possibly ripped from the killer’s head, are not from an African-american and have also never been tested.

Will Brown listen?

I asked Brown what he is waiting for, and he emphasized that he is reviewing the case with input from both sides. “I’ll act on it,” he said. He also protested that my reporting on the case, which led to widespread calls for DNA testing, was one-sided and had “left out a number of elements.”

While Brown denied that he was running out the clock, he refused to commit to resolving the issue before leaving office in January. Referring to the likelihood that Gavin Newsom will be elected governor next month, he said: “You’re going to get a guy more liberal than me coming around the corner. Don’t worry.”

I suggested that for an innocent man on death row, every extra day is no minor thing. Brown shrugged and observed that California has 130,000 prisoners.

There has been another important development in the Cooper case. A witness has provided a sworn declaration describing a confession by Lee to the killings, committed with two other named individuals, according to Cooper’s defense counsel, Norman Hile. The name of the witness is being kept confidential for now for the protection of the witness, Hile said in a letter to the governor.

The 1983 killings — of Doug and Peggy Ryen, their 10-year-old daughter Jessica and an 11-year-old neighbor, Chris Hughes — were as barbaric a crime as one can imagine. Yet the horror of this crime will have been compounded if an innocent man has been framed for it.

Granted, maybe I’m wrong about this. So, Governor, prove me wrong. Test the evidence. Settle the doubts.

To study criminal justice is to see how flawed our system is. Researchers have repeatedly found that black defendants are more likely to be convicted, more likely to receive long sentences, more likely to be sentenced to death — especially, as in this case, when the victims are white. One study found that judges are less likely to grant parole when they are hungry, before lunch. Another study found that judges issue longer sentences the week after their college alma mater football team unexpectedly loses a game. Given this arbitrariness in the system, it is unconscionable to let a man languish on death row without even testing all the evidence. At stake is the life of one man, but also the legitimacy of our criminal justice system.

This case is illustrative of the problem with the death penalty, and 163 people on death row have been exonerated since 1973. This is not a problem of one man, but of a flawed system of justice.

I generally admire Brown and agree with him on most issues. But I’m mystified, as are many of his friends, by his recalcitrance in the Kevin Cooper case. I’m glad that my May column finally got him to review options for DNA testing, but almost five months have elapsed and Cooper is still waiting.

Brown told me he wished that “people would take more of an interest” in criminal justice issues. Governor, here’s one such issue: Please show more interest yourself.