Probe not ending doubt over Death Row inmate’s guilt
Kevin Cooper’s death sentence for the 1983 murders of a married couple and two children in San Bernardino County is probably the most contentious capital case in California. And it is likely to remain so, despite the findings of a state-ordered special investigation that Cooper was clearly guilty and had not been framed.
State and federal courts have upheld Cooper’s convictions and death sentence for the fatal stabbings of Doug and Peggy Ryen, their 10-year-old daughter, Jessica Ryen, and 11-year-old house guest, Christopher Hughes, at the Ryens’ home in Chino Hills. Cooper had escaped two days earlier from a nearby prison, where he was serving a sentence for burglary.
But his claims of innocence have drawn wide support, including a 101-page dissenting opinion in 2009 by Judge William Fletcher and four colleagues on the Ninth U.S. Circuit Court of Appeals, who said there was reason to believe officers had “manipulated and planted evidence” against Cooper. Vice President Kamala Harris, when she was a U.S. senator from California, urged Gov.elect Gavin Newsom in 2018 to order new DNA testing on evidence in the case. Newsom issued that order in February 2019, declared a moratorium on all executions in the state a
month later, and, in May 2021, ordered what he described as an independent investigation into Cooper’s case.
The report by the San Francisco law firm Morrison Foerster wound up its 104-page assessment of the evidence by declaring that “the evidence of his guilt is conclusive.” But some of the evidence cited in the report might raise questions about that conclusion.
Cooper and his supporters have argued that the actual killer was Lee Furrow, a paroled murderer who had been in the area. According to the report, two men who had worked alongside Furrow on construction projects in Pennsylvania told California’s independent investigator that they had heard Furrow say in 2018 that “me and my boys, we butchered a whole family.” Furrow’s former girlfriend told the investigator that soon after the killings she saw him wearing a pair of bloodstained coveralls. A sheriff’s deputy questioned Furrow six months later, then took the coveralls and threw them in a dumpster without testing the bloodstains.
The report dismissed the construction workers’ statements as “not reliable,” saying the workers had recently seen a television program that mentioned Furrow as a possible suspect in the killings, and had not reported their conversation to police. While the coveralls “should not have been destroyed,” the clothing of the Ryens’ killer would have been covered with blood, in contrast to the scattered bloodstains described by Furrow’s exgirlfriend, the law firm said. It also noted that investigators found Cooper’s DNA and fingerprints at the murder site, but no evidence of Furrow’s presence.
Furrow had admitted strangling a 17-year-old girl, Mary Sue Kitts, in 1974 at the orders of Clarence Ray Allen, who was also convicted of murder and sentenced to life in prison. Allen ordered further killings in prison, including an unsuccessful attempt to kill Furrow, and was executed in 2006, the most recent convict to be put to death in California. With credit for his testimony against Allen, Furrow was released after serving 4½ years for slaying Kitts. He has denied any involvement in the Ryen deaths.
The report also discounted the first response of the only survivor of the attacks, 8-year-old Josh Ryen, whose parents and sister were killed. Josh, whose throat was slashed, was questioned in the hospital by a social worker when he was unable to speak, but he signaled, by touching letters and numbers on a page, that the attackers had been three white men. Cooper is Black, and Furrow is white. The boy later told a sheriff ’s deputy that three Mexican men had been to the house that night. And after seeing a televised photo of Cooper, Josh said, according to a law enforcement officer, “That wasn’t the guy that did it.”
Josh Ryen did not testify at Cooper’s trial in 1985, and said recently he is now convinced of Cooper’s guilt. The investigators’ report said the boy’s conflicting responses in the hospital do not support Cooper’s case because Josh “never stated that he saw or got a good look at the person or persons who committed the crime.”
Cooper also contended there must have been multiple attackers because the victims suffered more than 140 wounds, and Doug and Peggy Ryen were both strong and fit adults who kept weapons in their bedroom. His lawyers presented similar assessments from a retired FBI agent and a forensic pathologist. But the new report said Paul Delhauer, a former Los Angeles County sheriff’s investigator whom the law firm described as an “independent expert,” found that there could have been a single attacker, since the Ryen couple were both attacked in bed after drinking heavily, and the other victims were children.
The report included documents from three more expert witnesses who analyzed evidence from the crime scene, the reliability of eyewitnesses’ statements and the possibility of Furrow’s guilt, and agreed that they did not support Cooper’s claims of innocence. One witness, Alan Keel, had been a crime laboratory analyst for the Oakland and San Francisco police departments. Another, Mark Lilienfield, is a former Los Angeles County sheriff’s detective. The third was a psychologist, Mitchell Eisen, with no apparent law enforcement affiliation.
“It’s disappointing that the investigation appears to have a strong prosecutorial bias,” said Robert Dunham, executive director of the Death Penalty Information Center in Washington, D.C. “If you are going to be conducting an independent investigation, you don’t have prosecutors investigating prosecutors.”
Another critic told The Chronicle that Delhauer appeared to be typical of the experts consulted by the law firm for the report.
“He was hardly unbiased given that his friends in the San Bernardino Sheriff ’s Department were under scrutiny,” said Philip Hansten, professor emeritus of pharmacy at the University of Washington. His recent book, “Death Penalty Bullshit,” has a chapter that concludes Cooper was almost certainly framed for crimes committed by multiple killers.
The report “tried to explain away (or ignore) basically all of the discrepancies, inconsistencies, (legal) violations, and even absurdities in the case against Cooper,” Hansten said.
Cooper’s attorneys, from the law firm of Orrick, Herrington & Sutcliffe, said the study had been neither thorough nor independent, and had failed to question prosecutors in the case or discuss defense claims that prosecutors had withheld and destroyed evidence. The investigators ignored the attorneys’ request to demand records from the prosecutors and the sheriff’s office and refused to speak to a defense DNA expert or let Cooper’s lawyers speak with the investigators’ expert, said Rene Kathawala, a lawyer with the Orrick firm.
“We call on the governor to follow through on his word and obtain a true innocence investigation,” the firm said in a statement.
But that road is definitely uphill. The report, while ordered by Newsom, was issued to the state Board of Parole Hearings, which reviews prisoners’ requests for clemency, such as Cooper’s, and then makes recommendations to the governor. Vicky Waters, a spokesperson for the parole board, said Thursday that the investigation had been “independent and unbiased” and no further review was needed.
“We are confident in the reliability of the investigation, and satisfied that Mr. Cooper’s innocence claims have been thoroughly reviewed,” Waters said. “At this time, the Board of Parole Hearings has not been directed to take further action on this matter and considers this investigation closed and concluded.”
Erin Mellon, a spokesperson for Newsom, said only that the report “finds that evidence of Mr. Cooper’s guilt is ‘extensive and conclusive’ ” and did not say what action, if any, the governor might take in response.
Newsom could still consider clemency for Cooper on other grounds, such as his claims of racial discrimination and prosecutorial misconduct, which included allegations that prosecutors withheld or destroyed evidence that would have demonstrated his innocence. So far, the governor has not fully defined his role in the case.
He is the elected leader of the state, whose lawyers prosecuted Cooper and defended his conviction and sentence in court. But Newsom also says the death penalty, approved by California’s voters, is racially discriminatory and does not protect the public. He has dismantled Death Row at San Quentin and transferred condemned inmates to other prisons. He has not, however, sought to commute any of California’s 671 death sentences to life in prison, an action that would require approval by a majority of the state Supreme Court for most of the prisoners, including Cooper.
Apart from the clemency process, a new state law, signed by Newsom last year, allows Cooper and other prisoners under death sentences to have their convictions and sentences overturned if they were treated differently because of their race. The law will expand in 2026 to apply to all past felony convictions.
Cooper, now 65, says he isn’t giving up on the governor and his willingness to re-examine the case and the law.
“Gov. Newsom cannot let this stand, because he did not order a pro cop, or pro prosecutor investigation, he ordered an independent investigation,” the inmate said in a letter from San Quentin that supporters received this week. “I will continue to fight not only for my life, and to get out of here, but to end the death penalty as well.”