Even supporters of capital punishment should object to the execution of someone whose guilt is in serious question. That’s the case with Kevin Cooper, who was convicted of four gruesome murders in Chino Hills nearly three decades ago. Now that the federal courts have failed to prevent Cooper’s execution, the burden is on Gov. Arnold Schwarzenegger to commute his sentence to life imprisonment.

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FOR THE RECORD:
Death row: A Dec. 23 editorial on Kevin Cooper, whose murder conviction has been called into serious question by a federal judge, mentioned the “697 people on California’s death row.” The current number is 717. —

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On the night of June 4, 1983, three members of the Ryen family and an 11-year-old houseguest were hacked to death. Eight-year-old Josh Ryen, his throat cut, was left for dead, but survived. The San Bernardino County Sheriff’s Department focused on Cooper, who had been living in a house near the Ryens’ after escaping from a state prison. The day after the murders, Cooper checked into a hotel in Tijuana. Investigators theorized that he had traveled to Mexico in the Ryens’ station wagon.

Cooper was convicted after Josh Ryen testified that he had seen a single individual or shadow at the murder scene. Other evidence included a bloody footprint on a bedsheet made by a shoe that supposedly was manufactured only for prisons, and the discovery in the Ryens’ station wagon of cigarette butts of the brand smoked by Cooper.

But much of the evidence against Cooper has been seriously questioned, most comprehensively in an opinion by Judge William A. Fletcher of the U.S. 9th Circuit Court of Appeals, who dissented from a decision not to hear an appeal by Cooper. Fletcher noted that Josh originally said the killers were three white or Hispanic men (Cooper is black); that the warden of the prison where Cooper had been incarcerated said the shoe that made the bloody footprint was sold to the public; and that the cigarette butts, which were not found in the original inspection of the car, could easily have been planted. What’s more, the station wagon turned up in Long Beach.

Fletcher also noted that a woman said that on the day of the murders, her former boyfriend had been wearing a T-shirt similar to one found near the crime scene. She also said he showed up at her house wearing blood-spattered coveralls. (The coveralls were discarded by a sheriff’s deputy.) Another woman reported finding a second, possibly bloodstained, shirt on a road near the Ryens’ house. And on the night of the murders, two or three men in bloody clothes were seen in a bar near the crime scene.

Finally, long after his conviction, as Cooper was pursuing appeals, a blood test was performed on the T-shirt; according to analysts, the test detected Cooper’s DNA. At first, that seemed to be the incontrovertible scientific evidence that had for so long been elusive — but Fletcher noted that the blood on the T-shirt contained signs of a preservative used by the sheriff’s office to preserve blood in a laboratory for later testing. According to the judge, that suggested the blood “had been planted on the T-shirt.”

Fletcher wrote that Cooper “is probably innocent of the crimes for which the state of California is about to execute him.” Whether or not that’s true, the judge makes a compelling argument that sheriff’s office investigators planted evidence in order to convict Cooper and discarded or disregarded other evidence pointing to other killers — creating not just reasonable but serious doubt about his guilt.

This newspaper opposes the death penalty under any circumstances, and we wouldn’t object if the governor commuted the sentences of all 697 people on California’s death row. But execution is especially outrageous when the prisoner may be innocent. Gov. Schwarzenegger should commute Cooper’s sentence.