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. 9^th 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.