Columnist Nicholas Kristof on The Framing of Kevin Cooper

Robert Dunham 0:03

Hello, and welcome to Discussions with DPIC. I’m Robert Dunham, Executive Director of the Death Penalty Information Center. And today we’re speaking with Nicholas Kristof, a Pulitzer Prize-winning columnist for The New York Times, about the case of California death row prisoner Kevin Cooper. Kevin Cooper was convicted and sentenced to death in San Bernardino County, California for the 1983 murders of Doug and Peggy Ryen, their 10-year old daughter Jessica Ryen, and 11-year old neighbor Chris Hughes. He has consistently maintained his innocence and the case raises troubling questions of racism, misconduct, and the unreliability of death penalty proceedings. In a Sunday column for the New York Times on May 20 entitled, Was Kevin Cooper Framed for Murder?, Mr. Kristof details Cooper’s innocence claims and the numerous irregularities in the evidence used to convict him. Cooper is now seeking advanced DNA testing that could exonerate him, and Mr. Kristof is one of many notable figures urging Governor Jerry Brown to grant that testing. Nicholas Kristof, thank you for joining us.

Nicholas Kristof 1:00

Sure, my pleasure.

Robert Dunham 1:01

Before we get into the specifics of Mr. Cooper’s case, what was it that persuaded you that this was the time to write the column and this was the case you wanted to write it on?

Nicholas Kristof 1:14

So, I had heard about Kevin Cooper years ago and what really struck me about it was that you had a number of federal judges who not only argued that there was a doubt about his innocence, but simply argued that look, he is innocent. He is framed by the sheriff’s office. One very well respected Ninth Circuit Judge, William Fletcher, came out and said, “he is framed by the San Bernardino County Sheriff’s Office” and wrote a 100-page judicial opinion about that. That just doesn’t happen in the law. So, that really caught my eye and that gave Kevin Cooper’s arguments credibility. I had actually written about him twice before, and it kind of felt that those columns disappeared without a ripple and I wanted to come back and really try one more time to give the issue the heft and push that it needed. So, I worked with some graphic designers at the Times and we wrote out what I think is the longest column in New York Times history, although that’s probably not the best way to advertise it. One other thing that was also in the back of my mind — In 2000, I proposed, here at The Times, doing a long look at the Willingham case in Texas, a man who was on death row for murdering his children. An editor persuaded me that it wasn’t worth doing it; that anything I wrote would end up being kind of wishy washy and we don’t really know and it’s impossible to prove, and so I didn’t. He was later executed in 2004. Since then, we in the news media have done a bunch of great post-mortems about the Willingham case. I look back and I think we, in the media, should have done a better job of doing pre-mortems and that that’s when it really matters. So I thought, here in the Kevin Cooper case, I don’t want to write a post-mortem. I want to write while there’s still time to affect the outcome.

Robert Dunham 3:33

Now, Kevin Cooper’s case has, really, an astonishing set of facts. Could you tell our listeners what you found?

Nicholas Kristof 3:41

Yeah, this isn’t a reflection of my extraordinary investigative powers or great digging — these are facts that really are available to anybody who looks for not very long. So, the murders happen on the night of June 4, 1983. The father of the boy who was spending the night over at the Ryen’s, he went over to pick his son up, looks through the sliding glass doors and saw blood all over, saw mayhem. His son was dead. The eight year old son of the Ryen’s was still alive even though his throat had been slashed. At the hospital, he said that three or four white men had committed the murders. Likewise, there were several folks who had seen the Ryen vehicle, which had been stolen apparently by the killers, they saw several white people driving that vehicle after the killings. Then, sometime after that, a woman contacted the police and said that she believed her boyfriend, who was a white man, who was a convicted murderer, who’d recently been released from prison, that she thought he was involved in the killings and he had arrived home late on the night of the murders wearing bloody coveralls, his hatchet, which resembled the murder weapon, was missing from his tool rack. And she handed these coveralls over to the police so they can be tested to see is it the Ryens’ blood on the coveralls. So what does the sheriff’s office do? It throws away the coveralls. It doesn’t pursue this former convicted murderer, and instead it arrests a 25-year old black man, who is Kevin Cooper.

Robert Dunham 5:40

Now this case is a gruesome murder scene. There are something like 140 different stab wounds on four different victims and there are at least three different weapons. How do they decide that a 155 pound black man did this by himself?

Nicholas Kristof 5:59

Well, that’s one of the many ludicrous elements of this, to think that you have a single killer who is juggling multiple weapons. In addition, they found two shirts that appeared to have been worn by the killers and then discarded. The idea that you have a lone intruder, who is not only juggling multiple weapons, three or four weapons, but also pausing mid-murder to change shirts. I mean, the whole thing is just preposterous. But, essentially what happened was that they realized very soon after the killings were discovered that Kevin Cooper had escaped from a minimum security prison in Chino, California, where he was serving a burglary sentence, and that he had holed up in a home just 125 yards from the murder scene. They thought this just can’t be a coincidence. You have this wanted, escaped felon, this desperate guy who’s truly in the next house over from the murder scene, and they looked at his picture and here’s a young black man with this large afro — I think he fit their mental construct of what a brutal murderer looks like. This is before the term ‘Superpredator’ emerged, but the idea certainly was there and I think he fit that narrative and so they pivoted from looking for three white men to focusing exclusively on Kevin Cooper. Once they had focused on him, I think they genuinely were sure that he had done it but they were frustrated because they couldn’t find evidence linking him to the crime scene. They couldn’t find fingerprints, they couldn’t find hair, they couldn’t find fibers. And so then that’s when evidence mysteriously and very suspiciously began to appear. I think that initially the sheriff’s office, the deputies probably thought that they were planting evidence on the side of justice to put away a really bad man. Then once they had started down that route, they were committed. Unfortunately, even now, under different leadership, they remain committed today and refuse to allow advanced DNA testing. This is what frustrates me and I find amazing is this is not Alabama. This is not Mississippi or Texas. This is California. This is led by Democrats. Jerry Brown is refusing to allow that testing. When she was Attorney General, Kamala Harris refused testing, although she has now switched positions on that. But if this is justice in California, then imagine what’s going on in Louisiana.

Robert Dunham 9:09

Now let’s get to why the DNA evidence here is so important. I’d like to unpack the evidence a bit by talking first about the circumstances of what sure looks like the frame up. So, Kevin Cooper is hiding out in a house that is pretty close to the crime scene. The police go in and they search it and initially they find nothing. And then after they decide that they’re going to focus on Kevin Cooper as the perpetrator, evidence shows up. What happened?

Nicholas Kristof 9:50

One of the pieces of evidence that they find, and that word “find” is an air quotes, is a bloody button from a green prison jacket. This is the kind of jacket that you would have expected Kevin Cooper to be wearing. However, in fact, it turns out that Kevin Cooper, unusually, was not wearing a green prison jacket that day, he was wearing a brown prison jacket which had different buttons. So, it’s kind of impossible to see how that green button could possibly have ended up on the floor of the house that he was staying at unless it was planted by the sheriff’s office.

Robert Dunham 10:43

And there’s also evidence about the hatchet sheath and the hatchet itself. Where did police claim that they found the sheath and where did they find the hatchet?

Nicholas Kristof 10:55

So, they found the hatchet near the murder scene. It had apparently been thrown out of a car window and hit a post and bounced off. What was striking was that it appeared to have been thrown out of the passenger window of a car as it was leaving the Ryen house. It’s a little hard to imagine that a lone driver is going to reach across and lower the opposite side window, and this is 1983, when the car probably didn’t have electric windows, and then he’s gonna toss it out the passenger side. But they found this bloody hatchet and it almost certainly indeed was a murder weapon. The hatchet seemed to have been around a fair amount. They find a brand new hatchet sheath on the floor again, where they had already searched. They say that the sheath went with the hatchet and that Cooper had taken the hatchet from this home that he was in. As I said, the alternative theory is that it came from this other white convicted murderer who had a hatchet that his girlfriend said was identical to the murder weapon and it went missing at the same time as the murder.

Robert Dunham 12:20

What happened to the car?

Nicholas Kristof 12:22

This is one of the problems for the prosecution. Everybody agrees that Cooper arrived in Tijuana, Mexico on the afternoon that the killings were discovered. So, he’s in Mexico. Then, six days later, the car shows up in Long Beach, California in a parking lot and the prosecution just can’t explain what it was doing in this interim. So, it shows up near the home of the sort of foster mother of this convicted murderer, and again somewhat problematically for the prosecution, it has bloodstains not only in the driver’s seat, but also in the passenger seat in the front and also in the backseat. So, unless a single murderer was jumping around from seat to seat, it’s a little hard to see how that happened. The first time the authorities searched the car, they don’t find any evidence linking it to Kevin Cooper. But then they search again and lo and behold, they find some cigarette butts that he had smoked. What’s striking about that is that there were similar cigarette butts that he had smoked in the house that he had holed up in and the police had noted finding them and then they don’t seem to have been logged in anywhere. And it’s pretty clear to me that they then were put in the car.

Robert Dunham 14:04

As disturbing as all this is, it gets worse. You were talking earlier about the bloody shirts and so forth. One of the bloody shirts that was found was a tan Fruit of the Loom tee shirt with a pocket on it. The girlfriend of the convicted murderer, who you identify in your column as a man named Lee, Lee’s girlfriend says that she had gone to a department store and she had bought a shirt that looked exactly like that shirt — same size, same brand, also had a pocket. That bloody shirt shows up and it gets tested.

Nicholas Kristof 14:52

That’s right.

Robert Dunham 14:53

What happened?

Nicholas Kristof 14:55

When the murders originally happened, DNA was not available. Then later on it became available and so Kevin Cooper is begging and pleading for this shirt to be tested. Indeed it is tested in 2002 and word comes back that it has the victim’s blood on it, and it also has his blood. This is a devastating blow to him. This indicates that indeed well, maybe he had been the killer. Some of his supporters give up on him at that point. But then they do a little more testing and they test that blood. Well, sure enough, it is indeed his blood that is on that shirt, but it has a blood preservative in it called EDTA. And the significance of that is that if you get blood taken at a doctor’s office, it’s put in a test tube and there’s a little pill at the bottom to preserve it, that’s EDTA. So, if you find EDTA in blood, then that means it’s not coming right out of somebody’s body. It’s coming out of a test tube. That immediately raised the possibility that the sheriff’s office, which had taken Kevin Cooper’s blood for testing, that it had then spilled some of that blood on the shirt to implicate him. And indeed, the blood had been checked out by one of the detectives.

They went back and looked at this test tube of blood, they examined a swatch from that test tube, and they found it now it has two people’s blood in it. That suggests that indeed, they take the test tube, pour some of the blood on this tee shirt, and then they top it up, so it looks like nothing was missing, with somebody else’s blood.

Robert Dunham 17:09

So, we know that the DNA evidence, so far, suggests that the police have planted evidence. Were any of the officers involved ever implicated in other charges of planting evidence? Had they attempted to frame other people?

Nicholas Kristof 17:25

Yeah, one of the reasons to be suspicious of the San Bernardino County Sheriff’s Office is it had a reputation as kind of the cowboys in the area. And indeed, the sheriff himself was later convicted of stealing more than 500 guns from the evidence room. Another figure who worked in the lab and found key evidence against Kevin Cooper, he acknowledged to me that he had stolen heroin from the evidence room. There is another detective who likewise “found” again in air quotes, key evidence against Kevin Cooper. 10 years later, there was another murder in the county. A man was suspected of having murdered his wife and this detective, just as he had 10 years earlier in the Cooper case, found very compelling evidence. It was blue fibers under the victim’s fingernails that pretty much showed that it was the husband who had done it. But then, lo and behold, it turns out that this evidence was planted and the husband was later exonerated. He’s free now. So, this sure does raise questions about the accuracy of evidence that turns up from this detective and more broadly from the sheriff’s department.

Let me just add that, I believe Kevin Cooper is innocent but, you know, there are also other people who think that he’s guilty. We don’t need to resolve that question. But, if we’re gonna execute somebody, let’s at least test the evidence. It is preposterous, that there is a t-shirt that is sitting in an evidence room after 35 years that the governor refuses to allow advanced testing of, or that there are hairs that were taken from the victim’s fingers that have never been tested to see who they came from. Putting aside the question of whether we’re absolutely sure that he’s innocent, that’s not the standard. But there certainly is doubt and it should be an easy ask to simply make sure that every little bit of evidence is tested.

Robert Dunham 19:57

You know, there have been 162 cases, so far, in which people in the United States have been wrongly convicted and sentenced to death and then exonerated. And that’s just since 1973. Given that there have been so many exonerations, and in so many of those cases, prosecutors and courts have said that there’s been overwhelming evidence of guilt, what does that say to you about the reliability of death penalty convictions in general?

Nicholas Kristof 20:30

Well, I think that it’s overwhelmingly clear that we make mistakes, and we’re disproportionately likely to make mistakes in cases where there is tremendous pressure on the authorities to solve them, which tends to be, precisely, murders and especially gruesome murders or murders of children or multiple murders or, rape murders or anything that is particularly morally offensive. So, in other words, when the stakes are greatest, and a human life is at stake, that’s when we’re most likely to end up with false positives. That’s a reason for systemic caution. It’s also pretty clear that the system works least well when you have people of color or you have people of limited means who are accused. If Kevin Cooper were white, he would not be on death row. If Kevin Cooper had been rich, he would not be on death row. It is the combination of being a poor, disadvantaged, person of color, accused of a really gruesome crime, and having had awful legal representation at the first instance. This all came together and that is why he is on death row and that’s fundamentally an indictment of our criminal justice system as it deals with these cases.

Robert Dunham 22:05

It’s often said, and you just mentioned it, that the death penalty risks mistakes and as long as we’re human, there’s always the possibility that mistakes are going to happen. But it looks to me, and I think you suggest this, too, that Kevin Cooper wasn’t convicted by error. This evidence, whether he’s guilty or not, it sure looks like Kevin Cooper was framed. Are there any things you can think of that we ought to be doing that could prevent this kind of what looks like systemic misconduct from taking place or at least from taking place in capital cases?

Nicholas Kristof 22:51

So, there has to be consequences for police or prosecutors when they engage in this kind of misconduct, and too often there are no consequences. You know, we understand that there have to be consequences for bank robbery, for murder. Well, there also have to be consequences for police officers who perjure themselves or sheriff’s deputies who plant evidence. The one detective I mentioned, who miraculously found this evidence in this other murder case that later proved to be planted, he was hailled for his brilliance at finding, at discovering these key bits of evidence that were apparently planted. He did not suffer those consequences. I think that’s a systemic problem here. In a sense, it’s only because these are capital cases that we’re aware of the bias and the misconduct that occurs. One of the lessons to me in writing about these cases is if you’re going to be framed, then you’re better off being framed for murder and sentenced to death than you are to be framed for burglary and sentenced to 10 years in prison. Because at least when people are sentenced to death, they do tend to get ultimately first grade pro bono counsel, they get advocacy groups, they get journalists looking into their case. And it’s sometimes not enough as the Willingham case suggests. Innocent people I think are executed and innocent people spend decades on death row, but at least there is scrutiny in those cases. Where as if Kevin Cooper had been sentenced to life imprisonment, I’m not sure that we would be aware of it. It’s an incredible conundrum and paradox. But the one thing about death penalties is that they do lead to a certain amount of scrutiny of incredible injustices.

Robert Dunham 25:22

Does he have any appeals left?

Nicholas Kristof 25:23

At this juncture, no. Essentially, at this point, it’s a political matter to have the Governor provide clemency or to have the Governor or Attorney General order, or allow, new DNA testing. It’s not really order new DNA testing because the defense is willing to pay for it. It’s not that California has to really do something honorous, it’s simply a matter of allowing testing. Whether there is some new cause of action, legally, if new evidence comes to light, that’s kind of beyond my paygrade.

Robert Dunham 26:04

But if the Governor, at this point, doesn’t grant clemency or doesn’t allow the testing, Kevin Cooper stands to be executed.

Nicholas Kristof 26:11

That’s correct. One of my concerns is that I think that the Governor may have worked the timing out in his mind and figured that Cooper is unlikely to be executed on his watch and that this would take place after Governor Brown steps down. And testing would be a headache that he doesn’t want to have to deal with and so leave the headache to the next Governor. I fear that that is what Governor Brown’s passivity and paralysis are about.

Robert Dunham 26:41

And that leads me to another subject I wanted to ask you about, because California had on the ballot, in the 2016, two referenda. One referendum that would abolish the death penalty and the other that would at least advertise itself as speeding up the process, Proposition 66. That proposition passed narrowly, and the one to abolish death penalty was defeated. But what would have happened to Kevin Cooper, if Proposition 66 had been in effect during the course of his case?

Nicholas Kristof 27:20

So, he would probably be dead now. I mean, he came very close to being executed in 2004. Within about three hours of being executed, and it was the heroic efforts of some judges, including Willie Fletcher on the Ninth Circuit, who prevented that from happening. He came so close. I talked to him about this, I told him that I think that he’s not going to be executed, that he’s going to be freed at the end of the day. And he doesn’t have that same confidence having had people search his arms for veins to inject lethal chemicals. He doesn’t have that confidence in the system working out. I hope he’s wrong and that I’m right and that Californians will put pressure on Governor Brown to uphold justice and make sure that an innocent man is not executed.

Robert Dunham 28:30

Well, Mr. Kristof, this is a really disturbing case. Beyond we’ve talked about, are there any other take-home messages that you want our listeners to get?

Nicholas Kristof 28:40

Well, the reason I wrote about the Cooper case is not just because of the injustice, I believe, to one man. But, more broadly, because it’s a window into the way the criminal justice system is periodically just plain broken. Especially with regard to defendants of color or indigent defendants in really sensational cases. Sometimes the system works and sometimes it doesn’t. But it shouldn’t be a game of lottery when people are arrested and charged with capital offenses.

Robert Dunham 29:24

Mr. Kristof, thank you very much for joining us on Discussions with DPIC.

Nicholas Kristof 29:29

Well, thank you, and thanks for all you and your listeners do and keep it up.

Robert Dunham 29:32

Thank you. We’ve included a link to Nicholas Kristof’s column in the notes accompanying our description of this episode on the Discussions with DPIC web page. To read the column, just click the link. To learn more about the death penalty, visit www.deathpenaltyinfo.org and subscribe to Discussions with DPIC with your podcast app of choice to make sure you never miss an episode. Thank you for listening.