What is truth, said jesting Pilate

Back in 2010, Times columnist Nicholas Kristoff had an op-ed about Kevin Cooper, a black man on death row in California for stabbing four people to death and leaving for dead a fifth who somehow survived and said the killing was done by 3 white guys. Kristoff's op-ed grew out of a dissenting opinion by 9th Circuit Judge William Fletcher in Cooper v. Brown, arguing that Cooper was likely factually innocent, had been framed by the cops, and that the courts and prosecutors and government authorities were at least passively complicit.

As Fletcher's dissent was a jumping off point for Kristoff, so his op-ed was a jumping off point for a blog post I wrote.

Today, in the Times on-line and I think set for a print version in the Sunday paper, Kristoff has a lengthy follow-up, detailing his own investigation. It's powerful. Well worth reading for justice gone awry and for the active unwillingness​ of those sometime Democratic heroes Jerry Brown and Kamala Harris to just take the smallest of steps - allowing the DNA testing to go forward. The testing that might well show it wasn't Cooper - which seems pretty likely, but who knows.

As I've regularly said here,

JUST TEST THE FUCKING DNA

But Jerry Brown (yeah, that Jerry Brown, the former Governor Moonbeam, the present Governor Old-Liberal-Icon) won't allow it. And Kamala Harris, once California Attorney General, now Senator Harris - she (like Jerry when he was California's AG) just wants the conviction affirmed and Cooper to stay in prison forever unless he's killed and damned with any DNA testing.

It's worth noting how Kristoff explains his continuing passion for the case:

It’s obvious to you by now that this is not a usual column — I’m not sure The Times has ever published a column of this length — so why am I exploring the case with such passion? I became interested primarily because Fletcher and other respected federal appeals judges had said he was framed. That just doesn’t happen.

I’m also haunted by something else. In 2000, I proposed reporting a lengthy piece about doubts about the conviction of Cameron Willingham, who was then on death row in Texas for the arson murder of his three children. An editor talked me out of it, and I never did write about Willingham, who was executed in 2004. Since then, growing evidence has emerged that he was innocent, and perhaps it’s partly to atone for my earlier failure that I’ve taken up Cooper’s case.​Which does sort of make the point that Cooper's not the only one. That death row, and really all our prisons (and our jails, too, but that's a different story), have significant numbers of folks in them who are likely to be innocent.

Wholly, factually, innocent. Wrong guy.*  Or, even, crime didn't happen.**

All of that ​​is quite an extraordinary explanation from a Times columnist, I think.

And he follows it up with the plaint of everyone who recognizes that we're supposed to have a system of something like justice - whatever exactly that might be.

Maybe in the grand scheme of things, the fate of one man on death row doesn’t seem so important; innumerable people die tragically every day. Yet we aspire to be a nation where we are all equal before the law, and if we execute a man in so flawed a case without even bothering to test the evidence rigorously, then a piece of our justice system dies along with Kevin Cooper.

Governor Brown, if you’re reading this, I understand that you may believe that Cooper is guilty. But other smart people, including federal judges and law school deans, believe him innocent. So how can you possibly execute him without even allowing advanced DNA testing, at the defense’s expense, to resolve the doubt? What’s your argument for refusing to allow testing? ​

Though Kristoff doesn't say it this way, testing will lead to one of three conclusions:

1. Cooper's guilty, in which everyone can go home and rest assured.
2. Cooper's an innocent guy we wanted to kill, in which case we can try and find the real killer and, by the way, do what we can to make sure we don't keep doing shit like this and also try to make some small amends to Cooper for his wrongful decades on death row.
3. Can't really tell shit. In which case, we'll at least have tried.

So what's the harm? What, exactly, are they scared of?  Don't we want the truth?

Oh, yeah, I forgot.

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*In which case, of course, the right guy is presumably still out there on the streets.

**The likelihood in Willingham's case.  The fire was probably not arson but an electrical fire from bad wiring.

Government Work

Hey, maybe he didn't do it.  But close enough for government work.

It's the story of too many folks on death row.  Too many folks in prison.  Too many charged and convicted where . . . .

OK, let me be both careful and honest about this.  I don't know how many factually innocent folks - ones who just flat out didn't do it (whatever the it may be) are charged with and convicted of crimes.  I don't know how many pay the traffic tickets they shouldn't have gotten or how many are doing a few years in stir or how many are awaiting a trip to the gurney.  Or how many have been executed.

I don't know.  Neither do you.  Neither does anyone else despite studies and analysis and careful estimates and wishful thinking and blind guesswork.  Nobody knows.  

What we know is that whatever the number, it's too many.  Every one is a failure of one or more parts of the system.  Every one is a mistake.  Some of those mistakes are more tragic than others.  Some have deadly serious consequences:

• Innocent people locked up forever.
• Innocent people killed.
• Lives ruined.
• Families destroyed.
• Guilty people left free.
• Some to pillage, rape, murder again.

But every one a mistake.  Every one a failure of our system of so-called justice.

Nicholas Kristof in today's Times tells the story of one likely candidate.  (Kristof's written about him before; so have I.)  This guy.

Kevin Cooper's on death row in California for four brutal murders in 1983.  There's a better than even chance he was framed for the killings that put him there.   Despite a lot of concern - and some outright vituperation - expressed by a number of judges, by some media, and by plenty of do-gooders, nobody with the power actually to do something has seemed to show much interest.

I mean, hell.  The guy was convicted by jury of 12.  And we haven't gotten around to killing him yet, despite his having spent more than three decades on death row.  What more can you ask for?

Oh, yeah.  You can ask for new and more definitive DNA testing.  

You know, the stuff that can maybe answer the question of whether he's the wrong guy.  Or, of course, maybe not.  If they'd do the testing, there are three possibilities.

• It'll pretty conclusively show he didn't do it - and just maybe who did.
• It'll pretty conclusively show that he did just what he was convicted of, showing that this is a case where things actually worked right.
• It'll be inconclusive and leave things about where they are now, but with another stone turned.

Is any of those a bad thing?  Is there something to fear?  Is there any good reason why they won't just

TEST THE FUCKING DNA?

Yeah.  I couldn't think of a reason, either.

Close enough for government work?

Looks like it is.

BECAUSE EVERYONE WANTS TO BE TEXAS: The California Edition

The State of California may be about to execute an innocent man.

Ho hum.  Just another abolitionist rant.  If you spend any length of time trawling the sea of abolitionist and death row inmate websites on the internet you see that sort of claim all the time.  Just substitute the state of your choice (as long as it has an active death row) for California.  

Despite that "about to execute" language, it doesn't even need to be any time soon.  I've been reading for 10 years or more that Mumia Abu Jamal will be executed within months if something dramatic doesn't happen.  Someday, maybe, but don't be holding your breath either in horror or anticipation.

But this time it's different.  I'm not talking about the immediacy of thing in the state with the nation's largest death row in part because they rarely actually manage to kill anyone.  That may or may not be true.  I'm talking about the claim itself.  What's different is that it isn't coming from some abolitionist group or the activist friends and supporters of the maybe-soon-to-be-killed guy or from his lawyers hoping to gin up some support among whoever.

This is different because it's actually the first sentence in a judicial opinion.  By a judge of the United States Court of Appeals for the Ninth (hey, some things are maybe predictable) Circuit, the Honorable William A. Fletcher, joined by 4 other judges.

Nicholas Kristoff writes about the case in today's NY Times.  He says it's

an illuminating window into the pitfalls of capital punishment.

By which he means that it's another case where what sure looks like innocence isn't enough.  But really, that's only a part of it.  Still, it's maybe where we should begin, because Kristoff's basic claim isn't just that the guy is innocent.  It's that he was framed by the police.

Cooper

His name is Kevin Cooper.  Here's Fletcher's description of the crime.

Late at night on June 4, 1983, Doug and Peggy Ryen, their daughter Jessica, and their houseguest Chris Hughes, were brutally murdered in the Ryen home in Chino Hills, California.  Their son, eight-year-old Josh, suffered extensive injuries but survived. The victims had numerous chopping, cutting and stabbing injuries, caused by several different kinds of weapons. A number of cutting and stabbing wounds were inflicted after the victims were already dead. Josh was found in the late morning of June 5 in his parents’ bedroom, near the bodies of his mother and Chris. His father’s body was also in the bedroom. His sister’s body was in an adjoining hallway.

It was, of course, a horrific crime.  It didn't help (I know this will shock you) that all the victims were white and that Cooper is black.  Oh, and Cooper had escaped two days earlier from a minimum security prison in Chino where he was serving a sentence for burglary.  He'd been hiding out in a vacant house just over a football field's distance away from the Ryen's.

Naturally, the police figured he did it.  But of course, there's more to the story.  Here's Kristoff's summary of some of the evidence on which Fletcher relied.

Judge Fletcher laid out countless anomalies in the case. Mr. Cooper’s blood showed up on a beige T-shirt apparently left by a murderer near the scene, but that blood turned out to have a preservative in it — the kind of preservative used by police when they keep blood in test tubes.

Then a forensic scientist found that a sample from the test tube of Mr. Cooper’s blood held by police actually contained blood from more than one person. That leads Mr. Cooper’s defense team and Judge Fletcher to believe that someone removed blood and then filled the tube back to the top with someone else’s blood.

The police also ignored other suspects. A woman and her sister told police that a housemate, a convicted murderer who had completed his sentence, had shown up with several other people late on the night of the murders, wearing blood-spattered overalls and driving a station wagon similar to the one stolen from the murdered family.

They said that the man was no longer wearing the beige T-shirt he had on earlier in the evening — the same kind as the one found near the scene. And his hatchet, which resembled the one found near the bodies, was missing from his tool area. The account was supported by a prison confession and by witnesses who said they saw a similar group in blood-spattered clothes in a nearby bar that night. The women gave the bloody overalls to the police for testing, but the police, by now focused on Mr. Cooper, threw the overalls in the trash. 

OK, that's quite a lot.  And it leads Kristoff to make the point about what's wrong with our willingness to kill.

This case is a travesty. It underscores the central pitfall of capital punishment: no system is fail-safe. How can we be about to execute a man when even some of America’s leading judges believe he has been framed? 

Damn good question. But it really only gets to part of the problem.

Look, I don't know whether the cops framed Cooper or not.  I don't know whether he murdered Hughes and the Ryens.  I don't know what happened that night in 1983, and (unless you happen to be the actual killer) neither do you.  Nor do the jurors or the judges or the Governator.  I know that Fletcher makes a pretty compelling case both for Cooper's innocence and for a police frame-up.  And unless he's flat-out lying about what's in the record, it seems pretty clear that to kill Cooper under these circumstances "comes perilously close to simple murder" as Justice Blackmun put it (dissenting, alas) in Herrera v. Collins.

But all that said, innocent people getting framed by the cops, innocent people getting convicted and sentenced to die, innocent people getting executed, those are the eggs broken for the omelet.  It's bound to happen if you kill enough people.  The outrage isn't in the innocence.  The outrage is in the ignoring.  Because that's where singular events become systemic issues.

And it's the ignoring, not negligent ignoring but purposeful ignoring, that's the other part of what Kristoff calls Fletcher's opinion:

[A] 21st-century version of Émile Zola’s famous “J’Accuse.” 

This isn't the first time Cooper's case has been before the 9th Circuit looking for en banc review.  Last time, it got that review, and the district court was specifically ordered to have some testing done, "in order to evaluate Cooper's claim of innocence."  Fletcher explains what happened.

First, we directed the district court to conduct further testing of a bloody tan t-shirt that had been found beside the road leading away from the house where the murders took place. The tan t-shirt was found soon after the murders. Initial testing of stains on the t-shirt showed that they contained blood consistent with one of the victims and not consistent with Cooper. Cooper presented evidence of the t-shirt as part of his defense at trial.

Long after trial, at Cooper’s insistence, the State performed a DNA test on some of the blood on the t-shirt. Cooper maintained that the test would prove his innocence. Instead, the blood tested positive for Cooper’s DNA. Cooper maintained (and continues to maintain) that his blood was planted on the t-shirt. If the blood was planted, the only possible source was blood taken from Cooper by law enforcement authorities. A vial of blood was taken from Cooper by San Bernardino County Sheriff’s Department (SBCSD) personnel on August 1, 1983, two days after his arrest. That blood contained an added preservative called EDTA. We wrote, “The presence of such a preservative would show that [Cooper’s] blood was not on the t-shirt at the time of the killings[.]” We directed the district court to test Cooper’s blood on the t-shirt for the presence of EDTA.

Second, Jessica Ryen, one of the murder victims, was clutching blond or light brown hair in her hand. We directed the district court to subject the hair to mitochondrial DNA testing.

The district court held hearings on Cooper’s application for habeas corpus in 2004 and 2005. It denied all relief.  A three-judge panel of our court affirmed, with one judge concurring specially.

There is no way to say this politely. The district court failed to provide Cooper a fair hearing and flouted our direction to perform the two tests.

As will be described in greater detail below, the district court impeded and obstructed Cooper’s attorneys at every turn as they sought to develop the record. The court imposed unreasonable conditions on the testing the en banc court directed; refused discovery that should have been available as a matter of course; limited testimony that should not have been limited; and found facts unreasonably, based on a truncated and distorted record.

The most egregious, but by no means the only, example is the testing of Cooper’s blood on the t-shirt for the presence of EDTA. As will be described in greater detail below, the district court so interfered with the design of the testing protocol that one of Cooper’s scientific experts refused to participate in the testing. The district court allowed the state designated representative to help choose the samples to be tested from the t-shirt. The court refused to allow Cooper’s scientific experts to participate in the choice of samples.

Indeed, the court refused to allow Cooper’s experts even to see the t-shirt. The state-designated lab obtained a test result showing an extremely high level of EDTA in the sample that was supposed to contain Cooper’s blood. If that test result was valid, it showed that Cooper’s blood had been planted on the t-shirt, just as Cooper has maintained.

A careful analysis of the evidence before the district court strongly suggests that the result obtained by the state-designated lab was valid. However, the court allowed the state-designated lab to withdraw the test result on the ground of claimed contamination in the lab. The court refused to allow any inquiry into the alleged contamination. The court refused to allow Cooper’s experts to review the bench notes of the state-designated lab. The court then refused to allow further testing of the t-shirt, even though such testing was feasible.

The district court placed two photographs of the murder victims at the end of its 159-page order denying relief to Cooper. One is a photograph of the photogenic Ryen family — two beautiful children, ten-year-old brown-haired Jessica and eight-year-old blond-haired Josh, and their attractive parents. The other is a photograph of eleven-year-old Chris Hughes, a handsome blond-haired boy. The district court had no analytic reason to include these photographs at the end of its order.*

Read those two paragraphs near the middle again.

There is no way to say this politely. The district court failed to provide Cooper a fair hearing and flouted our direction to perform the two tests.

As will be described in greater detail below, the district court impeded and obstructed Cooper’s attorneys at every turn as they sought to develop the record. The court imposed unreasonable conditions on the testing the en banc court directed; refused discovery that should have been available as a matter of course; limited testimony that should not have been limited; and found facts unreasonably, based on a truncated and distorted record.

That's the clear and precise outline of a picture that's filled in and colored in the rest of Fletcher's opinion.  And it's a devastating indictment of the system.  Because it's not a cop trying to make a weak case better.  (Think the OJ case or the cops who find excuses for that illegal search that turned up the equally illegal cocaine.)  It's a judge who willfully obstructs justice, who flaunts his willingness to flout the direct orders of the appellate court, who acts (it seems) out of bias and prejudice and sympathy rather than with even the pretense of legality.  And it's the supposedly ultra-liberal, criminal friendly 9th Circuit that looks at all that and says,

Yeah?

Down in Texas, John Green's lawyers want to show that the Texas death penalty statute creates a substantial and unreasonable likelihood that innocent persons will be convicted, sentenced to die, and executed.  Texas tourism people plug the state by claiming

Texas: It's like a whole other country.

I lived there for 12 years.  During that time, I taught at a university there, went to law school there, worked for a federal judge there, practiced law there.  Then I moved to Ohio.  Whole other country?

I'm afraid not.

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*I took out citations and references to the record from these paragraphs.