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Federal appeals court blocks Cooper execution

Kevin Cooper stands before a San Diego judge in this May 1985

SAN FRANCISCO (AP) — Only hours before the scheduled execution of an inmate whose plight has generated celebrity support, a federal appeals court stayed the death sentence until evidence in the case can be tested for DNA.

By Dave Siccardi, AP

The decision Monday by an 11-judge panel of the 9th U.S. Circuit Court of Appeals came less than eight hours before Kevin Cooper was to be executed. The U.S. Supreme Court later unanimously declined to overrule the court's stay.

"No person should be executed if there is doubt about his or her guilt and an easily available test will determine guilt or innocence," wrote seven of the 11 judges on the San Francisco-based appellate panel.

Cooper, who has maintained his innocence through 18 years of appeals, was convicted in the hacking deaths of four people in 1983. He claims a trio of murderers committed the attacks and says DNA tests on hair and a bloody shirt found at the murder scene will exonerate him.

Gov. Arnold Schwarzenegger had declined to grant clemency, saying evidence of Cooper's guilt was overwhelming. It was the first such plea to cross the governor's desk.

Cooper won support from celebrities such as Denzel Washington, the Rev. Jesse Jackson and actor and anti-death penalty activist Mike Farrell, who announced the Supreme Court's decision to nearly 300 protesters outside the gates of San Quentin State Prison.

"Thank you for letting the governor know he was wrong," Farrell said to thunderous applause.

The government expressed optimism that Cooper will be executed soon.

"We are confident the results of future tests will not cast doubt about Cooper's guilt," said Hallye Jordan, a spokeswoman for Attorney General Bill Lockyer.

The 11-judge panel overturned an earlier 2-1 decision by the same court declining to reopen Cooper's case. Out of deference to the dissenting judge, the majority of the judges agreed to review the case.

Judges Barry Silverman and Johnnie Rawlinson, of the larger panel, said the execution should be stayed, but only for as long as it takes to test the shirt for evidence of a preservative that would indicate that Cooper's blood was planted by police, as the inmate claims.

"The public cannot afford a mistake. Neither can Cooper," they wrote. "Since Cooper's guilt can be quickly and definitively determined by means of a simple test, there is no reason not to have it performed prior to his execution."

Cooper was convicted of stabbing and hacking to death Douglas and Peggy Ryen, both 41, their 10-year-old daughter, Jessica, and 11-year-old Christopher Hughes in 1983. The Ryens' son, Joshua, then 8, survived a slit throat.

When the murders were committed, Cooper was on the run after escaping from prison, where he had been serving a four-year sentence for burglary. Authorities speculated his motive was to steal the family's station wagon.

Cooper wants DNA evidence linking him to the slayings tested for signs that it was planted at the crime scene, as well as DNA tests on hair found in one of the victims' hands, which has never undergone forensic testing.

John Kochis, the San Bernardino prosecutor who tried Cooper, said the hair, found in Jessica Ryen's clenched hand, was from her own head. However, DNA testing was not available in 1984, when authorities came to that conclusion.

Mary Ann and Bill Hughes, the parents of Christopher Hughes, were on the grounds of the prison late Monday preparing to view the execution and were angered by the court rulings.

"We feel that justice is long overdue for our son and for the Ryen family, but we still feel that this is going to happen. This is just a delay," Mary Ann Hughes told KTVU-TV.

"Personally, I have no doubt in my mind that Kevin Cooper is guilty, and I have no doubt in my mind that he will be executed," said Bill Hughes. "We lost this round, but we're not through."

Cooper's death would have been the state's first execution in two years.

In its ruling Monday, the appeals court said Cooper must get a chance to refute evidence that only recently has come to light or was not disclosed at trial.

For example, authorities at the time said a bloody footprint found at the murder scene could have come only from a prison-issued tennis shoe. But a former prison warden says such shoes were commonly sold at retail stores.

The court also noted that Joshua Ryen initially said three or four men committed the murders, and that when he saw a picture of Cooper on television, he said Cooper was not the killer. Ryen has since said he believes Cooper was the killer.

Cooper's attorney, Lanny Davis, cheered Monday's rulings.

"This suggests not only that Kevin Cooper can be found innocent once and for all, but that there may be three murderers out there who need to be found and prosecuted," Davis said.

Jackson, who met with Cooper on death row earlier in the day, later thanked protesters for massing outside the prison. "This is part of a struggle across a nation to remove a system with flaws," he said.

Death penalty: a lawyer sees the light

Book Review of "Ultimate Punishment" by Scott Turow
Picador, £12.99

Reviewed by Cherie Booth for The Tablet

The observation "Americans are from Mars and Europeans are from Venus" is illustrated by the two nations‚ differing reactions to the use of the death penalty as a legitimate punishment for murder. In Europe one of the developing post-war insights into the requirements for the proper protection of fundamental rights is that the death penalty is unacceptable. For example, the Sixth Protocol to the European Convention (1983) provides that: „The death penalty shall be abolished. No one shall be condemned to such penalty or executed.‰ This right was incorporated into UK law by the Human Rights Act in 1998.

There is a growing worldwide movement to end the death penalty. The United Nation‚s Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, and the 1999 Resolution Supporting Worldwide Moratorium On Executions passed by the United Nations Human Rights Commission were created with the goal of making abolition of the death penalty an international norm. There has been a growing amount of case law ˆ under the European Convention, the South African constitution and the Canadian Charter of Rights ˆ to the effect that to expose an individual to the possibility of the death penalty violates their rights to fundamental justice and/or the right not to be subjected to cruel, inhuman or degrading punishment. In his 1995 encyclical Evangelium Vitae Pope John Paul concluded that in most cases there was no longer any moral basis to justify the use of the death penalty by the State.

The United States, however, takes a different view. The death penalty is used in 38 of the states. Only 12 states and the District of Columbia have abolished it. Yet the debate about whether it is appropriate to use capital punishment continues on both sides of the Atlantic. Although a majority of US citizens seem to be in favour of the death penalty, the October 2003 Gallup poll in the US showed support for the death penalty at its lowest ever level at 63 per cent.

In this readable and fascinating book, the best-selling novelist and lawyer Scott Turow recounts how his service on the Illinois Governor‚s Commissions on Capital Punishment changed him from a „capital punishment agnostic‰, and led him to become one of the majority on the commission who voted against the retention of the death penalty in Illinois.

Turow first describes his own contrasting personal experiences and feelings when acting as the successful attorney on two contrasting death penalty cases. In one of them he was a prosecutor and in the other, ten years later, he was acting for the defence in a death row appeal. He goes on to explain how the decision of Governor George Ryan of Illinois to set up the commission reflected a wider movement within the US to revisit the question of the death penalty. He rightly points out that behind instinctive expressions of support for the death penalty, the debate raises crucial questions about the goals of punishment, the possibility of redemption, the value of human life and the power of the State.

His thesis is that although on each side of the debate there are those who have deeply held convictions, for the majority of American citizens the matter is far more evenly balanced, with people being drawn to one side or the other of the debate depending on the circumstances of the particular case.

During the Illinois Commission‚s deliberations they looked at the worryingly large number of cases where the innocent had been convicted of murder. This revealed the paradox that since capital punishment is reserved by law for the worst of the worst murders, those that produce the strongest emotions of anger and outrage, this makes rational deliberation problematic for investigators, prosecutors, judges and juries. The more horrific the murder, the harder the pressure from the public to secure a conviction both before and during the trial. Capital cases are uniquely prone to error and thus call into question whether we can ever be really sure of obtaining the just result.

For many Americans there can only be proper retribution for the victim‚s family if the murderer too loses his life. Turow points out that for these families the law has already failed since the purpose of the legal system is to protect the lives of the people. For the many who seek the death penalty, the goal appears to be what has become known as „closure‰. But Turow points out that this desire applies to every murder case, and yet most murders do not attract the ultimate penalty. Whilst acknowledging that the legal system has for too long ignored the perspective of the victims, he concludes that the views of the survivors are not in themselves sufficient to justify the death penalty: „if we are to subscribe to the death penalty, it must benefit the rest of us as well.‰

In 1996, in a survey of 67 leading criminologists, 80 per cent said that existing research did not support a deterrence justification for capital punishment. In fact those states with the death penalty suffer from more incidences of violent crime than those that do not. The benefit of capital punishment must therefore lie in retribution. But as a moral justification this only works if we are convinced that every execution is just: the reality is that too many innocent people are executed for the system to be able to claim a just precision.

Add to this the lotteries of race, sex and geography and it is not possible to say that in every case the death penalty has achieved justice. After considering the counterbalancing factors of the possibility of redemption and the possibility of re-offending, Turow concluded that it was not possible to support the death penalty. He concluded that there seems to be no possible system which does not occasionally condemn the innocent or undeserving.

The Illinois Commission itself was not charged with the task of recommending abolition. Instead it put forward a number of proposals aimed at reducing the potential injustice. However, the State Legislature proved unable to pass the recommendations leaving it in the end to the State Governor to take a personal decision to commute all 167 death sentences ˆ 164 to life without parole. The anticipated public outrage failed to materialise, the current Governor has continued the moratorium on the death penalty and almost all the Commission recommendations have been adopted.

Cherie Blair attacks US over death penalty in Catholic paper

By Catherine Milner
(Filed: 08/02/2004)

Cherie Blair has renewed her attack on America's use of the death penalty. In a book review in the Catholic journal The Tablet, under her maiden name Cherie Booth, she says: "Capital cases are uniquely prone to error and thus call into question whether we can ever be really sure of obtaining the just result.

"The reality is that too many people - innocent people - are executed for the system to be able to claim a just precision." The newspaper asked Mrs Blair, a Catholic, to review Ultimate Punishment, a book by Scott Turow, the American lawyer and novelist.

Mrs Blair uses it as a platform to push her views about the death penalty, which is used in 38 US states. She begins the article suggesting that Americans are more aggressive than their European counterparts. "The observation 'Americans are from Mars and Europeans are from Venus' is illustrated by the two nations' differing reactions to use of the death penalty," she writes.

"For many Americans there can only be proper retribution for the victim's family if the murderer too loses his life."

It is not the first time that Mrs Blair has courted controversy with her outspoken views on the death penalty. According to a biography of Mr Blair by Philip Stephens, published last month, the Prime Minister is reported to have "squirmed" when his wife challenged George W. Bush, the US president, over his support for the death penalty, during a dinner intended to bolster the "special relationship" between the US and Britain.

Mr Bush signed more than 150 death warrants when he was governor of Texas. But Mrs Blair, who is a human rights lawyer, bluntly told him that such executions were immoral and a violation of human rights. Robert Marshall-Andrews, the Labour MP, yesterday defended Mrs Blair's right to write the review for The Tablet.

"Mrs Blair has taken no vow of silence," he said. "She is speaking as a human being with a conscience and I think she should only be silent about parliamentary matters in which her husband is involved - and this is not one that is being debated here."

A leading Tory, however, disagreed. Ann Widdecombe, the former Home Office minister and also a Catholic, said last night: "I'm surprised the Prime Minister's wife is writing political articles in The Tablet. It seems an extraordinary thing to do. She has never understood that the role of the Prime Minister's wife is not to publicly interfere in political matters in this way. Secondly, I think that what she has written is wrong. The people of Europe - as opposed to its leaders - probably do believe in the death penalty as a method of deterrence."


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