A divided federal appeals court Monday affirmed the death sentence of a state prison inmate convicted of four gruesome murders that occurred in Chino Hills 18 years ago.
In a 2-1 decision, the U.S. 9th Circuit Court of Appeals rejected the contention that Kevin Cooper was entitled to a new trial.
Cooper's lawyers had said the trial judge should not have allowed a defense lawyer to waive jury instructions involving a lesser offense of second-degree murder, which could have spared Cooper the death penalty.
In her majority opinion Monday, Judge Pamela Ann Rymer emphasized the brutal nature of the crime--each victim had at least two dozen stab wounds.
"Cooper suggests that rational jurors could have returned a second-degree murder verdict, but each case he offers in support is distinguishable," Rymer wrote. "Given the number and type of wounds inflicted on the four murder victims, together with the multiple wounds suffered" by the sole survivor of the attack, "it is not reasonably probable the jury would have returned any second-degree murder conviction, let alone four of them."
Cooper's lawyers still hope that he might be cleared by DNA tests that might prove he was not the killer. He was the first convicted murderer to win the right to DNA testing under a new state law that took effect Jan. 1.
Cooper, 43, has been on death row since 1985. The killings occurred shortly after his June 1983 escape from the California Institution for Men at Chino, where he was serving a burglary sentence.
He has continually asserted that he had nothing to do with the killings, which drew so much publicity that the trial was moved from San Bernardino County to San Diego.
Cooper has admitted that he escaped from the prison and that he stayed in a vacant house next to the home of Douglas and Peggy Ryen for two nights before the murders. The Ryens, their daughter Jessica, 10, and her friend Christopher Hughes, 11, were hacked to death with a hatchet and a knife. The sole survivor, Joshua Ryen, 8, also was stabbed.
The youth has said that three men committed the murders and that they were either white or Latino. Cooper is black.
However, prosecutors believed there was only one killer. They presented circumstantial evidence against Cooper. His 1985 conviction was upheld in 1991 by the California Supreme Court, which called the evidence "overwhelming."
Rymer cited a number of items, including a "bloodstained rope," a hatchet covered with blood and human hair recovered from the victims' hands. She said two partial shoe prints and one nearly complete shoe print found in the Ryen home "were consistent both with Cooper's size and the Pro Ked shoes" issued to inmates at the California Institution for Men.
Dissenting Judge Cites a Top Court Decision
Rymer wrote that Cooper failed to show that his trial counsel's decision to forgo second-degree murder instructions prejudiced the outcome of his case. Judge Ronald M. Gould joined the ruling.
Rymer said the trial lawyer, in essence, had decided to "go for broke"--first-degree murder or acquittal, having based his defense on the theory that the police had so badly botched the case that they had the wrong man.
Judge James R. Browning dissented. He cited a 1980 U.S. Supreme Court decision dealing with the issue of when a jury has to be presented with the option of convicting a defendant of a lesser offense in a capital murder case.
"Given the facts of the case and the prosecution's theory that Cooper acted alone, if the jury thought Cooper was guilty of some crime and should be punished, its only real choice was to convict him of the capital offense of four first-degree murders and one attempted first-degree murder," he wrote.
"The fact that the jury deliberated seven days before returning the guilty verdict suggests it harbored serious doubt about whether the state had proved the elements of four first-degree murders beyond a reasonable doubt. It is not difficult to believe the jury may have resolved its doubts as the Supreme Court [in an earlier case] feared--in favor of conviction," Browning wrote. "The jury's deliberative process might well have been significantly affected if it had been permitted to consider convicting Cooper of the lesser offense."
Nathan Barankin, a spokesman for the California attorney general's office, said the agency was "happy that the court has upheld the conviction."
Studio City attorney David L. Bernstein disagreed with the majority opinion, and said that he and Cooper's other lawyers might ask the 9th Circuit for a rehearing with a larger panel of judges.
Bernstein said he believed that DNA testing on six items would begin next week and that it would take 8 to 12 weeks to get results after the tests are completed.
Among the items to be tested are a blood drop found near a victim, a blond hair found in the fist of one of the victims, a bloody T-shirt found a mile from the crime scene and two cigarette butts discovered in the car of a victim when the vehicle was found a week after the murders.