"The state of California may be about to execute an innocent man." That is the warning of Judge William Fletcher of the U.S. 9th Circuit Court of Appeals in a 101-page dissent from the court's decision to uphold the murder conviction of Kevin Cooper. Although the courts lack the power to grant clemency, the governor has the responsibility to do so when justice requires it. Now Gov. Arnold Schwarzenegger is duty-bound to use that power to save a possibly innocent man from death.
Support or oppose the death penalty — each of us differs on the issue — Cooper's case is chilling. In 1985, he was convicted of murdering Doug and Peggy Ryen, their daughter, Jessica, and their houseguest, Christopher Hughes, in Chino Hills. Eight-year-old Joshua Ryen, found badly wounded, survived. The police arrested Cooper, who had escaped from a minimum-security prison two days earlier and was hiding in an empty house next door to the Ryens'.
Cooper's behavior was suspicious, and he's no angel, but too many of the facts allegedly linking Cooper to the murders just don't add up. First, Joshua Ryen told police that the murderers were three white men — Cooper is black — and repeatedly stated that Cooper was not among the killers. The night of the murders, a white man was spotted driving what was probably the Ryens' station wagon, which had been stolen. And the injuries to the victims suggested multiple weapons, not just one.
Several key pieces of evidence pointing to other killers were blatantly mishandled by law enforcement authorities. For example, shortly after she learned of the murders, a local woman named Diana Roper suspected that her white boyfriend was involved. She informed the Sheriff's Department that her boyfriend had left blood-spattered coveralls at her home the night of the murders, and she gave them to the department. Regrettably, the prosecution declined to test the clothing, and a sheriff's deputy tossed them in a dumpster before the defense knew they even existed. That deputy later testified that he acted of his own accord in destroying the coveralls, but a police report discovered after Cooper's trial showed that a superior had approved the destruction in advance.
Roper also told police that she had purchased for her boyfriend a tan Fruit of the Loom T-shirt, and such a shirt was recovered near the Ryen house. It wasn't introduced at the original trial; years later, during the appeals process, forensic testing indicated that Cooper's blood might have been planted on it. It was also years later that Cooper's counsel found out that a sheriff's deputy had discovered a blood-spattered blue shirt near the Ryen home the day after the murders. Like the coveralls, it went missing and was never tested.
Fletcher and four other 9th Circuit judges who also wrote opinions favorable to Cooper's appeal concluded that the original prosecutor's chief forensic witness, Daniel Gregonis, falsified evidence. The blood allegedly proving that Cooper's DNA was found at the crime scene came from a non-secure vial containing more than one person's DNA. (In a recent case, a state court judge granted relief to another falsely convicted man after determining that Gregonis manufactured evidence against him.)
The record of contorted and abused facts in the case notwithstanding, Cooper was convicted in state court and his conviction affirmed.
Still, even those who believe that Cooper must have been involved should support clemency. Clemency doesn't require a pardon. Schwarzenegger has the discretion to take lesser steps, taking into account the myriad errors, inconsistencies and injustices in Cooper's prosecution and conviction. The governor could reduce Cooper's sentence to life without parole, which, under California law — except in the extremely rare case where new evidence exonerates a prisoner — really lasts a lifetime.
There is another reason that even death penalty supporters should be in favor of clemency for Cooper. As Chief Justice William H. Rehnquist wrote in a 1993 death penalty case, "Executive clemency has provided the 'fail-safe' in our criminal justice system." A credible chance for clemency, particularly when there are serious problems with the investigation and prosecution of the underlying offense, is essential to maintain public confidence and support for a system of justice that includes the death penalty. It's a safety valve, precluding further polarization in our political and judicial battles about the death penalty.
As Justice Felix Frankfurter explained in a long-ago death penalty case, "Perfection may not be demanded of law, but the capacity to counteract inevitable, though rare, frailties is the mark of a civilized legal mechanism."
Ultimately, that capacity lies with the executive branch, not the judiciary, which has the duty only of deciding whether a man was convicted pursuant to the law. Kevin Cooper probably was not convicted in a lawful manner, but today the courts can do no more than alert the executive that a grave injustice may have been done. In that respect, Fletcher's dissent could not possibly be clearer.
Schwarzenegger now bears the responsibility to see that justice is not irreparably perverted by putting Cooper to death. We ask the governor to commute Cooper's sentence to lifetime imprisonment without a chance for parole. All citizens, no matter where they stand on the death penalty, should demand no less.
Alan M. Dershowitz is a professor of law at Harvard University. David B. Rivkin Jr. is a partner in the Washington office of Baker Hostetler and served in the Justice Department and the White House counsel's office under Presidents Reagan and George H.W. Bush.