Incarnation Nation

Kevin Cooper’s Innocence Investigation Torpedoed

Governor Newsom: The Special Counsel Failed to Conduct the Innocence Investigation you Ordered for Kevin Cooper

By J. Patrick O’Connor

Not since the Tate-LaBianca murders by the Manson Family 14 years earlier had California law enforcement been called to a grislier crime scene than the one inside a master bedroom in the secluded horse country of Chino Hills in 1983. In the highest profile crime in San Bernardino County history, Doug and Peggy Ryen, their ten-year-old daughter Jessica, and an 11-year-old overnight guest Christopher Hughes were brutally murdered. The couple’s eight-year-old son Josh was left for dead with his throat slashed and hatchet wounds to his head.

The early leads pointed to three or four white men as the perpetrators: Jessica died with a clump of light brown or blonde hair in her hand; the assailants used one or two knives and a hatchet on all the victims; and Josh, the lone survivor, indicated that the assailants were three or four white men. But once the sheriff’s department discovered that Kevin Cooper, a recent escapee from a nearby state prison had hidden out for two days in a vacant house 125 yards below the Ryens’ hilltop house, those leads were discarded. Four days after the murders were discovered, the sheriff issued warrants for Mr. Cooper’s arrest, naming him as the lone assailant. From that point on, evidence that would have exonerated him was destroyed or hidden and evidence that implicated him was planted.

Mr. Cooper was convicted and sentenced to die in 1985. As his execution date in February of 2004 approached, the law firm of Orrick, Herrington & Sutcliffe, stepped in pro bono just in time to persuade the Ninth Circuit Court of Appeals to grant him a stay. Orrick has been representing Mr. Cooper since then.

In 2016, Orrick filed a detailed clemency petition with Governor Jerry Brown that presented evidence that Mr. Cooper, a Black person, had been framed for crimes committed by whites. Two years later, Governor Brown ordered testing of four of the nine evidentiary items requested in the petition and appointed a special master—a retired Superior Court judge—to oversee this testing, its scope and protocols.

Shortly after Governor Gavin Newsom took office in 2019, he issued an Executive Order allowing the testing of all nine items. The testing, which took two years, was inconclusive primarily due to the degradation over time of the DNA evidence submitted.

Orrick then pressed for an innocence investigation. Governor Newsom, over the vehement objection of the San Bernardino County D.A.’s office, issued an Executive Order on May 28, 2021, appointing the law firm Morrison Forester to serve as Special Counsel to conduct an independent investigation of Mr. Cooper’s application for clemency and claims of innocence. “The firm shall conduct a full review of the trial and appellate records in this case and of the facts underlying the conviction, including facts and evidence that do not appear in the trial and appellate records.”

Morrison Foerster, headquartered in San Francisco, chose a partner in its Los Angeles office, Mark McDonald, to lead the investigation. Mr. McDonald’s approach was to operate in secrecy, to shield his workings from the state and Mr. Cooper’s defense team. There would be no discovery and no hearings. Even though as Special Counsel, he had subpoena power and could have, as Orrick repeatedly requested, forced the D.A.’s office to turn over its case files and those of the sheriff’s department, Mr. McDonald failed to use his power to subpoena. Orrick wanted those files to prove that Mr. Cooper was framed.

Of all the ways to conduct an innocence investigation, Mr. McDonald chose the one that no other innocence tribunal, from appeal courts to the conviction integrity units operating out of prosecutors’ offices throughout the nation, would countenance. Turning over all the case files to the defense was a key component that enabled conviction integrity units and innocence projects to win 171 exonerations for the wrongfully convicted in 2022, according to the National Registry of Exonerations. By denying Orrick access to the case files, Mr. McDonald torpedoed Mr. Cooper’s opportunity to establish his innocence, turning the investigation into a sham.

When the Special Counsel released its report on January 13, 2023, it found “the evidence of Cooper’s guilt was extensive and conclusive.” The conclusion was dumbfounding because it disregarded the actual evidence. The actual evidence, derived from the San Bernardino Sheriff’s Department reports during the first few days of the investigation, established that three or four white people were the perpetrators.

Here’s what the actual evidence showed:

  • Around midnight on the night of the murders, a neighbor of the Ryens saw their station wagon driving away from their house at a high rate of speed, heading toward Peyton Road, the only road that provides access to the Ryens’ house. Farther down Peyton Road, a married couple saw the station wagon barreling down the road, being driven by a “young white male” with two or three passengers.
  • On the night of the murders, three young white men entered the Canyon Coral Bar around midnight. The bar is located on Peyton Road, about a-mile-and-a-half below the Ryens’ house. One of the men was wearing coveralls. Two of the men attempted to engage three young women in conversation until one of the women pointed out he had “blood all over him.” The men left the bar soon after.
  • On the night of the murders, Lee Furrow, a convicted murderer, and Debbie Glasgow returned at about 2:30 A.M. to Diana Roper’s home in Mentone, which is 45 miles east of Chino Hills. (Furrow had been living with Roper since he was paroled from a murder conviction a year before. He had recently taken up with Glasgow.) They stayed only long enough for Furrow to change out of the coveralls. After a couple of days, Roper noticed the coveralls were heavily splatted with blood and had horsehair on the lower legs. Her stepfather called a sheriff’s substation to alert authorities. A deputy retrieved the coveralls. In a written report he stated that the coveralls were “heavily splattered” with blood and Roper wanted to be contacted by homicide because she “suspects that the bloody coveralls are from the Chino Hills murders and has further information regarding that incident and/or possible suspects.” A few days later, when Roper learned from news reports that a hatchet had been used in the murders, she checked Furrow’s tools hanging on nails in the washroom—except for the hatchet all the tools were there. She called the deputy who picked up the coveralls and reported that finding to him. No homicide detectives got back to her. Months before Mr. Cooper went to trial, the sheriff’s department destroyed the coveralls.
  • Soon after Josh was discovered alive, he was airlifted to a nearby hospital, arriving at the ER at 1:36 P.M. He communicated to hospital staff that the assailants were three or four white men. Later, interviewed twice that afternoon by a sheriff’s deputy, Josh communicated the same information. Based on information provided by that deputy to headquarters, a bulletin was issued concerning “three white men” driving the Ryens’ station wagon.
  • On the afternoon the murders were discovered, a woman and her grandmother saw three white men in a station wagon pulling out of a shopping center in Claremont, California, that nearly collided with their car. Claremont is about eight miles north of Chino Hills. Alarmed, they wrote down the license number of the station wagon. Shortly after returning home, they learned from a TV report that the plate number they had recorded belonged to the Ryens’ station wagon. They mailed a letter addressed to the “Chino Police,” reporting this sighting and the license plate number. Their letter, if received, was not revealed to Mr. Cooper’s defense. (This was the same afternoon that Mr. Cooper had checked into a hotel in Tijuana. He had spent the night of the murders hitchhiking 125 miles to the border, getting dropped off at the bus station in San Ysidro around midnight.)
  • A day after the murders were discovered, a citizen driving by the Canyon Corral bar noticed a blue shirt with blood on it on the side of the road and called the sheriff’s office. A deputy picked it up. (The blue shirt was never seen by Mr. Cooper’s lawyers, who only learned about it in 2004 after poring over piles of case documents turned over by the prosecution, and from there on, its existence has been denied by the sheriff’s department.)
  • Finding the blue shirt led to a search of the area the next day. Deputies recovered a tan T-shirt with blood on it and a blood-stained orange towel in a ditch on the other side of the street from where the blue shirt was found. The towel was a match for other towels in a Ryen bathroom. Lab tests of the T-shirt showed that the blood on it was consistent only with Doug Ryen’s profile. The two blood-stained shirts made a convincing case that there were multiple killers.

By not considering the real evidence that exonerates Mr. Cooper and points to three or four white people as the perpetrators, Mark McDonald flouted Governor Newsom’s Executive Order to conduct an innocence investigation. In effect, Mr. McDonald displayed the same tunnel vision that led to Mr. Cooper’s arrest and wrongful conviction. As a result, Mr. Cooper, now 65, has lost almost two more years of his life serving time for crimes committed by others.

Because Mr. Cooper’s Clemency Petition established his innocence convincingly and because Mr. McDonald did not conduct an innocence investigation, the governor, in the interest of justice, should commute Mr. Cooper’s sentence to time served. At a minimum, the governor should order the Board of Parole Hearings to exercise its subpoena power to compel the San Bernardino D.A.’s Office to provide all law enforcement files pertaining to Mr. Cooper’s case to his attorneys so they would have the opportunity at long last to make the case for his innocence.

Reprinted with permission

J. Patrick O’Connor is the author of Scapegoat: The Chino Hills Murders and the Framing of Kevin Cooper, Strategic Media Books, 2012, and The Framing of Mumia Abu-Jamal, Chicago Review Press, 2008.