Yesterday I did a lengthy post about the hearing in Texas to determine whether the death penalty is constitutional. And today I read, thanks to Feministe, about case in California where an innocent man may be put to death.
I firmly believe that the death penalty should end (hence the title of my post) because the system can’t guarantee that innocent people will not be executed. It just can’t. And for me, that is a big enough risk to stop it. Especially because it is famously racist and classist in its use. Juries are not unbiased. Supreme Court justices are not unbiased.
We are all biased and, therefore, our judicial system is biased. That doesn’t mean we should abolish it or that it doesn’t work in 95% of the cases. But that does mean that it doesn’t work sometimes. We have to recognize that, admit to the inequities, and then agree that killing people in such a flawed system is just too final. It’s too draconian.
Today the New York Times is reporting on a man in California who appears headed to an execution despite the fact that he is probably innocent, put onto death row by police who framed him.
First, the case:
[It was] a horrific quadruple-murder in June 1983. Doug and Peggy Ryen were stabbed to death in their house, along with their 10-year-old daughter and an 11-year-old houseguest. The Ryens’ 8-year-old son, Josh, was left for dead but survived. They were all white. Josh initially told investigators that the crime had been committed by three people, all white, although by the trial he suggested that he had seen just one person with an Afro. The first version made sense because the weapons included a hatchet, an ice pick and one or two knives.
Kevin Cooper, who was serving time in a minimum security prison for burglary, had walked away from prison and hidden a house near the Ryens’ home. It seems that there is a good chance that the police planted evidence in this case to make it look like Cooper was not only the murderer, but the only murderer because it is easy to get a conviction when a black man kills a white family:
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.
Cooper was, of course, convicted. Then were years and years of appeals:
On May 11, 2009, an en banc panel of the Ninth Circuit Court of Appeals filed an order denying Cooper’s request for an en banc rehearing of the December 4, 2007 decision denying his request for relief. Four judges (Fletcher, Wardlaw, Fisher, and Reinhardt) filed dissents, indicating that they disagreed with the decision. Judge Fletcher’s dissent in particular is highly critical of the majority decision. A total of eleven judges joined the dissents (fourteen votes were required to grant the request for a rehearing). Judge Rymer filed a concurrence. Cooper’s sole remaining avenue of review was an appeal to the United States Supreme Court, until it was summarily denied on November 30, 2009.
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.
So, it is up to Gov. Schwarzenegger to do the right thing. If you want to let him know that you think that he needs to give Cooper clemency, contact him here.
Parting thoughts from the NY Times article:
Lanny Davis, who was the White House counsel for President Bill Clinton, is representing Mr. Cooper pro bono. He laments: “The media and the bar have gone deaf and silent on Kevin Cooper. My simple theory: heinous brutal murder of white family and black convict. Simple as that.”
That’s a disgrace that threatens not only the life of one man, but the honor of our judicial system. Governor Schwarzenegger, are you listening?