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The Honorable Edmund G. Brown, Jr. Governor of California Petitio

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The Honorable Edmund G. Brown, Jr. Governor of California Petitio THE HONORABLE EDMUND G. BROWN, JR. GOVERNOR OF CALIFORNIA ______________________________________________________________ PETITION FOR EXECUTIVE CLEMENCY PURSUANT TO ARTICLE V, SEC. 8(a) OF THE CALIFORNIA CONSTITUTION AND REQUEST FOR HEARING By the undersigned, appearing as counsel for petitioner Kevin Cooper __________________________ Norman C. Hile Orrick, Herrington & Sutcliffe LLP 400 Capitol Mall, Suite 3000 Sacramento, CA 95814 Tel. (916) 447-9200 Fax (916) 329-4900 [email protected] __________________________ David T. Alexander Law Office of David T. Alexander 5389 Hilltop Crescent Oakland, CA 94618 [email protected] Submitted: February 17, 2016 OHSUSA:764413457.6 TABLE OF CONTENTS Page I. INTRODUCTION .............................................................................................. 1 A. Evidence of Innocence........................................................................................... 4 B. Discredited Evidence of Guilt................................................................................ 9 C. Evidence Destruction and Tampering.................................................................. 12 D. Further Evidence and Conclusions Confirming Mr. Cooper’s Innocence........... 14 E. Important Forensic Testing Remains to Be Done................................................ 17 II. ROAD MAP TO THE CLEMENCY PETITION ............................................ 19 III. OVERVIEW OF CLEMENCY ........................................................................ 21 A. The California Constitution Empowers the Governor to Intervene to Prevent the Execution of an Innocent Man.......................................................... 21 B. Clemency Granted in Death Penalty Cases ......................................................... 23 C. Clemency in Death Penalty Cases Where Guilt Is in Doubt ............................... 24 D. Innocent People Have Been Regularly Convicted and Sentenced to Death in the United States. ............................................................................................. 25 E. California Has Convicted and Sentenced Innocent People to Death................... 28 F. Studies Show That Racial Discrimination Plagues Capital Prosecutions and Sentencing, Including in California. ............................................................. 30 G. Prior Clemency Proceedings in This Case Highlight the Growing Evidence of Mr. Cooper’s Innocence. ................................................................. 31 IV. THE FACTS NOW AVAILABLE SHOW THAT MR. COOPER DID NOT COMMIT THE RYEN/HUGHES MURDERS....................................... 35 A. More Than One Killer Committed The Murders/Attempted Murder of the Ryen Family and Their Houseguest Christopher Hughes.................................... 35 B. The SBSD Knew About Potential White Suspects, Including Three Men in the Canyon Corral Bar. ........................................................................................ 41 1. Surviving Victim Josh Ryen Identified His Attackers as Three White or Hispanic Men Immediately After the Crimes........................... 41 2. The Canyon Corral Bar and More Reports of Three White Men Seen the Night of the Murders................................................................. 43 3. A Hatchet and Two Bloody Shirts Discovered Near the Canyon Corral Bar................................................................................................. 47 4. Convicted Murderer Eugene Leland Furrow (“Lee Furrow”) and the Bloody Coveralls................................................................................ 48 -i- OHSUSA:764413457.6 TABLE OF CONTENTS (continued) Page C. Kevin Cooper Escaped From Prison, Stayed Near the Ryen Home and Hitchhiked to Mexico. ......................................................................................... 50 D. The Abhorrent Culture of Corruption Endemic to the San Bernardino Sheriff’s Department Renders the Entire Investigation Suspect.......................... 53 E. The Botched Investigation of the Ryen/Hughes Murders by the San Bernardino Sheriff’s Department......................................................................... 55 1. SBSD Mishandled the Crime Scene and Prematurely Demolished It, Preventing Investigation Into Who the Killers Were and How Many There Were. ................................................................................... 55 2. When the SBSD Searched the Lease Home, It Learned That Mr. Cooper Had Stayed There........................................................................ 60 3. The SBSD Destroyed and/or Lost Exculpatory Evidence Critical to Mr. Cooper’s Case. .................................................................................. 63 a. Law Enforcement Discarded Lee Furrow’s Bloody Coveralls. ..................................................................................... 64 b. The SBSD Also Recovered a Bloody Blue Shirt Found Near the Canyon Corral Bar, But That Shirt Is Now Missing......................................................................................... 65 c. The SBSD Did Not Investigate the Sighting of Three White Men at the Canyon Corral Bar. .................................................... 66 F. The SBSD Manufactured and Tampered With Evidence.................................... 67 1. The SBSD Falsified Its Test Results for Blood Drop A-41..................... 67 2. The SBSD Planted Cigarettes in the Ryen Station Wagon...................... 68 3. Evidence Suggests the SBSD Planted the Pro-Ked Shoe Prints at the Crime Scene. ...................................................................................... 70 4. The Tan T-Shirt the SBSD Recovered Near the Canyon Corral Bar Matches the Description of the T-Shirt Worn by Lee Furrow................. 72 5. The SBSD Likely Planted the Hatchet Sheath and Green Button in the Lease House. ...................................................................................... 73 V. KEVIN COOPER WAS DENIED A FAIR TRIAL IN MULTIPLE WAYS............................................................................................................... 75 A. Mr. Cooper’s Fair Trial Right Was Violated by Prejudicial Pretrial Publicity, Racial Animus, and an Ineffective Change of Venue. ........................ 75 B. The Prosecution Withheld and Destroyed Potentially Exculpatory Evidence, Unfairly Precluding Mr. Cooper From Proving His Innocence.......... 80 -ii- OHSUSA:764413457.6 TABLE OF CONTENTS (continued) Page C. The State Presented False Evidence Against Mr. Cooper. .................................. 81 1. The State Presented False Evidence About Josh Ryen’s Statements................................................................................................ 82 2. Deputy Eckley Provided False Testimony About Destroying the Bloody Coveralls. .................................................................................... 85 3. Criminologist Daniel J. Gregonis Presented Manipulated Evidence and False Testimony. ............................................................................... 85 4. The State Used Falsified Cigarette Evidence Against Mr. Cooper. ........ 86 5. SBSD Planted the Hatchet Sheath and Green Button in Order to Frame Mr. Cooper.................................................................................... 86 6. The State Used a “False” Positive Luminol Test Against Mr. Cooper at Trial. ........................................................................................ 87 D. Trial Counsel’s Ineffective Assistance Crippled Mr. Cooper’s Defense............. 87 1. Trial Counsel Inexplicably Failed to Accept Additional Help. ............... 88 2. Trial Counsel Failed to Pursue and Present Evidence of the Three White Men Alternative. ........................................................................... 89 VI. THE VAST MAJORITY OF THE EVIDENCE THE CALIFORNIA SUPREME COURT CITED IN 1991 HAS BEEN CALLED INTO QUESTION OR COMPLETELY UNDERMINED......................................... 93 A. New Evidence Seriously Undermines the State’s Theory Regarding the PRO-Ked Dude Shoes.......................................................................................... 93 1. PRO-Ked Dudes Were Widely Available at the Time. ........................... 94 2. New Evidence Suggests Mr. Cooper Was Not Wearing PRO-Ked Dudes. ...................................................................................................... 95 3. The Shoe Print Identification Testimony Used at Trial Was “Junk Science” and the Prints Themselves Were Likely Planted. ..................... 96 B. A-41’s Questionable Treatment Completely Undermines Any Confidence in Its Probative Value........................................................................................... 98 C. The State Used Falsified Cigarette Evidence Against Mr. Cooper ................... 101 D. SBSD Planted the Hatchet Sheath and Green Button in Order to Frame Mr. Cooper......................................................................................................... 102 E. The State Used a “False” Positive Luminol Test Against Mr. Cooper at Trial.................................................................................................................... 103 F. New Evidence Further Undermines the State’s Theory on Motive................... 104 -iii- OHSUSA:764413457.6 TABLE OF CONTENTS (continued) Page 1. Veteran FBI Profiler Gregg McCrary’s Analysis. ................................. 106 2.
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