This essay is adapted from a presentation J. Patrick O’Connor gave at the Collier County, Florida, Main Library on October 16, 2012.
The United States operates the largest criminal justice system in the world, incarcerating 2.3 million people in over 5,000 jails and prisons. Another five million Americans are on parole or some sort of conditional release program. Since the so-called “War on Drugs” was launched during the Reagan administration in the early 1980s along with mandatory sentencing guidelines for drug possession and sales, our prison population has nearly tripled. Over 50 percent of the people now incarcerated are in on drug offenses, thousands of them for marijuana possession.
Although the U.S. makes up less than 5 percent of the world’s population, we now incarcerate 25 percent of the world’s prisoners. Russia is a distant second. The U.S. justice system now imprisons its citizens at a rate roughly five to 10 times higher than the countries of Western Europe. It isn’t because U.S. citizens are five to 10 times more inclined to commit crimes than Europeans, it’s because our state legislatures have enacted a host of mandatory minimum sentences enhancements that took sentencing discretion out of the hands of judges and juries and placed it in the hands of “get tough on crime” prosecutors. Over the last 15 years, these “enhancements” have doubled the average prison sentence for a wide variety of offenses. In terms of incarcerating youth, the disparity is far more pronounced. The United States incarcerates 336 per 100,000 youths. Austria incarcerates 25, Germany 23, Italy 11 and Japan 0.1. The second highest incarceration for youth in the world is 69 out of 100,000 in South Africa.
Our justice system is broken in many ways. The great disparity in sentencing for crack cocaine possession and sales compared to powdered cocaine is one egregious example. Such a disparity speaks directly to the bias in the justice system against blacks. A Pew Center Research report published in 2008 showed that blacks comprise 62.7 percent and whites 36.7 percent of all drug offenders admitted to state prisons, despite the fact that other data show “clearly that this racial disparity bears scant relation to racial differences in drug offending. There are, for example, five times more white drug users than black. Relative to population, black men are admitted to state prison on drug charges at a rate that is 13.4 times greater than that of white men.”
The research showed that in seven states, blacks constitute between 80 to 90 percent of all drug offenders sent to prison
Another monumental failure in our justice system is the fact that almost all of our prisons have turned into warehouses rather than places of rehabilitation – despite the fact that 90 percent of all those incarcerated now will be released. This lack of rehabilitation has led us to the highest recidivism rate in our penal history. While over the last 25 years we have experienced the greatest growth in prison construction in our national history – during a period when crime rates across the country have nearly fallen by half – we’ve drastically cut down expenditures for parole officers and drug treatment programs both inside and outside prison. The primary driving force behind today’s prison industrial complex is prison guard unions. They exert more control over the trajectory of prison expansion and prison operations than any other government entity. It is to their benefit that mandatory sentencing laws have drastically increased the amount of time served and that the recidivism rate remains high.
The Tip of the Iceberg: Exonerations
Another way – among many others – to gauge the problem with our justice system is to look at the rapidly increasing number of exonerations occurring throughout the United States over the last two decades or so.
On TV, an exoneration looks like a singular victory for a defendant and his or her appeal attorney but there’s usually someone to blame for the underlying tragedy, often more than one person. The common culprits include the defendant’s trial attorneys – most often public defenders or court-appointed attorneys – as well as police officers, prosecutors and judges.
Since 1989, more than 2,000 people convicted of serious crimes such as murder and sexual assault have been exonerated. Those innocent people spent an average of 17 years behind bars for crimes they did not commit.
Another 1,170 additional convicted felons had their convictions thrown out starting in 1995 amid the periodic exposures of 13 major police scandals around the country. In all those cases, police officers fabricated crimes, usually by planting drugs or guns on innocent defendants. The Philadelphia Police Department was notorious for this. Crime labs – most notably those in Houston, Texas and North Carolina, often abetted these false convictions with fudged forensic evidence.
There is no official record keeping for exonerations. In May of 2012, the University of Michigan Law School and the Center for Wrongful Convictions at Northwestern University School of Law published a comprehensive study about exonerations, covering the last 23 years – since 1989.
The study contains detailed information on 873 of the 2,000 exonerations. Nine out 10 of the exonerated were men, and half of those were African-American. One half of the exonerations were homicide cases and 101 of those resulted in the death sentence. This by itself is a powerful argument against the death penalty. (Thirty-seven states still use executions as the ultimate punishment. California voters turned down an initiative to ban the death penalty on November 6, 2012.) Over one-third of the 873 exonerations closely studied were for sexual assault.
Although DNA exonerations are the ones most highly publicized, some 85 percent of exonerations come about the old fashion way without the benefit of DNA evidence. These convictions are overturned by shoe letter, by defense attorneys and investigators or by Innocence Projects gathering evidence that establishes innocence such as proving perjured testimony, by exposing prosecutorial abuses such as withholding evidence from the defense attorney that established the accused person’s innocence, debunking eye witness testimony, or by showing crime lab incompetence or outright malfeasance.
The Michigan/Northwestern study found it particularly odd – as in not credible – that two of the largest counties in the United States – San Bernardino County in California and Bexar County in Texas, home to San Antonio – had no exonerations.
In one-half of the 873 exonerations closely examined the most common factor leading to false convictions was perjured testimony. Prosecutors often cut deals with inmates or those under possible indictment to testify for the state. Despite “snitch” testimony being the most unreliable to present to a jury, prosecutors routinely resort to this tactic to obtain convictions when real evidence of guilt is lacking.
Another major contributor to false convictions was mistaken eyewitness identification. Some 24 percent of the wrongful convictions involved false or misleading forensic evidence. One of the greatest problems in the U.S. justice system is crime labs being a part of the police or sheriff’s department.
The Kevin Cooper Case
To illustrate how broken our justice system can be, I’m going to focus on one capital case from San Bernardino County about which my book: Scapegoat: The Chino Hills Murders and the Framing of Kevin Cooper, is based.
Kevin Cooper, who was 27 at the time, was convicted in 1985 of the brutal Chino Hills murders of Doug and Peggy Ryen, their 10-year-old daughter, Jessica, and 11-year-old houseguest, Christopher Hughes, and the attempted murder of the Ryens’ 8 1/2 –year-old son, Joshua.
Not since the Tate-LaBianca murders in 1969, had California law enforcement been called to a more grisly crime scene than when the Ryen/Hughes murders were discovered on June 5, 1983. All the victims were murdered in the Ryens’ master bedroom around midnight. There was an uncommon viciousness to the attack as though the killers meant not only to murder but to send a message of payback or retribution. The murdering of children is highly suggestive of this.
The medical examiner counted 144 wounds on the four murder victims, including 28 fractures and two amputations. The murders were committed with at least three, and probably four, weapons: a hatchet, an ice pick and one or two hunting type knives.
Miraculously, 8-year-old Josh Ryen survived the attack despite being left for dead with his throat slashed ear to ear, a hatchet blow to his head that fractured his skull, several stab wounds to his back that broke three of his ribs and collapsed one lung, broke his collarbone and nearly severed his left ear.
Two days before the murders, Kevin Cooper had escaped from a nearby prison. He had recently been sentenced to four years in prison for two separate burglaries in Los Angeles. For the next two days he holed up in a vacant house 125 yards below the Ryens’ hilltop house in Arabian horse country. Three hours before the murders, Cooper began hitchhiking to the Tijuana border, arriving there just after midnight.
Around midnight that night a couple, attempting to exit a driveway on the only road that led away from the Ryens’ house, saw three young white men driving rapidly down that road in a station wagon that was stolen from the murdered family.
The only survivor of the attack, young Josh, communicated to ER personnel and a sheriff’s deputy that his assailants were three white men. Cooper is black.
Shortly after midnight the night of the murders, three, young white men entered a bar and grill about a mile from the Ryens’ house. Numerous bar workers and patrons observed them to be extremely drunk or spaced out on drugs. When two of the men approached three young, attractive women, one of the women, a phlebotomist – a person who draws blood – told him he had blood splatter all over him. He had blood on his face and on his T-shirt. She noticed the other man had blood on his coveralls.
The day after the murders were discovered, a woman driver spotted a bloody blue T-shirt on the side of the road across from the bar and grill. A sheriff’s deputy picked it up. The next day a bloody tan T-shirt was found on the other side of the road up from the bar and grill. The tan T-shirt was a Fruit-of-the-Loom, size medium with a pocket on the front. The presence of two bloody T-shirts strongly indicated that at least two assailants were involved in the attack at the Ryen home and they were very likely the men seen in the bar with blood splatter on their clothing.
Four days after the murders, another woman turned into the sheriff’s office bloody coveralls her boyfriend, a convicted murderer, had left on the floor of her closet hours after the Ryens and Chris Hughes were murdered. The woman told the deputy who bagged the coveralls that she had other information that implicated her boyfriend, Eugene “Lee” Furrow, in the Chino Hills murders but she wanted to speak with homicide detectives. She would have told them that Furrow’s hatchet was missing and that he no longer had on the tan T-shirt he wore the Saturday of the murders. She knew it was a Fruit-of-the-Loom size medium with a pocket on the front. She knew this because she had recently purchased it for him at K-Mart.
For all intents and purposes, the case should have been solved that day, but this was the day the sheriff named Kevin Cooper as the lone assailant and set off the largest manhunt in California history to capture him. Once the San Bernardino Sheriff’s Department established that Cooper had holed up in the vacant house, it locked in on him as the lone assailant despite the eyewitness reports about the three white men. From that day forward, four days after the murders were discovered, the sheriff’s department discarded information that pointed to other perpetrators, destroyed evidence that excluded Cooper, and planted or fabricated evidence that implicated him.
It didn’t matter to the sheriff’s department that Josh said his assailants were three white men, that a couple exiting a driveway leading away from the Ryens’ house saw three white men driving the Ryens’ station wagon, that bar workers and patrons saw three white men acting bizarrely, that two bloody T-shirts had been found outside the bar, or that a woman turned in bloody coveralls that had horse hair adhered to the pant legs. Cooper, the escaped convict and now fugitive, was going down.
No homicide detective would ever call on the woman who turned in the bloody coveralls. In fact, the sheriff’s office destroyed the bloody coveralls six months later on the day Cooper’s preliminary hearing began. The bloody blue T-shirt would disappear and the defense would not even learn of it until 19 years later.
What made me accept this case more than anything was the impossibility of one person committing these terrible crimes. The fact that three or four weapons were used overwhelmingly indicated multiple assailants. And then there were the Ryen adults themselves. Both were fit, 41-year-old chiropractors. Doug was 6 feet 2 and weighed 190 pounds and had been an MP in the U.S. Marine Corps. Peggy, the mother, was 5 foot 8 and weighed 148 pounds. She was the one who trained the enormous Arabian horses the family raised. Unassisted, she could throw large bales of hay into the back of her pickup truck. Both parents kept loaded weapons in the master bedroom where the entire attack took place.
We know from the medical examiner’s report that Doug Ryen made it, on foot, back and forth from his side of the bed to his wife’s side. We know that the daughter, Jessica, made it outside the house during the attack and was brought back in before her mother was murdered. The medical examiner said that blood from Peggy Ryen had dripped onto Jessica as though the mother had been cradling her daughter. If there had been only one assailant, Mrs. Ryen would have shot him dead instead of dying five feet from where her Luger pistol sat in the top drawer of her bedside table.
In writing this book my main purpose was to create a record of just how this particular framing took place, about how an innocent man was convicted of crimes he had no agency in. Kevin Cooper’s case offers a microcosm of our broken justice system. Our justice system is far too often a system where homicide detectives and district attorneys become blinded by their goal of closing cases – particularly such high profile cases as the Chino Hills murders.
The notion that every police department and every district attorney’s office have one or two rotten apples and that explains why every once in a while we convict the wrong person and set the real perpetrator free is simply not a valid explanation. I’d rather compare it to the notion that if it takes a village to raise a child, it takes a thoroughly corrupt police department – and a complicit D.A.’s Office – to frame an innocent person. The San Bernardino County Sheriff’s Department was – and had been for years – infected with a culture of corruption.
The terrible thing about corrupt police departments is the power and resources they have to hang crimes on innocent people, particularly indigent, minority defendants who do not have the resources to fight back effectively.
As such, our justice system is inherently unfair and always has been. As Clarence Darrow told a group of inmates at a Chicago jail over a hundred years ago, “…the courts are not instruments of justice. When your case gets into court it will make little difference whether you are guilty or innocent, but it’s better if you have a smart lawyer. And you cannot have a smart lawyer unless you have money. First and last, it’s a question of money…We have no system for doing justice, not the slightest in the world.”
Darrow said that if the courts were organized to promote justice “the people would elect somebody to defend all these criminals, somebody as smart as the prosecutors – and give him as many detectives and as many assistants to help, and pay as much money to defend you.”
One of the great myths about our justice system is the presumption of innocence. From the indictment onward, the public presumption, overwhelming so, is one of guilt. Almost all pre-trial publicity presents the prosecution’s side of the case, including many patently false accusations about the accused. In the San Bernardino case, the sheriff reported that Cooper had made a phone call from the murdered family’s house – a blatant lie.
Cooper’s trial had the trappings of fairness, but was lost long before the trial opened. Two pre-trial developments caused this outcome: The San Bernardino County Sheriff’s Department destroyed evidence that could have exonerated Kevin, and his public defender insisted on going it alone. Not many Davids actually slay Goliaths.
Only two blacks sat on the jury that convicted him and sentenced him to die.
Pre-trial, Cooper was demonized by the police. He was depicted as some sort of crazed, maniacal super-predator. While he evaded capture for eight weeks, he was characterized as possessing Houdini-like escape skills and as a homosexual who was a cross-dresser and liked to associate with transvestites.
Once he was convicted and sentenced to die, Cooper then entered a protracted appeal process. During the appeal process, the tables are flipped. The convicted is presumed guilty and the burden of proof to prove otherwise is now his or hers alone. With a series of court-appointed attorneys giving lip service to his appeals, Cooper was within months of being executed in San Quentin’s death chamber when one of the largest international law firms in San Francisco, Orrick, Herrington and Sutcliffe, took on his appeal pro bono.
On the day of his schedule execution, February 10, 2004, the Ninth Circuit Court of Appeals issued a stay of execution and granted Cooper a new habeas corpus hearing.
Cooper had several constitutional claims that merited habeas corpus relief but came up against a federal district judge, Marilyn Huff, who refused to follow the law. The law, as Mumia Abu-Jamal said in his book Jailhouse Lawyers, is only what a judge says it is. Cooper’s case proves the shameful truth of that.
Judge Huff’s flouting of the law during Cooper’s habeas corpus proceedings caused Orrick lawyers to petition the Ninth Circuit Court of Appeals for a new habeas hearing. When the en banc court narrowly denied the request in 2009, one of the Ninth’s judges released a 103-page dissent that began with these words, “The State of California may be about to execute an innocent man.” In addition to Judge William Fletcher, 10 other judges signed or wrote separate dissents in support of Cooper being granted a new habeas corpus proceeding in Federal District Court.
At Gonzaga University School of Law in 2010, Judge Fletcher delivered a lecture of the subject of the death penalty, holding that the problem with the administration of it are widespread and endemic rather than merely regional or local. To illustrate he cited the Kevin Cooper case, stating, “The case I am about to describe is horrible in many ways. The murders were horrible. Kevin Cooper, the man now sitting on death row, may well be – and in my view probably is – innocent. And he is on death row because the San Bernardino Sheriff’s Department framed him.”
Judge Fletcher, a Rhodes Scholar who attended Oxford University, said what happened in the Cooper case “is a familiar story. It is by no means the usual story. But it happens often enough to be familiar. The police are under heavy pressure to solve a high profile crime. They know, or think they know, who did the crime. And they plant evidence to help their case along.”
As a result, Kevin Cooper has now spent over half of his life in prison for a crime he had nothing to do with. His case, and thousands similar to it, show just how broken our justice system is.