Kristof: On Death Row, but Is he innocent?

One June day in 1983, a California professor drove over to a neighbor's house to pick up his 11-year-old son from a sleepover. Nobody answered the door, so the professor peered through a window - and saw a ghastly panorama of blood.

The professor found his son stabbed to death, along with the bodies of Peggy and Doug Ryen, the homeowners. The Ryens' 10-year-old daughter was also dead, with 46 wounds, but their 8-year-old son was still breathing.

This quadruple murder began a travesty that is still unfolding and underscores just how broken the U.S. justice system is. A man named Kevin Cooper is on San Quentin's death row awaiting execution for the murders, even though a federal judge says he probably is innocent.

“He is on death row because the San Bernardino Sheriff's Department framed him,” the judge, William A. Fletcher of the Ninth U.S. Circuit Court of Appeals, declared in a searing 2013 critique delivered in a distinguished lecture series.

Fletcher was in the minority in 2009 when his court refused to rehear the case. His dissent, over 100 pages long, points to Cooper's possible innocence and to systematic police misconduct. It's a modern equivalent of Émile Zola's “J'accuse.”

At least 10 other federal judges have also expressed concerns about Cooper's conviction. Many other eminent legal experts, including the then-president of the American Bar Association, have also called on Gov. Jerry Brown to intervene.

The evidence of police tampering is overwhelming. When lawyers working on Cooper's appeal asked for DNA testing on a T-shirt believed to belong to the killer, the lab found Cooper's blood on the shirt - but also something astonishing: The blood had test tube preservative in it! In other words, it appeared to have come from the supply of Cooper's blood drawn by the police and kept in a test tube.

When the test tube was later examined, it had the DNA of at least two people in it. It appeared that someone had removed some of Cooper's blood and then topped off the test tube with the blood of one or more other people to hide the deception.

What's extraordinary about the case is that not only is it likely that Cooper is innocent, but that we also have a good idea who committed the murders.

The 10-year-old victim, Jessica Ryen, died with a clump of light hair in her hands, and the 8-year-old survivor, her brother, Joshua, repeatedly told investigators that the attackers had been three or four white men. Cooper is black.

Meanwhile, a woman told the police (and her statements were later backed up by her sister) that a housemate, a convicted murderer, had shown up with others late on the night of the murders in blood-spattered overalls and driving a station wagon resembling one stolen from the Ryens' home. The women said the housemate was no longer wearing the T-shirt he had on earlier in the evening - the same kind as found near the murders.

A hatchet like one of the murder weapons was missing from the man's tool chest, and a friend of his confessed to a fellow prisoner that he had participated in the killings. The women gave the bloody overalls to the police - who threw them out, apparently because they didn't fit their narrative that Cooper was the killer.

There was no reliable evidence against Cooper. But he had escaped from a minimum-security prison (he walked away) where he was serving a burglary sentence and had holed up in an empty house near the Ryens' home. A court suggested that he had killed the Ryens to steal their station wagon - although it is thought to have been parked in front of the house with the keys in it. And when the car was found, it appeared that three people with bloody clothing had sat in it.

One fundamental factor in this case is Cooper's race, and this case is a microcosm of racial injustice in the United States. The police seemed predisposed to believe the worst of a black man; Cooper was subjected to racist taunts as his case unfolded; and Democratic and Republican politicians alike have shown themselves inclined to avert their eyes, even if this leaves an innocent man on death row.

As governor, Arnold Schwarzenegger refused to act. Kamala Harris, who was state attorney general and is now a U.S. senator, was unhelpful. Brown is reviewing the case, but previously as attorney general exhibited little interest.

Cooper and his lawyers are not asking for a pardon right now, or even for a commutation to life imprisonment. They're simply asking Brown to order a review of the case with new DNA testing (critical testing has never been done) to indicate whether Cooper is likely guilty or innocent. They will even pay for the testing because they believe it will both exonerate Cooper and implicate the real killers.

“We're not saying let Kevin out of jail now, we're not saying pardon him,” noted one of his pro bono lawyers, Norman Hile. “We're saying, let's find out if he's innocent.”

This case is a national embarrassment. It appears that an innocent man was railroaded, in part because he is black, and the government won't even allow crucial DNA testing.

Gov. Brown, will you act?

Nicholas Kristof is a columnist for the New York Times.