[Deathpenalty] death penalty news----MO., KAN., CALIF.

[Rick Halperin]

Jan. 31



MISSOURI:

Kezer case reveals the sin of a nation


In 2008, a young but talented cops and courts reporter stepped into my office 
and told me she wanted to dig into the Angela Mischelle Lawless murder case.

A young managing editor myself, I knew this was an important decision, and I 
was apprehensive to pursue the subject. The 1992 case of a murdered nursing 
student from Southeast Missouri State University was being reopened by Sheriff 
Rick Walter in Scott County, a bold move. But did we really want to dive into 
the story and risk reopening old wounds?

I hesitated, and told Bridget DiCosmo, who had previously worked at an 
Innocence Project, that she could start looking into it, but I wasn't convinced 
that we wanted to publish anything. She persisted with updates and reminders, 
and finally after several weeks of digging into the case, flatly told me, "Bob, 
I've gone through the whole file. There is not one single piece of evidence 
that holds up."

So Bridget intensified her reporting and ultimately brought out the details 
that would explain to the public why, months later, a judge would throw out the 
murder conviction of Joshua Kezer. In fact, the judge did more than that, 
proclaiming "actual innocence" of Kezer.

Bridget's reporting and Kezer's story changed my mind on the death penalty.

If you're not familiar with the case, essentially Kezer was convicted on the 
testimony of 3 inmate snitches who cooked up a scheme, in exchange for lesser 
prison sentences, and told police Kezer had told them he had killed someone in 
Benton (though the snitches said it was Benton, Illinois, which didn't seem to 
matter to investigators.) All 3, at one point or another, recanted their 
testimonies, saying they had only done so to reduce their jail time. Kezer was 
also "identified" in a lineup by a very questionable witness. Kezer was the 
only person in the lineup whose photo was emblazoned with the words "police 
department."

Then there was the dramatic prosecutor Kenny Hulshof, who lied when he told the 
jury in his closing statement that Kezer's jacket was covered in blood. And he 
completely mislead jurors in other aspects of his arguments. He also withheld 
evidence from the defense that the same witness who pointed out Kezer in a 
lineup had at one point identified a person he knew as a possible suspect. 
Kezer didn't even know Lawless. He had no motive.

Add it all together and, truly, you have the ingredients to "Making a 
Murderer."

After Kezer's tainted case was reopened by Walter, exposed in our paper and 
cleansed by the courts, I have paid much more attention to the death-penalty 
issue, and how wrongful convictions have trickled out to the masses, thanks in 
large part to the Innocence Project. I read John Grisham's "Innocent Man," a 
nonfiction story of a man wrongly convicted of the rape and murder of a woman 
in Oklahoma. He was sentenced to death, then later exonerated by DNA evidence. 
I listened to the entirety of the massively popular "Serial" podcast, a 
fascinating narrative produced by NPR's Sarah Koenig, that sheds light on 
shoddy defense attorney work and reasonable doubt in the killing of a teenage 
girl in 1999. The suspect in that case is serving a life sentence. Last week, I 
finished the Netflix documentary series "Making a Murderer." None of these 
stories are any more egregious than Kezer's. Kezer didn't do it. I have zero 
doubt, and had his case been followed by a major media outlet or personality, 
his story would've resonated across the country, too. Space prohibits me to 
include all the overwhelming details here. You'll have to trust me, and the 
judge, when I say it was a disaster of justice. Kezer was sent off to prison as 
a teenager for a crime he did not commit, and was finally freed with gray hair. 
15 years he spent in one of the toughest prisons in the land.

That brings me back to the death penalty. It's back on the front-burner of our 
political consciousness.

On Thursday, Kezer, who was not on death row but received a 60-year sentence, 
was in Jefferson City, Missouri, testifying against the death penalty. A 
bipartisan coalition sent a bill repealing Missouri's death penalty to the 
state Senate for debate.

It's a relief in some ways that the death-penalty debate is becoming less 
partisan. A growing number of Republicans are questioning the merits of the 
punishment. It's always puzzling to me how issues such as the death penalty are 
grouped into party affiliation rather than considered stand-alone issues.

For me, it's not a matter of whether a guilty murderer deserves the death 
penalty. The sad fact is that we have too much room for error. We have 
imperfect people investigating and prosecuting crimes. For too many law 
enforcement officials, but certainly not all of them or even most, their 
motives are not necessarily steered by justice, but rather, perhaps, to bring 
closure to a case, or closure for the victim's family; or even the fear of 
losing a big case, or maybe an insatiable appetite to win, even if justice is 
compromised. Juries are instructed to presume a person is innocent, even as the 
defendant is shackled in an orange jumpsuit in some cases.

It's sometimes easy to look at big-picture topics and tell yourself that this 
issue doesn't happen here, couldn't happen here. But it did.

And it happens all over the country.

Since 1992, the Innocence Project has helped produce 337 exonerations based on 
DNA, according to its website. And the organization can't keep up with the 
demands for its services.

Studies have shown that between 2.3 % and 5 % of all prisoners in the U.S. are 
innocent, the organization reports, adding that if just 1 % were innocent, that 
would mean more than 20,000 innocent people are in prison.

I don't know anyone who supports convicting innocent people, but it happens. 
It's woeful enough to send innocents to cages. It's the sin of a nation to kill 
them. It's just too much for a country that is built on life, liberty and the 
pursuit of happiness.

It's time to end the death penalty in Missouri.

(source: Op-Ed; Bob Miller, Southeast Missourian)






KANSAS:

Jury selection to start in quadruple murder case


Jury selection is scheduled to begin in the capital murder trial of a man 
accused of killing 4 people in eastern Kansas in 2013.

Kyle Trevor Flack is charged with capital murder in Franklin County in the 
shooting deaths of Kaylie Smith Bailey and her 18-month-old daughter. He's also 
charged with 1st-degree murder in the deaths of Andrew A. Stout and Steven 
White.

Stout, White and Kaylie Bailey were found dead at Stout's farm in Ottawa, about 
50 miles southwest of Kansas City. Bailey's daughter's body was found a few 
days later in neighboring Osage County.

Flack has been in custody since shortly after the bodies were discovered.

The Kansas City Star reports that jury selection is scheduled to begin Monday. 
Authorities say jury selection could take 2 weeks.

(source: Associated Pess)






CALIFORNIA:

End to California Execution Moratorium Raises Controversial Death Penalty Case


California lifted a moratorium on executions in November and is now set to 
execute Kevin Cooper - even though several federal judges say he may be 
innocent.

Having exhausted all his options in court, Cooper, 57, is about to file a 
last-ditch appeal with Gov. Jerry Brown. In a new interview from death row, 
Cooper says he is pleading with Brown to bring "an open mind" about the 
evidence in his case.

"I am the only person in the history of the state to have 5 federal circuit 
judges say that 'the state of California may be about to execute an innocent 
man,'" Cooper told NBC News.

Cooper is referring to rulings by the top federal court in California, the 
Ninth Circuit, which found prosecutors illegally withheld evidence that cast 
doubt on his guilt. Still, the court upheld his conviction for an infamous 
quadruple murder.

It all began in June 1983, when 4 people were found brutally murdered in a 
ranch house in Chino Hills, a Los Angeles suburb.

Douglas and Peggy Ryen, their 10-year-old daughter Jessica, and 10-year-old 
Chris Hughes, who was staying at the house, were all hacked and slashed to 
death. They received over 144 wounds in four minutes, according to the coroner. 
Josh, the Ryens' 8-year-old-son, was found with his throat slit but managed to 
survive.

The boy's memory of the murders would prove to be pivotal in the case, cited by 
prosecutors to prove Cooper was the killer - and by those who insist Cooper is 
innocent.

Ryen initially said that 3 white or Latino men murdered his parents. That 
account, combined with physical evidence that suggested multiple killers, led 
police to release a criminal bulletin seeking 3 suspects who were "white or 
Mexican males."

Other early clues supported that theory.

On the night of the murders, 2 witnesses saw 3 white men driving a station 
wagon down the dead-end road away from the house. The family's station wagon 
was stolen that night.

Then a local woman, Diana Roper, told police she thought her estranged husband 
was involved in the "Chino Murders," according to records from the sheriff 
department.

The man, Lee Furrow, was a white convicted murderer. She said his hatchet was 
missing. And, most critically, she told police he left coverall pants, 
splattered with blood, at her house on the night of the murder.

Roper gave police the bloody pants, but they did not test them.

Instead they threw the pants out in a dumpster.

Destroying evidence was not only bad police work - it was also illegal, as the 
Ninth Circuit court would later rule.

But why did police scuttle a potential lead? They had begun zeroing in on 
Cooper. And they had a reason.

Police discovered that before the murders, Cooper escaped a minimum-security 
prison and hid out at a house right by the Ryen residence. As a local NBC 
anchor reported during at the time, police began to think "the murderer may 
have stayed in the house next door," then attacked the Ryens.

That led to a new theory: fugitive Kevin Cooper as the sole killer.

Authorities began with circumstantial evidence for the theory. It was 
undisputed that Cooper was nearby, had a criminal record of burglary 
conditions, and was on the run from the law. Prosecutors, however, usually need 
more than circumstance for a murder conviction.

At trial, they offered other evidence to physically link Cooper to the crime, 
such as blood, shoeprints and testimony from Josh Ryen, the 8-year-old 
survivor.

When Cooper was first arrested and his face was shown on TV in June 1983, Josh 
Ryen said that was not the man who killed his parents. On 2 occasions, in fact, 
he told his grandmother and a sheriff's deputy that Cooper was not the killer.

At trial, however, prosecutors were able to present different testimony.

Prosecutors said Ryen no longer thought three white or Latino people killed his 
family, and that he had come to realize there was 1 killer - Kevin Cooper. They 
introduced that version of the testimony at trial. (In later hearings, Cooper's 
lawyers would argue that he was denied the right to fully cross examine the one 
eyewitness accuser).

Prosecutors also argued that crucial shoeprints at the scene must be from 
Cooper, because they were prison-issued shoes which he owned that were not for 
sale to the general public.

It sounded like damning evidence - although the warden at Cooper's own prison 
said it wasn't true. Prosecutors hid that rebuttal from the jury, which an 
appeals court later held was illegal.

Finally, prosecutors said they had Cooper's blood in the house. They alleged 
that a drop on the wall matched Cooper's blood sample - a crucial allegation, 
since he claimed he had never been in the house, or met the Ryen family.

After 7 days of deliberation, the jury found Cooper guilty and he was sentenced 
to death.

"I MET THEIR VOLUNTEER EXECUTIONERS"

Cooper maintained his innocence, but state courts rejected all his appeals.

Then-Governor Arnold Schwarzenegger declined to intervene, saying evidence of 
Cooper's guilt was "overwhelming," and Cooper's execution was scheduled for 
Feb. 10, 2004. His only hope was intervention by a federal court.

As the date approached, that seemed increasingly unlikely, and Cooper recalls 
being led into the death chamber that day.

"I met their volunteer executioners," Cooper said. "They had me stand there 
butt-naked in that death chamber."

"You watch the clock as your life goes off, minute by minute," Cooper told NBC 
News. "I was ten feet away from being murdered."

Then with 3 hours left, the Ninth Circuit halted the execution.

The judges decided to convene a special review of the case by every member of 
the court - which happens in less than 1 % of cases - and then they ruled that 
some evidence used against Cooper was flawed and illegal.

The court found that the warden of the prison where Cooper served, in 1983, 
said that prison did not give out special prison shoes. That undercut the 
prosecution's claim. And the warden said he told investigators that fact before 
the original trial, which they hid.

The court ruled prosecutors broke the law by withholding that evidence, and 
"Cooper was almost certainly not wearing" the shoes from the crime scene.

If they weren't Cooper's shoeprints, whose shoes were they? That question has 
never been answered.

The judges went further, probing the police destruction of Lee Furrow's bloody 
coveralls. They also noted a new jailhouse confession from an associate of 
Furrow's, who said he did the crime part of an attempted revenge killing, but 
it mistakenly "hit the wrong house."

The court ordered new proceedings and blood testing, noting that "no person 
should be executed if there is doubt" about guilt.

MORE EVIDENCE, MORE QUESTIONS

As the evidence in the public record shifted, some jurors from Cooper's 
original trial expressed doubts.

"I let the police misconduct go and sentenced Mr. Cooper to death," one wrote 
in 2004. "I now regret that decision."

Others involved in the case vigorously disagreed.

Dennis Kottmeier, the district attorney who prosecuted Cooper, maintained it 
was "the strongest evidentiary case" he "had ever seen."

Bill Hughes, the father of victim Chris Hughes, said the 2004 ruling was 
"unfathomable."

"We know he's guilty," he said after the ruling. "We know that we have the 
truth on our side."

The Court's decision did not overturn Cooper's conviction. It stayed the 
execution pending further tests and fact-finding by a lower court. That process 
unearthed more irregularities.

A "STARTLING" BLOOD DISCOVERY

It turned out that the state's original test on blood in the house did not 
match Cooper. Then a later test did, and the state changed the criminologist's 
original notes about the shift.

Then, when the state lab provided material for new tests under the 2004 court 
order, it accidentally sent out Cooper's original blood sample, drawn in August 
1983, for testing. This was the 1st time that blood evidence was ever examined 
by independent experts who did not work for the prosecution.

What they found was, as a judge would later write, "truly startling."

The blood which had always been presented as a sample of solely Cooper's blood, 
drawn from his body, actually contained DNA from 2 different people.

That meant either the original blood sample was compromised, such as by lab 
error, or someone with access to the sample deliberately, illegally tampered 
with it.

When Cooper's lawyers asked for a hearing on this discovery - that the blood 
sample supporting his murder conviction was flawed - the judge denied any 
further inquiry into the issue. Speaking from death row now, Cooper says that 
evidence is critical.

"We now know that was not my blood, it had somebody else's DNA in it," he said. 
"They put my blood in that container" for blood found at the crime scene, he 
alleged, "and that's why you've got two DNAs in there. That's what I believe."

The issues with the blood evidence could raise reasonable doubts, but in the 
new proceedings, the state emphasized other evidence that it said proved 
Cooper's guilt, from cigarettes found in the Ryen family car to Josh Ryen's 
testimony.

"HE SLIT MY THROAT"

Ryen, then an adult, spoke at the new hearings and offered a powerful 
recollection of the crime.

"The 1st time I met Kevin Cooper, I was 8 years old and he slit my throat," 
Ryen said.

The judge did not allow Cooper's lawyers to cross-examine Ryen, who gave 
unsworn testimony. The judge also denied fact-finding on the reliability of 
Ryen's original memories, or the impact of police interviews when he was a 
child.

The state insists Ryen's testimony, both from the original trial and as an 
adult, speaks for itself. Cooper's lawyers say experts suggest Ryen's initial 
account - of 3 white or Latino killers - is probably more accurate than a story 
which shifted after interrogation.

When asked about Ryen's testimony, Cooper says "I don't blame him."

"He told the truth - he saw my picture on TV and said, 'No that's not him,'" 
Cooper says, citing Josh's 1st reactions as an 8-year-old. "They manipulated 
him... So I am not angry with him, I understand what they did to him."

The district court ultimately upheld Cooper's conviction. The Ninth Circuit 
again reviewed the case in 2009, this time upholding the conviction.

That ruling featured an unusually blunt and vigorous dissent by 5 judges, which 
not only said Cooper may be innocent - as he has highlighted - but also 
suggested the lower court judge defied its 2004 order for new tests.

"There is no way to say this politely," the judges wrote. "The district court 
failed to provide Cooper a fair hearing and flouted our direction" on testing.

On the critical questions regarding Josh Ryen's memories, the judges wrote that 
police "misrepresented his recollections and gradually shaped his testimony so 
that it was consistent with the prosecution's theory that there was only one 
killer."

To be clear, no court has ever established that the state framed Cooper, but 
the judges did call out California prosecutors for suspicious activity 
regarding the spot of blood at the crime scene.

"The drop of blood has a history of being 'consumed' during testing," they 
wrote, "and then inexplicably reappearing in different form for further testing 
when such testing would prove useful to the prosecution."

Taken together, the judges concluded the evidence against Cooper was so weak, 
it's "highly unlikely that Cooper would have been convicted" if prosecutors had 
not illegally denied exculpatory evidence at trial.

It's a rare and detailed dissent - but in the end, more judges on the court 
upheld Cooper's conviction.

That majority opinion stressed that the questions in Cooper's case are mostly 
old, known, and have been extensively litigated; that the California Supreme 
Court ruled the "volume and consistency of the evidence is overwhelming" for 
Cooper's guilt; and that any shortcomings discovered did not put that in 
serious doubt.

Cooper has no more court appeals, so barring intervention by Gov. Brown, he 
will be executed.

"I AM INNOCENT"

Cooper says he is hopeful the public or Gov. Brown will focus on the evidence, 
not no him.

"I'm not asking America as a whole, or any one person in particular, to believe 
me. Forget what I say," he told NBC News. "I'm asking people to believe those 
[judges]," he said.

When asked about the murder and his criminal record, Cooper says he did not 
kill the Ryen family or enter their home, and that he didn't lie about his 
earlier crimes.

"When I was convicted of burglary, I pled guilty to those," Cooper said, 
"because I did them."

Asked about what he's learned through this process, Cooper said he thinks the 
justice system discriminates based on money.

"The only people who are on death row are poor people," he says. "No matter 
what their culture, or their skin color, or their religion, we're all poor."

Finally, when asked what he would want people to know about his case if he is 
executed, Cooper was unequivocal.

"I am innocent," he said. "And it's not my execution, it's my murder."

(source: NBC news)