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Saved by a Hair

Convicted murderer Kevin Cooper now has lived to see the expiration of four death warrants bearing his name and will likely get at least another month on Death Row as justice officials test strands of blond hair found 21 years ago in the tightly closed fist of a brutally slashed 10-year-old girl.

Defense lawyers and death-penalty opponents have criticized San Bernardino County and State of California prosecutors who argued for decades that nothing about the hair, or other as-yet untested evidence, could possibly clear Cooper, a convicted felon who escaped from the California Institute for Men in Chino after mistakenly being sent to a minimum-security wing. After leaving the prison, a jury found, Cooper used an ax and an ice pick to brutally hack to death Jessica Ryen, her 41-year-old parents, Douglas and Peg Ryen, and Jessica’s 11-year-old friend, Christopher Hughes, in the Ryens’ Chino Hills home. The assailant cut the throat of 8-year-old Joshua Ryen, who miraculously survived.

Judges repeatedly rejected Cooper’s demands for DNA testing, then relented last year and permitted testing of blood samples. They proved a positive match with Cooper. But the hair remained untested, and it took a bizarre discrepancy over whether Cooper walked out of the prison wearing Keds or P.F. Flyers to mandate an additional DNA exam.

On Sunday, as a handful of Hollywood celebrities gathered at the Brentwood home of another Hollywood celebrity, Governor Arnold Schwarzenegger, to demand clemency, a panel of the 9th U.S. Circuit Court of Appeals rejected a stay of execution based on arguments that execution by lethal injection is unconstitutionally cruel and unusual. But the three-judge panel was not unanimous, and 11 of the court’s judges went the other way, temporarily blocking Cooper’s death to give time to test the mysterious blond hair. State officials sought to take the issue to the U.S. Supreme Court and still keep Cooper’s 12:01 a.m. Tuesday appointment in the death chamber. But the 9th Circuit’s action is unappealable.

The problem with the hair, defense lawyers say, is that it could not possibly belong to Cooper, who is black and has black hair, or to Jessica herself, whose blond hair was darker than the strands found in her hand some eight to 10 hours after she and her parents and friend were murdered.

But additional doubts about the killings grew out of statements from the only known eyewitness. Joshua Ryen, now 29, had lain bleeding on the floor all night and into the morning with his murdered parents and sister nearby, and was recovering in a hospital bed 10 days later when he told a social worker that three men were responsible. He repeated the statement to a law enforcement investigator — but in one version of the story he said the men were white, in another he said they were Hispanic. Defense lawyers say the blond hair could belong to one of those men, or to someone else entirely. A DNA test could show them to be right, but lawyers are also banking on a theory that the blood samples that tested as a positive match for Cooper were planted by police.

That’s part of the problem with DNA evidence, according to Justin Brooks, executive director of the California Innocence Project at California Western School of Law in San Diego. Brooks’ use of DNA testing has resulted in the exoneration of numerous criminal defendants more than a decade after their conviction, and similar efforts around the country have cleared and freed more than 100 convicts. But he noted that even the most accurate DNA tests can do nothing to combat allegations that police planted evidence.

“You look at Cooper and you can say, ‘Wow, there’s a lot of evidence of guilt here,’” Brooks said. “But I’ve seen so many cases in which the evidence of guilt was overwhelming, until we’ve shown they had the wrong guy. As these exonerations pile up, it gets easier and easier to answer those people who insist that we need a death penalty.”

The 9th Circuit’s extraordinary last-minute ruling staying the execution was based on two new declarations, one by an inmate at Chino, the other by the warden, that the court said could show Cooper’s prison-issued shoes were P.F. Flyers. Evidence at trial showed that a print made by a Keds shoe — like P.F. Flyers, once a popular athletic shoe before the advent of expensive, high-quality basketball and running shoes — found at the scene matched what Cooper was wearing.

Now the court has suggested that prosecutors may have known of the discrepancy and did not advise Cooper’s legal team, in violation of his constitutional rights. That means Cooper is entitled to have the trial court review all of the other evidence, like those blond hairs, that earlier courts ruled were unnecessary to examine.