Metropolitan News-Enterprise


Tuesday, June 10, 2001


Page 1


Ninth Circuit Upholds Death Sentence in Chino Murders, Says Waiver of Instruction Didn’t Affect Verdict


By a MetNews Staff Writer


A death row inmate convicted of hacking four people to death in their Chino home isn’t entitled to a new trial based on his claim of ineffective assistance of counsel, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A divided panel concluded that lawyers for Kevin Cooper failed to show that their client was prejudiced by his waiver of second-degree murder instructions.

Cooper was convicted of killing Douglas and Peggy Ryen, their 10-year-old daughter, and an 11-year old houseguest in June 1983. The killings occurred just two days after Cooper escaped from the state prison in Chino.

Judges Pamela Ann Rymer and Ronald Gould concluded in separate opinions that the evidence of premeditation was so overwhelming that Cooper would have been convicted of at least one first-degree murder and sentenced to death even if jurors had been given a second-degree option.

  Cooper’s present attorneys argued that there was no tactical reason for trial lawyer David Negus to waive the second-degree instructions. They say Cooper agreed to the waiver only because Negus gave him bad advice, since there was no evidence—they argued—to explain Cooper’s supposed motive for attacking two adults and three small children, one of whom survived, with a knife, ax, and ice pick.

The state Supreme Court affirmed the convictions and death sentence in 1991, over a dissent by the late Justice Allan Broussard, joined by the late Justice Stanley Mosk.

Rymer concluded that Cooper waived the issue of lesser-included offenses on habeas corpus review by not explicitly arguing that he was denied due process under Beck v. Alabama, 477 U.S. 625 (1980), even though the case was cited in the defendant’s brief.

Beck held that a defendant was denied due process by a law that precluded the judge from instructing the jury on second-degree murder. Rymer also argued in a footnote that Beck doesn’t apply to Cooper’s case because Beck doesn’t involve a waiver of the instructions.

Gould concluded that Cooper had adequately raised the Beck issue, but that any error was harmless.

The crime was “gruesome,” Gould said, involving numerous wounds. The evidence, he said, suggested that the children were killed after the adults, indicating there was “heartless premeditation” for their killings.

Even if the jury had returned second-degree murder verdicts as the killings of the adults, the judge said, it would necessarily have had to return first-degree verdicts as to the youngsters. The death penalty would still have been “inescapable,” he wrote.

It was thus unnecessary to determine whether defense counsel had a legitimate tactical reason for waiving the instructions, whether Beck applies to a waiver situation, or whether the ability of a jury to impose life imprisonment as an alternative to the death sentence renders Beck inapplicable, Gould said.

Senior Judge James Browning dissented, arguing that the waiver violated Beck and that “the error may have had a substantial and injurious effect in determining the jury’s verdict.”

Browning elaborated:

“The fact that the jury deliberated seven days before returning the guilty verdict suggests it harbored serious doubts about whether the state had proved the elements of four first degree murders beyond a reasonable doubt.”

In a footnote, Browning argued that Cooper’s waiver of instructions on lesser-included offenses doesn’t render Beck inapplicable because there is doubt as to whether the waiver was made knowingly and on the basis of proper advice.

David L. Bernstein, who argued for Cooper in the Ninth Circuit, said it was a “good bet” that en banc review would be sought. He assailed Gould’s comments as to the order in which the victims were killed as “speculation.”

Bernstein noted that Cooper has denied being the killer, and that the state has agreed to DNA testing at the Department of Justice laboratory in Berkeley. Results are expected in 8-12 weeks, he said.

The case is Cooper v. Calderon, 97-99030.


Copyright 2001, Metropolitan News Company