Confusion on topic follows court ruling (Calif)

[softheart]

CALIFORNIA:


In the 2 decades since 4 people were hacked to death in a San Bernardino
County home, Kevin Cooper has always maintained his innocence.

He has complained he was poorly served by his lawyer, that DNA tests would
clear him, that another prison inmate had implicated himself in the
murders.

Little has backed up his claim. The DNA tests he had hoped would clear him
instead place him at the bloody scene.

But now Cooper has a new argument, one born in a U.S. Supreme Court
decision handed down a year ago. The court ruled then it was
unconstitutional to execute anyone who is mentally retarded.

This week in a San Diego Superior Court, Cooper's attorneys will argue
that he should be tested and hearings held perhaps in front of a jury to
determine if he is mentally retarded and exempt from execution.

The motion comes not only years into the chilling case, but amid confusion
over claims of mental retardation in death cases since the Supreme Court
ruling.

While the court ruled that executing the retarded is unconstitutional, it
left to states how to implement the ruling. But the state Legislature has
been unable to agree on a law that would guide courts.

That has left lawyers and judges feeling their way on their own, at both
the trial court and appeals level.

"Right now, the whole thing is up in the air," said William McGuigan, one
of Cooper's lawyers.

Cooper was convicted in 1985 of 5 counts of murder. 2 of the 4 hacked to
death in the San Bernardino County community of Chino Hills were children.

He had escaped from a nearby minimum security state prison just 2 days
before slaying Douglas and Peg Ryen, both 41, their 10-year-old daughter,
Jessica, and an 11-year-old neighbor, Christopher Hughes.

He also attempted to murder 8-year-old Joshua Ryen, who was beaten and had
his throat slashed.

Cooper's trial was held in San Diego because of extensive publicity about
the case in San Bernardino.

His death sentence was upheld by the state Supreme Court in 1991.

In the latest court filings, Cooper's lawyers say that reports from his
early childhood and his overall social behavior are "indicative of mental
retardation."

A psychologist who visited him in prison recently reported that he "may be
mentally retarded," and said that more tests are needed to make a final
determination.

Prosecutors argue in their papers that a separate hearing solely on the
issue of retardation is not the correct legal procedure.

Instead, they say, if Cooper wants to raise the claim he should do so in a
writ of habeas corpus, where he would first have to make a prima facie
case that is, show that it's apparently true that he is retarded before
getting an evidentiary hearing.

Moreover, said Deputy Attorney General Frederick Millar Jr., the evidence
does not show that Cooper is retarded. Past IQ tests show his mental
abilities fall within a range of average to low-average.

Also, in a prior habeas petition challenging his death sentence in 1996,
Cooper was described by a doctor who examined him as having "average
intelligence."

"We just don't believe he has made a prima facie showing that he's
mentally retarded, and he's not entitled to a hearing," said Millar.

Cooper has tried other avenues to prove his claims or try to get a new
trial.

He was among the 1st to use a law passed in 2001 making DNA tests
available for some inmates.

The law said that inmates could get the tests if they could show the
identity of the person who committed the crime was an issue in their
trial, and if DNA tests were not available at the time.

At the trial, Cooper testified that he had hitchhiked away from Chino
Hills the night before the slayings. Also, Joshua Ryen gave several
different descriptions of the attacker to investigators.

Some of the blood specimens tested came back with Cooper's DNA, though
others were "inconclusive," said McGuigan.

Millar said that saliva with DNA matching Cooper's was found on two
cigarette butts at the crime scene, and that 2 blood samples also had his
DNA.

Retardation claims have been raised in two death-penalty trials in
California. In Riverside County last year, a man who shot a police officer
claimed he was retarded.

After finding him guilty, jurors heard evidence about the retardation
claim and rejected it. The trial then moved to a 3rd phase where the jury
said he should be sentenced to death.

In Imperial County, an inmate who killed another inmate claimed to be
mentally retarded, and jurors rejected that claim. However, the panel
recommended against a death sentence.

A 3rd case is pending in Tulare County, but there a judge is planning to
decide the issue of retardation in a hearing before the trial starts.

The difference in procedures shows how unsettled the question is, said
Dave LaBahn, executive director of the California District Attorneys
Association.

"In the absence of any legislation, the courts are the ones who will have
to fashion a remedy to this issue," he said.

(source: San Diego Union-Tribune)