Tag Archive for appeals

Redoubled Jeopardy

The zeal with which Tracy L. Batts and Terrance McCrea sought to prevent Benczeon Jones from testifying against them for the murder of his brother, Brian, was matched by the State of California, which tried numerous times to ensure that the two Atlantic Drive Crips paid for their crimes.
 
Batts was tried three times for Brian’s murder, and McCrea twice, with the state finally succeeding in 2000, after which an appeals court overturned the convictions on Double Jeopardy grounds. The California Supreme Court, however, reinstated their convictions, finding that the last trial did not violate their Constitutional rights. The state high court’s decision is complex and far outside the scope of this article. To see what I mean, chew on this nugget from the majority’s opinion:

(We) agree with the basic conclusion of these courts that instances in which a prosecutor commits misconduct with the intent to provoke a mistrial do not exhaust the circumstances in which a prosecutor’s intentional misconduct improperly may defeat the interest that the double jeopardy clause is intended to safeguard.

Double jeopardy, of course, is the clause in the Fifth Amendment to the federal Bill of Rights that prevents a defendant from being tried over and over again for the same crime until the government is satisfied with the result. The prohibition on retrial is not absolute, as demonstrated in the case of Batts and McCrea. Nor does it prevent a person from facing civil and criminal trial based on a single incident, or a defendant from being charged with unrelated state and federal charges (e.g., state murder charges and federal civil rights violations).
 
This case began its convoluted trip through the criminal justice system on September 12, 1997 when Benczeon, a younger memberof the Atlantic Drive Crips, was washing his car. Batts and McCrea, a couple of OGs, and a third man approached him and ordered him to leave the area and threatened him over a dispute over drug turf. Benczeon was joined by Brian who began arguing with the three OGs.
 
Batts and his friends left but returned shortly after, heavily armed. Batts had a gun in each hand and McCrea had a single automatic.
 
Gunshots followed. Brian was killed and Benczeon was hit in the leg.
 
Brian’s girlfriend saw Batts and his crew return the second time, but did not see the shooting. However, she ran outside after hearing the shots and was told by Benczeon that Batts shot them. As she called police, two other friends arrived to drag Benczeon off the street. He told them Batts and McCrea did the shooting.
 
Apparently, although Benczeon denied it at the time, he or his brother returned fire, because shortly after Batts showed up in an emergency room with a bullet wound to the shoulder. He was evasive about where his injury had occurred, finally telling authorities he had been shot in Long Beach.
 
Although Benczeon was initially cooperative with police by identifying Batts in a photo lineup, he ultimately expressed concern for his life and the safety of his family.
 
He had good reason to be afraid. While he was recovering in the hospital, Batts’s brother showed up to “pay his respects” and left Benczeon crying after his visit. The upset victim told authorities he had been warned through implied threats against his life to cease cooperating.
 
While he was recuperating in the hospital, Benczeon was approaced by a detective who discussed the possibility of his entering the Los Angeles County witness relocation program. Benczeon was non-committal to the offer at that time.
 
Two weeks later, a 10-year-old brother of Brian and Benczeon received a phone call threatening his older brother. However, Benczeon later viewed another photo lineup and this time identified Batts and McCrea as his brother’s killers.
 
In January 1998 Benczeon was shot and wounded, and told authorities that he thought the shooting was related to his cooperation.
 
Thanks in part to his testimony, and that of Batts’s girlfriend, who claimed Batts told her he killed “a cousin in Compton,” Batts was convicted of Brian’s murder. McCrea was a fugitive at the time and was not tried.
 
In October 1998, Benczeon received $1,500 from the LA County Witness Relocation Program to be used for moving and rent. Shortly afterward, Batts won a retrial after another Atlantic Avenue OG who was housed with Batts in LA’s central jail and was awaiting sentencing for another gang murder confessed to the killings.
 
However, in March 1999, while Batts was awaiting retrial, Benczeon was gunned down after being chased and shot in a drive-by. In typical drive-by shooting fashion, it wasn’t the bullets that killed him, but instead he died after being wounded and fleeing into traffic to escape the gunmen.
 
Police were unable to establish a link between Benczeon’s testimony and his assassination.
 
Meanwhile, McCrea was arrested and the State went ahead with the retrial of Batts and the first trial of McCrea for Brian’s murder. During that trial, Benczeon’s first trial testimony was read into the record, because it was not considered hearsay as the witness was obviously not available to retestify.
 
His testimony was not admissable against McCrea, who was not a defendant in the first trial and thus, was not able to cross-examine Benczeon.
 
During Batts’s second trial, the detective who paid Benczeon the money was subjected to withering cross-examination by Batts’s attorney. The defense alleged that there was no evidence the money was ever used for relocation expenses and that it was simply a “payoff” for Benczeon’s testimony.
 
The defense attorney also questioned why Benczeon “never showed up” at preliminary hearings in the case. In fact, Benczeon had no reason to “show up” at any of those hearings, which the defense attorney knew.
 
“Benczeon’s hearsay statements made to Detective Branscomb were admissible through the detective, and hence he was not required to testify at those preliminary hearings,” the California Supreme Court ruled “And in any event, as to one of those hearings, it was impossible for Benczeon to attend, because he had been murdered–a fact that, pursuant to the trial court’s earlier ruling, was to be kept from the jury.”
 
This tactic placed the prosecution in an extremely precarious position. They feared that the jury was left with the impression that the absent witness had been paid off and made to be unavailable to the defense. However, they were specifically ordered by the court not to reveal why Benczeon was not available to testify.
 
Faced with this conundrum, the prosecutors gambled that bringing up Benczeon’s situation would prompt a defense objection, which would allow them to argue that the defense had opened the door by implying the payoff.
 
During a recess, prosecutors told the detective that on redirect examination, he would be asked why Benczeon failed to participate in one of the preliminary exams and advised the cop to answer truthfully. They advised him to answer slowly to give the defense time to object.
 
“Did Benczeon testify at the May 10, 1999 preliminary hearing?” the prosecutor asked.
 
“No,” came the response.
 
“Why not?”
 
“He was murdered,” the detective answered.
 
After a juror burst into tears, the court ordered a recess. The defense did not object to the questions and during a hearing on the defendants’ motion for mistrial, the prosecution argued that the defense specifically provoked the issue by misleading the jury about the reason for Benczeon’s absence.
 
“How do we respond to that?” the lead prosecutor argued before the judge. “Do we sit there and allow our credibility, our reputation to be attacked, the witness’ credibility to be destroyed when it is a lie? I can ‘t imagine what else we’re supposed to do and what else any lawyer would expect us to do after that kind of attack.”
 
The defense, however, argued there was no reason to object because the trial court had already ruled the question was inadmissible and that the proper step was a motion for mistrial.
 
The judge ruled that he was “shocked” and “stunned” by both the prosecutor’s question and the answer. He further ruled that under the circumstances there was no reasonable opportunity for defense counsel to object, and that the prosecutors had acted in “reckless disregard of the rights of the defendants in posing this question under the circumstances without it being screened.” The court concluded that the prosecution “committed misconduct in presenting the question at issue. And knowing what its response would be, the error caused by such conduct is too serious to be corrected.”
 
He granted a mistrial and dismissed the jury.
 
The case was slated for yet another trial, but before it could begin, the defense for Batts and McCrea argued their Double Jeopardy claims, which the trial court rejected.
 
The trial went forward and both men were convicted. On appeal, the California Court of Appeals overturned the convictions, accepting the Double Jeopardy arguments that the prosecutors could not deliberately cause a mistrial and then seek to retry the defendants.
 
The California Supreme Court overruled that decision and reinstated the two convictions, finding that the prosecutors did not deliberately set out to cause a mistrial and thus Double Jeopardy did not apply.

Another Bite at the Apple

Until I get a chance to update this story, this release from Kevin Cooper's website summarizes where the case stands -- which doesn't bode well for Cooper. It contains a summary of the 105-page 2009 dissenting opinion in connection with the article below.

The story of Kevin Cooper is a good example of the problems that federal courts must grapple with when an inmate claims innocence.
In his petition to the federal court, Cooper is claiming “actual innocence” and a violation of Brady v. Maryland. In Brady, the U.S. Supreme Court ruled that the prosecution has a constitutional obligation to turn material exculpatory evidence over to the defendant. This obligation is independent of any specific request by the defendant for such information.
According to Cooper, the State of California withheld evidence that might have exonerated him.
Kevin Cooper’s case begins on June 2, 1983, when he escaped from the minimum security area of the California Institute for Men (CIM) where he was incarcerated. He broke into and hid in an empty house in Chino Hills, about two miles away, in San Bernardino County, southeast of Los Angeles.
There is evidence that clearly puts Cooper in the house belonging to a family named Lease, and not only does he admit using the empty house as a hideout, a call to Cooper’s girlfriend at the time was placed from the Lease’s number, during which Cooper told his girlfriend that he had “walked out of prison” and that he needed money. She refused his request and later told authorities she thought he was joking.
He stayed in the house on Thursday night, all day Friday, and Friday night; he hid in the bathroom when one of the owners of the Lease house stopped by on Saturday morning.
About a quarter-mile away from where Cooper was hiding lived the Ryen family. Two days after Cooper escaped on Saturday, the Ryen family was horribly and without reason attacked. Doug and Peggy Ryen, the father and mother, were killed, as were their ten-year-old daughter, Jessica, and an eleven-year-old houseguest, Chris Hughes. Doug and Peggy’s eight-year-old son, Josh, was left for dead but survived.
Whoever committed the crime wanted to ensure that no one survived. Using a hatchet or axe and a knife, he hacked to death the parents (37 separate wounds for Douglas, 32 for Peggy), Jessica received 46 wounds, while Christopher suffered 26 wounds. Inexplicably, Josh was not attacked with the ax, but instead “only” had his throat slit.
Chris’s father discovered the carnage the next day.
The Lease home served as a sort of home base for the murderer, and evidence shows the killer returned to the Lease home at some point after the murders, according to investigators.
Tests revealed the presence of blood in the shower and bathroom sink of the Lease home, and hair found in the bathroom sink was consistent with that of Jessica and Doug Ryen. A bloodstained rope in the Lease house bedroom was similar to a bloodstained rope found on the Ryens’ driveway.
A hatchet covered with dried blood and human hair that was found near the Ryens’ home was missing from the Lease house, and the sheath for the hatchet was found in the bedroom where Cooper stayed.
Circumstantial evidence links a prison inmate — Cooper in particular — to the crimes.


  • A blood-stained khaki green button identical to the buttons on field jackets issued at the state prison from which Cooper escaped was found on a rug in the Lease home.

  • Two partial shoe prints and one nearly complete shoe print found in the Ryens’ house were consistent both with Cooper’s size and the Pro Keds “Dude” shoes issued at CIM. Testimony revealed that Cooper was issued Pro-Keds in the prison.

  • The manager of the San Bernardino County sheriff’s crime laboratory, compared the shoe print impressions from the Ryen and Lease houses to each other, to the type of shoes issued to Cooper, and to other shoes. He concluded that the three shoe prints “all possessed a similar tread pattern, which would indicate a similar type shoe was used in each case.”

  • All “Dude” tennis shoes contain the same sole pattern. The general merchandise manager for Stride Rite testified that this pattern is not found on any other shoe that the company manufactures. The shoes are not sold retail, but only to state and federal government. However, Midge Carroll, the now-retired warden of the prison, provided a sworn declaration in which she stated that she had learned from her staff that shoes issued to prisoners “were not prison manufactured or specially designed prison-issue shoes,” but, rather, were “common tennis shoes available to the general public through Sears and
    Roebuck and other such retail stores.” Carroll stated that she had learned this information during the investigation and conveyed it to investigators before the trial.

  • A hand-rolled cigarette butt and “Role-Rite” tobacco that was provided to inmates at CIM (but not sold at retail) was in the car. Similar loose leaf tobacco was found in the bedroom of the Lease house where Cooper had stayed.

  • Witnesses testified at Cooper’s trial that he smoked hand-rolled Role-Rite tobacco.

  • The Ryens’ car was discovered abandoned in Long Beach. Inside authorities found a hand-rolled Role-Rite cigarette.

  • Examination of the saliva on the two cigarette butts from the Ryen car was inconclusive, but was consistent with the cigarettes having been smoked by a non-secretor (an individual of blood group A, B, or AB who does not secrete the antigens characteristic of these blood groups in bodily fluids like saliva) such as Cooper.

  • A hair fragment discovered in the car was consistent with Cooper’s pubic hair and a spot of blood found in the car could have come from one of the victims but not from Cooper.

  • One spot of blood at the murder scene did not belong to any of the victims. It did, however, belong to a black man, according to lab reports.

Cooper ended up fleeing south and eventually crossed the border to Mexico, where he holed up in a Tijuana motel. At some point in July, he returned to the United States, where he was arrested and charged with the murders.
Cooper took the stand during his trial and steadfastly maintained his innocence. He claimed that he never entered the Ryen house, and instead left the Lease house shortly after he called his girlfriend.
The jury didn’t buy his claims and he was convicted on all charges and sentenced to death.
We’ve seen the evidence that was used to convict Cooper, but what about that which tends to exonerate him?
One strong piece of exculpatory evidence is the eyewitness statements of the only survivor of the massacre — who did not testify at the trial after a stipulated agreement by the defense and prosecution. Instead, the audio and videotape statements were played.
In the videotaped statement, Josh said that the evening before the murders, just before the family left for a party, three “Mexicans” came to the Ryen home looking for work. Josh had never seen them before. The family then went to the party in the truck and later returned.
At some point during the night, Josh woke up and fell asleep again. He was reawakened by a scream. Josh woke Chris up, and they walked down the hall, stopping at the laundry room. Josh saw Jessica in the hallway. He walked closer to his parents’ room, and saw a “shadow or something” by the bathroom. It was dark. Josh could not see what the shadow was or what it was doing.
Josh and Chris “started getting a little scared.” Josh started to look around. The next thing he remembered was “just waking up” surrounded by the bodies of his parents.
In the taped interview with an expert in interviewing children, Josh said he heard his mother scream. He walked into her bedroom, and saw someone by the bed “turning his back against me.” Josh “just saw his back and his hair.” After his mother stopped screaming, and Josh “saw him,” he went into the laundry room and hid behind the door. Chris went into the parents’ room, and then “was gone.” Josh then went into the bedroom and “he knocked me out.” He thought the person was a man ” because women usually don’t do that sort of thing.”
Josh also told a deputy sheriff he thought three men had done it because “I thought it was them. And, you know, like they stopped up that night.” He did not actually see three people during the incident.
Josh never identified Cooper as being in the house that night.
Jessica Ryen did her best to help authorities find the man who killed her. In her hand, investigators found a substantial amount of fairly long blond or light brown hair in her hand. Because Cooper is black, it is unlikely that this came from him.
At trial, Cooper’s girlfriend testified that she believed her current boyfriend was at least present during the murders because he left soiled coveralls in her closet. She turned this material over to the police, but at trial, an investigator testified that the clothes contained only hair, sweat, dirt, and manure on them.
On appeal, the Ninth Circuit ruled Cooper was eligible for another motion for a habeas corpus writ. He is seeking an evidentiary hearing asking for DNA testing and an analysis of the hair found in Jessica’s hand.
Apparently, no one had ever bothered to find out where that hair might have come from.