Court to Consider Granting Appeal to Kevin Cooper

On Jan. 9, the United States Court of Appeals for the 9th Circuit heard oral arguments in the case of San Quentin death-row inmate Kevin Cooper.

In this era, after the signing of former President Bill Clinton’s reactionary Anti-Terrorism and Effective Death Penalty Act of 1996, simply winning the right to appeal is often a major victory for an inmate. In a rally and press conference outside the courthouse, Cooper’s supporters organized to make the most of this opportunity to bring an end to Kevin Cooper’s two-decades long nightmare of imprisonment and psychological torture at the hands of the state.

Kevin Cooper, a 48-year-old African American, unknowingly began his nightmare in the summer of 1983 when he slipped away from a minimum-security prison where he had been serving a sentence for a non-violent burglary; little did he know when he was hitching a ride to Mexico that he was about to become the suspect in the killing spree of a white family and the hunted target of a racist lynch-mob.

Cooper became the subject of one of the largest manhunts in modern California history. After his arrest he was arraigned in a courthouse that became the scene of heated rallies, where white supremacists hung in effigy a toy gorilla in a noose and held signs that read: “Hang the African Troglodyte” and “Kill the Nigger.”

After being found guilty by the mainstream media, and later by a San Diego courtroom, Cooper was sent to San Quentin’s death row, where his life was nearly ended by a warrant for his execution by lethal injection at 12:01 a.m. on Feb. 10, 2004. But a last-minute reprieve by the 9th Circuit stopped the execution and sent Cooper’s case back to the U.S. District Courtroom of Judge Marilyn Huff.

The higher court ordered Judge Huff to preside over testing of evidence that could support Cooper’s theory that police tampered with and even created evidence to frame him. But Huff’s bias against Cooper was thinly veiled when she denied Cooper’s legal team their right to a fair hearing. The arguments on Jan. 9 were an appeal against Judge Huff’s lengthy decision to deny Cooper relief.

“The state has withheld evidence”

Cooper recently wrote in a letter to his supporters: “It is my understanding that on Jan. 9, 2007, a three-judge panel of the 9th Circuit Court of Appeals will have Oral Arguments in my case, and do so ‘on the Merits!’ If this is truly the case, then it will be the very first time in over 20 years, or since I was first arrested in 1983, that this will happen.

“All I have ever asked, and all that I have a right to ask, is that the whole truth be told about this case. So far, despite what the state claims, this has never happened.

“I am not asking for just my side to be told in this, and I most definitely don’t want just the state’s one-sided side to be told as it has been with the help of the mainstream news media. I want both sides to be told! I want the truth to be told! I want this case to truly be heard ‘on the Merits’ this time around!

“So far the state has lied about evidence, destroyed evidence, withheld evidence, ignored evidence, tampered with evidence, contaminated evidence, used a lying jailhouse snitch/informant and even allowed the D.A. who helped convict me to lie in Federal District Court when he was under oath!”

Cooper banned from courtroom

Dozens of Cooper supporters gathered outside the 9th Circuit Courthouse on Jan. 9 prepared to display to the justices a strong show of solidarity with Cooper. The anti-death-penalty activists nearly overflowed the gaudy courtroom, and sat anxiously amongst extravagant and pompous American governmental icons that adorned the walls.

But the abolitionists faced the harsh realities of the American justice system when they were informed that the three-judge panel, which would be making a decision for life or death, would not appear in person. Instead, the justices appeared via videoconference, delivering a blow to those who organized to fill the courtroom to send a message to the court.

One of the three justices, Judge Pamela Rymer, who had ruled against Cooper in the 2004 hearings, was unable to attend via videoconference and dialed in on a speakerphone. Also missing from the courtroom was Kevin Cooper, who was not permitted to attend.

The court granted the defense team only 30 minutes to argue their appeals, and Cooper’s attorney, Norm Hile, argued the two-decades-long case to a flat screen monitor with slight audio delay and a red digital clock that ticked away the seconds as the televised judges interrupted with often hostile-sounding questions.

The defense argued that the conviction should be overturned on the basis that Cooper’s constitutional rights had been violated by the prosecution’s suppression of exculpatory evidence. This evidence included a police log entry from the night of the murders that recorded the victims’ car being driven away from the murder scene while occupied by three young men.

This long-buried piece of evidence topples the prosecution’s platform from which they built their far-fetched story that Kevin Cooper, wielding three weapons and without a struggle, massacred the family in a minute in a half so he could steal their station wagon to get out of the vicinity of the prison.

Another piece of evidence that attorneys argue could have exonerated Cooper is a pair of blood-spattered coveralls that were turned over to police by a woman who found them in her closet and was convinced her boyfriend, a convicted murderer for hire, was involved in the murders.

Police destroyed the coveralls before they could be tested, a move that police claimed at the time of the trial was done by a lower-level deputy without orders from the top. However, after an investigation by Cooper’s new legal team, it was discovered that the destruction of this key piece of evidence was done at the orders of a high-ranking police official who had signed the order, KS.

Fight to have bloodstains tested

Cooper’s appeals were based on 10 crucial points; however, the judges focused mainly on two important issues.

The major topic of the court’s questioning surrounded a tan t-shirt that was found near the murder scene and that the prosecution argues contains the DNA of both Cooper and one of the victims. When the prosecution claimed that testing on a bloodstain found on the shirt tested positive for Cooper’s DNA, Cooper embarked on a legal struggle to have the bloodstain tested for a laboratory preservative called EDTA, which he argued would prove his blood had been planted on the shirt by police.

However, after Judge Huff reluctantly agreed to proceed with this testing, the defense team hit another wall when they were informed that the bloodstain in question had been cut from the t-shirt and destroyed by the state’s lab.

Cooper’s team pursued further testing on the t-shirt, but was never actually granted access to this crucial piece of evidence. Instead, the court granted them photographs of the t-shirt, and they were forced to work from notes and a chain of custody that documented the illegal and still unexplained temporary removal of this evidence from the lab by police.

With Cooper’s blood missing from the shirt, Huff ordered EDTA testing on a mystery stain that has never been tested for DNA. Without the knowledge of whether this stain was blood or another substance, the prosecution’s lab tested it and found a highly elevated level of EDTA.

With test results supporting Cooper’s claims of police misconduct, Judge Huff allowed the state to withdraw their findings, claiming without explanation that their study was contaminated.

Cooper’s legal team urged the panel of 9th Circuit judges to grant them a fair shot at proper testing on this evidence. Cooper’s attorneys also argued for relief on another constitutional violation regarding a long-buried police log, which recorded a blue bloodstained t-shirt.

This shirt was found by a local woman near the scene of the murders, and, according to the log, was picked up by police. The t-shirt, however, which would support the multiple attackers theory, is missing from the police lab; the prosecution argued at the hearings that it never existed.

Another major piece of evidence argued out in the appeals court was a bloody shoe print allegedly found at the murder scene, which the prosecution claimed at the criminal trial was left by a prison-issue shoe that could have only belonged to Cooper. However, a quick investigation by Cooper’s new legal team located the former warden of the minimum-security prison from which Cooper escaped. The warden then testified in Huff’s court that she had tried to appear in the original criminal trial, but was blocked by the prosecution.

The warden argued that the shoes were not prison-issue, and a search by Cooper’s legal team found the shoes in question on page 3 of a 1982 Ked’s retail catalog.

A mouthpiece for the state of California’s execution machine, Holly Wilkens, the state’s Deputy Attorney, argued to the judges that Kevin Cooper is as “guilty as sin.” Despite the fact that Cooper’s attorneys have found new evidence of police misconduct in nearly every avenue they have pursued, Wilkens argued that Cooper has offered no new claims which the court should hear.

Wilkens pleaded to the court to put an end to Cooper’s appeals and send him back to San Quentin’s execution chamber.

However, in a brief 8.5-minute reply to the state’s arguments, Norm Hile read out a list of new evidence that has not yet had a fair hearing, a move that left the state’s lies exposed. Hile closed his arguments by stating that if Cooper were granted proper testing on the t-shirt, he could prove that it was tampered with, and with that evidence he could prove that other evidence was also tampered with.

At the press conference and rally after the hearings, Cooper supporters expressed outrage at the manner in which the judges handled the hearings, but felt positive that Cooper’s innocence is too obvious to ignore. It is unknown when or how the judges will rule, but the movement to free Kevin Cooper must continue to put pressure on the courts to rule in Cooper’s favor.

Socialist Action newspaper has covered Cooper’s struggle for freedom for several years, while the mainstream media has ignored it, and has played a leading role in his defense. It is the goal of this writer and Socialist Action to be waiting outside the prison when Kevin walks free. That will be a victory both for Kevin and for the movement to abolish the death penalty.

[the above article was written by Rebecca Doran]