by Rebecca Doran
The following article appears in the December 2009 edition of Socialist Action newspaper.
On Nov. 30 the U.S. Supreme Court refused to consider the appeal of innocent San Quentin death-row inmate Kevin Cooper. The High Court reached its decision to reject Cooper’s petition despite overwhelming evidence of a massive police frame-up— laid out in dramatic detail in an unprecedented 103-page dissenting opinion signed by five judges in the Ninth Circuit Court of Appeals.
In a decision issued in May of this year to deny Cooper a rehearing of his case, the Ninth Circuit revealed that it was virtually split on the issue of Cooper’s innocence. At least 11 judges in the 9th Circuit voted to allow Cooper a rehearing, and five of those judges signed the 103-page dissent—which opened with the warning that “the State of California May Be About To Executive an Innocent Man.”
Along with Cooper’s appeal to the U.S. Supreme Court, California Attorneys for Criminal Justice, The Innocence Network, and the California Public Defenders Association filed amicus curiae, or “friend of the court” briefs on behalf of Cooper’s mounting claims of innocence.
The rejection by the Supreme Court came as no surprise to anti-death-penalty activists. In April of this year, the same Court rejected the petition of political prisoner Mumia Abu-Jamal, ignoring its own historic decision in the 1986 case of Batson v. Kentucky that the systematic and racist exclusion of Blacks from juries voids all guilty verdicts and mandates a new trial.
In Cooper’s case, the Supreme Court refused to address an alarming question that is being raised with growing frequency in the aftermath of the signing of former President Bill Clinton’s Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Cooper’s legal team challenged the court to consider: is a person convicted of murder but later shown to be innocent eligible for execution?
The court’s decision to ignore this question lets stand the current unconstitutional federal AEDPA legislation—which dramatically restricts the right to habeas corpus for the sake of creating a more “effective” death-penalty system. That is, the AEDPA mandates that federal courts must grant a “presumption of correctness” to the factual findings of state courts, even if those findings were subsequently determined to be based on manufactured or otherwise fundamentally flawed “evidence.”
Immediately following the Supreme Court decision, Cooper’s legal team issued a press release vowing to continue to fight to prevent the execution, notwithstanding the Court’s refusal to consider Cooper’s appeal. Norman Hile, Cooper’s lead attorney, urged any and all witnesses with information about the case to come forward: “Time is running out. Many witnesses have come forward with helpful evidence, but we now need more. Anyone with information about this case should examine their conscience and ask whether they are willing to let their silence contribute to the execution of a man for crimes he did not commit.”
Hile also called on U.S. Attorney General Eric Holder to investigate Cooper’s case and the local prosecutorial and police misconduct. “Multiple witnesses have provided testimony suggesting that the police planted evidence against Kevin Cooper and destroyed evidence that demonstrated his innocence, and that local prosecutors violated Kevin Cooper’s constitutional rights,” Hile said. “We need a federal investigation to get to the bottom of this and stop the killing of an innocent man.”
In its opposition brief to Kevin Cooper’s petition to the U.S. Supreme Court, the state of California struggled to deal with the issue of Cooper’s actual innocence and the blatant violation of his constitutional rights in regard to the withholding and tampering of evidence by the prosecution. The brief cites the California Supreme Court’s 1991 opinion, which stated that the evidence of Cooper’s guilt was “overwhelming.” However, the 1991 opinion was published over a decade before Cooper’s defense unearthed the new evidence that split the 9th Circuit judges into a heated debate.
Cooper was convicted and sent to death row in 1985 for the 1983 San Bernardino County, Calif., slaying of the Ryen family and a young family friend. However, the lone surviving victim of the attack told police that three white men had committed the crimes. Kevin Cooper is Black.
Two witnesses told police that they had seen three young men driving the victims’ station wagon away from the scene of the crime, but the prosecution suppressed this information and argued that Kevin Cooper murdered the family to steal their car. It should be noted that a hotel register recorded that Cooper was in Tijuana, Mexico, at a time that would have been impossible had he committed the California murders.
The 103-page dissent published by the 5 Ninth Circuit judges on May 11, 2009 (http://www.ca9.uscourts.gov/datastore/opinions/2009/05/11/05-99004o.pdf) exposes countless more instances where police and prosecutors created, destroyed, or tampered with evidence to create and uphold a case against Kevin Cooper. The excerpts below reveal the tone of the argument presented by the dissenting judges that Cooper deserves a fair hearing in the courts.
In regard to crucial DNA testing the Ninth Circuit had directed a lower court to perform: “There is no way to say this politely. The district court failed to provide Cooper a fair hearing and flouted our direction to perform the two tests. As will be described in greater detail below, the district court impeded and obstructed Cooper’s attorneys at every turn as they sought to develop the record. The court imposed unreasonable conditions on the testing the en banc court directed; refused discovery that should have been available as a matter of course; limited testimony that should not have been limited; and found facts unreasonably, based on a truncated and distorted record.”
In regard to evidence tampering: “A single drop of blood in the hallway outside the Ryen master bathroom—several feet away from any of the victims—had characteristics consistent with Cooper’s genetic profile and inconsistent with the victims’. The crime lab conducted serological testing of this blood drop (entered into evidence as A-41) under suspicious circumstances. The criminologist who conducted the testing arrived at one result, and then altered his records to show a different result that conformed to Cooper’s known blood characteristics. The drop of blood has a history of being “consumed” during testing and then inexplicably reappearing in different form for further testing when such testing would prove useful to the prosecution.”
A tan blood-spattered t-shirt was found near the crime scene. Prosecutors claim the shirt tested positive for Cooper’s blood, but the district court refused to allow Cooper’s legal team to participate in the DNA testing protocol, and refused the defense to even see the garment. Cooper pursued the issue and demanded testing for a preservative that would prove the blood came directly from a test tube and was planted on the shirt. Cooper’s argument pointed to the fact that the San Bernardino County Sheriff’s Department collected a vial of his blood shortly after his arrest and that his blood was not originally found on the garment in the initial investigation.
The court allowed the testing, but to the state’s dismay, its lab arrived at the conclusion that the stain contained a highly elevated level of EDTA, the preservative used in test tubes for the storage of blood. This was a short-lived victory for the defense, however, because the district court allowed the state to withdraw this damning evidence on the grounds that the lab had somehow become contaminated during the testing, making the results unreliable. Cooper’s legal team was barred from inquiring how the testing area had become contaminated, and the issue was closed by the district court.
Cooper supporters point with rage to the fact that Deputy William Baird, the manager of the lab that conducted the investigation against Cooper, provided critical evidence at trial that connected Cooper to the murder scene. However, Deputy Baird lied on the stand and admitted to coercing another witness so they could “shut down certain defenses.” Soon after Cooper’s trial, Baird was caught stealing heroin from the evidence locker at the Crime Laboratory. He stole the heroin both for his personal use and to sell to drug dealers.
Kevin Cooper is in grave danger of execution based on evidence that has been manufactured and manipulated by racist officials from the local level all the way up through the district courts. Executions in California have been under moratorium since early 2006 to allow prison officials time to tighten their execution protocol in an effort to end arguments that death by lethal injection is cruel and unusual punishment. However, officials in California have made it clear that they intend to issue a death warrant and execute Kevin Cooper as soon as the moratorium is lifted.
We cannot allow this to happen! The struggle to free Kevin Cooper and end the death penalty should move back into the streets! There is no time to waste. Kevin Cooper is staying positive, and his supporters need to do the same while keeping in mind that victories can be won even in the darkest of times. Kevin Cooper’s freedom can still be gained, but it will take an organized effort by Cooper supporters and death-penalty abolitionists everywhere.
Contact Rebecca Doran at (415) 264-6622 or rebecca_doran@yahoo.com to get involved immediately.
