|
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 Ninth 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 Execute 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 Ninth 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 five Ninth Circuit judges on May 11 (www.ca9.uscourts.gov/datastore/opinions/2009/05/1105-990040.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.
.
|