Stephen Lendman at Unlikely 2.0

Kevin Cooper: Victimized by American Injustice
by Stephen Lendman

On November 30, the US Supreme Court denied Kevin Cooper justice by not reviewing his wrongful murder conviction despite overwhelming evidence of his innocence. Cooper is Black and was framed for a multiple homicide he never committed. He's imprisoned on death row at San Quentin State Prison, Marin County, California, a victim of American injustice.

Savekevincooper.org documents his case and efforts to exonerate and release him, so far in vain and unlikely unless a new governor grants clemency or pardons him after taking office in January 2011.

On January 30, 2004, Governor Arnold Schwarzenegger denied him clemency, saying at the time:

"I have carefully weighed the claims presented in Kevin Cooper's plea for clemency. The state and federal courts have reviewed his case for more than eighteen years. Evidence establishing his guilt is overwhelming (and despite his) mentoring of others (and other) commendable (acts his) is not a case for clemency."

On November 30, 2009, Los Angeles Times writer Carol Williams broke the bad news headlining, "Death Row inmate Kevin Cooper loses last appeal," then adding background on his case. More on that below.

In 1991, the California Supreme Court upheld his conviction, then denied his habeas petition in 1996. In 2001, a three-judge federal 9^th Circuit panel affirmed his habeas petition denial. On February 9, 2004, on the eve of his scheduled execution, an en banc (full court) 9^th Circuit panel reversed the earlier denial by granting him a stay of execution until his new federal habeas application could be considered.

On May 11, 2009, the US 9th Circuit Court of Appeals:

"voted to deny (Cooper's) Petition for Rehearing and Petition for Rehearing En Banc. The full court was advised of the petition for rehearing en banc. A judge requested a vote (for it, yet the) matter failed to receive a majority of the votes, (therefore both petitions) are DENIED."

Eleven of the twenty-seven judges dissented, some warning that "The State of California may be about to execute an innocent man."

Eight judges agreed on a dissenting opinion (identified only by their last names) — Fletcher, Wardlaw, Fisher, Reinhardt, Rymer, Pregerson, Paez, and Rawlinson.

After the US Supreme Court's denial, Cooper's execution is more likely, and threatens other innocent Black prisoners, the most famous being Mumia Abu-Jamal, falsely convicted in July 1982, thereafter on death row, and in April 2009 denied a new trial by the High Court despite prosecutorial discrimination in striking Blacks from his prospective juror panel to get enough Whites on it to convict.

Timeline of the Case

on June 4, 1983, Douglas and Peggy Ryen, their 10 year old daughter Jessica, and 11 year old house guest Christopher were murdered inside their Chino Hills, California home;
on June 9, San Bernardino County prosecutors charged Cooper with four counts of murder and one count of attempted murder; a warrant was issued for his arrest, and his whereabouts was sought;
on June 30, Santa Barbara County sheriff's deputies arrested Cooper following a rape accusation, not proved and never charged;
on August 1, he plead not guilty to murder charges;
on April 23, 1984, his trial was moved from Ontario to San Diego due to biased publicity;
on October 23, his trial began;
on February 19, 1985, he was convicted of multiples murders;
on March 1, the jury recommended the death penalty;
on May 15, he was sentenced to death;
on May 16, 1991, the California Supreme Court upheld the conviction;
on May 10, 2001, the state agreed to allow post-conviction DNA testing on a blood-stained t-shirt found on a roadside leading away from the murder site to prove Cooper's innocence;
on October 3, 2003, state authorities said it confirmed Cooper's guilt, even though, according to the above named dissenting judges:

initial tests showed it "contained blood consistent with one of the victims and not consistent with Cooper. (He) maintained (and still does) that his blood was planted on the t-shirt. (If true), the only possible source was blood taken from Cooper by law enforcement authorities. A vial of blood was taken from Cooper by San Bernardino County Sheriff's Department (SBCSD) personnel on August 1, 1983, two days after his arrest. That blood contained an added preservative called EDTA....The presence of such a preservative would show that (Cooper's) blood was not on the t-shirt at the time of the killings."

the judges added:

"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 proper tests. It "also impeded and obstructed Cooper's attorneys at every turn as they sought to develop the record." Unreasonable testing conditions were imposed, as well as "refused discovery that should have been available as a matter of course, limited testimony that should not have been limited, and found fact unreasonably, based on truncated and distorted record."

"The most egregious, but by no means the only, example is the testing of Cooper's blood on the t-shirt for the presence of EDTA. (The district court) so interfered with the design of the testing protocol that one of Cooper's scientific experts refused to participate in the testing. (It let) the state-designated representative (choose) samples to be tested." Cooper's experts were refused the right to participate in choosing samples or "even to see the t-shirt."

Yet the test result showed "an extremely high level of EDTA in the sample that was supposed to contain Cooper's blood. If that test result was valid, it showed that Cooper's blood had been planted on the t-shirt, just as Cooper maintained."

A subsequent analysis confirmed the test's validity, yet the district court let "the state-designated law....withdraw the test result on the ground of claimed contamination in the lab," with no allowed inquiry to prove it. In addition, the "court then refused to allow further testing on the t-shirt, even though such testing was feasible."

The above judges had just cause to believe Cooper was framed, falsely convicted, and deserves redress. Yet:
on December 17, 2003, a San Diego County judge signed his death warrant and scheduled execution for February 10, 2004;
on January 9, 2004, his attorney petitioned Governor Schwarzenegger for clemency;
on January 30, it was denied;
on February 9, Cooper was scheduled for execution at one minute past midnight on February 10, but was stayed after the 9^th Circuit Appeals Court ruled 9 to 2 to return the case to a San Diego federal judge because of new information that the San Bernardino police planted and tampered with evidence to frame him;
on April 22, 2005, a federal judge upheld the death penalty and refused requests for further blood testing to exonerate him;
on May 9, 2009, the 9^th US Circuit Court of Appeals denied Cooper's rehearing petition despite 11 of the 27 judges dissenting; and
on November 30, the US Supreme Court decided not to review his case despite overwhelming evidence of his innocence.