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The fight for Kevin Cooper

February 20, 2004 | Pages 6 and 7

"WHEN THE stakes are so high, when the evidence against Cooper is so weak, and when the newly discovered evidence of the state's malfeasance and misfeasance is so compelling, there is no reason to hurry and every reason to find out the truth." That's what a federal appeals court judge had to say about the case of California death row prisoner Kevin Cooper, just a few days before Kevin was scheduled to die. Yet Kevin came within four hours of being killed before the U.S. Supreme Court unanimously upheld a stay of execution until further testing is done on evidence in Kevin's case.

In spite of all the questions, it still took the efforts of thousands of people--activists organizing up and down the state, lawyers challenging the state's case, a campaign by the independent media to get the truth out--to halt California's killing machine. TODD CHRETIEN and ALAN MAASS look at how the struggle to save Kevin Cooper was organized--and what lies ahead.

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"IT WAS like something you read about, or something you see on television," says Shujaa Graham. Shujaa, a former California death row prisoner, was remembering the moment a week ago outside the gates of San Quentin Prison, when supporters of current death row prisoner Kevin Cooper--gathered for a demonstration against his execution in less than four hours' time--learned that Kevin wouldn't be killed.

"All of the sudden, the news came out, and you could see the emotion in people, and the relief," Shujaa said. "We know we've got more to do for Kevin because he isn't free, and he's still facing the death penalty. But it was a sigh of relief--that we did it."

On the night of February 9, Kevin Cooper walked away from the execution chamber alive--and one step closer to freedom. This victory against the California killing machine followed weeks on an emotional roller coaster for Kevin, his lawyers and the activists and opponents of the death penalty who took up his case.

At the heart of the surge of protests was Kevin himself. Caught up in the racist criminal injustice system from an early age, Kevin transformed himself on death row into a talented painter and writer. His articles--which are collected at the Save Kevin Cooper Web site ( his personal opposition to oppression and exploitation in all its forms.

Kevin also spoke out at meetings around California and the U.S.--via speakerphone, in Live from Death Row forums hosted by the Campaign to End the Death Penalty. When he learned of his execution date, Kevin issued a statement to supporters, calling on them to protest.

"There can be a vigil for me after I am dead," Kevin wrote, "but while I am alive, we must protest against my murder and this crime against humanity." This spirit from Kevin himself inspired the struggle, says Mary Ratcliff, editor of the San Francisco Bay View, a Black newspaper that crusaded for Kevin.

"I think that the movement to look at incarcerated people as possibly innocent and railroaded, and the sense of injustice that the death penalty raises in so many of our minds, has come together," she told Socialist Worker. "And Kevin himself has helped make that connection in people's minds."

Shortly after the February 10 execution date was set, Kevin's case was taken up by lawyers from Orrick, Herrington and Sutcliffe--one of the top corporate law firms in the country. In addition to throwing the firm's enormous resources into investigating the flaws in the prosecution's case, the new lawyers focused on "a calculated, well-thought-out strategy of getting our message out," as Orrick lawyer Lanny Davis, a former White House special counsel for Bill Clinton, put it.

"We recognized that by getting our message out, we are winning both the battle in the courtroom and the battle outside the courtroom," Davis told the Associated Press. The legal team's commitment to countering media prejudices against Kevin played an important part in shifting the tone of news reports of the pending execution--which initially didn't question the prosecution's case.

Likewise, a broad range of religious, community, anti-death penalty and left-wing groups came together when an execution date was set and resolved to do everything possible to bring Kevin's side of the story into the open. In early January, more than 60 people representing dozens of organizations came together to form the Committee to Stop the Execution of Kevin Cooper--and map out a strategy.

One highlight was a February 3 day of action that featured rallies and press conferences in 10 different California cities. In Santa Monica, more than 100 people gathered on the steps of Gov. Arnold Schwarzenegger's church for a press conference featuring Rev. Jesse Jackson and numerous clergy. In Santa Cruz, 400 people turned out to hear veteran activists Angela Davis speak at an event organized by the International Socialist Organization.

The same day, hundreds of thousands of Californians saw a full-page ad calling for justice for Kevin in the San Jose Mercury News and the western edition of the New York Times. Signers of the ad included Danny Glover, Janeanne Garofalo, Harry Belafonte, Anjelica Houston, Rubin "Hurricane" Carter, Howard Zinn and Noam Chomsky.

"All these different things came together--activism, Kevin himself, the lawyers, media attention," says Cameron Sturdevant of the Campaign to End the Death Penalty. "We were able to cast a light on all the problems in the case, along with the obvious racism--both the fact that a gorilla was hung in effigy during Kevin's trial, but also more widely, the fact that California's death row is 60 percent Black or Latino. We were able to bring all those things together and really galvanize a lot of people who have doubts about the death penalty."

Pressure continued to build in the week following the day of action, as left-wing media outlets--such as Pacifica Radio's "Democracy Now!" news show, the SF Bay View and Socialist Worker--focused on the case. Shujaa Graham flew to the Bay Area from his home in Maryland to spend two weeks speaking out for Kevin at churches, schools and meetings of community organizations. With less than 48 hours to go, Jesse Jackson preached to a congregation of 500 at the prestigious Allen Baptist Temple in Oakland--and then flew down to Santa Monica to lead a rally outside Schwarzenegger's mansion.

On the night of the scheduled execution, several hundred people joined a two-mile march to San Quentin--where they met a similar number preparing to protest Kevin's murder. But with just hours to spare, the U.S. Supreme Court upheld the stay of execution.

Jack Heyman--an executive board member of International Longshore and Warehouse Union Local 10, which supported the campaign for Kevin--says the fight for Kevin was successful "because it was organized on a broad basis. It went into the trade union movement, but also beyond, into the general public. I think it struck a responsive chord."

Activists are meeting to look at what's ahead--both in the struggle to save Kevin, but toward larger initiatives, such as a moratorium on executions. Mary Ratcliff hopes that those who marched for Kevin will take up the wider issues involved in his case. "I would love to see the anti-death penalty movement expand at least to thinking about all of the issues that go into that ultimate penalty of death," she says. "How and why people are put on this track in the first place, and how terribly, terribly wrong that is."

For Shujaa Graham, stopping the execution was the result of an intensive effort that can lay the basis for the future. "It was just great to see everybody come together, regardless of other differences, to fight for that common purpose--and to get this kind of result," he says. "It gave us a tremendous boost of confidence. I'm leaving here with a greater sense of determination. I've been around, but this reinforces a lot of things for me and makes me more committed than ever before."

Behind the legal battles in Kevin's case

THE STAY of execution for Kevin Cooper came with less than eight hours to go from the 9th Circuit Court of Appeals. The 9th Circuit decision--which was upheld unanimously by the U.S. Supreme Court--calls for testing on several pieces of evidence.

One question revolves around blond hairs--which couldn't possibly come from Kevin, who is African American--found clutched in the hands of a victim. If the hairs don't belong to any of the victims, then they must belong to the real killers--and would exonerate Kevin.

The other piece of evidence to be tested includes a blood-covered T-shirt that prosecutors claim implicates Kevin. The T-shirt will be tested for traces of preservatives, which would indicate that the evidence was tampered with to frame Kevin. Since the 9th Circuit ruling, prosecutors have been pushing the line that preservatives are found so commonly that their presence in the blood evidence doesn't prove anything.

The appeals court judges also ordered another piece of evidence to be reconsidered--a shoe print at the murder scene that prosecutors claim came from Kevin. At the original trial, the state argued that the print came from a type of tennis shoe that could have only been worn by a prisoner--implicating Kevin, who escaped from a state prison in Chino, Calif., two days before the murders.

But even as they made this claim, prosecutors knew that the warden at Chino had said that the shoes issued by the prison were commonly available to the public. By law, this statement from the warden should have been turned over by prosecutors to Kevin's defense lawyers--but never was.

All of these issues will now have to be considered by another judge. The process could be completed in a little over a month. But legal experts have told reporters that they expect the wrangling over whether testing will be done--and how--to go on for months.

Meanwhile, California's Democratic Attorney General Bill Lockyer has gone back to the Supreme Court to try to have the 9th Circuit Court's decision overturned--as a violation of federal law that prohibits the consideration of new evidence that could exonerate prisoners if it comes too late.

In fact, the new evidence put forward by Kevin's lawyers was so strong that Supreme Court Justices Ruth Bader Ginsburg and John Paul Stevens said that they would have issued a stay of execution if the 9th Circuit hadn't. But that didn't make any difference to Lockyer, who is clearly looking to advance his career as the top Democratic official in the state.

The stay of execution is a testament to the determination of Kevin, his lawyers and his supporters. But the decision that saved his life revolves around only some of the many questions and flaws in the prosecution case.

Like the bloody coveralls given to police by a woman who said that her boyfriend had left them at her house late on the night of the murders--but which police threw away without telling Kevin's lawyers. Or the new witnesses who say they saw men splattered with blood come into a bar near the murder scene. Whether any of this will be considered is an open question--because the court system is stacked against poor Black men like Kevin Cooper.

We should celebrate the victory that stopped the state of California from murdering Kevin. But we have to keep up the struggle--both to save Kevin and to put an end to the barbaric system of capital punishment once and for all.

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