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The struggle to save Kevin Cooper

December 8, 2006 | Page 4

ELIZABETH TERZAKIS reports on developments in the case of California death row prisoner Kevin Cooper.

EARLY NEXT year, the U.S. 9th Circuit Court of Appeals will hear arguments in the case of Kevin Cooper, a prisoner unjustly sent to California's death row over 21 years ago.

The hearing will take place almost three years after Cooper came within three hours and 42 minutes of his scheduled execution on February 9, 2004.

Word of the stay arrived as hundreds of anti-death penalty activists marched from San Francisco to San Quentin to protest the scheduled execution--the culmination of a years-long campaign to save Cooper's life and prove his innocence. Now that struggle faces a new challenge.

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COOPER HAS always maintained his innocence and fought for his own life as well as the lives of all others sentenced to death.

"I am an activist and an abolitionist, and my work speaks to this," Cooper wrote from death row. "I know that the death penalty is not only about me, Kevin Cooper, but is much, much bigger. In my mind and through my eyes, this is about a system that has historically and systematically executed men, women and children who look just like me, whether from the standpoint of the color of their skin, or from the standpoint of their class and background.

What you can do

Activists are planning a press conference and rally outside the courthouse when the U.S. 9th Circuit holds its hearing. For information, e-mail [email protected] or call 510-333-7966. Send messages of solidarity and support to: Kevin Cooper, C65304, San Quentin Prison, San Quentin, CA 94974.

For more about Cooper's case, plus selections of his writings, visit his Web site at www.savekevincooper.org. For more information about the struggle against executions, visit the Campaign to End the Death Penalty Web site at www.nodeathpenalty.org.

 

"I am a part of the machine that we are building to put an end to this crime against humanity that this government uses. I am no more and no less than that."

In the late 1990s, Cooper came in contact with the Campaign to End the Death Penalty (CEDP). Cooper has been a member of the CEDP ever since, and speaks frequently via speakerphone at "Live from Death Row" forums organized by the Campaign.

The first chapter in the campaign to save his life was a petition drive for DNA testing. Much of the material evidence available at the first trial in the early 1980s had never been tested using methods developed in the years since. Cooper insisted that he was never at the site of the murders he was convicted of, and that a drop of blood and a blood-spattered T-shirt supposedly implicating him were not his.

After years of petitioning and publicizing the case, and months of negotiations between Cooper's defense team and the state, Cooper was granted post-conviction DNA testing--the first ever done in the state of California.

Two weeks after the testing agreement was signed, Cooper's attorneys learned that Daniel Gregonis, a criminalist working for the state, had removed evidence in the Cooper case from the police locker and kept it for 24 hours for "observation" without the knowledge of the defense.

In addition to the drop of blood and T-shirt, the locker contained blood and saliva samples taken from Cooper at the time of his arrest. Although the T-shirt wasn't taken from the locker at that time, it was later revealed that the T-shirt's "chain of custody"--the records that indicates where a piece of evidence has been and who has handled it--was full of gaps.

This wasn't the first time that evidence relevant to Cooper's case had been subjected to dubious handling. At the time of the murders for which Cooper was convicted, a woman named Diane Roper brought a pair of bloody coveralls to the San Bernardino Sheriff's department and stated her belief that her boyfriend, not Cooper, had committed the killings. The coveralls were destroyed without being tested.

Cooper's supporters attempted to publicize this apparent tampering prior to the testing, but the media showed little interest in the state's mishandling of evidence. When the DNA tests were completed and seemed to implicate Cooper, the press once again repeated the state's claim that Cooper had been proven guilty.

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KNOWING THAT the way was now clear for the state to set an execution date, Cooper and the activists working with him set up an emergency response network. In addition to exposing the reasons to suspect evidence tampering, Cooper's supporters explained the other facts of the case that cast doubt on Cooper's guilt.

According to the state's argument, Cooper acted alone in murdering four people, Douglas, Peggy and Jessica Ryen, and their houseguest Chris Hughes, and critically wounding Josh Ryen, the only survivor. Prosecutors claimed that Cooper used three weapons in the killings, and pathology reports indicated that all the wounds had been inflicted in less than two minutes.

A member of the American Board of Pathology said it would be "virtually impossible" for one person to have committed this crime. And most people--those without an ideological or professional wish to see Kevin Cooper dead--agree.

Fortunately for Cooper, so did the Innocence Project at Santa Clara University--and the law firm of Orrick, Herrington and Sutcliffe, which decided to take on pro bono death penalty work some six months before Cooper was given an execution date.

When Orrick decided to take on his case, Cooper for the first time had access to a defense team with funds and investigators. The firm's lawyers and investigators were able to uncover substantial additional evidence of tampering, civil rights violations and other possible perpetrators.

After rejections in other courts, the U.S. 9th Circuit finally granted Cooper a stay within hours of his scheduled execution. The stay was based on a number of apparent violations of Cooper's rights as a defendant and a judgement that the evidence should be tested for tampering.

"Contrary to the State's assurances," wrote 9th Circuit Justice James Browning, "Cooper did not have a fair trial. Cooper has presented a sworn declaration of a state prison warden that, if believed, suggests that the State fabricated crucial evidence linking Cooper to the murders for which he has been convicted. Nor is the evidence of Cooper's guilt overwhelming. Indeed, as the evidence mounts that the State used unreliable and fabricated evidence to convict Cooper, the evidence of his guilt correspondingly diminishes."

The U.S. Supreme Court upheld the stay unanimously, and activists went home from their march to San Quentin jubilant, knowing they had helped to throw a wrench into California's machinery of death.

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AFTER THE stay of execution, Cooper's case went to a district court in San Diego, where Judge Marilyn Huff did everything she could to prevent justice from proceeding.

Tests to determine whether or not the state had planted Cooper's blood at the crime scene were conducted in a manner that guaranteed inconclusive results. When the state found high levels of EDTA, a preservative that suggests tampering, on one of the stains it tested, it threw out its results, claiming an unspecified "laboratory contamination."

The 9th Circuit was so dissatisfied with the process that when Cooper appealed on 10 different legal issues, justices awarded the appeal on all 10 and set a hearing on the merits of the case. Now Cooper and his supporters are looking ahead to activities to keep up the pressure on the courts--and win justice for Kevin Cooper.

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