"ELISABETH A. SEMEL, DIRECTOR OF THE DEATH PENALTY CLINIC AT BERKELEY, WHICH TRAINS LAWYERS TO DEFEND PEOPLE FACING THE DEATH PENALTY, SAID MANY JURISTS HAD BEEN SHAKEN BY THE RISE OF EXONERATIONS DUE TO DNA EVIDENCE. “I THINK IT’S BEEN SHATTERING TO JUDGES WHO HAD A FAIR AMOUNT OF CONFIDENCE IN THE SYSTEM,” SHE SAID."
REPORTER JOHN SCHWARTZ; NEW YORK TIMES;
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Background: Wikipedia; Kevin Cooper is a Death Row inmate in California's San Quentin Prison. He was convicted of the 1983 hatchet and knife murder of three members of Chino Hills family Ryen and their young houseguest, Christopher Hughes. Cooper, a repeat criminal who escaped from a nearby prison two days before the killings, claims he is innocent and that sheriff's investigators framed him for crimes committed by three white men. Cooper was hiding in an abandoned building near the crime scene at the time of the murders. He fled to Mexico after the murders, only to return to California and be arrested after woman accused him of sexually assaulting her at knife-point. He was scheduled to be executed on February 10, 2004, but his execution was postponed only hours before it was to take place in order to allow for DNA testing. This rare postponement followed an activist campaign led by various groups in the Bay Area and around the country, such as the Campaign to End the Death Penalty, the ACLU, Death Penalty Focus, and The Mobilization to Free Mumia Abu-Jamal. In 2001, Cooper became the first death row inmate in California to get post-conviction DNA testing of evidence. The results of those DNA tests failed to exonerate him of the 1983 murders and indicated that hairs found on three of the victims were likely their own, which undermines Cooper's theory that other people committed the murder.[1] The testing also establishes that there is strong evidence that Cooper is the donor of the DNA extracted from the following items of evidence: 1. A bloodstain found inside the Ryens' home; 2. The saliva on a hand rolled cigarette butt found inside the Ryen station wagon; 3. The saliva on a manufactured cigarette butt found inside the Ryen station wagon; 4. A bloodstain located on a tee shirt that was found beside a road some distance from the Ryen home. There is strong evidence that one of the victims, Doug Ryen, was the donor of another bloodstain found on the same tee shirt. Cooper is also consistent with being the donor of two additional blood smears and a possible donor of blood spatter on the same tee shirt.[2][3] Since his imprisonment, Cooper, who is African American, has become active in writing letters from prison decrying the judicial establishment as racist, for his absolvement, and against the death penalty in general.[4] Cooper has filed multiple appeals and applications for a writ of habeas corpus. To date, all have been denied. On December 4, 2007, the Ninth Circuit Court of Appeals denied Cooper's third federal petition for a writ of habeas corpus. The ninth circuit panel concluded: "As the district court, and all state courts, have repeatedly found, evidence of Cooper’s guilt was overwhelming. The tests that he asked for to show his innocence “once and for all” show nothing of the sort." On May 11, 2009, an en banc panel of the Ninth Circuit Court of Appeals filed an order denying Cooper's request for an en banc rehearing of the December 4, 2007 decision denying his request for relief. Four judges (Fletcher, Wardlaw, Fisher, and Reinhardt) filed dissents, indicating that they disagreed with the decision. Judge Fletcher's dissent in particular is highly critical of the majority decision. A total of eleven judges joined the dissents (fourteen votes were required to grant the request for a rehearing). Judge Rymer filed a concurrence. Cooper's sole remaining avenue of review is an appeal to the United States Supreme Court.
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As Columnist Tom Steepen pointed out in a recent Cox News column, a New York Times review of capital cases has found an increasing number of federal appellate judges dissenting from colleagues who uphold death penalties over claims of innocence -- and dissenting in increasingly strong and urgent language.
"It took just 80 words for a federal appeals court to deny Kevin Cooper’s most recent plea to avoid execution. But attached to that order was a forceful 101-page dissent by a judge, all but pleading to spare Mr. Cooper’s life," the New York Times August 13, 2009, story by reporter John Schwartz began under the heading, "Judge's dissents for death row inmates are rising."
“The State of California may be about to execute an innocent man,” it continued.
"The judge who wrote the dissent, William A. Fletcher of the United States Court of Appeals for the Ninth Circuit, in San Francisco, argued that the police and prosecutors had withheld and tampered with evidence in the case for decades; Judge Fletcher even accused the district court of having sabotaged the case.
Compared with the dry, mannerly prose found in many opinions, Judge Fletcher’s passion in Cooper v. Brown is startling. But these kinds of fervent, lonely dissents, urging that a prisoner’s life be spared, have noticeably increased in the last decade, compared with previous years, according to a review of death penalty opinions by The New York Times, as confirmed by experts in the field.
In dozens of capital cases in recent years, appeals court judges, some of whom have ruled in favor of the death penalty many times, have complained that Congress and the Supreme Court have raised daunting barriers for death row prisoners to appeal their convictions, and in many cases the judges have taken on their colleagues.
“There is an increasing frustration among federal judges throughout the system,” said Eric M. Freedman, a critic of the death penalty who teaches on the subject at Hofstra Law School.
Mr. Freedman predicted that the level of dissatisfaction would increase. “Judges are likely to have less and less patience for being hogtied by legalistic mumbo-jumbo,” he said, “which prevents them from reaching fair results.”
The law that generates much of the judges’ ire is the Antiterrorism and Effective Death Penalty Act of 1996. Since its passage, the act has been cited in a half-dozen to two dozen dissents a year, often in language forceful enough to rival Judge Fletcher’s. The law, championed by legislators who believed prisoners were abusing the federal appeals process, restricts federal court review of state court decisions in death penalty cases and puts strong limits on the ability of condemned prisoners to file habeas corpus petitions to get their cases reconsidered.
In April, Judge Rosemary Barkett of the United States Court of Appeals for the 11th Circuit, in Atlanta, complained of the law’s “thicket of procedural brambles.” Dissenting from a decision by her colleagues, Judge Barkett noted that seven of the nine witnesses in the murder trial of Troy Davis, a death row inmate in Georgia, had recanted their testimony. To execute Mr. Davis without fully considering that evidence would be “unconscionable and unconstitutional,” wrote Judge Barkett, who has voted in more than 200 other cases to uphold the death penalty.
Judge Stephen Reinhardt of the Ninth Circuit, a critic of capital punishment, took on the constitutionality of the 1996 death penalty act itself in a dissent in the case of Andrew C. Crater, who had been convicted of taking part in a robbery and shooting spree that killed a Sacramento musician, James Pantages. Judge Reinhardt, appointed by President Jimmy Carter, wrote in 2007 that the act made “a mockery of the careful boundaries between Congress and the courts that our Constitution’s framers believed so essential to the prevention of tyranny.”
The dissents rarely have any practical effect in changing the outcome of the cases they address. But Howard J. Bashman, an appellate lawyer in Philadelphia, said such dissents were often directed toward audiences to come: the next appeals court, lawmakers and academics.
“You have to think that these judges do have some valid reason for putting all this effort into the exercise than just feeling better about it after they’re done,” Mr. Bashman said.
Judge Barkett, whom President Bill Clinton appointed, declined to discuss individual cases but agreed that a dissent tried to persuade many audiences — the first, in her case, being the other judges of her court, who circulate dissents among themselves as they are coming to a decision.
Judge Barkett said she did not see her opinions as “emotive,” adding that dissents were about policy, not feelings. But the feeling that motivates her to write them, she said, is “mostly frustration that I cannot make people see what I see.”
Judge Fletcher’s frustration was on display in the case of Mr. Cooper, who he concluded was “probably innocent” of the 1983 murders of Douglas and Peggy Ryen, their 10-year-old daughter Jessica and an 11-year-old houseguest, Christopher Hughes, who were hacked to death in the Ryens’ home.
Judge Fletcher argued that the evidence had been tainted by bumbling and misconduct and suggested that blood linking Mr. Cooper to the crime had been planted by overzealous investigators. And while the Ninth Circuit in 2004 ordered new DNA tests, Judge Fletcher wrote that the lower court had set conditions rendering the results useless. “There is no way to say this politely,” he wrote. “The district court failed to provide Cooper a fair hearing and flouted our direction to perform the two tests.”
Judge Fletcher, who declined to be interviewed, was appointed by Mr. Clinton.
Jesse H. Choper, a law professor at the University of California, Berkeley, said the judge was hardly a fierce opponent of capital punishment. “I don’t see him as someone who is unexceptionally opposed,” Mr. Choper said.
In the Cooper case, Chief Judge Alex Kozinski, appointed by President Ronald Reagan, was among 11 of the circuit’s 27 judges who joined dissents.
Elisabeth A. Semel, director of the Death Penalty Clinic at Berkeley, which trains lawyers to defend people facing the death penalty, said many jurists had been shaken by the rise of exonerations due to DNA evidence. “I think it’s been shattering to judges who had a fair amount of confidence in the system,” she said.
The next step in the Cooper case is a long-shot appeal to the Supreme Court, which Mr. Cooper’s lead lawyer, Norman C. Hile, said was likely to be filed this year.
Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, a group in Sacramento that favors the death penalty, said substantial claims of innocence in such appeals remained rare.
In Mr. Cooper’s case, Mr. Scheidegger said, the defendant has been given ample opportunity to exonerate himself. “It is high time to bring this case to a close,” Mr. Scheidegger said.
Judge Fletcher argued otherwise. “If he is innocent, the real killers have escaped,” he wrote. “They may kill again. They may already have done so.
“We owe it to the victims of this horrible crime, to Kevin Cooper, and to ourselves, to get this one right.”"
Kitty Bennett contributed research.
The story can be found at:
http://www.nytimes.com/2009/08/14/us/14dissent.html
Harold Levy...hlevy15@gmail.com;
