"IN THE 103-PAGE DISSENT PLEADING FOR A FAIR HEARING FOR COOPER, THE APPELLATE JUDGES IDENTIFIED MULTIPLE INSTANCES OF POLICE AND PROSECUTORIAL MISCONDUCT, INCLUDING:
PLANTING FALSE EVIDENCE- PROSECUTION LAB TESTS OF A SECOND BLOODY SHIRT SHOWED “AN EXTREMELY HIGH LEVEL OF [THE BLOOD PRESERVATIVE] EDTA IN THE SAMPLE THAT WAS SUPPOSED TO CONTAIN COOPER’S BLOOD.” ACCORDING TO FIVE FEDERAL JUDGES, “[I]F THAT TEST RESULT WAS VALID, IT SHOWED THAT COOPER’S BLOOD HAD BEEN PLANTED ON THE T-SHIRT, JUST AS COOPER MAINTAINED.”
FALSIFIED LAB REPORTS- A DROP OF BLOOD WAS TAKEN FROM THE CRIME SCENE, LABELED “A-41,” AND TESTED BY POLICE CRIMINOLOGIST DANIEL GREGONIS. ACCORDING TO FIVE FEDERAL JUDGES, “[W]HEN THE RESULTS OF GREGONIS’S TESTS ON A-41 WERE INITIALLY INCONSISTENT WITH...A KNOWN SAMPLE OF COOPER’S BLOOD, GREGONIS ALTERED HIS LAB NOTES AND CLAIMED THAT HE HAD MISREPRESENTED HIS RESULTS.”"
FROM RELEASE PREPARED BY KEVIN COOPER'S LAWYERS: NOVEMBER 30, 2009;
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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. The U.S. Supreme Court has refused to consider an appeal.
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"WASHINGTON - Kevin Cooper’s attorneys at Orrick, Herrington & Sutcliffe LLP said today they would continue to fight to prevent his execution, notwithstanding the U.S. Supreme Court’s refusal to consider Cooper’s appeal," the November 30, 2009 release begins.
"“Evidence that we discovered after trial shows that Kevin is innocent of the crime for which he is now sentenced to die," the release continues.
"We urge any and all witnesses with information about Kevin’s case to come forward,” said Norman Hile, Cooper’s lead attorney and a partner at Orrick. “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.”
Cooper’s case was on appeal from a U.S. Ninth Circuit Court of Appeals three-judge panel decision denying his habeas corpus petition. At least eleven judges on the Ninth Circuit voted in favor of giving Cooper a further hearing on his claims of innocence and evidence-tampering, noting that “a full and fair evidentiary hearing...would have given us confidence that Cooper received his due opportunity to prove the innocence he has insisted upon since his arrest.” An unprecedented 103-page dissent signed by five of those judges warned that “the State of California may be about to execute an innocent man.”
Cooper’s habeas petition was based on new evidence that his attorneys and investigators discovered while working at the Northern California Innocence Project’s request. In the 103-page dissent pleading for a fair hearing for Cooper, the appellate judges identified multiple instances of police and prosecutorial misconduct, including:
False testimony- Josh Ryen, the 8-year old surviving victim and only eyewitness to the murders, initially told the police that three white men killed his family. According to the dissent, after the police arrested Cooper, who is black, “[d]eputies misrepresented [Josh’s] recollections and gradually shaped his testimony so that it was consistent with the prosecution’s theory that there was only one killer.”
Destruction of evidence and lying at trial- A witness told the police that her boyfriend, a white supremacist gang member and convicted murderer, came to her house covered in blood on the night of the murders. She turned a pair of his blood-spattered coveralls over to the sheriff. The sheriff discarded the coveralls without testing the blood stains and did not tell Cooper’s defense lawyer about this evidence until the middle of his preliminary hearing. This witness is now dead and unable to testify to Cooper’s innocence. At trial, the sheriff’s deputy who discarded the coveralls testified he did so without sheriff-department approval, testimony that has recently been shown to be a lie. As the five federal judges wrote, “a responsible officer...deliberately destroyed material evidence that should have been provided to Cooper.”
Undisclosed exculpatory evidence- The prosecution retrieved a blue shirt with blood on it near the crime scene a few days after the crimes but never disclosed this fact to Cooper’s defense. “The prosecution committed a...violation by not making the blue shirt available to Cooper’s attorneys.” What’s worse, “the prosecution committed a...violation in not turning over a copy of the [sheriff’s] daily logs that recorded the discovery of the blue shirt.”
Planting false evidence- Prosecution lab tests of a second bloody shirt showed “an extremely high level of [the blood preservative] EDTA in the sample that was supposed to contain Cooper’s blood.” According to five federal judges, “[i]f that test result was valid, it showed that Cooper’s blood had been planted on the t-shirt, just as Cooper maintained.”
Falsified lab reports- A drop of blood was taken from the crime scene, labeled “A-41,” and tested by police criminologist Daniel Gregonis. According to five federal judges, “[w]hen the results of Gregonis’s tests on A-41 were initially inconsistent with...a known sample of Cooper’s blood, Gregonis altered his lab notes and claimed that he had misrepresented his results.”
Presenting false evidence- Trying to tie Cooper to the crime scene, prosecutors presented evidence that has now been shown to be false: that only prison-issue shoes could have made footprints at the crime scene. As five federal judges found, these shoes “were, contrary to testimony at trial, available (though not in large quantities) at retail stores in the United States.”
Despite these constitutional violations which have prevented Cooper from ever receiving a fair hearing, Cooper now faces execution. Hile 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,” Mr. Hile said. “We need a federal investigation to get to the bottom of this and stop the killing of an innocent man.”
To learn more about Kevin Cooper’s case, including the unprecedented 103-page dissent by five federal judges, go to: http://www.savekevincooper.org/
Norman Hile (916) 329-7900
or
John Pitts (202) 339-8605;"
Harold Levy...hlevy15@gmail.com
