Please take action on behalf of Kevin Cooper and Justice:

from an email from Campaign to End the Death Penalty CEDP
Dec 11, 2010


Kevin Cooper supporters,

As you may have seen, there have been powerful Op-Ed pieces in the LA Times
and NY Times in the last week calling on Governor Arnold Schwarzenegger to
grant Kevin Cooper a commutation.

Supporters have been asked to contact the Governor's office ASAP! Below is
sample text provided by Kevin's legal team, we encourage you to use or add
your own language. Of course, we know that Kevin is innocent and deserves
more than commutation - he deserves a pardon - and you can include that in
your letter! Check out www.freekevincooper.org if you need more information
to include in your letter.

Here is the form where you can send an e-mail:
http://gov.ca.gov/interact#contact

Here is additional contact information:

Governor Arnold Schwarzenegger
State Capitol Building
Sacramento, CA 95814
Phone: 916-445-2841
Fax: 916-558-3160
We want to generate as much as possible right out of the gate.

Dear Governor Schwarzenegger:

As one of your last acts as California's Governor please grant Kevin Cooper
a commutation of his death sentence. Mr. Cooper did not receive a fair
trial, and we now know that much exonerating evidence in his case was
destroyed, lost or hidden. He has also not been given a fair hearing to
establish his innocence. I do not want California to execute an innocent
man.

Sincerely,

***

from an email from CEDP
Dec. 10, 2010

Hi everyone,
Make sure you read and share this great op-ed piece in the NY Times. Kevin's
website, http://www.freekevincooper.org is
seeing more people sending messages in support, and the petition signatures
have almost doubled since yesterday, when the piece ran!
So please e-mail to your lists, and share on facebook or other social
network avenues. And, check out the comments - there are a lot of great
positive comments - you can add yours!


the referenced NYTimes article:

Framed for Murder?
By Nicholas D. Kristof
December 8, 2010

http://www.nytimes.com/2010/12/09/opinion/09kristof.html

-snip-

Mr. Cooper’s impending execution is so outrageous that it has produced a mutiny among these
federal circuit court judges, distinguished jurists just one notch below the United States Supreme
Court. But the judicial process has run out for Mr. Cooper. Now it’s up to Gov. Arnold
Schwarzenegger to decide whether to commute Mr. Cooper’s sentence before leaving office.

-snip-

Judge Fletcher wrote an extraordinary judicial opinion:
http://www.ca9.uscourts.gov/datastore/opinions/2009/05/11/05-99004o.pdf
— more than 100 pages when it was released — dissenting from the refusal of the United States
Court of Appeals for the Ninth Circuit to rehear the case. The opinion is a 21st-century version of
Émile Zola’s famous “J’Accuse.”

-snip-

Judge Fletcher laid out countless anomalies in the case. Mr. Cooper’s blood showed up on a beige
T-shirt apparently left by a murderer near the scene, but that blood turned out to have a
preservative in it — the kind of preservative used by police when they keep blood in test tubes.

-snip-

Lanny Davis, who was the White House counsel for President Bill Clinton, is representing Mr.
Cooper pro bono. He laments: “The media and the bar have gone deaf and silent on Kevin
Cooper. My simple theory: heinous brutal murder of white family and black convict. Simple as
that.”

-snip-

***

Mr. Kristof ends the piece asking Governor Schwarzenegger if he is listening.

***

the court order denying a new hearing:

http://www.ca9.uscourts.gov/datastore/opinions/2009/05/11/05-99004o.pdf

here are some excerpts from the dissenting opinion:

W. FLETCHER, Circuit Judge, dissenting from denial of
rehearing en banc, joined by PREGERSON, REINHARDT,
PAEZ, and RAWLINSON, Circuit Judges:

The State of California may be about to execute an innocent
man.

-snip-

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 two tests.

As will be described in greater detail below, the district
court impeded and obstructed Cooper’s attorneys at every turn
as they sought to develop the record. The court imposed
unreasonable conditions on the testing the en banc court
directed; refused discovery that should have been available as
a matter of course; limited testimony that should not have
been limited; and found facts unreasonably, based on a 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. As will be described in greater detail below, 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. The district court allowed the statedesignated
representative to help choose the samples to be
tested from the t-shirt. The court refused to allow Cooper’s
scientific experts to participate in the choice of samples.
Indeed, the court refused to allow Cooper’s experts even to
see the t-shirt. The state-designated lab obtained a test result
showing 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 has maintained.

A careful analysis of the evidence before the district court
strongly suggests that the result obtained by the statedesignated
lab was valid. However, the court allowed the
state-designated lab to withdraw the test result on the ground
of claimed contamination in the lab. The court refused to
allow any inquiry into the alleged contamination. The court
refused to allow Cooper’s experts to review the bench notes
of the state-designated lab. The court then refused to allow
further testing of the t-shirt, even though such testing was feasible.

-snip-

A. Evidence Pointing to Other Killers
There is substantial evidence that three white men, rather
than Cooper, were the killers. Some of the evidence was introduced
at trial. Some of the evidence, even though exculpatory,
was deliberately destroyed by the SBCSD and was therefore
not available for use at trial. Some of the evidence, even
though exculpatory, was concealed from Cooper and therefore
not available for use at trial.

Josh Ryen, the only survivor of the attack, first communicated
to SBCSD Deputy Sharp that the murderers were three
white men. ER 1278-79, 1386-87. This statement was the
likely source of an entry in the police log during the afternoon
of June 5, stating that the suspects were “three young males”
driving the Ryens’ white station wagon. ER 3688.

-snip-

When Josh was in the hospital after the murders, he twice
saw a picture of Cooper on television. Both times he indicated
that Cooper was not one of the killers.

-snip-

Given the weakness of the evidence against Cooper, if the
State had given Cooper’s attorneys this exculpatory evidence
it is highly unlikely that Cooper would have been convicted.
Thus, based on the State’s Brady violations, Cooper would be
able to make a showing of actual innocence under either the
standard of Schlup or of 28 U.S.C. § 2244(b)(2)(B)(ii).
COOPER v. BROWN 5519

-snip-

Kevin Cooper has now been on death row for nearly half
his life. In my opinion, he is probably innocent of the crimes
for which the State of California is about to execute him. If
he is innocent, the real killers have escaped. 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. We should have
taken this case en banc and ordered the district judge to give
Cooper the fair hearing he has never had.

-snip-

*

this is followed by the other judges' dissenting opinions, including the following:

REINHARDT, Circuit Judge, dissenting from the denial of
rehearing en banc:

I concur in Judge Fletcher’s thorough and highly persuasive
dissent, as well as in Judge Wardlaw’s pithy summary of the
judicial failures that infect this case. I would add, however,
that the failures are not solely those of the district court. Our
own handling of the matter, some of which has been made
public and some of which has not, leaves much to be desired,
and is a cause of considerable regret. There is no purpose,
however, to looking backward at this point. What matters is
that we have an obligation to afford Kevin Cooper a full and
fair judicial hearing, and that once again we fail. By denying
en banc review, we add to the prior systemic judicial malfunctions,
and this time, we do so under a cloak of secrecy.

-snip-

Here, once again, the vote is extremely close, closer
than the list of dissenters would suggest. I believe that as
judges we have an obligation to let the public know how we
vote on critical issues. The public, the legal academy, our colleagues
on other courts, and appointing authorities have a
right to judge us based on our performance on the bench. In
this case, in particular, I believe that public disclosure is
important. Revealing how we voted would provide information
that would be of interest to those who follow the course
of our circuit law and who have drawn certain assumptions
about the jurisprudence of various judges that sometimes are
unwarranted. Most important, this is a case in which a man’s
life is at stake. Kevin Cooper may or may not be guilty, but
serious flaws in our legal system have been exposed. Whether
to go en banc or not is a matter of judicial discretion. An en
banc review by our court would surely do no harm. Nor
would revealing the names of those who agree and disagree
with affording this capital defendant a final protection before
sending him on his way to execution by the state.

***

Thank you!

Please spread the word on this!

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