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† Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, and author of The School-to- Prison Pipeline: Education, Discipline and Racialized Double Standards, is the Editor of CI. Kay Whitlock, co-author of Queer (In)Justice and Considering Hate, is co-founder of CI. Criminal Injustice is published every Wednesday at 6 pm CST.

#FreeKevinCooper
by nancy a heitzeg

For more than 30 years, Kevin Cooper has languished on San Quentin’s death row for murders that compelling evidence indicates he  did not commit. His case has received wide coverage over the years, including here at CI in 2012 with the publication of The Framing of Kevin Cooper, on San Quentin’s Death Row — An interview with J. Patrick O’Connor By Hans Bennett, Prison Radio. Even for a nation jaded by excesses of policing, prison, and capital punishment, the Cooper case is an especially egregious miscarriage of justice with system failure at every juncture.

The incarceration and potential execution ( Cooper was hours away from death before a stay in 2004) of the actually innocent (estimated to be 4%)  is always an urgent matter. For Cooper, it is more so now. While he does not have an execution date set,  California’s new lethal injection protocol moves the state toward resuming executions, and Cooper has exhausted his legal appeals. His last recourse is executive clemency from  Governor Jerry Brown. The Free Kevin Cooper campaign is requesting your support in a letter writing campaign. Please join many, including the American Bar Association, in calling for clemency in this case. The facts of the case and a sample letter – courtesy of Free Kevin Cooper — are detailed below.

Please join in signing Amnesty International’s petition. Please write. Every voice counts.

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 KEVIN COOPER: THE FACTS

Kevin Cooper is a black man who was wrongly convicted and sentenced to death over 30 years ago after being accused of murdering a white family in Chino Hills, California. In 2009 five federal appellate judges signed a dissenting opinion in Cooper’s case that begins: “The State of California may be about to execute an innocent man.” 565 F.3d 581.

Cooper was prosecuted, tried and convicted in an atmosphere of racial hatred. Outside the courthouse, a crowd hung a monkey in effigy with a sign that said, “Kill the N*^$$*^.”

Why we believe Cooper is innocent: The sole surviving victim of the murders identified the assailants as “3 white men.” The medical examiner concluded 3 or 4 weapons inflicted the deadly wounds. Other witnesses saw 3 white men in the victims’ car driving from the crime scene. Later, 3 white men were seen in a nearby bar, one with blood on his coveralls. The Sheriff issued a Criminal Bulletin saying the suspects were “3 white or Hispanic men, … one wearing a t-shirt and another wearing a blue shirt.” Deputies found a t-shirt with blood on it that matched the blood type of one of the victims. They also recovered a blue shirt nearby that is now “missing.” Once the Sheriff learned that Cooper, an escaped prisoner, had been hiding near the victims’ home, the Sheriff publicly named Cooper as the lone suspect. The Sheriff ignored that it would have been impossible for a single assailant to overpower 5 people including a husband and wife who had loaded weapons within reach at their bedside.

How Cooper was framed:

• Sheriff’s deputies destroyed exculpatory evidence including: (1) the blue shirt found near the bar, (2) a pair of bloody coveralls turned over a few days after the murders, (3) the crime scene itself, which deputies dismantled to prevent further forensic analysis.

• Sheriff’s deputies planted evidence to frame Cooper including: (1) cigarette butts in the victims’ car, (2) bloody shoe prints at the crime scene, (3) a hatchet sheath and prison jacket button in the house where Cooper had slept.

• Sheriff’s deputies tampered with evidence including falsifying tests on a blood spot found at the crime scene and planting Cooper’s blood on the tan t-shirt. When the prosecution’s own tests proved tampering on the t-shirt, the tests were “withdrawn” without explanation.

• Sheriff’s deputies hid exculpatory evidence including (1) information proving the shoe prints at the crime scene were planted, (2) a log proving that the now missing blue shirt existed, and (3) a report showing a deputy destroyed the bloody coveralls with Sheriff’s approval. The Sheriff himself was later convicted of stealing over 500 seized firearms from his department’s evidence locker, and the director of the Sheriff’s crime lab was fired for stealing large quantities of heroin out of the crime lab.

Where Cooper’s case sits: Cooper has exhausted his appeals and is in line for execution, despite having received a recent ruling from the Inter American Commission on Human Rights (“IACHR”) that his treatment by the US Justice System violates international law. He is now pursuing his only remaining avenue to save his life; petitioning Governor Brown for clemency.

What clemency Cooper seeks: Cooper is asking for a review of his case including DNA testing that could establish his innocence.  The State refuses to allow such testing, notwithstanding that Cooper will pay for it.  Cooper’s clemency request is consistent with the IACHR decision, which found that Cooper suffered eight (8) due process violations, racial discrimination, an incompetent defense at trial, and an unfair appellate process. The IACHR recommended that Cooper’s execution be stayed and there be a “review of his trial and sentence.”

What you can do: Write to the Governor; sign our petitions.  Where you can find out more:  www.savekevincooper.org

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Sample Letter

Governor Jerry Brown

c/o State Capitol, Suite 1173
Sacramento, CA 95814

Dear Governor Brown,

I request that you honor Kevin Cooper’s request for clemency, as stated below. 

After more than thirty years on California’s death row, after coming within three hours and 42 minutes of being executed in February 2004 for crimes he did not commit, after eleven appellate judges declared in 2009 that Mr. Cooper has never had a fair hearing to establish his innocence, after the Inter-American Commission on Human Rights found violations of Mr. Cooper’s human rights including eight due process violations, ineffective assistance of trial counsel, an unfair appellate process and evidence of racial discrimination, it is time that Mr. Cooper be given the chance to conclusively prove his innocence.

Accordingly, Mr. Cooper respectfully asks the Governor to exercise his power under Article V, Section 8(a) of the California Constitution: (1) to grant Mr. Cooper a reprieve of his death sentence; (2) to undertake a complete investigation into Mr. Cooper’s case under the auspices of the Governor’s office with the goal of determining whether Mr. Cooper is innocent and whether he should be released from prison; (3) as part of that investigation to permit Mr. Cooper’s defense team to do all the forensic testing that it determines should be done, including that which the State has refused to permit; (4) to give Mr. Cooper access to documents that have been denied him, including from the San Bernardino County Sheriff and District Attorney’s Office and the Scripps Institute laboratory, that may prove his innocence; and (5) to pardon Mr. Cooper if, after said testing and review of documents is completed, the evidence shows that he is innocent or, should there remain any question as to his innocence, to instruct the San Bernardino District Attorney that if he does not retry Mr. Cooper within a reasonable time in a fair trial, the Governor will pardon him.

Sincerely yours,

Signature

City, State or Email Address

Date

cc: Kevin Cooper Defense Committee

PO Box 21636

Oakland CA 94620

(136)