New Evidence may free Kevin Cooper

by Rebecca Doran

On February 9, an 11-judge en banc panel of the U.S Court of Appeals, Ninth Circuit blocked the execution of death row inmate, Kevin Cooper by granting a last minute stay. This intervention by the court came within hours of the scheduled execution by lethal injection.

But as Kevin Cooper’s friends and supporters celebrated this eleventh-hour victory, San Quentin prison officials, anticipating an order to vacate the stay, continued to move forward with the macabre duty of preparing the death chamber. And just hours after the stay was granted, California Attorney General Bill Lockyer filed an appeal to the United States Supreme Court requesting a reversal of the lower court’s stay of execution on the grounds the Ninth Circuit acted incorrectly by allowing an en banc panel to review the case after a 3-judge panel of the same court denied Cooper’s appeal.

Cooper, who has endured almost two decades on San Quentin’s death row, was shackled and moved to a holding cell where, as he appropriately labels it, "the ritual of death" commenced. He was put through two intrusive strip searches that were carried out by squads of officers who took his clothes and handed him the prison issue uniform in which they intended to execute him. Cooper was later caged in a tiny, cold, death holding cell that was maliciously constructed to force the condemned to directly face the Death Chamber for hours before their execution. As he anxiously awaited news from his legal team, guards checked their watches and paced the floor of this sterile death room in frigid silence. Prison workers began passing by with arms full of supplies that were intended for the lethal procedure, and Cooper’s spiritual advisor was led in to an adjoining cell to assist Cooper with his final prayers.

Just after 8:00 p.m., while over 600 anti-death penalty activists rallied outside the gates of San Quentin, news broke that the U.S. Supreme Court denied the attorney general’s appeal. Kevin Cooper had evaded death by less than 4 hours.

With the attorney general’s appeal denied, the Ninth Circuit’s decision to stay the execution was carried out, and Cooper’s legal team was granted permission to file a new habeas corpus petition in U.S. District Court in San Diego. This controversial move by the Appeals Court to allow Cooper a hearing after a prior habeas corpus petition had been denied is based on the concern that certain evidence has been withheld from the courts which could possibly exculpate Cooper of the brutal crime for which he was convicted.

It has been heavily reported that the stay of execution was granted to allow testing of the incriminating blood sample for the preservative, EDTA. However, this test will not weigh as heavily in the proceedings as certain other evidence that may prove Kevin Cooper was not at the scene of the grisly crime. Although the blood may be tested, the results will be very interpretive and could be ruled out as inconclusive evidence. The prosecution claims that EDTA is used in household lotions and soaps and would be found in the blood of most people, but the defense contends the high level of coagulants used in blood samples is many times higher than what would normally be found in the bloodstream. It is also important to point out that EDTA is not the only coagulant used in the preservation of blood samples, and in some cases, no preservative is used at all. For example, the authorities have in their possession a sample of Cooper’s blood that has been stored in deep refrigeration and does not contain EDTA or any other preservative.

Also, there is the issue of the blood sample, labeled A-41 that supposedly consisted of a single drop of blood that was found at the crime scene. It was reported by authorities that the laboratory used up this blood in the test that tied Cooper to the crime through DNA. However, today this sample of blood labeled A-41 has reappeared and is in the hands of the same lab that reportedly consumed the entire sample in 2001.

This new day in court will give Cooper’s legal team the chance to exhibit new evidence, much of which the Ninth Circuit believed was unethically withheld by the prosecution. One piece of such evidence is the clump of blonde hair that was found in the clutched hand of one victim. If tests prove that this is human hair not belonging to the victim, it may help to rule out Cooper as the assailant.

Another major issue in this case is the bloody shoeprint found on a bed sheet that had been taken from the crime scene at the time of the investigation and placed in the custody of the police lab. Strangely, this large shoe print was not found until after Cooper had been named a suspect. The courts were told that this footprint was left by a shoe that was Cooper’s size and had been manufactured strictly for prison inmates in the low security area of the Southern California prison in which Cooper was housed prior to his escape. However, the prison worker who claimed to have issued these shoes to Kevin has now recanted his testimony and claims those shoes were never issued to Cooper. To add to this new evidence there is also the fact that the bloody print was actually left by a mass manufactured shoe that was sold to the public and could be found in shoe stores.

Adding another piece of evidence that could weaken the prosecution’s case against Cooper is the cigarette found on the scene that reportedly contained Cooper’s DNA. With similarities to the issue of the A-41 blood sample, the cigarette, which is held as evidence of Cooper’s guilt, is now several millimeters longer than it had been when investigators found it two decades ago. One can probably agree that, as it is impossible for blood samples to replenish themselves, it is just as unlikely for a cigarette to grow in length.

Further evidence to be heard by the District Court issue of the bloody overalls belonging to a possible suspect which police destroyed without testing, A witness also claims to have seen 2 people running away from the scene of the murder which, if true, would prove the prosecutions theory of a one-man crime to be incorrect.

But as Cooper’s legal team prepared the new petition, Attorney General Bill Lockyer filed a second appeal to the U.S. Supreme Court, this time appealing directly to Justice O’Connor who has authority to consider emergency motions for the Ninth Circuit. This appeal was denied only days after it was filed, and shortly after, Cooper’s attorneys filed the new petition with the District Court.

At this time, it is too early to determine how long the proceedings will last, but justice for Cooper is still an urgent matter. Activists must continue to keep Kevin Cooper’s case in the public eye, and we must continue to remind the courts that the price of killing another working class African American would be one that be very difficult to pay.

Please join Socialist Action on Saturday April 3rd at 1:00 p.m. for a public forum where Kevin Cooper’s lead attorney David Alexander, as well as Mumia Abu-Jamal’s lead attorney, Robert R. Bryan will discuss the details of these two very important cases. Contact Socialist Action at 415.255.1085 for location.