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Articles Kevin Cooper wins stay of execution By Jeff Mackler On the evening of February 9, some 600 people commenced a scheduled 8:00 PM last protest demonstration to save the life of California death row inmate Kevin Cooper. In a trial with overt racist overtones, Cooper was convicted of the 1983 slayings of Peggy and Doug Ryen, their 11 year-old daughter Jessica and Christopher Hughes, a ten-year old house guest. The Ryen's badly-wounded eight-year old son, Joshua survived the vicious attack. While he could not speak at the time because his throat had been slashed he nevertheless clearly responded to a specific police question as to how many killers were present. Following police instructions he squeezed an investigator's hand three times, indicting that three individuals were involved. Despite massive evidence to the contrary state prosecutors continue to insist that there was a single killer and that it was Kevin Cooper. The growing San Quentin prison gate crowd was in a state of heightened anxiety. Three hours earlier, at approximately 4:30 PM, the state's Attorney General, Bill Lockyer, had filed an appeal with the U.S. Supreme Court to reverse the stay of execution granted earlier in the day by the U.S. Court of Appeals, Ninth Circuit. The Ninth Circuit's 24-hour stay could have been voided by the Supreme Court at any moment and the one minute past midnight scheduled execution completed. But at approximately 8:15 PM actor Mike Farrell announced that the Supreme Court had refused to block the stay and that Cooper would not be executed. Farrell, also the central leader of Death Penalty Focus, was in direct contact with Cooper's attorneys. He reported that the effect of the now-validated stay would be to allow Kevin Cooper to present the new evidence to an assemblage of 11 judges chosen from the multi-state jurisdiction encompassed by the Ninth Circuit. Two days earlier, the same request for a stay was rejected by a three-judge panel of the Ninth Circuit. Only Judge James R. Browning's dissented stating, "There should be no hurry to execute Cooper," Browning wrote, adding that the hair and blood evidence from the scene should be reexamined. Cooper's attorneys maintain that such evidence linking him to the crimes was likely planted or left by others who committed the murders. Still earlier in the week, California Governor Arnold Schwarzenegger blocked another Cooper legal effort by rejecting a request for clemency. Schwarzenegger refused even the traditional hearing on the clemency request. The U.S. Supreme Court's decision to let the decision of the full panel of the Ninth Circuit stay stand was likely influenced by the fact that the vote among the required minimum number of Ninth Circuit judges to participate in the granting of a stay of execution, eleven, was a significant 9-2. While a simple majority would have been sufficient, the 9-2 vote indicated clearly that taking Cooper's life in the face of critical evidence pointing to his innocence, was an act that would have raised a protest whose intensity would have lost the court considerable credibility. Cooper has been returned to his regular death row cell as opposed to the deathwatch holding cell he had been compelled to occupy in what was to have been his final hours. On February 29 Cooper released a statement entitled: "This is Not My Execution" He wrote: "I, Kevin Cooper, am writing this from death row at San Quentin Prison. I am scheduled to be the next Black man executed by the state of California on February 10, 2004. "While I am an innocent man about to be murdered by this state, I realize that innocence makes no difference to the people who control the criminal justice system, including this prison. This is the same system that has historically and systematically executed men, women and children who look just like me, if only because they can. "While it is my life that will be taken, and my body filled with poison, I will not say that this is my execution! That's because it is not, it is just a continuation of the historic system of capital punishment that all poor people all over this world have and are subjected to. "To personalize this crime against humanity as 'my execution' would be to ignore the universal plight, struggle and murder of poor people all over this planet we call Earth. This I cannot and will not do! "If I must be murdered by the state, then I will do so with my dignity intact. This guilt that the criminal justice system has put on me will be questioned by anyone and everyone who finds out the whole truth of this case." The Supreme Court's refusal to allow the execution to proceed represented an enormous victory for Cooper, who has been on death row for almost 20 years. Mike Farrell's announcement, accompanied by Jesse Jackson's statement in solidarity with Cooper's struggle for freedom, was broadcast across the State of California and nationally. Indeed, in the days preceding the issuance of the stay, Cooper's struggle for life and the new evidence uncovered were reported across the globe with major articles appearing in mass circulation newsmagazines and other periodicals. While the Ninth Circuit begins to assemble eleven judges from the surrounding states constituting its jurisdiction, Cooper's several attorneys will prepare their case in what must be one of the most important death penalty battles in the state's history. A defense request for an independent investigation into Cooper's case was almost immediately rejected by the state's elected officials. The Ninth Circuit decision allowed for full DNA and other blood tests of samples of Cooper's blood found at the crime scene. Cooper had fought for three years to have all evidence subjected to such testing. He was blocked in this effort by state authorities that only relented when impending court action threatened to force the state to conduct the tests. Despite the DNA testing agreement reached between Cooper's attorneys and state authorities, however, and without the knowledge or approval of Cooper's legal team, the critical samples to be tested were then removed from their storage facility by a state official, thus allowing for the possibility of crucial evidence to be altered. But there was an important catch to the state's possible tampering. If the samples in question are now found to contain the preservative, EDTA, it will constitute proof positive that Kevin was the victim of a state-organized frame-up. EDTA-preserved samples of Cooper's blood and saliva had been taken two decades earlier. If it turns out that these preservative-contaminated samples were illegally placed on articles or locations near or at the murder scene, the state faces a scandal that will do great damage to its credibility. Included in the new evidence is a confession of a prison guard a few days earlier to having lied at Cooper's trial when he claimed that he had issued Cooper a pair of prison shoes, whose imprints were later found on the crime scene. The guard's present statement that no such shoes were issued therefore exposes as fraudulent the police finding of imprints from these shoes found at the nearby vacant house Cooper had occupied as well as a shoe print found on a bed sheet and on a hot tub cover. A UPI reporter told Cooper's new legal team that at the time of Cooper's 1983 murder trial, that she was assigned to cover, she was told by a sheriff's department deputy or some other state official, that the entire Cooper affair was a result of a flubbed police drug bust that was covered up by police officials who had taken materials obtained from Cooper elsewhere and relocated it to the murder scene. Materials to be tested under the order staying Cooper's execution include a clump of blond hair found clenched in the hand of Jessica Ryen as well as a bloody T-shirt found nearby and a blood spot found on the wall of the Ryen house. The tests on the blond hair should prove that the state's theory that Cooper was the sole killer, having inflicted literally hundreds of wounds with four separate weapons in a matter of some 90 seconds, was false. The new legal team has also uncovered evidence of at least two individuals fleeing the murder scene as well as evidence of two people discussing the murder at a nearby bar. This squares well with earlier evidence submitted by an individual who delivered her boyfriend's blood-soaked coveralls to local police along with a statement that she believed that her boyfriend was involved in the Ryen family murders. The Chino police tossed the coveralls into a nearby dumpster and warned the woman to mind her own business. Additionally, at the original trial the confession of an imprisoned man who has been previously convicted of manslaughter, to the effect that he was part of the group of the three killers of the Ryen family was similarly disregarded, except by a single dissenting judge in the original appeal who could not square the imposition of the death penalty in the face of the existence of an actual confession. California state officials continue to insist that their actions and conduct has been impeccable, that no evidence has been tampered with and that Cooper's case has received more than sufficient review. The decision of the federal courts to grant such review, rare to say the least in these days of massive falsification of evidence and government cover-up, is but one small indication of the depth of the horror to which Kevin Cooper has been subjected. Cooper's life was saved, at least for the moment, by the united effort of many groups and individuals that mobilized to tell his story. Their efforts were complimented by the work of a fully-funded legal team of nine attorneys and an equal number of investigators who scoured the state to uncover the repressed evidence and continue to do so. The new legal team met with the nine surviving jurors who had originally been unanimous in voting for Kevin's conviction. When presented with the new evidence, six signed a statement to the effect that had they known of it, they would not have voted for conviction. It is more often than not the rule, not the exception, that critical or potentially exonerating evidence is kept from juries either because of lack of resources on the part of the defense or the conscious withholding of such evidence on the part of the prosecution. Cooper told this writer the night before his scheduled execution that he wanted everyone to know that he believed that all Black and poor people were victims of a society where there is no justice for those without money. He insisted on his innocence and saw his struggle for life as critical to all others who fight for the truth. The Kevin Cooper I met at San Quentin several years ago convinced me of his innocence. In the course of many visits since that time, I have seen this brave man mature into a conscious political activist who sees his fate as intertwined with the struggle against all the evils of the present society. At the height of Cooper's travail, Mumia Abu-Jamal, perhaps the world's most well-known innocent political prisoner, released a taped statement on Kevin's behalf. It has been reproduced and played across the globe, helping to bring Cooper's plight to the attention of millions. Said Kevin, "Tell Mumia that upon my release, I will fight for him like he fought for me." The ever-swelling anti-death penalty crowd at San Quentin last night cheered with joy and cried out at the top of their lungs at the announcement of Kevin's stay. They did the same when I reported that the struggle to free Mumia must also be at the top of our agendas. "Free Kevin Cooper! And Free Mumia!" resounded across the moonlit San Francisco Bay that surrounds the San Quentin prison grounds. We walked back to our cars with tearful eyes. The Big Dipper shown with brilliance in the heavens and our hearts were filled with joy at the victory we had collectively won. The few weeks during which time Kevin's case became a subject of national debate included a virtual whirlwind of public discourse and mobilization. Former death row inmate and prize fighting champion Rubin "Hurricane" Carter flew in from Canada to express his solidarity with Kevin's struggle as did politician Jesse Jackson and actors Mike Farrell and Sean Penn, who all helped focus media attention on the new evidence. Kevin Cooper was originally represented by a small team of public defenders until he recently secured the support of a new legal team with the assistance of the California Appellate Project and the Habeas Corpus Project. The latter groups combined to help secure the service of a major San Francisco-based law firm, Orrick, Herrington and Sutcliffe. This leading business-oriented firm maintains a small civil practice but, convinced of Cooper's innocence, allocated huge sums to uncover the previously unknown evidence pointing to Cooper's innocence. In this regard, Cooper became the exception to the rule or perhaps the vindication of the rule. He is a man whose at least temporary victory would not have been possible without the vast resources of a firm like Orrick and Co. Faced with the virtually unlimited resources of the state power, the typical death row defendant, like Kevin Cooper for most of the past twenty years, is usually overwhelmed. It is testimony to Cooper's will to live and fight for his life against incredible odds, however, that he has met with the "success," even if tentative, he has just achieved. The experienced social activists who joined in a united effort to mobilize mass support for Kevin's struggle were also critical to this first important break in his case over the past 20 years. Truly, the mass movement, armed with new evidence exposing a likely police or prosecution frame-up, made the critical difference. It made the price of Cooper's execution too high to pay, at least for the moment. At a time when the heinous death penalty has been more and more exposed as a racist and classist tool employed to victimize those without means for their defense, the fight for Kevin Cooper's life proved capable of breaking through the myriad of state lies and media bias to win a stay that may well free a proud and innocent fighting Black man. © 2004 Jeff Mackler