The Inter-American Commission on Human Rights & EDTA Misconduct in the Kevin Cooper Case
I have written two previous posts (here and here) about the Kevin Cooper case, in which Cooper claimed that the presence of EDTA in the blood on a t-shirt recovered near the murder site proved that the police had planted the blood, calling into question all of the evidence against him. My prior posts dealt with the opinions of the Ninth Circuit denying Cooper relief. In that second opinion, four justices dissented from the decision to deny Cooper en banc review, concluding that, inter alia, there were serious concerns with the EDTA testing protocol approved by the district court.
After the court’s opinion, Cooper sent a clemency petition to
Governor Schwarzenegger. This petition laid out new developments in the evidence that had not been known when the first petition was denied in 2004.The second clemency petition also cited the conclusions and observations of [dissenting] appellate judges of the Ninth Circuit Court of Appeals, including the fact that blood taken from Cooper after he was arrested was contaminated with the DNA of another person, that a sheriff’s deputy had lied at Cooper’s trial about destruction of key evidence, and that three witnesses, never interviewed by the prosecution, had come forward with strong evidence of other possible perpetrators.
Just before Governor Schwarzenegger left office in January 2010, his office wrote a letter to Cooper’s lawyer stating that the application “raises many evidentiary concerns which deserve a thorough and careful review of voluminous records”. The letter further stated that since the Governor had only two weeks left in office, he had decided to leave the matter for Governor-elect Jerry Brown’s determination.
Brown, however, did not act upon the petition. That left Cooper with one action: go international.
The Inter-American Commission on Human Rights (IACHR)
is a principal and autonomous organ of the Organization of American States (“OAS”) whose mission is to promote and protect human rights in the American hemisphere. It is composed of seven independent members who serve in a personal capacity. Created by the OAS in 1959, the Commission has its headquarters in Washington, D.C. Together with the Inter-American Court of Human Rights (“the Court” or “the I/A Court H.R.), installed in 1979, the Commission is one of the institutions within the inter-American system for the protection of human rights (“IAHRS”)….
The work of the IACHR rests on three main pillars:
- the individual petition system;
- monitoring of the human rights situation in the Member States, and
- the attention devoted to priority thematic areas.
Operating within this framework, the Commission considers that inasmuch as the rights of all persons subject to the jurisdiction of the Member States are to be protected, special attention must be devoted to those populations, communities and groups that have historically been the targets of discrimination.
On April 29, 2011, a petition on behalf of Cooper was filed against the United States with the IACHR.
The petitioners contend[ed] that Mr. Cooper, an Afro-descendant, was sentenced for a crime he did not commit. They state[ed] that, because of the heinous nature of the crime and severe deficiencies in the police investigation, the State focused all its efforts on compiling evidence to implicate the alleged victim and ignored evidence that proved that the real perpetrators were three white men. The petitioners assert[ed], inter alia, that the State introduced false evidence, manipulated the testimony of one witness and concealed exculpatory information. They further allege that the lawyer representing Mr. Cooper was ineffective and that the atmosphere at the trial was charged with racial discrimination. As of the adoption of the present report, the State had not yet presented its response to the petitioners’ allegations.
The IACHR agreed to hear the petition and eventually issued a Report on the Merits on October 18, 2015. Here were its Final Conclusions and Recommendations:
156. In accordance with the legal and factual considerations set out in this report, the Inter- American Commission concludes that the United States is responsible for the violation of the right to equality before the law (Article II), the right to a fair trial (Article XVIII), and the right to due process of law (Article XXVI) guaranteed in the American Declaration, with respect to Kevin Cooper. Consequently, should the State carry out the execution of Mr. Cooper, it would be committing a serious and irreparable violation of the basic right to life recognized in Article I of the American Declaration.
157. Kevin Cooper is the beneficiary of precautionary measures adopted by the Inter-American Commission under Article 25 of its Rules of Procedure. The Inter-American Commission must remind the State that carrying out a death sentence in such circumstances would not only cause irreparable harm to the person but would also deny his right to petition the inter-American human rights system and to obtain an effective result, and that such a measure is contrary to the fundamental human rights obligations of an OAS member state pursuant to the Charter of the Organization and the instruments deriving from it.
Specifically, with regard to the EDTA evidence/testing, the IACHR concluded as follows:
Analyzing this issue in its context, the Commission observes that the objective of ordering the EDTA test was precisely to provide clarification as to whether evidence against Mr. Cooper had been planted or manipulated. The way the process was managed by the courts did not provide that clarification. Serious issues remain with respect to the conditions under which the testing was done and the withdrawal of the results that would have been favorable to Mr. Cooper by the state-appointed lab with no possibility for the defense to probe or challenge the reasons or validity of the withdrawal. The district court and 9th Circuit accepted the failure to clarify this evidence without allowing or requiring steps that would have been available–including but not limited to retesting the shirt or authorizing the defense to have access to lab data, notes, reports and other materials relative to the claims of contamination by the state-appointed lab–to ensure a complete review as to whether there may have been evidence tampering by state officials.
According to Norman Hile, one of the attorneys on Cooper’s case,
“Getting the decision from the IACHR was the first time we had a fair tribunal take a look at this, and the first time somebody showed sympathy for Kevin,” Hile said. “It was a great win but it was a four-year effort.”
The IACHR report doesn’t have any direct impact on the American justice system, and Cooper has exhausted his appeals. Cooper’s attorneys now plan to petition Governor Brown for clemency again, and Cooper will then wait and hope for the stroke of his pen.
-CM