Is California About to Execute an Innocent Man, and What Can We and Jerry Brown Do?

I’ve done three posts (here, 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. Cooper was initially scheduled to be executed on February 10, 2004.

“I met their volunteer executioners,” Cooper said. “They had me stand there butt-naked in that death chamber.” 

“You watch the clock as your life goes off, minute by minute,” Cooper told NBC News. “I was ten feet away from being murdered.” 

Then with three hours left, the Ninth Circuit halted the execution.

Now, unless something changes, Cooper will walk the green mile again.

Cooper’s 2004 execution was halted when the Ninth Circuit granted Cooper’s habeas petition, which sought, inter alia, EDTA testing. Given that EDTA testing was also the linchpin of the Steven Avery case, the focus of my prior posts has been on that testing and how five dissenting justices and the Inter-American Commission on Human Rights (IACHR) would have given Cooper relief.

That said, as a NBC News story posted yesterday makes clear, there is so much more to Cooper’s case, including the State failing to disclose Brady material relating to evidence of two partial shoeprints found at the crime scene that were used to incriminate Cooper. The NBC News story also noted the following:

California lifted a moratorium on executions in November and is now set to execute Kevin Cooper — even though several federal judges say he may be innocent.

Having exhausted all his options in court, Cooper, 57, is about to file a last-ditch appeal with Gov. Jerry Brown. In a new interview from death row, Cooper says he is pleading with Brown to bring “an open mind” about the evidence in his case.

“I am the only person in the history of the state to have five federal circuit judges say that ‘the state of California may be about to execute an innocent man,'” Cooper told NBC News.

Now, do I know whether Cooper is innocent? I have no idea. What I do know is that five Ninth Circuit judges and the IACHR would have given him relief. And, for me, that’s enough to conclude that the death penalty should not be imposed.

Now, I’m opposed to the death penalty under any circumstances, but, if you’re going to have a death penalty, I think it should be reserved for cases where there is unanimity. No hung jury at a first trial. No dissenting judge on appeal. No international commission calling into question what was done by an American court. If a jurisdiction wants to impose the death penalty, it should only do so in cases where every fact-finder and law-reviewer has concluded that there’s no merit to the defendant’s claim of innocence.

For those who agree with me, I ask that you sign Amnesty International’s petition to Governor Jerry Brown. And, Jerry Brown, I ask that you commute Kevin Cooper’s sentence. You don’t need to free him from prison. As I’ve said, I don’t know whether he’s an innocent man or even whether enough evidence has been produced to grant him a new trial. But I do think that there is enough evidence to commute his death sentence to a life sentence.

-CM