Posted on 02/09/2004 8:19:33 PM PST by calcowgirl
SAN FRANCISCO – A federal appeals court on Monday barred convicted killer Kevin Cooper's pending execution, saying evidence in his case should get a fresh look after 18 years of appeals.
The decision by an 11-judge panel of the 9th U.S. Circuit Court of Appeals came less than eight hours before Cooper was to be executed by lethal injection for hacking four people to death in 1983.
California asked the U.S. Supreme Court to overrule the 9th Circuit and allow the execution to take place; as of Monday evening, the nation's highest court had yet to rule. Cooper's death warrant lasts throughout Tuesday, from 12:01 a.m. until the following midnight.
Three jurors in Cooper case urge postponement
First state execution in two years draws protests
By a 9-2 vote, the court ordered that San Diego federal judge allow the condemned man to make a new case to be spared the death penalty.
"No person should be executed if there is doubt about his or her guilt and an easily available test will determine guilt or innocence," the nine judges wrote.
A dissenting opinion from Judges Barry Silverman and Johnnie Rawlinson said that it doesn't matter whether Cooper "is guilty as sin or he was framed by the police." A 1996 law intended to expedite death penalty cases simply does not allow the courts to reconsider Cooper's claims, they said.
The appeals panel overturned an earlier 2-1 decision by the appellate court that said Cooper could not reopen his case despite claims of innocence, incomplete forensic testing and allegations that he was framed by law enforcement two decades ago.
Cooper's attorney, Lanny Davis, cheered the 9th circuit decision Monday night.
"What this means is that for the very first time, one court and one neutral fact-finder can hear all of the evidence that the jury was not allowed to hear," Davis said. "This suggests not only that Kevin Cooper can be found innocent once and for all, but that there may be three murderers out there who need to be found and prosecuted."
The execution would be California's first in two years. Gov. Arnold Schwarzenegger declined to grant clemency, saying evidence of Cooper's guilt was overwhelming. The California Supreme Court also said the execution could go forward.
Cooper wants DNA evidence linking him to the slayings tested for signs that it was planted at the crime scene, as well as DNA tests on hair found in one of the victims' hands, which has never undergone forensic testing.
"If he is truly guilty, these simple tests will resolve the matter. If he is truly innocent, those same tests will tell us that," wrote James R. Browning, the dissenter on the three-judge panel. "When the stakes are so high, when the evidence against Cooper is so weak, and when the newly discovered evidence of the state's malfeasance and misfeasance is so compelling, there is no reason to hurry and every reason to find out the truth."
Five of the jurors who convicted Cooper also called for a stay of execution so the hair and blood evidence can be tested.
But Silverman and Rawlinson said the nine-judge majority in Monday's ruling "fails to appreciate the powerful circumstantial evidence tying Cooper to these crimes," such as a footprint discovered at the crime scene as well as in a house where Cooper had been hiding.
Arguing against a stay in a petition to the U.S. Supreme Court, California Deputy Attorney General Holly Wilkens said Cooper can't reopen his case so close to his execution date.
"The order of the 9th Circuit constitutes an unwarranted intrusion on California's ability to carry out a lawful and final judgment that has been the subject of over 18 years of post-conviction appeals and collateral challenges," Wilkens wrote.
Cooper's appeals have won support from celebrities such as Denzel Washington and the Rev. Jesse Jackson.
But prosecutors and family members of the victims were outraged.
Mary Ann and Bill Hughes, the parents of 11-year-old victim Christopher Hughes, learned of the stay Monday while traveling from their Chino Hills home to fly to San Francisco, a short drive from San Quentin State Prison.
"This is just another tactic," said Robert Olin, Mary Ann Hughes' brother.
The last execution in California was that of Stephen Anderson in 2002.
Cooper, 46, was convicted of the murders of Douglas and Peggy Ryen, both 41, their 10-year-old daughter, Jessica, and Christopher Hughes, her friend. They were stabbed and hacked repeatedly with a hatchet and buck knife. Joshua Ryen, then 8, survived a slit throat.
Cooper, a burglar and rapist who had escaped from prison at the time of the murders, claims the hair found in one of the victim's hands, if scientifically tested, would support his claims that a trio of murderers committed the savage attacks.
John Kochis, the San Bernardino prosecutor who tried Cooper, said the hair in Jessica Ryen's clenched hand was from her own head. However, DNA testing was not available in 1984, when authorities came to that conclusion.
The appeals court ruled Monday that Cooper must get a chance to refute evidence that only recently has come to light or was not disclosed at trial.
For example, authorities at the time said the bloody footprint could only have come from a prison-issued tennis shoe. But in a signed declaration, Midge Carroll, the former warden at the California Institute for Men, said he told investigators two decades ago that the prisoners' shoes were commonly sold at Sears and other retail stores.
Carroll said authorities never called him to the witness stand. The appeals court said Cooper's defense should have been given that information before trial.
The court also noted that Joshua Ryen, the only survivor, initially said three or four men committed the murders and, when he saw a picture of Cooper on television while in the hospital, said that Cooper was not the killer. Ryen later changed his story and has said he believes Cooper is in fact the killer.
The case is Cooper v. Woodford, 04-70578.
California asked the U.S. Supreme Court to overrule the 9th Circuit and allow the execution to take place; as of Monday evening, the nation's highest court had yet to rule. Cooper's death warrant lasts throughout Tuesday, from 12:01 a.m. until the following midnight.
The funny thins is that they already did the DNA tests. And the DNA tests showed it was him!! So now the argument is that the blood evidence was planted. Planted before there even was DNA evidence. This guy deserves the death sentence he received. He will get it.
Normally I'd agree, but after SCOTUS' decision on CFR, I wouldn't be surprised if they consulted European law and then ordered Cooper re-tried.
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