Metropolitan News-Enterprise


Tuesday, May 12, 2009


Page 1


Court Denies En Banc Rehearing in Death Penalty Case




The Ninth U.S. Circuit Court of Appeals yesterday denied en banc review of a three-judge panel’s ruling that upheld the death sentence for convicted murderer Kevin Cooper.

Over the dissents of 11 of its 27 active judges, the court left standing the panel’s affirmance of an order by U.S. District Judge Marilyn Huff of the Southern District of California denying Cooper’s petition for habeas corpus relief.

Cooper’s 2004 execution was stayed just hours before he was to die by lethal injection. A Ninth Circuit en banc panel said Cooper should be allowed to bring a new habeas corpus petition in order to obtain testing of evidence found at the crime scene.

But in its December 2007 ruling, a panel consisting of Judges Pamela Ann Rymer, Ronald Gould and M. Margaret McKeown said the results of those tests did not establish Cooper’s innocence. 

Cooper has been on Death Row for 25 years, since a San Diego Superior Court jury—the trial was moved from San Bernardino County due to extensive pretrial publicity—found him guilty of the 1983 murders of Douglas and Peggy Ryen, their 10-year-old daughter, and an 11-year old houseguest.

Prosecutors said Cooper hacked them to death in the Ryens’ Chino Hills home. Cooper, who was released from prison two days before the murders, has steadfastly maintained his innocence and claims that police framed him and withheld exculpatory evidence.

That view drew strong support yesterday from Ninth Circuit Judge William A. Fletcher in his 103-page dissent from the denial of rehearing en banc.

“The State of California may be about to execute an innocent man,” he wrote.

The court, he noted, had halted the execution in order to allow Cooper’s defense team to conduct mitochondrial DNA testing on blond hairs found in one of the victim’s hands, and to test for the presence of the preservative agent EDTA on a bloody t-shirt.

Cooper claimed that three other men committed the attacks. He alleged that testing the hairs would reveal the presence of someone other than himself or the victims at the crime scene.

He also contended that testing the shirt would show that officers of the San Bernardino Sheriff’s Department had used the preservative agent on a sample of Cooper’s blood they had drawn in order to “plant” the blood on the t-shirt.

Test results, however, showed that the hairs came from the victims, and that the level of the preservative agent on the bloody part of the shirt was lower than on a control sample taken from a non-bloodied part of the shirt.

Rymer opined for the panel:

“As the district court, and all state courts have repeatedly found, evidence of Cooper’s guilt was overwhelming. The tests that he asked for to show his innocence ‘once and for all’ show nothing of the sort.”

Fletcher, however, faulted the district judge’s handling of the case, saying she failed to conduct the proceedings in the manner expected by the en banc panel that granted the stay of execution.

Huff, he said, “impeded and obstructed Cooper’s attorneys at every turn as they sought to develop the record.” Fletcher said the district judge “imposed unreasonable conditions on the testing the en banc court directed; refused discovery that should have been available as a matter of course; limited testimony that should not have been limited; and found facts unreasonably, based on a truncated and distorted record.”

Fletcher particularly criticized the procedures Huff required for the testing of the t-shirt. The judge, he declared, “so interfered with the design of the testing protocol that one of Cooper’s scientific experts refused to participate in the testing,” allowed a prosecution expert to help choose the samples to be tested, would not allow defense experts to similarly participate in the selection, and would not allow the defense experts to see the shirt.

He also noted that the laboratory designated by the state to conduct the testing found “an extremely high level of EDTA in the sample that was supposed to contain Cooper’s blood,” suggesting the blood was planted. Huff, he said, allowed the lab to withdraw the result based on claimed contamination, but would not allow the defense to inquire in the alleged contamination and would not order further testing.

Fletcher also criticized Huff for including two photographs—one of the “photogenic Ryen family” and another of “handsome blond-haired” 11-year-old Chris Hughes—at the end of her order with “no analytic reason” for doing so.

Fletcher’s opinion was joined by Judges Harry Pregerson, Stephen Reinhardt, Richard A. Paez, and Johnnie Rawlinson.

Judge Kim M. Wardlaw, joined by Pregerson, Reinhardt, and Judges Sidney Thomas and Marsha Berzon, authored a separate dissent arguing that the district judge’s errors, as articulated by Fletcher, left it uncertain as to whether Cooper was guilty or was framed.

Judge Raymond Fisher, joined by Pregerson, Berzon, Chief Judge Alex Kozinski and Judge Susan Graber, dissented, saying:

“I generally agree with Judge Fletcher that we should have taken this case en banc to require the factual inquiry the previous en banc court expected to occur.”

Reinhardt wrote separately to say that, while he agreed with Fletcher’s and Wardlaw’s criticisms of the district judge, the Ninth Circuit’s “own handling of the matter, some of which has been made public and some of which has not, leaves much to be desired, and is a cause of considerable regret.” He reiterated his previous view that the vote on en banc calls should be made public.

Rymer took the unusual step of writing a concurrence in the denial of en banc rehearing, defending the panel’s opinion.

With the exception of DNA testing, which was not available at the time of the trial, all of the issues raised by Cooper had been litigated adversely to him on numerous occasions, she said.

The dissenters, she declared, were not showing the state courts the deference to which they are entitled under the Antiterrorism and Effective Death Penalty Act of 1996.

“As [Fletcher’s] dissent pays no attention, and gives no deference, to state court determinations, and reaches the merits of claims without regard to whether AEDPA mandates their dismissal, the picture it paints is quite different from the canvas that is actually before us,” she wrote.

Rymer also defended the district judge’s compliance with the Ninth Circuit’s order.

Huff, she said, “issued a thoughtful 159-page ruling that discusses in meticulous detail all aspects of the testing as well as each claim in Cooper’s petition.” The district judge, Rymer asked, properly exercised her discretion in excluding EDTA testing results that she found to be unreliable.

The case is Cooper v. Brown, 05-99004.


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