Behind Bars

A Response to Debra Saunders

By Kevin Cooper

Kevin Cooper is on death row in San Quentin. He was framed for a brutal murder, but the frame-up is so egregious that Judge William Fletcher of the 9th Circuit Court of Appeals said, in his 100-plus page dissenting opinion of a judgment upholding Kevin’s conviction, that “The State of California may be about to execute an innocent man.”

Fletcher cited a wide range of evidence, including the surviving witness’s initial claim that the murderers were three white or Hispanic men. Kevin Cooper is Black. He has lost all his appeals so far.

Judge Fletcher’s dissent, while it has been the strongest one so far, has not been the only statement about the frame-up of Kevin Cooper from a judge. In 2007, Circuit Court Judge McKeown, while actually concurring with the court’s denial of Kevin’s appeal (based on the restrictions on habeus corpus appeals in the Anti-Terrorism and Effective Death Penalty Act), said, “Significant evidence bearing on Cooper’s culpability has been lost, destroyed or left unpursued....”

Norman Hile, Kevin’s attorney, recently appealed to outgoing California Governor Arnold Schwarzenegger to commute Kevin’s death sentence. On the eve of the Governor leaving office, when pardons or commutations are considered, many Op Ed pieces and editorials called on Governor Schwarzenegger to commute Kevin’s death sentence. These included a column in the New York Times by Nicolas Kristof, an Op Ed piece in the L.A. Times by Alan Dershowitz and  David Rivkin Jr., and editorials in the L.A. Times, S.F. Chronicle and the Sacramento Bee. CNN’s Parker and Spitzer television news program featured Kevin’s case with strong arguments by Kristof and Lani Davis against the State of California carrying out this death sentence.

Only one major daily—the S.F. Chronicle—included a column by the very rightwing Debra Saunders, claiming that Kevin Cooper was guilty.

The essay below, by Kevin Cooper, answers Saunders.

I have read the articles written by Debra J. Saunders, the “token conservative” at the San Francisco Chronicle newspaper.

I find it pretty interesting what she chooses NOT to mention about this case in her one-sided opinion pieces. For example, she does not mention that it is not just Judge Fletcher who says I am innocent, and that this state may be about to execute an innocent man! Several other judges signed his dissent.

Nor does she mention Judge McKeown’s opinion in this case, which agrees with me and my attorneys about all the tampering with evidence, destruction of evidence, withholding of evidence, and all else that Judge Fletcher and those other judges wrote about.

The only difference is that Judge McKeown states that the law, meaning the Anti-Terrorism and Effective Death Penalty Act (AEDPA), demands that I be executed anyway, despite all of the illegal things that she wrote about in my case.

Judge McKeown states that they are constrained from granting me relief because of AEDPA and further states:

“Significant evidence bearing on Cooper’s culpability has been lost, destroyed or left unpursued, including, for example, blood-covered coveralls belonging to a potential suspect who was a convicted murderer, and a bloody t-shirt, discovered alongside the road near the crime scene. The managing criminologist in charge of the evidence used to establish Cooper’s guilt at trial was, as it turns out, a heroin addict, and was fired for stealing drugs seized by the police. Countless other alleged problems with the handling and disclosure of evidence and the integrity of the forensic testing and investigation undermine confidence in the evidence.”

Yet Debra J. Saunders says nothing about this, or the rest of Judge McKeown’s opinion, and that was just one paragraph in a seven-page opinion.

If you read Judge M. Margaret McKeown’s concurrence opinion, you will also find that she speaks to all the issues that Debra J. Saunders mentions in her newspaper article, but comes to a different conclusion than Saunders does. After you read McKeown, then you can have a much better understanding as to why Judge Fletcher and those other dissenting judges came to the their opinion. It was the opinion of at least 13 of the 9th Circuit Judges, even though only 11 dissented, that the Anti-Terrorism and Effective Death Penalty Act did not bar my case from being heard by an En Banc panel of the court.

It was Judge McKeown and the other 13 Judges who agreed with her that stopped my case from being heard by an En Banc panel of the court.

As always, tokens like Debra J. Saunders take very important information and twist it around. They take it out of its proper context, and misuse it for their own agendas.

Another thing that she doesn’t say, that should be obvious to everyone, is this. From Judge McKeown, to Judge Fletcher, and all the other Judges who dissented along with Judge Fletcher…They all knew about the people who Saunders quotes in her articles that say that Kevin Cooper is guilty. Yet, despite the information who they say, and the claims made by Saunders, there is more than enough evidence to disprove everything Saunders and her interviewees state.

Yet, she won’t say anything about the truths in my case. Why not? Judge McKeown says the blood evidence in my case is murky at best. Did Saunders mention that in her hit pieces? What else isn’t Saunders telling you?