Incarceration Nation

The Kevin Cooper “Investigation”

By Death Penalty Focus

California Governor Gavin Newsom issued an Executive Order in May 2021, calling for an investigation into Kevin Cooper’s 1985 death penalty conviction for a quadruple murder in San Bernardino County in 1983. The order tasked the Los Angeles law firm Morrison Foerster to “conduct a full review of the trial and appellate records in this case, and of the facts underlying the conviction, including facts and evidence that do not appear in the trial and appellate records. The firm’s review shall include an evaluation of all available evidence, including the recently conducted DNA tests.”

Two weeks ago, Morrison Foerster released its report. It didn’t do what was asked.

“Among other things, the investigation failed to even subpoena and then examine the files of the prosecutors and interview the individuals involved in the prosecution. For unknown reasons and resulting in the tragic and clearly erroneous conclusion that he reached, the special counsel failed to follow the basic steps taken by all innocence investigations that have led to so many exonerations of the wrongfully convicted,” Orrick attorney Norman Hile, who is Cooper’s lawyer, said in a statement.

Hile added, “In effect, the special counsel’s report says: the Board of Parole Hearings can and will ignore Brady violations, destruction of exculpatory evidence, planted evidence, racial prejudice, prosecutorial malfeasance and ineffective assistance of trial counsel; since I conclude Cooper is guilty based on what the prosecution says, none of these Constitutional violations matter or will be considered, and we have no obligation to investigate these claims.”

An openly biased report

It was shockingly and openly one-sided. “We find it interesting that Morrison Foerster, which appears to have taken a very pro-prosecution position, released its report to the news media at about the same time they sent it to the governor rather than holding it close until the governor had a chance to respond,” Death Penalty Focus President Mike Farrell noted.

“Given that (1) we have already uncovered seven prosecutorial violations of Brady1 v. Maryland during Mr. Cooper’s prosecution, (2) one of the likely killers has confessed to three different parties that he, rather than Mr. Cooper, was involved in the Ryen/Hughes murders, and (3) there is significant evidence of racial bias in Mr. Cooper’s prosecution, we cannot understand how Mr. Cooper was not declared wrongfully convicted. The special counsel specifically declined to address ineffective assistance of counsel at the trial or the effect of race discrimination,” Hile stated.

An investigation “is very simply the gathering together of facts to form a cohesive and logical picture of a given situation,” according to the National Association of Legal Investigators. By that definition, Morrison Foerster failed to fulfill its assignment. It was so dismissive of any of the serious questions surrounding Cooper’s arrest and conviction that one wonders if the special counsel was aware that former American Bar Association President Paulette Brown, social and criminal justice leaders, three California Innocence Projects, and New York Times columnist Nicholas Kristof have publicly stated that they are convinced Cooper didn’t commit the murders, and that in May 2009, when the Ninth Circuit Court of Appeals denied a request for a rehearing of the full court (en banc) of its 2007 denial, five of the judges filed dissents, with six judges joining. The judge who wrote a denial in 2007 filed a concurrence.

Weren’t they curious why Ninth Circuit Court of Appeals Judge William A. Fletcher, wrote in the New York University Law Review in June 2014, “Kevin Cooper . . . is on death row because the San Bernardino Sheriff’s Department framed him.”?

As Norman Hile said in his statement, “We call on the governor to follow through on his word and obtain a true innocence investigation.”

Death Penalty Focus, January 25, 2023

1 A “Brady violation” occurs when a prosecutor fails to provide a defendant or criminal defense attorneys with any evidence that is favorable or helpful to a defendant’s case.