A summary of current status of Kevin Cooper’s case by the Kevin Cooper Defense Committee
On October 26, 2023, the law firm of Orrick, Herrington & Sutcliffe, LLP wrote a rebuttal in response to the Special Counsel’s January 13, 2023 report upholding the conviction of their client Kevin Cooper. A focus of the rebuttal was that all law enforcement files were not turned over to the Special Counsel during their investigation, despite a request for them to the San Bernardino County District Attorney’s office.
On October 29, 2023, Law Professors Lara Bazelon and Charlie Nelson Keever, who run the six member panel that reviews wrongful convictions for the San Francisco County District Attorney’s office, published an OpEd in the San Francisco Chronicle calling the “Innocence Investigation” done by the Special Counsel in the Cooper case a “Sham Investigation” largely because Cooper has unsuccessfully fought for years to obtain the police and prosecutor files in his case. This is a Brady claim, named for the U.S. Supreme court’s 1963 case establishing the Constitutional rule that defendants are entitled to any information in police and prosecutor’s possession that could weaken the state’s case or point to innocence. Brady violations are a leading cause of wrongful convictions. The Special Counsel’s report faults Cooper for not offering up evidence of his own despite the fact that the best evidence to prove or disprove Brady violations or other misconduct claims are in those files that the San Bernardino County District Attorney’s office will not turn over to the Special Counsel or to Cooper’s attorneys.
On December 14, 2023, the president of the American Bar Association (ABA), Mary Smith, sent Governor Gavin Newsom a three page letter on behalf of the ABA stating in part that Mr.Cooper’s counsel objected to the state’s failure to provide Special Counsel all documents in their possession relating to Mr.Cooper’s conviction, and that concerns about missing information are not new. For nearly 40 years Mr.Cooper’s attorneys have sought this same information from the state.
On December 19, 2023, Bob Egelko, a journalist for the San Francisco Chronicle wrote an article about the ABA letter to the Governor that the prosecutors apparently withheld evidence from the Governor’s legal team in the Cooper case.
These are just a few recent examples concerning the ongoing failure of the San Bernardino County District Attorney to turn over to Cooper’s attorney’s the files that have been requested, even though under the law and especially the U.S. Constitution, the District Attorney of San Bernardino county is required to turn over to the defendant any and all material and or exculpatory evidence that they have in their files. Apparently, they must have something in their files because they refuse to turn them over to anyone.
The last time Cooper’s attorney’s received files from the state, in 2004, it wasn’t from the D.A. but a Deputy Attorney General named Holly Wilkens in Judge Huff’s courtroom. Cooper’s attorneys discovered a never before revealed police report showing that a shirt was discovered that had blood on it and was connected to the murders for which Cooper was convicted, and that the shirt had disappeared. It had never been tested for blood. It was never turned over to Cooper’s trial attorney, and no one knows where it is or what happened to it. Cooper’s attorneys located the woman who found that shirt on the side of the road and reported it to the Sheriff’s Department. She was called to Judge Huff’s court to testify about finding and reporting that shirt to law enforcement. That shirt was the second shirt found that had blood on it that was not the victims’ blood. This was in 2004, 19 years after Cooper’s conviction.
It appears that this ongoing constitutional violation that everyone—from the Special Counsel to the Governor’s legal team to the Governor himself—seems to know about, but won’t do anything about, is acceptable in order to uphold Cooper’s conviction.
But this type of thing is supposed to be unacceptable in the United States of America where the Constitution is supposed to stand for something other than a piece of paper with writing on it. How can a Governor, his legal team, people who support and believe in him ignore a United States citizen’s Constitutional Rights being violated for 40 years in order to uphold a conviction?
This silence is betrayal of the Constitution. This permission and complicity by the Governor and his team is against everything that he and they claim to stand for as progressive politicians. They have accepted the Special Counsel’s report even though the Special Counsel did not receive the files from the district attorney that may not only prove that Cooper is innocent, but that he was indeed framed by the Sheriff’s Department; and that evidence was purposely destroyed and tampered with, that certain witnesses were tampered with, or ignored if they had information that would have helped Cooper at trial, that evidence that the missing shirt was withheld from Cooper’s trial attorney, and so much more.
Is the Governor going to get away with turning a blind eye to this injustice under his watch?
Are progressive people going to stay silent and turn their eyes blind in order to hopefully get him to end the death penalty for some while using Cooper as a sacrificial lamb?
