From the Riverside (CA) Press-Enterprise]
Condemned prisoner Kevin Cooper was denied a rehearing Monday by a federal appellate panel in a 114-page order that bristled with dissents, one of them claiming that "the state of California may be about to execute an innocent man." [Full text at http://www.ca9.uscourts.gov/
Another judge defended the decision, saying evidence and post-conviction forensic tests only point to Cooper, now 51, as the 1983 knife-and-hatchet slayer of three family members and a houseguest in a Chino Hills home.
With the denial of an "en banc" rehearing before an 11-judge judicial panel of the 9th U.S. Circuit Court of Appeals, Cooper has 90 days to ask the United States Supreme Court to review his case, the first step toward getting an appeal.
He has applied for relief nine times previously to the nation's high court.
Up to 28 of the 9th Circuit's judges can vote on an en banc hearing application. Published dissents indicate at least 11 were in favor of rehearing the case. One judge said the vote was closer than that.
Cooper's lead attorney, David Alexander, declined comment Monday.
Supervising Deputy Attorney General Holly D. Wilkens said her office agreed with the denial of a rehearing. "We have no doubt as to Cooper's guilt," she said.
Executions in California are on hold while issues about lethal injection protocol are resolved. The last execution took place in 2006.
Cooper's case has been in some form of appeal since his 1985 death sentence. The 9th Circuit in February 2004 granted him a last-minute stay of execution and ordered a hearing into his claims of evidence tampering and police misconduct.
U.S. District Judge Marilyn Huff in San Diego conducted the hearing and oversaw forensic tests. She ruled they did not prove Cooper's claim of innocence and police misconduct. She was upheld in late 2007 by the 9th Circuit.
But then there was an unusually long wait for a decision on whether the 9th Circuit would rehear the case. The California attorney general's office last March filed papers complaining about the nearly 500-day wait for a decision.
The length and language of the order issued Monday seemed to explain the delay.
Orders denying en banc hearings are sometimes accompanied by dissents, but rarely with the number -- four -- or the passion -- "There is no way to say this politely. The district court failed to provide Cooper a fair hearing" wrote Judge William A. Fletcher in the longest of the dissents, at about 100 pages.
There also were sharp ideological lines. Ten of the 11 judges who wrote or joined in the dissents were either Carter or Clinton administration appointees.
One Republican appointee, Chief Judge Alex Kozinski, was among the dissenters. Kozinski, named by Reagan, joined a three-line item that "generally" agreed with Fletcher that the case should be reheard.
Fletcher's lengthy dissent reviewed issues Cooper and his attorneys have raised since his conviction and sentencing.
Those include claims of misconduct and destruction of evidence by law enforcement investigators, poor police work in looking into other possible suspects, and claims that Huff improperly oversaw the DNA and blood tests during the 2004-05 hearings in her court.
"Kevin Cooper has now been on death row for nearly half his life," Fletcher wrote. "In my opinion, he is probably innocent of the crimes for which the state of California is about to execute him. If he is innocent, the real killers may have escaped ... We should have taken this case en banc and ordered the district judge to give Kevin Cooper the fair hearing he never had."
Circuit Judge Pamela Rymer, wrote a concurrence with the denial order. "No test on any item has ever pointed to anyone else as the killer," she said. "The state courts found no evidence of tampering" with various items of evidence.
The bloody June 4, 1983, attack took the lives of Doug and Peggy Ryen; their 10-year-old daughter, Jessica; and neighbor Christopher Hughes, 11, who was staying overnight at the Ryens' home.
The boy was a friend of the Ryens' 8-year-old son, Joshua, who survived the attack with a slashed throat.
The slayings took place two days after Cooper had escaped from the nearby California Institution for Men in Chino. Cooper admitted hiding in a vacant house near the Ryen home, but he denied killing anyone.
"It seems that justice moves pretty slow," said Mary Ann Hughes, mother of Christopher Hughes. "All he has done is to throw up a bunch of smoke screens along the way ... and all of it has to do with people who oppose capital punishment," she said Monday.
"They put their ideas forward, but it's unfair to our family and the Ryen family to go through 26 years of this," she said.
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