A federal appeals court stayed the execution of convicted killer Kevin Cooper on Monday and called for new testing of blood evidence just hours before he was scheduled to die by lethal injection at San Quentin State Prison.
Hours later, the U.S. Supreme Court declined to overturn that stay, the first time in decades that the high court has agreed to delay an execution in California.
Cooper was convicted of a nightmarish rampage that left a married couple and two children dead and badly mutilated. In an eleventh-hour appeal, defense lawyers had called on the 9th U.S. Circuit Court of Appeals to block the execution so that new testing could be performed on hair and blood found at the grisly crime scene in a Chino Hills home more than 20 years ago.
The 11-judge panel granted that request, ruling 9-2 that the tests should be done to validate or disprove Cooper's claims of innocence.
"Cooper is either guilty as sin or he was framed by the police," wrote Judge Barry Silverman, one of the judges in the majority. "There is no middle ground."
The appeals court ordered additional testing of a bloody T-shirt that had been at the center of Cooper's claims that he was framed.
Recent DNA tests showed that the blood on the shirt, found near the murder scene, belonged to Cooper. But his attorneys asked that the blood be tested for the presence of the chemical EDTA, which is used by police labs to preserve blood evidence. If the preservative is present, it would show that the blood was not on the T-shirt at the time of the killings, but was placed there later, the court majority stated.
Monday night, Cooper's arm had been prepared for lethal injection, and he was sitting with a spiritual advisor in a room next to the death chamber when he got word of the Supreme Court's decision.
"We got 'em," exclaimed defense lawyer Lanny Davis. "The Supreme Court of the United States tonight ratified the fundamental concept of the American justice system, which is the truth must come out before we kill a man."
Outside the prison, a roar went up among death penalty opponents when they heard the news.
The chief deputy district attorney for San Bernardino County, John Kochis, said he was not surprised by the "ping pong" appeals process.
"We are of course disappointed," Kochis said. The "victims' families have been waiting 20 years and had sought closure. They won't get it tonight."
The case now goes back to U.S. District Judge Marilyn Huff in San Diego.
Cooper, 46, would be the 11th man to be executed since the state reinstituted the death penalty in 1978, and the first to be executed under Gov. Arnold Schwarzenegger. In his first death penalty case, the governor in late January denied Cooper's request to postpone the execution or hold a special clemency hearing, saying the evidence against him was overwhelming.
The 9th Circuit's decision to postpone the execution marked the first time in a dozen years that the court had issued such a last-minute stay in a California death penalty case. The previous such action, in the case of Robert Alton Harris, led to bitter recriminations between some judges on the appeals court and some Supreme Court justices after the high court allowed Harris' execution to proceed.
In 1996, the court also stayed a death penalty, although not on the scheduled day of execution. In that case, the killer, Thomas Thompson, was executed a year later.
In asking the Supreme Court to allow the execution to go forward, Deputy Atty. Gen. Holly D. Wilkens said the appeals court's order constituted "an unwarranted intrusion on California's ability to carry out a lawful and final judgment that has been the subject of over 18 years of post-conviction appeals."
The state's petition echoed the two dissenting appeals court judges, who said that blocking the execution conflicted with federal laws governing how courts handle the death penalty, particularly a law passed in 1996 to limit death penalty appeals.
Cooper's defenders, by contrast, praised the appeals court ruling, saying crucial evidence in the case had not been given to the original jury. Five of those jurors have since called for a stay of execution so that hair and blood evidence could be retested.
"A majority of active judges on the ... panel for the U.S. Court of Appeals, in an unprecedented review, agreed that Kevin Cooper should be allowed to file an appeal with newly discovered, credible evidence that he did not commit these crimes," said Cooper's lawyer, Greg Evans.
Those who want to see Cooper put to death predicted that the execution would eventually go forward.
"This is like a prize fight," said Bill Hughes, father of 11-year-old victim Christopher Hughes. "We've been knocked down but we're not out and we'll win eventually."
Christopher's mother, Mary Ann Hughes, said Cooper "knows now what it feels like to come within four hours of being executed. Now he can sit in his cell and think about it for another 40 days."
