Attorney General Lockyer Challenges Authority of Ninth Circuit Court of Appeals to Grant Condemned Inmate Kevin Cooper Another Hearing

(SACRAMENTO) – Attorney General Bill Lockyer today filed with the U.S. Supreme Court a petition for writ of certiorari challenging the authority of the Ninth Circuit Court of Appeals to grant Kevin Cooper's request to file a successive federal habeas corpus petition.

"Over the last 20 years, every state and federal court that has extensively reviewed Cooper's more than three dozen efforts to reverse or delay his sentence has rejected his claims," Lockyer said. "If courts can ignore the law during these 11th-hour, last-ditch efforts to halt executions, murder victims' family members and loved ones will be left with little solace, knowing a closure to their grief could be suspended time and again."

In 1996, Congress passed legislation limiting the ability of state prisoners to file successive federal habeas corpus challenges to their convictions by requiring federal appellate courts to act as a "gatekeeper" in authorizing the filing of such petitions. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) expressly provided that three-judge panels be appointed to act as the gatekeeper to determine whether the new evidence warrants the filing of a successive petition. The law also prohibits any appeal or rehearing of that three-judge panel's decision.

Attorney General Lockyer's petition to the U.S. Supreme Court argues that the Ninth Circuit Court of Appeals, like every other federal appellate court in the country, is bound by the federal statute, and thus was prohibited from acting on Cooper's petition once a three-judge panel had denied him permission to file a successive petition.

In 20 years of litigation, every state and federal court to review the case has upheld Cooper's convictions and death sentence. The California Supreme Court affirmed the judgment in 1991 and has denied Cooper's habeas petitions seven times. The U.S. District Court denied Cooper's petition for habeas relief in 1997, and the Ninth Circuit affirmed the denial in 2001. The Ninth Circuit has since twice denied Cooper's applications for authorization to file a successive habeas.

The Attorney General's petition focuses solely on the issue of whether the Ninth Circuit exceeded its authority in this case. Because federal law prohibits a direct challenge on the merits of the Ninth Circuit's order, the Attorney General does not discuss his views regarding the "new evidence" on which Cooper based his petition.

The Attorney General will present arguments on the merits of the Ninth Circuit's order to the U.S. District Court in San Diego. U.S. District Court Judge Marilyn L. Huff has ordered the parties to provide a science tutorial on April 2, and the state will provide expert opinion regarding the science underlying mitochondrial DNA (mDNA) testing and EDTA testing.

On or before May 2, the Attorney General will file a brief in response to Cooper's third federal habeas petition that will discuss the state's position on the validity of the science and the relevance of testing that Cooper has requested. The judge then will determine what, if any, tests should be ordered.

Cooper was convicted and sentenced to death in 1985 for the brutal murders of Peggy and Doug Ryen, their daughter, Jessica; and an 11-year old neighbor, Christopher Hughes. Their son, Joshua Ryen, then 8, was left for dead.

In 2001, the state permitted Cooper to conduct post-conviction DNA testing. The results further confirmed his guilt. State courts denied subsequent challenges to the post-DNA testing results.

The Attorney General's petition explains that Cooper's case has been litigated extensively and exhaustively by courts familiar with the trial court evidence and subsequent appellate arguments. Allowing the Ninth Circuit Court of Appeal to rush to judgment based on meritless, last-minute appeals is precisely the abuse Congress intended to limit by designating three-judge panels as gatekeepers to stop the flow of successive petitions.

"Joshua Ryen and the other relatives of Cooper's victims deserve closure in this case," Lockyer said. "Cooper has had countless opportunities to persuade the courts that his conviction and sentence were improper. Prior to this en banc decision, each court that evaluated Cooper's claims found them meritless and those judicial determinations should constitute finality for this case. If the Ninth Circuit is allowed to circumvent the law, it will cause immeasurable pain to not only the loved ones of the Ryens and Chris Hughes, but also to the victims of more than 600 California death row inmates, as well as those throughout the country."