We wanted to update you on the Kevin Cooper case, which we have written extensively about over the years.
Cooper, who has been on California’s death row for 35 years, is asking California Gov. Gavin Newsom to reject the findings of an investigation into his case by the law firm Morrison Foerster that was released in January.
Cooper, through his law firm, Orrick, Herrington & Sutcliffe, included his request in a detailed rebuttal to the Morrison Foerster report. Orrick’s 77-page response (and an additional 364 pages of exhibits) methodically debunks the report point-by-point and asks Newsom to appoint a new special counsel consistent with his May 2021 Executive Order,
Morrison Foerster failed to conduct an independent innocence investigation and has produced a report “riddled with a steadfast commitment to ‘stick to the script’ the prosecution has been peddling for the last 40 years,” Orrick states.
Newsom’s order called for an investigation into Cooper’s 1985 death penalty conviction for a quadruple murder in San Bernardino County in 1983. The instructions were 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.”
But Morrison Foerster didn’t do what was asked. Instead, its report was shockingly and openly biased toward the San Bernardino County District Attorney and Sheriff’s office. The law firm relied on “expert” witnesses who weren’t experts, dismissed legitimate questions about evidence that had been destroyed, gone missing, and showed signs of tampering. It ignored documented Brady violations and the pervasive racism surrounding the case, and failed to interview relevant witnesses.
Orrick’s report states that “Special Counsel’s Report is filled with confirmation bias, incompetent analyses, and conclusory statements that are unsupported by any reasoned analysis. Incompetently, Special Counsel did not seek to uncover significant issues bearing on Mr. Cooper’s innocence, including an improper police investigation, prosecutorial misconduct, and ineffective assistance of counsel.”
The rebuttal refers to a similar recent investigation of the Richard Glossip case in Oklahoma, another man sentenced to death despite credible evidence of innocence. That pro bono investigation involved 30 lawyers, three investigators, and two paralegals devoting more than 3,000 hours to interviewing jurors, experts, and witnesses, including civilians and members of law enforcement. The result was five reports that concluded that Glossip’s trial could not “provide the basis for the government” to take his life.
“This serious and comprehensive review. . . stands in conspicuous contrast” to Morrison Foerster’s report “that is devoid of even identifying what process Special Counsel followed. . . and perhaps most importantly, what witnesses he interviewed and what documents he reviewed,” Orrick stated.
“When Mr. Cooper was tried almost 40 years ago, law enforcement failed to pursue the multiple, concrete leads on all possible suspects in their investigation of the Ryen/Hughes crimes and instead utilized all their resources to pin the guilt on a man who is innocent. Special Counsel tragically repeated this senseless and grave error,” Orrick said.
As a result, Cooper is now asking Newsom to “select new unbiased and fully vetted special counsel to conduct such an investigation and ensure that such counsel has the requisite experience to conduct that investigation with professional, experienced, and qualified investigators.”