University of San Francisco School of Law professors Lara Bazelon and Charlie Nelson Keever explained “Why California’s reinvestigation of an infamous quadruple murder case is a sham” in their op-ed in the San Francisco Chronicle last weekend. They argue that a 250-page report by a law firm appointed by California Gov. Newsom to investigate the case of Kevin Cooper, sentenced to death in 1985 for a quadruple murder in San Bernardino County in 1983, concluding that Cooper was not wrongfully convicted, “flunk[s] the most basic tests for what constitutes a robust, thorough and neutral post-conviction case review.” Newsom has said through his spokesperson that he accepts the Morrison-Foerster law firm’s report, and Bazelon and Keever write that he “would be dead wrong to accept it at face value.” Bazelon and Keever run the San Francisco District Attorney’s Innocence Commission — a six-member panel charged with reviewing wrongful conviction cases on behalf of the district attorney. (Cooper’s pro bono law firm, Orrick Herrington & Sutcliffe, recently issued a powerful point-by-point public rebuttal to the Morrison-Foerster “investigation,” which we explain here.)
In an interview with San Francisco Chronicle reporter Bob Egelko, Kevin Cooper said Gov. Gavin Newsom’s endorsement of the Morrison-Foerster investigation of his case confirming his conviction indicates Newsom is ” a moral coward” who is planning to run for president. He pointed out that Newsom’s own legal affairs secretary, David Sapp, told Cooper’s lawyers at the Orrick, Herrington & Sutcliffe law firm that he believed Cooper was wrongfully convicted (Sapp denies having said this.) and told Egelko that “Black people are the easiest people to convict and execute for murdering white people, whether they did it or not.”
Indiana Public Media‘s 13-part series, “Rush to Kill,” takes an in-depth look at then-President Trump’s six-month killing spree in 2020, when he and his Attorney General Bill Barr ordered 13 people — 12 men and one woman — to be executed in the last months of his term. Led by WFIU reporter George Hale, a team of reporters spent two years investigating the carnage in Terre Haute, Indiana, home of federal death row. Looking ahead to the upcoming presidential election, the reporters note that President Biden “hasn’t followed through on his campaign promise to repeal the death penalty. That leaves the door open for a Republican candidate to resume executions.”
Reuters reports that a President George W. Bush-appointed U.S. Circuit judge is lobbying to remove the “evolving standards of decency” test from U.S. Supreme Court rulings when considering whether a death sentence constitutes cruel and unusual punishment under the Eighth Amendment. Judge Thomas Hardiman made his argument in a speech at Harvard Law School. The article points out that two landmark decisions, one barring capital punishment for defendants who were under 18 when they committed crimes, and the other outlawing the death penalty for the rape of a child when the child didn’t die, are two examples of Supreme Court decisions that relied on the “evolving standards of decency” reasoning. Hardiman, mindful of the conservative majority now on the Court, is urging it to “return to the text and original meaning of the 8th Amendment.”
In her review of Stephen B. Bright’s and James Kwak’s book, The Fear of Too Much Justice: Race, Poverty, and the Persistence of Inequality in the Criminal Courts, Linda Greenhouse notes that the phrase “fear of too much justice,” refers to Supreme Court Justice William Brennan’s dissenting opinion in McCleskey v. Kemp (1987), in which the five-justice majority acknowledged the legitimacy of a study that found the race of the victim, when they were white, and the accused, when Black, was a significant factor on whether the accused was sentenced to death. The justices, however, “blinked at accepting its implications” because it could mean the Court could be overwhelmed with similar arguments from people of color that their rights under the Constitution’s guarantee of equal protection were being violated.
