Three hours and 42 minutes. That's how close Kevin Cooper came in 2004 to being murdered by the state, strapped down to a gurney and poisoned via lethal injection. He had been placed in what he calls a "death chamber waiting room" and stripped of all his clothes before he was granted a stay of execution. Five years later, in an unprecedented dissent, five federal judges on the Ninth Circuit Court of Appeals issued an opinion that began: "The State of California may be about to execute an innocent man."
A rash of evidence would appear to substantiate their claim. In the opinion, Judge William A. Fletcher details multiple Brady disclosures -- key information that had been ignored or actively suppressed that would compromise the case against Cooper. Yet thanks to Gov. Jerry Brown's inaction, he is no closer to getting state-of-the-art DNA testing, despite the calls of California Sens. Dianne Feinstein and Kamala Harris. Due to the passage of Prop. 66, which dramatically shortens the death penalty appeals process, Cooper's execution could be expedited without his ever receiving a fair hearing -- this is in one of the bluest states in the country.
"I've had years of post-traumatic stress disorder from having survived that near-death experience at the hands of these volunteer executioners, who are paid by the taxpayers of California," he tells Robert Scheer from death row at San Quentin State Prison. "And what I wanted to say earlier ... was this is America. And the death penalty is a part of America; it's a tradition in America. This crime against humanity is nothing new."
In part one of a two-part episode of "Scheer Intelligence," Cooper reveals how he has maintained his sanity after 33 years in a cell that's four and a half feet wide and 11 feet long, waiting for a justice that never seems to arrive. "It's not just that easy," he admits. "I mean, in order to understand what I'm going through, you'd have to go through it yourself, on a personal experience basis. People have bathrooms in their homes that are larger than this cage that I'm in right now. " Everything I do, from doing a painting or writing a letter or anything else, I do from within this cage. So I had to turn this cage into something other than a cage. I had to turn it into a classroom, I had to turn it into a church -- when I want to go to church, I turn this cage into a church."
Cooper also explains, with remarkable eloquence, how his individual struggle is part of a continuum that stretches from the genocide of indigenous peoples through chattel slavery to the mass incarceration and capital punishment of the present day. "The same type of people who were enslaved back then are the same type of people who are enslaved now," he contends. "The same type of people who were doing the enslaving back then are the same type of people who are doing the mass incarcerations today. I mean, there is no difference. Things have changed, technology has changed, but the evilness that brought us ... our slavery back then is the same evilness that's in the hearts and the minds of the people who are doing this death penalty thing today."
Listen to part one of Cooper's interview with Scheer or read a transcript of their conversation below:
[Recorded voice on telephone] This call and your telephone number...monitored and recorded.
RS: This -- [Laughs] threw me a little bit, that announcement. But Kevin Cooper's been on Death Row at San Quentin in California; he's been there for 33 years for a very gruesome crime, everybody agrees, in which two adults and two children were killed back in 1983. And he was convicted two years later. Let me just say by preface, my wife, Narda Zacchino, who was the associate editor of the LA Times, an experienced journalist, has spent the last two years investigating this case, and is convinced that Kevin Cooper is innocent of the crime that he was convicted for, and that this is a really grievous miscarriage of justice. And having read all the documents that are around, I am in agreement with that judgment. But more important, a judge in the Ninth [Circuit] Court, Judge Fletcher, filed an opinion that was endorsed in the demand for a new trial by 11 judges on the California Ninth Circuit, the federal Ninth Circuit in California. I want to just quote what he said at the time: he opened his dissenting opinion saying, "The state of California may be about to execute an innocent man." And four years later in a speech at Yale University, Judge William C. Fletcher of the Ninth Circuit Court of Appeals said, "The murders were horrible, and Kevin Cooper is on Death Row because the San Bernardino sheriff's department framed him." And the first reports out after that murder were that three white men were what they were looking for, and they ended up with one black man who had been on a minimum-security prison farm, had walked off; and had dreadlocks, was unmistakably a black man. And yet he was the one that was singled out. And as Judge Fletcher points out, there's a great deal of evidence pointing to the people who actually did it, and it wasn't Kevin Cooper. Welcome, Kevin. And where are you now? Are you in, at --
Kevin Cooper: I'm currently, right now, in a cage that I'm forced to live in against my will. That, a cage like this, I've been in for over 33 years, here at San Quentin prison.
RS: I think at the time you told me it was 11 foot by four and a half feet, something like that?
KC: Yes. Yeah, four and a half feet wide, 11 feet long.
RS: Yeah, I just want to get that across, because we're talking about -- I mean, I can't even imagine being in there a day or a night or something. And the idea that you've been 33 years in a case where, clearly -- whatever, you know, you think about the death penalty, whatever you think about the justice system in the United States and in California -- the amount of what are called Brady violations, non-disclosure of evidence that would support Kevin Cooper's case, tampering with evidence. Judge Fletcher in his dissenting opinion goes through a great deal of that evidence; there are some terrific lawyers who've been working pro bono on this case. And I would say the evidence is overwhelming that you've been framed -- let's cut to the chase of it, as Judge Fletcher does. And he makes it very clear. And can you tell me, though, what happened now -- you've been fighting this case, and then the voters of California did something in the name of efficiency that is actually terrifying in its implication. Instead of ending the death penalty, as just about every civilized country in the world has done, they hastened it. And now you are slated to be one of the first individuals executed under this new law passed by the voters of California, are you not?
KC: Yes. Yes, I am. Prop 66 did pass. Mainly because in 2004, when this state and its death-penalty-supporting people attempted to murder me by lethal injection, I got a stay of execution. And that was because of another dissent by another Ninth Circuit judge named James R. Browning. But I came within three hours and 42 minutes of being strapped down to that gurney and injected with lethal poison and tortured and murdered by these people. But they didn't do it then, so I got away, so now they want to do it again. And this time, they plan on finishing the job.
RS: By the way, full disclosure, I'm also your editor at Truthdig. And you've written about some of this in a very compelling way. But take us back to that moment when the state of California was going to end your life.