We can stop the death penalty

The story of the struggle that saved Kevin Cooper

By: Crystal Bybee

Kevin Cooper was scheduled to be executed by the state of California at 12:01 a.m. on February 10, 2004. Kevin had asked me, as an activist and friend, to witness his execution–to witness the execution of an innocent man whose courage and strength has sparked a movement–and I promised I would.

Fortunately, it was a promise I did not have to keep.

This is the story of how Kevin and his lawyers, supporters and friends prevented a horrible miscarriage of justice. But it is also about the need for a continued fight to win real justice for Kevin Cooper and an end to the racist death penalty.

Kevin’s story goes back a long way, but I will start in 1998 when members of the Campaign to End the Death Penalty started working on this case. Rebecca Downer, a longtime member of the CEDP–and another of the people that Kevin asked to be a witness–was there at the beginning. She recalls the first few months:

November 1998
“I first learned about Kevin’s case from another activist, Jody Cramer, who I met at the National Conference on Wrongful Convictions and the Death Penalty in Chicago,” Rebecca says. “At the time I was organizing the Campaign chapter at San Francisco State University. We were beginning to make connections to San Quentin’s death row, but had yet to find a really strong case to work around.”

January 1999
“Always looking for those willing to fight alongside him, Kevin was eager for the Campaign to get involved in his case,” Rebecca says. “Cameron Sturdevant and I drove down to LA to meet with his legal team and review the details of the case. Armed with the facts, I put together a fact sheet and a petition calling for DNA testing.

March 1999
“Kevin spoke at his first of many Live from Death Rows at a conference for Mumia Abu-Jamal, establishing himself as not only a compelling and articulate speaker, but a fighter for all on death row, not just himself,” Rebecca says. “On one of my earliest visits with him, Kevin signed a membership card for the Campaign to End the Death Penalty and has been a proud member ever since. From the beginning, Kevin was much more than just his ‘case’; he was and is a talented artist and writer, a determined fighter and a true and loyal friend.”

During the next few years, the CEDP worked with Kevin, his lawyers and other supporters and activists to spread the word about the injustices in Kevin’s case and in so many others. I joined the CEDP in 1999 and worked with the UC-Berkeley chapter. In 2000, I started visiting Kevin with Becky and Cameron. I was immediately impressed with Kevin as a fighter and as a human being. Working as a team, we struggled together through the ups and downs of building a movement for the truth in his case and about the death penalty. There was a lot of work to do.

The fact sheet and petition were a large part of our organizing efforts. We sent nearly 10,000 signatures to California Attorney General Bill Lockyer, calling for DNA testing that we all hoped would prove Kevin’s innocence. While we were taking his case to every demonstration and rally in the Bay Area, we also held meetings, petitioned at bus and subway stations and put on Live From Death Row events where Kevin called in to tell his powerful story in his own words.

Elizabeth Terzakis, who also began visiting Kevin in 2000, remembers hearing Kevin speak many times:

“There’s a lot of BS involved in calling out from prison–the phone doesn’t really work, there are all these beeps and interruptions from the recording machinery, there are time limits, and sometimes an inmate will just get cut off mid-sentence,” Elizabeth says. “But when Kevin calls, he just cuts through all that. All the static fades to the background, and out comes this voice, speaking about truth, justice and prison conditions to a rapt and motionless audience, taking questions about his life and his case, and answering them with clarity and honesty, but also always with an emphasis on building the movement against the death penalty. No one leaves a Live From Death Row unmoved, and no ones leaves a Live From Death Row where Kevin speaks without being moved to action.”

The battle for DNA testing appeared to be over when the state finally agreed, in an out-of-court decision, to conduct tests on multiple pieces of evidence. Although we were all aware of police misconduct during the original trial, there had appeared to be enough integrity in the evidence for DNA tests to prove Kevin’s innocence.

The testing process took longer than I had expected, and before it was completed we received some bad news. By chance, one of Kevin’s lawyers found some documents regarding the evidence being tested. According to the documents, a criminologist had checked out key pieces of evidence, along with samples of Kevin’s blood and saliva, shortly before the state agreed to conduct the tests in 1999.

I remember feeling angry that he had done it, but glad that we happened to find out about it before the results came out! Everyone was worried about the possible outcome of the DNA tests, especially Kevin and his legal team. They made motions in the courts to show their knowledge of and suspicion about the incident. Kevin wrote letters to multiple media representatives, asserting that he would never have signed the testing agreement had he known where the evidence had been and what had happened to it.

We activists wrote letters and sent press packets out trying to get our side of the story in the media and prepare people for what could happen. But the mainstream press seemed consistently uninterested in reporting the truth. Only alternative papers–such as the San Francisco Bay View, from Bay View/Hunters Point, one of the last Black neighborhoods in San Francisco–and community radio stations, like Berkeley’s KPFA, were willing to carry the whole story.

Finally, the DNA tests came back, and four pieces of evidence were found to have traces of DNA that matched Kevin’s. This was a serious blow to our side, and the state was overjoyed, surely thinking that these results would paper over the gaping holes in the case and silence the many unanswered questions.

But we didn’t give up. We wrote a new fact sheet, with the headline “Kevin Cooper: A Case Full of Holes,” both to remind people of the broader issues in the case–the racism, inadequate counsel and mishandling of evidence that characterized the first trial–and to lay out the actions by the prosecution that cast doubt on the validity of the testing results.

Summer 2003
And then some good news. The internationally known and respected law firm of Orrick, Herrington, and Sutcliffe signed on as Kevin’s new legal team. Working with the Santa Clara Innocence Project and attorneys from the California Appellate Project and the Habeus Corpus Resource Center, Kevin finally had a team that was not only dedicated to justice, but also had the time, energy and resources to get things going our way in the courtroom.

December 2003
On Tuesday, December 2, I receive an e-mail saying that there will be a hearing on December 17 to set an execution date for Kevin Cooper. The likely date is February 10, only two months away.

Despite a number of “close calls” over the years, the news comes as a shock. The UC-Berkeley campus is already nearing final examinations, and the regular meeting of the Campaign to End the Death Penalty chapter for that night was to be an informal gathering at a local café. Instead, we turn it into an emergency planning meeting.

We call for a meeting on December 5 at a bookstore in Oakland, the first meeting of the Committee to Stop the Execution of Kevin Cooper. Anti-death penalty activists from CEDP, Death Penalty Focus and the Bay Area Death Penalty Action Team come together to strategize. What will it take to stop this execution? How are we going to mobilize large numbers? How can we get the issue into the mainstream media?

The Committee sets out a very ambitious plan that includes sending out a press release, initiating a signature ad and calling for a broad and diverse Committee to Stop the Execution of Kevin Cooper. We schedule the next committee meeting for January 5 and write a leaflet asking people to come on board for the following actions:

  • Circulate the governor’s telephone number, fax number and e-mail address as broadly as possible and ask people to phone, fax and e-mail him letters of opposition to the execution.
  • Create, fundraise for, and get celebrities, labor leaders and legislators to sign on to a signature ad to be published in as many California papers as possible.
  • Form a Kevin Cooper contingent at the annual Martin Luther King Jr. march in San Francisco.
  • Build and participate in a Live From Death Row in Berkeley in late January.
  • Organize statewide for a February 3 day of action.
  • If it comes to it, hold not a vigil, but a march and protest at the prison on the night the execution is scheduled, February 9.

Kevin writes a statement encouraging people to engage in activism: “I am an innocent man, and while no human being has the right to murder or execute another human being, this is more than true when it comes to innocent people! We poor people, who are the only ones murdered by our government, are the only ones who can put a stop to it, and we must protest as well as pray! There can be a vigil for me after I am dead, but while I am alive, we must protest against my murder and this crime against humanity!”

On December 17, we send out our press release, and as a result get at least a little bit of our side of the story in some papers. Everyone from our newly formed committee works through the holidays, contacting groups, setting up a Web site, sending out e-mails and lining up people for the signature ad. Our goal is to get our message out to groups and churches, as well as the press, as quickly and completely as possible.

January 2004
The first full-scale meeting of the Committee to Stop the Execution is held on Monday, January 5. Sixty people from various anti-death penalty groups, churches and activist and community organizations meet at the American Friends Service Committee office in San Francisco. The turnout is larger than we had hoped for, and everyone wants to get involved right away.

At one point, a longtime CEDP member Kirk Johnson turns to me and comments, “I’ve been coming to these meetings for years, and I always knew we were doing the right thing. But when I walked in and saw all of the people in this room, I knew that this was something different. This time, we can make a difference.”

We break into subcommittees that spend the first few weeks of January working hard on several areas: Press and Signature Ad, Martin Luther King Jr. March contingent planning, February 3d and 9th planning, Art and Cultural events.

The mainstream media starts calling us more during this time, and the stories they print, while still not extremely favorable, at least start to mention some of the facts that make Kevin’s case so troubling. Our Web site goes up and looks great, thanks to Josh On, who works hard to make it a resource for anyone wanting to get involved in the fight.

We also begin fielding calls and e-mails from around the state from people and groups who want to get involved. One of the things that strikes me is that many people are calling not to ask how to get involved, but rather to share ideas or information about actions they are already taking.

As planned, the Committee leads a 150-person contingent at the annual Martin Luther King Jr. March in San Francisco. Kevin’s supporters hold signs, each with a large picture of Kevin and the words “Stop the Execution of Kevin Cooper/End the Death Penalty.” The International Socialist Organization carries a banner with a giant painting of Kevin’s face on it by San Francisco State student Taliyah Cohen. Kevin tells me the next weekend that he watched news reports of the march, and remembered saying to himself, “That looks like me…That IS me!”

Participants in the march–which includes community groups, high school marching bands, labor organizations and activists of all stripes–are very interested in the fact sheets passed out by committee members, and more than willing to sign petitions calling for clemency and a new trial.

The contingent is especially significant because the annual march is generally not a political event. But this year, ours is the biggest contingent, and we feel confident in the idea that we are doing just what King himself would have done–protesting hard against the state’s attempt to execute an innocent Black man during Black history month.

After the march, the fight gains a new and exhilarating momentum. Petitions come rolling in, and members of the committee like Becky Downer, Michelle Simon, Shannon Anderson, Suzie Wasserstrom and Kirya Traber speak again and again on local radio programs like San Francisco Bay View’s “No Pigs in Da Hood” and KPFA’s “Flashpoints.” More of our story begins to appear in the mainstream press, after anti-death penalty activists, especially Cameron Sturdevant, have arguments with reporters, in which we chastise them for omitting vital information and acting like they are imbedded in the prosecution. The committee decides to bring exonerated death row inmate Shujaa Graham out from Maryland, to help with speaking engagements and provide a firsthand account of what it means to be innocent on the row–and live to tell about it.

Students at San Francisco State University, led by Kirya Traber and Brian Cruz, put on a poetry reading/band fest to raise money for the signature ad. Artists include Illiteracy, Colored Ink–and a special, last-minute appearance by Michael Franti. Just before the event begins, we learn that Gov. Arnold Schwarzenegger has denied Kevin clemency without even holding a clemency hearing–the first time a death row inmate has been denied a hearing on clemency since executions resumed in 1992.

After a hiccup of disappointment at this setback, we redouble our efforts to get out the facts that yet another government official has chosen to ignore. Cushioning the blow is a poll in a local newspaper that shows a majority think the execution should be stopped. Also encouraging is an editorial in the San Francisco Chronicle calling on the governor to grant clemency–and calling on the people of California to keep calling, faxing and e-mailing the governor until he complies.

The UC-Berkeley Chapter of CEDP works diligently through the first few weeks of the semester to put together Kevin Cooper: Live From Death Row. The event is held at the First Congregational Church of Berkeley on Saturday, January 31. The church is filled with supporters, and bursts of chants can be heard throughout the program, especially after each inspirational speaker finishes his or her powerful remarks.

The diverse panel of speakers includes Shujaa Graham; Darrel Meyers from Murder Victims’ Families for Reconciliation; Lynne Stewart, an attorney who has witnessed firsthand the repressive workings of the criminal justice system; and Danny Glover, who closes our event for us. Monica Hahn and Sujal Parikh, from the UC-Berkeley chapter moderate the panel, making sure that the event not only inspires individuals to support Kevin, but to become active in the fight against the death penalty. Although technical difficulties prevent Kevin from interactively answering questions from the audience, his message rings out loud and clear: that he has not given up hope and that the flawed system will be exposed once and for all.

February 2004
With the execution date approaching, our anxiety is almost overwhelmed by awe at the size and significance of the movement.

Throughout the activity outlined above, Todd Chretien from the International Socialist Organization, Stefanie Faucher from Death Penalty Focus, and many others have been collecting names and money for our signature ad. Early signatories include Danny Glover, Janeanne Garofalo, Mike Farrell, Noam Chomsky, Howard Zinn and the executive board of the International Longshore and Warehouse Workers Union Local 10, the union that shut down the Oakland docks in support of death row inmate Mumia Abu-Jamal.

Soon, we are able to add Jesse Jackson Sr., members of the California legislature, and nine members of the European Parliament. Brother Jahahara Amen-RA Alkebulan-Ma’at sends the French translation of the ad all over French-speaking Africa and Haiti to political activists there. The president of Schwarzenegger’s native Austria criticizes the governor’s decision to go ahead with the execution. The signature ad is translated into French, and circulates throughout Europe.

On February 3, our statewide day of action, the ad runs in the New York Times western edition and the San Jose Mercury News. Events are held around the state. A press conference in front of Gov. Schwarzenegger’s church in Santa Monica includes Jesse Jackson, with over 20 religious leaders from a variety of denominations. A rally and press conference in front of the State Building in San Francisco draws close to 200 people and lots of press. Seventy-five people gather to protest the execution in Sacramento, the state capital.

In Santa Cruz, over 400 people listen to Angela Davis speak out against the execution and against the death penalty. Smaller actions are held in Fresno, Riverside and at the gates of San Quentin itself. The statewide day of action turns nationwide as people from around the country spend the day trying to call, e-mail and fax Gov. Schwarzenegger. His fax machine is either continually busy, or turned off due to the overwhelming response.

During the week before the execution date, Kevin’s topnotch legal team, activists and the pastor and congregation of his church in Oakland–Jacqueline Jackson and the Cellar Christian Ministries Fellowship–are working night and day. We all attend a moving and historic church service at Allen Temple Baptist Church in Oakland on Sunday, February 8. Jesse Jackson gives a powerful sermon that includes an urgent message for people to get involved with the fight against the execution. After the service, there is a press conference, where Kevin’s lawyer presents breaking evidence in the case, and Jackson implores the media to cover the truth about this case.

Also on Sunday, Kevin’s witnesses–CEDP members Rebecca Downer, Elizabeth Terzakis and myself, along with journalist Leslie Kean and Jeannie Sternberg–gather to prepare for the execution.

As Elizabeth says: “We had all had our hearts in our mouths for weeks. We knew Kevin’s attitude toward the execution was one of refusal: when they asked him to choose his ‘method of execution’–gas or lethal injection–he refused to choose. When they asked him to choose his last meal–to be included in grotesque detail in every news report–he refused a last meal. When they asked him to roll up his sleeve to help them practice finding a vein, he refused to help. He said, ‘I refuse to participate in this ritual of death.’

“But he wanted to have witnesses, and specifically, activist witnesses, so we could carry the horror of what we saw out into the movement. Kevin Cooper is a fighter and an abolitionist. Kevin Cooper is my friend. The knowledge that someone you know and care about is going to be murdered in a matter of hours, and that you may not be able to stop it, produces a level of anxiety that is almost indescribable. It is like being in a small room with no air and no doors or windows. It is like a nightmare, the kind you can’t wake up from.

“And I kept thinking to myself, if this is how we feel, imagine how he feels. Imagine approaching the hour of your death like a stop on a bus route. Imagine counting down the hours, like stations passed, until someone kills you.”

A chaplain explains the process to us. We need to arrive at the prison three hours before the execution, because every means available will be used to keep us from getting in. We can bring nothing in with us except our driver’s licenses. We should dress carefully: no green, blue, brown or orange clothing (so as not to be mistaken for inmates or guards). We should eat, even though we won’t want to; otherwise, we might faint. We shouldn’t take any fluids after 4 p.m., because we won’t be allowed to use the bathroom. We should dress warmly because we will spend at least two hours sitting in a parked bus.

We will be in the execution viewing room with the victims’ families and the press, and we must not speak at all or indulge in any actions or gestures that might be portrayed badly in the press. We should expect to be terrified the whole time. Because of a new law, the curtains to the windows of the execution chamber will be open. We will watch Kevin walk in, lie down (or be carried in, should he choose to resist) and be strapped to the table. We will watch the “custodial staff” insert the needle in his arm.

If Kevin catches our eye, we must not look away. At first, this seems so obvious that I don’t understand why they are saying it to us. Then I realize that, in such inhuman conditions, the reminder might be a welcome one: Act human. No one else will be. When his head drops back, or his eyes close, we will know that it’s safe to close our own.

We will be standing on risers in the back of the viewing chamber, while everyone else sits. Law enforcement officials from around the state will take the front-row seats. Apparently executions are high entertainment for law enforcement officials. We should prepare to carry the horror with us for the rest of our lives.

On the night of the execution, we all meet in the house of one of the witnesses, sick with tension. The Ninth Circuit Court of Appeals has granted Kevin a stay, but the state has appealed the court’s decision to the U.S. Supreme Court, which could overturn the stay any time before midnight. We are relieved by word that Kevin is maintaining his composure. When asked about his state of mind, Jeannie Sternberg, who has seen him recently, tells us: “Kevin is in a great state. Kevin is full of grace. He wants to live, but he is ready to die with dignity.”

Kevin has said that he won’t mind if it goes to the last minute and is stopped, because then he will know there is a movement. At 8:20, 10 minutes before we plan to leave for San Quentin, the state defender calls: the execution is off. The U.S. Supreme Court has upheld the Ninth Circuit’s stay.

At first, we can’t believe it, and spend a few minutes alternately crying, laughing and jumping up and down. Then we get in a car and drive to San Quentin, not for an execution, but for a celebration. We join a demonstration of some 600 people. Mike Farrell and Jesse Jackson have just announced the news, and there is a general air of jubilation.

Monica Hahn, a member of the CEDP, describes the march–and her experience with Kevin in the harrowing hours this weekend: “Two days before he was scheduled to be executed, I was talking to Kevin on the phone when he said something I will never forget. He said to me, “My friend, even if they get away with killing me in a couple days, I will always be here with you all in spirit, fighting beside you. I know you will keep fighting to end the death penalty even after I’m gone, and I know that one day, we will win.’”

“I have always admired Kevin so much for his positive attitude and his passion for social justice movements that stretch way beyond his own life. The night of the scheduled execution, just after those of us at the prison rally had heard the great news that Kevin’s stay had been upheld by the Supreme Court, and that he was to live that night, the hundreds of supporters on the march arrived.

“To see the marchers, with their beautiful banners and their powerful chants echoing in the night, I felt we had won a large battle already. To see how many people had been united over the issue of saving Kevin’s life, and to see the victorious results of a successful movement filled all of us with so much inspiration. I was so overjoyed to think that the possibility now existed that Kevin might someday be able to see with his own eyes a march as powerful as this march for his life was.”

As we celebrate, speakers call for Kevin to be freed, for an end to the racist death penalty. Chants of “They say death row! We say hell no!” ring out. Shannon Anderson, one of Kevin’s friends, shares the good news over a cell phone, saying, “This makes me want to fight forever.”

February 11, 2003
The fight continues. There is a possibility for winning real justice for Kevin, but we have to keep up the fight. Kevin always says that this is not just about him, and we know that California has the biggest death row in the country. It’s about time that the machinery of death here faced a real challenge.

We will have to get right back to work making plans to keep fighting for Kevin, but also to raise the issue of how we stop executions in California. Over the past few months, the work of so many people, community groups, churches, celebrities, union members and activists has been to stop this execution. Having won this as yet incomplete victory, death penalty opponents must take hold of this momentous occasion and fight for an end to the racist death penalty in California and across the nation.

Special thanks to Kevin Cooper for being the heart and strength of the movement, the dedicated legal team for the battle in the courtroom , Cellar Christian Ministries Fellowship for keeping the faith, each member of the Committee to Stop the Execution of Kevin Cooper–and all abolitionists in California for fighting until we win.

A case full of holes

On the night of June 4, 1983, three members of the Ryen family and a houseguest were murdered in San Bernadino County. Kevin Cooper is still on death row, despite the overwhelming evidence pointing to his innocence:

  • Clumps of long, blond hair–which could not have belonged to Kevin, who is African American–were found in the hands of one of the victims. Photographs of this hair were never shown to the jury.
  • At least three weapons were used in the brutal murders, indicating multiple perpetrators. Prosecutors have never been able to account for this, claiming that Kevin acted alone.
  • Hostile, racist demonstrations were held near the courthouse after Kevin was taken into custody. At one demonstration, a toy gorilla was hung in effigy.
  • A pair of bloody coveralls was submitted to police by a woman claiming that they had been left at her house by her boyfriend, who she believed was involved in the murders. Police records show that the coveralls were deliberately disposed of in a dumpster by the police without any testing.
  • A prison inmate confessed to the crime, providing his cellmate with accurate information that was not in the newspapers.
  • Kevin Cooper had no motive for committing these brutal murders, and none was established at trial.
  • For the full version of this fact sheet and more information on the case, visit www.savekevincooper.org on the Web.

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