As California’s new lethal injec­tion pro­to­col moves the state towards resum­ing exe­cu­tions, Kevin Cooper (pic­tured, left) is seek­ing clemen­cy from Gov. Jerry Brown on the grounds that he is inno­cent. Cooper — one of 18 death-row pris­on­ers who have exhaust­ed their court appeals and face exe­cu­tion — was sen­tenced to death for the 1983 mur­ders of a mar­ried cou­ple, their 10-year-old daugh­ter, and the daugh­ter’s 11-year-old friend. However, evi­dence that was sup­pressed as a result of police and pros­e­cu­to­r­i­al mis­con­duct rais­es seri­ous ques­tions as to his guilt. The key wit­ness against Cooper was the 8‑year-old son of the mur­dered cou­ple, who was grave­ly injured, but sur­vived the attack. On the day of the mur­ders, the boy said that three white or Hispanic men had com­mit­ted the killings, and after see­ing pho­tos of Cooper on tele­vi­sion, he told his grand­moth­er and a sher­if­f’s deputy that Cooper — who is black — was not the killer. After sub­se­quent inter­ro­ga­tions by deputies, in which they mis­rep­re­sent­ed his rec­ol­lec­tions, he lat­er iden­ti­fied Cooper as the sole killer and tes­ti­fied to that effect at Cooper’s tri­al. Cooper’s lawyers were denied an oppor­tu­ni­ty to cross-exam­ine him. Prosecutors also pre­sent­ed evi­dence at tri­al that shoeprints from the crime scene had to belong to Cooper, because he had recent­ly escaped from prison and the prints matched prison-issued shoes that weren’t avail­able to the pub­lic. A war­den from the prison, how­ev­er, had pro­vid­ed inves­ti­ga­tors with infor­ma­tion rebut­ting that asser­tion, but pros­e­cu­tors hid the war­den’s state­ments from the jury. Police also ille­gal­ly destroyed blood-splat­tered pants giv­en to them by a woman who believed her hus­band had been involved in the mur­ders, elim­i­nat­ing an essen­tial piece of evi­dence that could have helped Cooper prove his inno­cence. Finally, inde­pen­dent test­ing of a blood sam­ple that the state claimed had been drawn from Cooper found two dif­fer­ent sets of DNA, mean­ing that the sam­ple had either been con­t­a­m­i­nat­ed or delib­er­ate­ly altered. In 2009, the U.S. Court of Appeals for the Ninth Circuit upheld Cooper’s con­vic­tion, but five judges wrote a strong dis­sent detail­ing the mis­con­duct and con­clud­ing that it was, ​“high­ly unlike­ly that Cooper would have been con­vict­ed,” without it.

(A. Melber, ​“End to California Execution Moratorium Raises Controversial Death Penalty Case,” NBC News, January 31, 2016.) Read the Ninth Circuit opin­ion here. See Innocence and Prosecutorial Misconduct.

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