Another Christmas On Death Row (Updated)

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Above: People protest outside Georgia Capitol in support of death-row inmate Troy Davis before his Sept. 21, 2011 execution. CNS photo by Michael Alexander, Georgia Bulletin.

Editor’s note: On Monday, outgoing California Gov. Jerry Brown ordered new DNA testing on four key pieces of evidence in the murder conviction of Kevin Cooper. Brown issued the order after journalists—including Truthdig Editor in Chief Robert Scheer and contributor Narda Zacchino—brought renewed attention and urgency to Cooper’s story. Cooper himself is also a Truthdig contributor who has recently written several pieces for the site.

This is Part 2 of a two-part interview. To listen to Part 1, click here. To read key documents in this case, click here

Free Me, an original painting by Kevin Cooper

In Part 2 of this two-part interview, death row inmate Kevin Cooper, who once came within four hours of execution, details how he copes with the daily torment of impending death as his legal team fights to prove his innocence with new exonerating evidence Gov. Jerry Brown has refused to allow to be examined.

For the past 33 Christmas holidays, Cooper has inhabited an 11-by-4 ½-foot cell in California’s San Quentin State Prison, the last eight waiting for Brown to grant him a new hearing and advanced DNA testing that would support what federal Appellate Judge William Fletcher has said: “Kevin Cooper is on death row because the San Bernardino sheriff’s department framed him.”

Cooper, at the top of the list to be killed when the state resumes executions, talks to Robert Scheer in the latest installment of “Scheer Intelligence” about the unfairness of the justice system and the difficulty of proving one’s innocence once convicted: “”Whenever you have a judge that comes forward and stands up and says no, this person innocent … this person was framed, we need to take that serious as a society.”

He discusses his ongoing struggle to preserve his basic humanity: “I’ve been blessed, in a sick sense of the word. I’ve been cursed by putting me here, but while I’m in here, I’ve been blessed, because there are a lot of death row inmates who commit suicide every time you turn around. They took a guy past this cage last night on a gurney, ’cause he was ‘man down.’ … Don’t know if he lived or died. But they’ve been committing suicide up here, they’ve been killing each other up here. All types of craziness has been going on up in here.”

Cooper explains how he has kept hope alive when he could so easily succumb to desperation and despair. He paints, writes and reads voraciously, but he is most passionate when speaking out against the death penalty: “When you find yourself in a fight that is bigger than you—[capital punishment] affects the lives of many people—and you can do something to help in that fight, you can’t give up. … You can’t stop, you can’t quit. You just can’t do it. … I did not choose this, to speak out against the death penalty; I didn’t. This [struggle] chose me.”

Listen to Part 2 of Cooper’s interview with Scheer, or read a transcript of their conversation below.

Kevin Cooper: All right.

Robert Scheer: You’re back.

KC: I’m here.

RS: Well you know, I mean, just to recap for people, I mean, we’re talking about a measure of justice in a case where the evidence has been–this is now the words of appellate court Judge William C. Fletcher, Ninth Circuit Court of Appeals. And he was speaking for almost half of the appellate court that was saying you should have these kind of hearings and so forth. He said the murders were horrible, we understand that, and Kevin Cooper is on Death Row because the San Bernardino sheriff’s department framed him. This is not some wild claim of a supporter of yours; this is a guy who looked through all the evidence, sifted through it, trained judge.

[Recorded voice on telephone] This call and your telephone number will be monitored and recorded.

RS: I just want to be clear here so people understand, this is a matter of evidence, the distortion of evidence, and the fact that we have scientific competence in reinvestigating these things. Because for instance, the sweat under someone’s arm, whether that shirt belonged to Kevin Cooper or belonged to someone else, now can be determined with incredible precision that was not available before. And I should emphasize what these Brady violations are. And they’ve been well documented.

KC: If I may add, just–every time I turn around, we are discovering new evidence that not only proves my innocence, but proves that I was truly framed by the San Bernardino County sheriff’s department. And this new evidence is not only compelling, all a person has to do is have common sense and they can find out and read this stuff, that we are telling the truth. Now, in the history of the death penalty in America, we have often had people, including judges, turn a blind eye to truth in order to have the person that they want murdered, actually murdered. But whenever you have a judge that comes forward and stands up and says, no, this person is innocent and this person was framed, we need to take that serious as a society. Because judges don’t often do that. That is an exception, that is not the rule. The rule is, most judges turn a blind eye to truth on innocence, because they are more concerned about procedure. In America, there is no such thing in the Constitution about not executing an innocent person. If a person is innocent, but they had a, quote unquote, “fair trial,” which seems like an oxymoron to me, then it’s all right to execute them. Because the procedure was followed. It’s about constitutional violations and all that when you get to federal court. This system is rigged! It’s rigged against people like me. So if people out there don’t give a damn, then this thing will never come to an end, and I may very well end up being tortured and murdered physically by these people in here. But if society gives a damn, then they can shut these killing machines down all across this country. It’s time to bring this madness to an end! Everybody knows that this thing is not fair; it can’t be fair when the only people that get executed are poor people. It can’t be fair when a person is more likely to get the death penalty if they are convicted, rightly or wrongly, of murdering white people than murdering any other skin color of a person. It’s not fair. I mean, none of this is fair. It’s not fair when the states can spend billions and millions and millions of dollars to get someone executed, but the defense is not given that much money to try to save a person’s life, to prove them innocent. Public defenders don’t get as much money to defend their clients as district attorneys get to prosecute those people. This is not fair. This cannot be fair, that the only people who can sit on juries are people who are willing to impose the death penalty. Those are the only people who can sit on a jury. It’s not fair when a black man is the only black person in the courtroom when you got a white judge, a white district attorney, a white public defender and an all-white jury, and they’re going to tell me that’s justice? Or that man gets justice? That’s not fair. But that’s America. I would like to see a white person sit in front of a black judge, with a black prosecutor, and an all-black jury and a black public defender, and I would wonder how they’d feel, if they was going to get real justice. Or a Native American judge, or a Native American prosecutor, public defender, and a Native American jury, and ask themselves, how do they feel? Do they feel like they’re going to get real justice?

RS: So let me just interrupt for a second, because people listening to this might say, OK, yeah, race is a factor; race is out there. But–but, is that a cop-out here, is it a coverup? And I have to point out, this is not something Kevin Cooper is inventing for this case. Race has been built into it from day one. A terrible murder happened in San Bernardino County. A family got slaughtered, OK? And the survivor, the young son of this family, and he told the police that three white guys did it. That’s a quote. He didn’t say a black guy with dreadlocks, or somethin’. Now, there are suspects in this case. All that stuff about the bloody overalls, and the bar, and everything. There were three white guys in a bar with blood on them. That’s part of the evidence that was withheld from the defense. So I don’t want people to squiggle off the hook here and say, yeah, yeah, black guy bringing up the white, you know, race issue. The fact is, anyone who looks at this case will see that it was informed by a racism from the first hour. The police, the sheriffs had a horrendous murder on their hands in a rural, primarily white county of California, San Bernardino. And the first report from the surviving witness was, go find three white guys who did it. And instead, they find a black guy who’d walked off a prison farm, and he’s going to be the guy, they’re going to nail him. And they’re going to quiet the crowd, they’re going to save their political future, they’re going to calm people–we got the killer. The DA of San Bernardino County, for the longest time, opposed any kind of testing of the DNA, any kind of look at the evidence. He was defeated by voters down there in part, in part because a very good law school professor wrote an article about his prejudice in this case. But the fact of the matter is, they had an institutional connection now with protecting their department. And it should be pointed out that that sheriff’s department had a lot of corruption in it. People who stole guns from the department thing and sold them out there; people who destroyed evidence. We should talk about that–we’re not talking about a bunch of saints in law enforcement.

[Recorded voice on telephone] This call and your telephone number will be monitored and recorded.

KC: And the head criminalist of this case, he was fired after my conviction for stealing around five pounds of heroin from the evidence room for his own personal use and to sell to drug dealers. So while he was working on my case, he was a heroin addict. This is the same man who claimed to have found a bloody tennis shoe imprint on a bedsheet of the victims, not at the crime scene, but at the crime lab by folding two pieces of sheet together. And, he had an exact pair of shoes, tennis shoes in his office that matched the print of blood on that sheet. I am not making this stuff up!

RS: No, this is some of the stuff that Nicholas Kristof of the New York Times, has led him to feel that there’s been a miscarriage of justice here. And when you look at the people who, here’s the judge, a very important federal judge, said you were framed–now, you’re right, he wouldn’t use that word without a great deal of consideration; that’s a very serious charge for him to make. And the system will rally around not making it, not exposing it–because then, hey, what are we saying? We’re saying that, what, the police can be corrupt? You got a case there in San Bernardino County, right, where the guy in the evidence room, he had guns that he sold. Wasn’t just the drugs. Right?

KC: No, that was the sheriff himself. That was the sheriff who stole all those guns, over 500 guns. The sheriff, the then-sheriff Floyd Tidwell, stole, and gave away to other deputy sheriffs as gifts, those guns that he stole.

RS: And he got–he got a slap on the wrist, right? He got–

KC: A slap on the wrist, exactly.

RS: –what, a misdemeanor, but then they waived it. I mean, he didn’t even do time.

KC: He didn’t go to jail, that’s for sure. This good old boys club down there in San Bernardino County. And again, I say this to your listeners: we, you and I, are not making any of this up. This is the truth about my case.

RS: Kevin, I’m only here because I spent the last two years, while my wife was writing what I assume will be a book about all this, I was looking at all this evidence. At first I thought, what is this all about, and why are you spending all this time? And then I kept thinking, you know, wait a minute–this is so blatant, so obvious. Why hasn’t anybody put a stop to it? That’s the part I don’t get, because we’re not talking about Louisiana in the bad old days. We’re talking about California, the deep blue state, you know? A center of progress and everything…

[Recorded voice on telephone] This call and your telephone number will be monitored and recorded.

KC: If I may, I’d like to give out my website addresses, so that people who really want to know more about this case can go and they can read Judge Fletcher’s powerful and unprecedented, 100-page dissent on my case, in which those other ten justices dissented with him, and many other powerful things that prove everything that you just said during this interview. And that website is–

[Recorded voice on telephone] You have 60 seconds remaining.

KC: www.freekevincooper.org. And the media website, where you can go find out–

KC: –who is all supporting me, is www.kevincooper.org. And we’ll talk more about that when I call back.

RS: OK. Well, finish giving me those places. Can they get the Nick Kristof there too, on your site?

KC: Yes, you can get everything on my website. The Nick Kristof piece about my case, even the link to my podcast that I did with Mr. Kristof and the New York Times, you can find that on my website at freekevincooper.org.

RS: OK. Because I think people, if they just listen to some of that, they’re going to be pretty unhappy with their own apathy. And let me just add, by the way, that we’ve been publishing Kevin Cooper on Truthdig.com, and we have a pretty good site there with a lot of material on this case. So go to Truthdig.com, look up Kevin Cooper. And I want to ask you, I mean, we’re–I’ve always wondered about how people keep sane under these situations. I remember when Nelson Mandela got out in South Africa, I wondered, how did this guy survive being so clear and logical? And you know, I met you for five hours in San Quentin, and just today I was with the young lady Daniela, who’s a part of our leadership, communications leadership program here at the Annenberg School at USC.

KC: [Inaudible] …write to me, I got a letter from her yesterday.

RS: I’m sure she’ll write something about it. But we both talked today, and we talked about how–I don’t know what the right word is, but there’s a humanity that you’ve preserved; there’s a humor, amazingly; a perspective; I’m sure there’s plenty of times you want to bang your head against the wall. We should talk a little bit about that. I mean, we didn’t get to talk–you mentioned the books, for instance, that you’ve read.

KC: Right.

RS: What’s with these books? You wrote a whole piece for Truthdig, but–let’s, which books have really influenced you, and how has that helped you there in that cage?

KC: Let me say this real quick, because I’m running out of time. [inaudible] Something happened, not just to Nelson Mandela, and not just to Malcolm X, and not just to me, and not just to a lot of other people who are in prison. They found out that they’re fighting for something that is bigger than them. And when you find out, through reading books, all different types of books–

[Recorded voice on telephone] This call and your telephone number will be monitored and recorded.

KC: –all different types of books about the history of this country, and the different struggles that have happened to different people, all poor, in this country. Even poor white people have been struggling in this country, and they still are struggling in this country. But when you find yourself in a fight that is bigger than you, for yet it affects the lives of many people, and you can do something to help in that fight, you can’t give up. You can’t stop, you can’t quit. You just can’t do it. As I was saying to you earlier, I did not choose this, to speak out against the death penalty; I didn’t. This stuff chose me. I did not choose it. I was up here when I was in my early twenties, and the last thing I was, ever thought about doing was this type of stuff. I was practicing escapism back then, I was going outside every day, playing basketball, working out, lifting weights, doing whatever I could not to pay attention to this stuff. Because this is a depressing joint that I’m in. And it’s a lot of negativity, a lot of hatred, a lot of gangs, a lot of misery that you wouldn’t believe that runs amok up in this joint. So I was practicing escapism, but one day, some older brother–his name was brother Marshall–he gave me a book, The Autobiography of Malcolm X. Read this, man–that’s what he told me. And I read it. And then after I read that, I wanted to read more. I didn’t even know I could read; I was told when I was growing up that I wasn’t going to be nothin’, and I couldn’t read, because I never tried to read. But little by little, this movement, it got ingrained in me. I didn’t get ingrained in it, because I didn’t even know it existed before I came here. And this is how, when you find yourself down and out like this, you find the strength, from your ancestors, from your spirituality, from your whatever it is you find stuff from to keep going. And in the process of keep going, you find more like-minded people, whether on the outside where you are, or on the inside of here, will help you to continue on. I mean, if I hadn’t been in this movement, Mr. Robert Scheer, I would not have met you. If I had not been in this movement, I would have not met your wife. If I had not been in this movement, I would have never met the people from the grassroots movement called the Campaign to End the Death Penalty, who helped get the Northern California Innocence Project involved in my case, who in turn got the law firm of Orrick, Herrington and Sutcliffe involved in this case–which got me that stay of execution in 2004. But I’m alive today because of this movement. This movement for our human rights, this movement for our humanity, this movement against the death penalty. So I can’t give up. I know no way but forward. And I will continue to go forward. Just as Nelson Mandela did. Because Madiba, I admire that man. He is truly the inspiration, for all people, but especially [oppressed] people. I’ve been blessed, in a sick sense of the word; I’ve been cursed by putting me here, but while I’m in here, I’ve been blessed. Because there are a lot of Death Row inmates who commit suicide every time you turn around. They took a guy past this cage last night on a gurney, ‘cause he was man down. Don’t know why, but he had an oxygen mask on when they carried him by. Don’t know if he lived or died. But they’ve been committing suicide up here, they’ve been killing each other up here. All types of craziness has been going on up in here.

RS: Let me ask you a question, though. Let’s say when the–because you’re talking to me from your cage now, right?

KC: Right.

RS: What is it? You know, it’s almost no room to walk, and you got that upside-down paint can to sit on, and you got the–the TV you’ve talked about is on some wire going–

[Recorded voice on telephone] This call and your telephone number will be monitored and recorded.

KC: Abnormal living. I don’t know what’s normal no more.

RS: OK. But I mean, you’re in this cage, and you get off the phone, and you get depressed, let’s say. What could you do in terms of a book or something, or painting, or–how do you get through the next hour, the hour after that? What do you do?

KC: So, books or reading material is always at my disposal. And I’ve been lucky to do that. I listen to the radio; I listen to talk radio, I listen to KPFK Pacifica radio. I always–like what I stated in my column, that “reading is to the mind what exercise is to the body” is something that I believe in. I must exercise my mind by reading different types of things. I don’t always want to read the same thing, I want to read different things, but it’s all about–

[Recorded voice on telephone] You have 60 seconds remaining.

KC: –everything I read is about this fight that we’re in. That I’m in, that poor people are in. That gays, lesbians, transgender people are in, bisexual people. I mean, we’re all in the same fight, no matter what our sexual orientation or our religion or whatever. If we’re poor, or we’re considered different, or being different by the powers that be, we’re all in this struggle. ‘Cause they’re trying to kill us, one way or the other.

RS: I heard a voice saying we only had six–

[Recorded voice on telephone] You have 30 seconds remaining.

RS: We now have 30 seconds. Is that the final cut here, or are we gonna–

KC: I got to call back one more time.

RS: You back on, Kevin?

KC: Yes, I’m back on. It’s the last call.

RS: You know, it’s interesting. People should know, I was in San Quentin with you for five hours in a cage where they had people interview you and so forth. And there’s a certain banality of evil. I mean, a guard will take our picture, or we can buy something from the canteen, or something. You know, and you’re handcuffed when you come in, and you have to stick your hands back out. And you say with the phone–what is it, that you push the buttons? Or where is the phone, do you actually get to hold it, or–?

KC: The phone itself is outside this cage on a cart. The body of the phone, where the receiver goes, the dial tone and the buttons and all that stuff is outside this cage on the cart. Now, I have the receiver inside this cage, because it has a cord that may be about four, four feet long.

RS: I see. So, you can’t actually make the call–yeah.

KC: Yeah, every time I hang up, I got to put my hand outside through the tray slot, hang up, and then redial the buttons, and then back in here.

RS: I got involved in your case really emotionally when I went to an exhibit at Columbia University with art from people in prison. And you had one piece that I thought was really powerful, right at the front of this exhibit. And Narda said, well, that’s the guy that I’m interested in his case, and so forth. And now I got a painting you did of John Coltrane, which I think is very powerful. And I know your art is important to you, and I know, I’ve been talking about maybe having an exhibit of your art here at USC, where we’re doing this recording, and elsewhere. Tell me about the art, and what it means, and how you do it.

KC: My art is therapy. You know, it helps me not just escape from this cage that I’m locked in by going inside the paintings that I’m working on at that time; but it allows me to show my appreciation to the people who I do portraits of, or the scenes that I paint. Because I really, I’m being deprived of so much, that I find myself doing nature scenes just because nature is beautiful, and everything in here seems to be ugly. So I use bright colors, and different things. I knew how to draw when I first came here, and paint a little bit, but mostly I learned from PBS stations that had art shows on there, like Bob Ross and different other artists who, throughout the years, have been shown on PBS, their painting shows. And I would pick up something here, something there, until I found my own style. Because I didn’t want to copy anybody; I wanted to be me. So it was just how I learned to express myself in a situation where expressing yourself was not real good. It helps me scream without making a noise. You know? It helps me say something without opening my mouth. So my artwork is the way I communicate with the outside world, I guess. And I like it like that. I like to produce. I guess I’m not just a consumer, I’m also a producer. So that makes me feel good, too.

RS: And it’s a way you can earn money, so you pay for your own meals.

KC: …My art supplies and all that stuff, yeah.

RS: But let me ask you, because that “scream without making a noise”–that’s the picture that led the Columbia exhibit.

KC: It’s called “Free Me.” I was doing that to my attorney, Norman. That was his painting I did for him, because I’m screaming to him to free me, to get me out of here, I should never have been in here; I’m screaming from the top of my lungs, free me, man. But that’s the only way I could do it where he could hear me, but not hear me. If he held it on a wall, what it said–because it’s called “Free Me”–every time he looks at it, he hears me without hearing me.

RS: Tell me about your attorney. Because he would have been retired by now; he’s put in a lot of time on this case, and he’s the go-to guy in your defense–Norm Hile, right?

KC: Yeah, and I’ve been very blessed to have Norman as my attorney at Orrick. In 2004 it was David Alexander who was the attorney for Orrick, helped get me the stay of execution. When David left Orrick, Norman stepped in and took his place.

RS: That’s a kind of respectable law firm, right, in San Francisco and in–

KC: Right. Orrick, Herrington and Sutcliffe. They’re not a criminal law firm. And that actually is something else about this criminal justice system. This white-collar law firm comes and takes my case away from an attorney, a criminal defense attorney, appeals attorney, who damn near got me executed. And they use the same information that he had, and they get me a stay of execution. So that says something about this rotten-ass system, where they appoint attorneys to you who will get you murdered, because they don’t care. And you get a, and I lucked up and got this law firm who did care, and they ended up getting me the stay. And Norman is part of that law firm, and he has been–he could have been retired, like, ten years ago. But he said he was not retiring until he either got me out, or I got executed. And he believes he’s going to get me out. So we just have to keep fighting. And I’m truly blessed to have a man like that who cares enough to not abandon me, the way I’ve been abandoned in this place by so many other people. I thank God for Norman. And I don’t thank God for many people.

RS: Well, you know, I’m very impressed with Norm Hile. So is my wife, Narda. And he’s not one of these lawyers that you hear a lot about in terms of, you know, like the old William Kunstler, people like that–

[Recorded voice on telephone] This call and your telephone number will be monitored and recorded.

RS: –but you know, in a very effective, quiet way, he has really opened up this case. And also, you got an ex-FBI agent helping you on this case, a guy who was second in command in the L.A. FBI office.

KC: Yeah, Mr. Tom Parker, he’s a former special FBI agent. And he came, he saw my case, he read it; he said, man, this guy is innocent, and I’m going to get involved and try to help get him out. And that’s what he’s been doing for the last eight or nine years. And he’s come up, a lot of this new evidence that we come up with, he found it. A lot of new witnesses that we come up with, he’s located them. I, again, have been blessed by people who are from the outside of this California criminal justice system, have come in to this criminal justice system, and they’re helping to expose the wrongs in my case. That without them would not have been exposed, and I’d have been dead a long time ago.

RS: That’s what–I just don’t get it. I just don’t get it.

[Recorded voice on telephone] This call and your telephone number will be monitored and recorded.

RS: I mean, how can you read that clemency petition, how can you look at what Norm Hile compiled and what Tom Parker came up with, Nick Kristof in the New York Times wrote about? You look at all this stuff, and what you’re only asking–I keep repeating this, but it should not be lost here–is more precise DNA testing using modern means, a reexamination of the prospect of innocence, and innocence hearing. And that’s what they’re resisting. I think that your case is a case study in the cynicism of this whole thing. You know, because what is the cost? Your defense is willing to pay for the testing. What is the cost? You know, why the rush to judgment, why the rush to judgment in the face of new evidence, new evidence?

KC: There is a cost to be paid when we prove my innocence, even more so than we already have. Because this criminal justice system will suffer for it.

RS: Not if we’re an enlightened society–it’ll benefit, you know?

KC: What’s that mean?

RS: Well, I’m just saying, who with a straight face would want to say, let’s rush to judgment and kill someone for whom there is evidence showing innocence? That’s what the Brady–people, look up, listening to his, look up what a Brady violation is. That’s what they’re saying, they’re saying six different times, the authorities in this case down in San Bernardino County suppressed evidence, distorted evidence that would show a man who’s on Death Row to be innocent. And then the other people, like in the governor’s office, can ignore that? Walk away from it? That’s not right.

KC: …Because they don’t care. They don’t care, man.

RS: Well, the whole purpose of doing journalism is to get them to care, you know, is to make them care. That’s why we’re doing this interview, and I’m going to do my best to have them listen to it, others listen to it.

KC: And I thank you very much. And in the little bit of time I got left, I would like to say this. Thank you for giving me the opportunity to speak, and I thank you for exposing the truth about my case. But this case is no different than a whole lot of other cases that people have learned about throughout the history of this death penalty. I mean, look what happened to Troy Davis in Georgia not too long ago. You know? I mean, there’s cases like this all the time that come up. But this system is so hell-bent on killing us, that they don’t give a damn about innocence. It’s about the system, it’s about the process, it’s about their justice.

[Recorded voice on telephone] Thirty seconds remaining.

KC: Thank you very much. [Inaudible]