Cooper v. Brown

Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEVIN COOPER,  No. 05-99004

Petitioner-Appellant, D.C. No.

v. CV-04-00656-H

JILL BROWN, California State  Southern District of

Prison at San Quentin, California,

Respondent-Appellee. San Diego

 ORDER

Filed May 11, 2009

Before: Pamela Ann Rymer, M. Margaret McKeown, and

Ronald M. Gould, Circuit Judges.

Order;

Dissent by Judge W. Fletcher;

Dissent by Judge Wardlaw;

Dissent by Judge Fisher;

Dissent by Judge Reinhardt;

Concurrence by Judge Rymer

ORDER

The panel has voted to deny the Petition for Rehearing and

Petition for Rehearing En Banc.

The full court was advised of the petition for rehearing en

banc. A judge requested a vote on whether to hear the matter

en banc. The matter failed to receive a majority of the votes

5429

5430 COOPER v. BROWN

of the nonrecused active judges in favor of en banc consider-

ation. Fed. R. App. P. 35.

The petition for rehearing and the petition for rehearing en

banc are DENIED.

W. FLETCHER, Circuit Judge, dissenting from denial of

rehearing en banc, joined by PREGERSON, REINHARDT,

PAEZ, and RAWLINSON, Circuit Judges:

The State of California may be about to execute an inno-

cent man.

From the time of his initial arrest until today, Kevin Cooper

has consistently maintained his innocence of the murders for

which he has been convicted. Cooper was convicted of capital

murder and sentenced to death by a California court in 1985.

The California Supreme Court affirmed Cooper’s conviction

and sentence in 1991. People v. Cooper, 53 Cal. 3d 771

(1991). The California Supreme Court denied Cooper’s state

petition for habeas corpus in 1996. A three-judge panel of the

Ninth Circuit affirmed the denial of Cooper’s first federal

application for habeas corpus in 2001. Cooper v. Calderon,

255 F.3d 1104 (9th Cir. 2001). That decision was called en

banc, but the call failed.

In 2004, on the eve of his scheduled execution, Cooper

sought permission from the three-judge Ninth Circuit panel to

file a second or successive application for federal habeas cor-

pus under 28 U.S.C. § 2244(b)(3)(A). Among other things,

Cooper claimed that he had new and previously unavailable

evidence that the State had violated Brady v. Maryland, 373

U.S. 83 (1963). Brady requires the State to turn over exculpa-

tory information to a criminal defendant. Based on the

claimed Brady violation, Cooper claimed actual innocence

under Schlup v. Delo, 513 U.S. 298 (1995), and

COOPER v. BROWN 5431

§ 2244(b)(2)(B)(ii). The three-judge panel denied permission,

but an en banc panel of the Ninth Circuit reversed. Cooper v.

Woodford, 358 F.3d 1117 (9th Cir. 2004) (en banc). We

stayed Cooper’s then-pending execution until his new federal

habeas application could be addressed.

Two days before the murders, Cooper had escaped from the

minimum security section of a nearby California state prison

by walking across an open field. Shortly before Cooper’s

scheduled execution date, Midge Carroll, the now-retired war-

den of the prison, provided a sworn declaration in which she

stated that she had learned from her staff that shoes issued to

prisoners “were not prison manufactured or specially

designed prison-issue shoes,” but, rather, were “common ten-

nis shoes available to the general public through Sears and

Roebuck and other such retail stores.” Carroll stated that she

had learned this information during the investigation and con-

veyed it to investigators before the trial. This information

would have been critical to Cooper’s defense, for a key to the

prosecution’s case at trial was that identical shoeprints at the

crime scene and in the house where Cooper had been staying

were made by Pro-Ked “Dude” tennis shoes, and that these

shoes were distributed only to prisons and other institutions.

Warden Carroll’s information, though clearly exculpatory,

had not been provided to Cooper prior to trial.

In granting permission to file a second or successive appli-

cation, the en banc panel noted, “Once a Brady violation has

been established, a federal habeas court is required to evaluate

all information in the case, not just information relevant to the

Brady violation.” Cooper, 358 F.3d at 1122. That is, every-

thing in the new habeas application was properly before the

district court. Woratzeck v. Stewart, 118 F.3d 648, 650 (9th

Cir. 1997) (per curiam) (“If [a petitioner’s] application makes

a prima facie showing as to one of the claims, he may proceed

upon his entire application in the district court.”). In addition

to this general instruction to the district court, we specifically

directed that two tests be performed. We wrote, “As soon as

5432 COOPER v. BROWN

Cooper’s application is filed, [the district court] should

promptly order that these two tests be performed in order to

evaluate Cooper’s claim of innocence.” Cooper, 358 F.3d at

1122.

First, we directed the district court to conduct further test-

ing of a bloody tan t-shirt that had been found beside the road

leading away from the house where the murders took place.

The tan t-shirt was found soon after the murders. Initial test-

ing of stains on the t-shirt showed that they contained blood

consistent with one of the victims and not consistent with

Cooper. Cooper presented evidence of the t-shirt as part of his

defense at trial. 12/6/84 RT 4602-06, 4608; 1/15/85 RT 6508-

11.1

Long after trial, at Cooper’s insistence, the State performed

a DNA test on some of the blood on the t-shirt. Cooper main-

tained that the test would prove his innocence. Instead, the

blood tested positive for Cooper’s DNA. Cooper maintained

(and continues to maintain) that his blood was planted on the

t-shirt. If the blood was planted, the only possible source was

blood taken from Cooper by law enforcement authorities. A

vial of blood was taken from Cooper by San Bernardino

County Sheriff’s Department (SBCSD) personnel on August

1, 1983, two days after his arrest. That blood contained an

added preservative called EDTA. We wrote, “The presence of

such a preservative would show that [Cooper’s] blood was not

on the t-shirt at the time of the killings[.]” Cooper, 358 F.3d

at 1124. We directed the district court to test Cooper’s blood

on the t-shirt for the presence of EDTA.

Second, Jessica Ryen, one of the murder victims, was

1

Citations to the reporter’s transcripts of the trial and hearings appear

with the date of the proceeding, the letters “RT,” followed by the page

number. Citations to the Excerpts of Record, compiled for purposes of this

appeal, use the abbreviation “ER” followed by the page number. “FER”

refers to the Further Excerpts of Record.

COOPER v. BROWN 5433

clutching blond or light brown hair in her hand. We directed

the district court to subject the hair to mitochondrial DNA

testing.

The district court held hearings on Cooper’s application for

habeas corpus in 2004 and 2005. It denied all relief. Cooper

v. Brown (“Dist. Ct.”), No. 04-656 (S.D. Cal. May 27, 2005).2

A three-judge panel of our court affirmed, with one judge

concurring specially. Cooper v. Brown, 510 F.3d 870 (9th Cir.

2007).

There is no way to say this politely. The district court failed

to provide Cooper a fair hearing and flouted our direction to

perform the two tests.

As will be described in greater detail below, the district

court impeded and obstructed Cooper’s attorneys at every turn

as they sought to develop the record. The court imposed

unreasonable conditions on the testing the en banc court

directed; refused discovery that should have been available as

a matter of course; limited testimony that should not have

been limited; and found facts unreasonably, based on a trun-

cated and distorted record.

The most egregious, but by no means the only, example is

the testing of Cooper’s blood on the t-shirt for the presence

of EDTA. As will be described in greater detail below, the

district court so interfered with the design of the testing proto-

col that one of Cooper’s scientific experts refused to partici-

pate in the testing. The district court allowed the state-

designated representative to help choose the samples to be

tested from the t-shirt. The court refused to allow Cooper’s

scientific experts to participate in the choice of samples.

2

The district court’s order in this case is published as an appendix to the

panel’s opinion, Cooper v. Brown, 510 F.3d 870, 887-1004 (9th Cir.

2007). I refer to the pagination of the district court’s order as it appears

in that appendix.

5434 COOPER v. BROWN

Indeed, the court refused to allow Cooper’s experts even to

see the t-shirt. The state-designated lab obtained a test result

showing an extremely high level of EDTA in the sample that

was supposed to contain Cooper’s blood. If that test result

was valid, it showed that Cooper’s blood had been planted on

the t-shirt, just as Cooper has maintained.

A careful analysis of the evidence before the district court

strongly suggests that the result obtained by the state-

designated lab was valid. However, the court allowed the

state-designated lab to withdraw the test result on the ground

of claimed contamination in the lab. The court refused to

allow any inquiry into the alleged contamination. The court

refused to allow Cooper’s experts to review the bench notes

of the state-designated lab. The court then refused to allow

further testing of the t-shirt, even though such testing was fea-

sible.

The district court placed two photographs of the murder

victims at the end of its 159-page order denying relief to Coo-

per. One is a photograph of the photogenic Ryen family —

two beautiful children, ten-year-old brown-haired Jessica and

eight-year-old blond-haired Josh, and their attractive parents.

The other is a photograph of eleven-year-old Chris Hughes,

a handsome blond-haired boy. The district court had no ana-

lytic reason to include these photographs at the end of its

order.

I. Background

Late at night on June 4, 1983, Doug and Peggy Ryen, their

daughter Jessica, and their houseguest Chris Hughes, were

brutally murdered in the Ryen home in Chino Hills, Califor-

nia. Their son, eight-year-old Josh, suffered extensive injuries

but survived. The victims had numerous chopping, cutting

and stabbing injuries, caused by several different kinds of

weapons. A number of cutting and stabbing wounds were

inflicted after the victims were already dead. Josh was found

COOPER v. BROWN 5435

in the late morning of June 5 in his parents’ bedroom, near the

bodies of his mother and Chris. His father’s body was also in

the bedroom. His sister’s body was in an adjoining hallway.

Two days earlier, Kevin Cooper, a black man, had escaped

from the minimum security section of the nearby California

Institute for Men (CIM) at Chino by walking across an open

field. He had been serving a four-year sentence for burglary.

Cooper hid out for those two days in a vacant house owned

by Larry Lease (the “Lease house”), 125 yards from the Ryen

house. The State’s theory, at trial and now, is that Cooper

acted alone in killing the four victims and in nearly killing

Josh, and that Cooper committed the murders to facilitate his

escape.

Cooper made several telephone calls from the Lease house,

seeking money and other assistance from two women friends.

The women refused to provide money or other help. Money

in plain view on the kitchen counter of the Ryen house was

untouched. Credit cards and money in Peggy Ryen’s purse

were also untouched.

The last of Cooper’s telephone calls from the Lease house

was completed at 8:30 p.m. on June 4, the night of the mur-

ders. Cooper testified that he waited until dark, finished his

telephone call, left the house on foot immediately after the

call, and hitchhiked to Mexico. There is undisputed evidence

that Cooper registered at a hotel in Tijuana at 4:30 p.m. on

June 5. When Cooper checked into that hotel, his hair was

braided, as it had been when he escaped from prison. ER

3252, 3260. The Ryens’ white wood-paneled station wagon

had been parked in the driveway of the Ryen house, with the

keys in the ignition, throughout the entire evening of June 4.

On June 11, the Ryens’ station wagon was discovered in the

parking lot of a Long Beach church, where it had been for

several days. Tijuana is 125 miles south of the Ryen house.

Long Beach is 45 miles west of the Ryen house.

5436 COOPER v. BROWN

A. Evidence Pointing to Other Killers

There is substantial evidence that three white men, rather

than Cooper, were the killers. Some of the evidence was intro-

duced at trial. Some of the evidence, even though exculpatory,

was deliberately destroyed by the SBCSD and was therefore

not available for use at trial. Some of the evidence, even

though exculpatory, was concealed from Cooper and therefore

not available for use at trial.

Josh Ryen, the only survivor of the attack, first communi-

cated to SBCSD Deputy Sharp that the murderers were three

white men. ER 1278-79, 1386-87. This statement was the

likely source of an entry in the police log during the afternoon

of June 5, stating that the suspects were “three young males”

driving the Ryens’ white station wagon. ER 3688.

On the night of the murders, a couple drove to Chino Hills

from Los Alamitos (about 37 miles away) after the night

horse races to drop off a horse trainer. As they were leaving

the trainer’s driveway, they had to wait for a car driving rap-

idly down Carbon Canyon Road from the direction of the

Ryen house. The husband, who was driving, testified at trial

that he stopped to wait for the car to pass. He stated that the

car was a “light color” station wagon with a luggage rack. ER

1375-76. With some coaxing from Cooper’s attorney, he

admitted that shortly after the episode he had described the

driver to SBCSD Lieutenant Knadler as a “young white

male.” The wife, who was a passenger, described the car as

“tan” or “cream” colored, with “wood grain” paneling. She

thought the car had a luggage rack. She “remembered think-

ing” that she saw three or four people in the car. ER 1379.

The Ryens’ station wagon was white with wood paneling and

a luggage rack.

The injuries to the victims were consistent with the use of

multiple weapons. The number of victims, and the number

and nature of the wounds, led the coroner initially to conclude

COOPER v. BROWN 5437

that there was more than one killer. ER 1367-69; see also ER

3148-56.

When Josh was in the hospital after the murders, he twice

saw a picture of Cooper on television. Both times he indicated

that Cooper was not one of the killers.

On June 7, SBCSD Deputy Field recovered a blood-stained

tan, medium-size, Fruit of the Loom t-shirt with a front pocket

beside Peyton Road, not far from the Ryen house and the

Canyon Corral Bar. ER 1575. The characteristics of the blood

on the t-shirt were consistent with Doug Ryen’s profile and

inconsistent with Cooper’s profile. ER 1757-61; 1/15/85 RT

6508-13. Post-trial DNA testing, conducted at Cooper’s insis-

tence, revealed that the shirt contained DNA consistent with

Doug Ryen and possibly Peggy Ryen. ER 800. Post-trial

DNA testing also revealed that at least one blood stain on the

t-shirt contained Cooper’s DNA. I discuss the presence of

Cooper’s DNA on the t-shirt in greater detail below.

As will be described in more detail below, a woman named

Diana Roper provided a statement in 1983 and again in 1998

describing an identical tan Fruit of the Loom t-shirt with a

front pocket that she had purchased for her then-boyfriend,

Lee Furrow. On both occasions, Roper stated that Furrow was

wearing the t-shirt on the evening of June 4. ER 1571, 1573.

At the time of the murders, Lee Furrow was living with

Roper in Mentone, approximately 45 miles east of Chino

Hills. ER 1570, 1592, 3142; 10/22/84 RT 2266. Furrow had

previously been convicted of strangling Mary Sue Kitts in

1974, on the orders of Clarence Ray Allen. ER 1594, 1789-

90, 1802; 10/22/84 RT 2266. Furrow had been a member of

the “Allen gang,” and he testified for the prosecution at

Allen’s capital murder trial. See Allen v. Woodford, 395 F.3d

979, 986, 991 (9th Cir. 2005); People v. Allen, 42 Cal. 3d

1222, 1236-38 (1987). Allen was executed in 2006. In return

5438 COOPER v. BROWN

for his testimony, Furrow was allowed to plead guilty to sec-

ond degree murder. He served four and a half years in prison.

Furrow was released from prison on June 12, 1982, a year

before the Ryen-Hughes murders. In a 1998 sworn affidavit,

Roper stated that Furrow had “confided” in her that he “dis-

membered [Kitts’] body and threw the body parts in the Kern

River.” ER 1570. Kenneth Koon, another acquaintance of

Furrow’s, confirmed that he learned that Furrow “killed a girl,

cut her up, threw her in the Kern River.” Kenneth Koon Inter-

view, Apr. 7, 2004, Docket No. 31, Ex. 55, at 4.

On June 4, the day of the murders, Furrow, Roper, Roper’s

sister Karee Kellison, and neighbors Michael and Rebecca

Darnell, attended the U.S. Festival Country Show at the Glen

Helen Amphitheater approximately 30 miles northeast of

Chino Hills and 24 miles northwest of Mentone. See Answer,

Docket No. 30, Ex. 36; see also ER 1786. That afternoon,

Furrow picked up Michael Darnell from the county jail, where

he had been held overnight. Answer, Docket No. 30, Ex. 39.

ER 1786. According to Darnell, he and Furrow arrived at the

festival after dark. Answer, Docket No. 30, Ex. 40 at 9, 16.

Debbie Glasgow, who was having an affair with Furrow, told

police that Furrow arrived at the festival at approximately 11

p.m. Answer, Docket No. 31, Ex. 53. Rebecca Darnell

recalled that she left the festival with her husband, and with

Roper and Roper’s sister, but that Furrow did not leave with

them. Answer, Docket No. 31, Ex. 41 at 1.

In her 1998 affidavit, Roper stated:

On Saturday afternoon June 4, 1983, Lee [Furrow]

and I were at our home getting ready to go to the US

Festival. . . . He was wearing a medium size Fruit of

the Loom beige T-shirt which had a pocket on the

front. I bought Lee the T-shirt at K-Mart before June

4, 1983. I also recall telling the sheriff’s department

COOPER v. BROWN 5439

fifteen years ago virtually the same thing regarding

Lee’s T-shirt. . . .

During the early morning hours of June 5, 1983,

my sister Karee Kellison, and I had returned from

the US Festival and were in the living room at my

house in Mentone. I received a telephone call from

Lee about 1:30 a.m. to 2:00 a.m. in the morning of

June 5, 1983, asking me to come get him and Debbie

Glasgow at the US Festival. I refused and hung up

the telephone. A few hours later a car pulled into our

driveway. My sister, Karee, walked to the French

doors to look out. I did not look out. A few moments

later Lee and Debbie walked through the front door.

They were in a hurry. I heard the car depart. Lee was

wearing long sleeve coveralls which had a zipper in

the front. The coveralls were splattered with blood

and there was horse hair and dried horse sweat on

the lower leg area. He did not have the beige T-shirt

or Levis on that he was wearing earlier in the day.

Lee walked to the back of the house and seemed to

be in a hurry. Lee took the coveralls off and left

them on the floor of the closet. After he changed his

clothes, Lee and Debbie left immediately on his

motorcycle. Lee and Debbie were not in the house

for more than five minutes and were obviously in a

big hurry to leave.

After I learned of the Ryen/Hughes murders in

Chino I turned the coveralls over to the San Bernar-

dino County Sheriff’s Department. I told the deputy

the facts about how I found the coveralls and that

Lee Furrow may be the murderer.

A few days after the murders I saw Lee at my

neighbors house. . . . I told Lee I turned the bloody

coveralls over to the sheriff’s department. Lee

became furious that I had turned them in. Lee had

5440 COOPER v. BROWN

changed his appearance by cutting most of his hair

off and trimmed his sideburns and his “Fu-Manchu”

moustache. . . .

Also, a few days after the murders I heard on the

news that a hatchet was found near the crime scene

in Chino. I immediately walked to the washer area

of our house. Lee’s hatchet was missing. All of his

other tools were still hanging on the wall. [Referring

to a photograph of the hatchet found near the crime

scene]: The hatchet in this picture looks like the

hatchet . . . which I found missing after the Ryen/

Hughes murders. I cannot say for sure it is the same

hatchet that Lee owned but the curvature of the han-

dle is the same. Even more striking in similarity than

the curvature of the handle is the style of the handle,

which has sort of an American Indian pattern to it.

[Referring to a photograph of the bloody tan Fruit

of the Loom t-shirt recovered near the Ryen house]:

The T-shirt in this photograph looks exactly like the

T-shirt Lee was wearing on June 4, 1983 including

the manufacturer, the size, the color and the pocket.

I am absolutely positive the photograph of this T-

shirt matches the T-shirt that Lee was wearing at our

house on the afternoon of June 4, 1983.

ER 1571-73. The substance of Roper’s 1998 affidavit matches

the substance of a May 1984 interview she gave to SBCSD

Detective Stalnaker. In the interview, Roper told Detective

Stalnaker that she had been under the influence of drugs on

the night of June 4. ER 1588-97.

In a separate November 1998 sworn affidavit, Roper’s sis-

ter Karee Kellison confirmed many of the details of Roper’s

story. She added a detail about the car in which Furrow and

Glasgow arrived. She stated:

COOPER v. BROWN 5441

. . . During the early morning hours of June 5,

1983, [Diana and I] were in the living room talking

when we heard a car pull in the driveway. I would

estimate the time after 3:00 a.m. but before sunrise.

I looked out the window in the French doors and I

saw Lee and Debbie get out of a car. There was not

sufficient light to identify who the other occupants in

the car were. However, there was enough light to see

that it was a station wagon, kind of brown in color.

...

Lee and Debbie came in the house. Lee was wear-

ing long sleeve coveralls, which were splattered with

blood. Lee walked to the back of the house and

changed his clothes. When he came out of the bed-

room he was no longer wearing the coveralls and

apparently left them in the back of the house. Lee

and Debbie left immediately on his motorcycle. . . .

A week or so after the Ryen/Hughes murders I

was interviewed by the police. I never told them the

above information because I am terrified of Lee Fur-

row and Debbie Glasgow. I don’t recall what I told

the police but I know that I did not tell them what I

saw for fear of what Lee and Debbie would do to

me. While I am still scared to death of Lee, I under-

stand he is in Pennsylvania and Debbie is dead.

ER 3116-17.

On June 9, Roper examined the coveralls that Furrow had

left at her house on the night of the murders. She called her

father, who then called the SBCSD. ER 1591, 4895. Accord-

ing to SBCSD Deputy Eckley, who was dispatched to Roper’s

house, the coveralls were “[h]eavily splattered” with blood.

ER 1578. Deputy Eckley took the coveralls into evidence and

gave a report to his supervisor. ER 1582. Deputy Eckley’s

report, dated June 10, 1983, stated that Roper “suspects that

5442 COOPER v. BROWN

the bloody coveralls are from the Chino murders and has fur-

ther information regarding that incident and/or possible

suspect/s.” ER 3105. As will be recounted in more detail

below, Deputy Eckley discarded the coveralls in a dumpster

during Cooper’s preliminary hearing in his capital case. Dep-

uty Eckley claimed at trial that he acted alone in destruction

of the bloody coveralls. However, the initials “KS” on the

Disposition Report for the coveralls indicate that Senior

SBCSD Deputy Ken Schneckengast approved the destruction.

The State did not provide the Disposition Report to Cooper’s

attorneys until long after trial. There is no evidence that any-

one in the SBCSD ever performed tests on the blood on the

coveralls.

Deputy Eckley had had prior experience with Diana Roper

and Karee Kellison, as well as with their father, Bill Kellison.

Deputy Eckley’s prior experience caused him to take seri-

ously the coveralls and Roper’s story. In an audiotaped inter-

view with Cooper’s investigator, Deputy Eckley stated,

“[W]ith my relationship with the Kellison’s/Roper family I

know their involvement in crime, as far as committing mur-

ders as well as giving up murderers. . . . [T]hey’ve given very

good information on a murder before.” ER 5000-01.

Roper and Furrow separated immediately after the murders.

Roper then began living with Kenneth Koon. ER 1592-93. In

November 1984, Koon was incarcerated at the California

Medical Facility at Vacaville. According to Anthony Wisely,

another inmate at Vacaville, Koon confided in Wisely while

they were in lockdown smoking marijuana. SBCSD Detective

Woods interviewed Wisely on December 19, 1984. Detective

Woods stated in his report that Wisely was in prison “for a

two-year period of time under the psychotic and remission

program.” ER 1601. Part of Wisely’s story directly recounts

the murders. Another part of the story matches Roper’s story

if Furrow’s name is substituted for Koon’s. According to

Detective Woods’ report:

COOPER v. BROWN 5443

[Wisely said that Koon told him] that he was with

two other guys that were in the BRAND or Arian

[sic] Brotherhood and they [had] driven to the Chino

area to collect a debt. He also stated that they had

driven to a residence in Chino and that the two guys

got out and that they were in for about ten or fifteen

minutes and that one of the guys was carrying two

axes or hatchets. That he also had gloves on, and that

one of them made the statement that the debt was

officially collected and that the first guy that came

out turned around and said who was that, and then

again stated “Who the fuck is the nigger?” He said

that the man that made the statement was looking in

the direction of the window and he saw a black sub-

ject through the window and the one subject told him

to get out of there. He states that KOON was

dropped off in San Bernardino somewhere, he does

not know where. He stated that KOON went to his

old lady’s house and changed his overalls and that

KOON also made the statement that one of the guys

that came out with the axes was very upset because

they apparently had left one kid alive.

....

He stated that these persons that apparently col-

lected the debt at the Ryen residence are debt collec-

tors for the BRAND, the Arian [sic] Brotherhood,

and that they have been to the pen for murder before

and it also includes or involves someone that is cur-

rently on death row.

He also stated that KOON thinks that they hit the

wrong house for the collection and that after all this

blows over that the BRAND will take care of busi-

ness in the right way.

5444 COOPER v. BROWN

I asked WISELY about any details when they saw

the black subject there in Chino. He stated he could

not tell me any other details.

....

. . . I asked [Wisely] if the female’s name, which

KOON referred to as his old lady, was DIANNA

[sic] ROPER. He said that it was.

ER 1599-1600.

Detective Woods interviewed Koon immediately after his

interview with Wisely. Koon confirmed Wisely’s account

about the coveralls. However, he clarified that it had been

Furrow who had changed his coveralls at Roper’s house.

Woods wrote:

I asked [Koon] if he knew a subject by the name of

DIANNA [sic] ROPER. He stated that he did. . . . I

asked him at that time does he recall an incident

when she turned over some coveralls to Yucaipa

authorities. He stated that he did. He stated the best

of his recollection was that she found some bloody

coveralls in a house apparently belonging to LEE

FARRELL [sic] and this was directly after the mur-

ders were discovered in the Chino Hills. He stated

that apparently the cops destroyed them or lost the

coveralls and nothing else was ever heard of it.

In the interview with Detective Woods, Koon provided him-

self an alibi. He claimed that he had not gone to the music fes-

tival with Furrow and Roper. Woods wrote, “He stated that he

was aware of that particular weekend with the country music

but, however, he was in the Gorman, CA area, returning back

to the San Bernardino area shortly thereafter.” Koon told

Detective Woods that he was not affiliated with the “Arian

COOPER v. BROWN 5445

Brotherhood.” He refused to answer further questions “about

that Arian Brotherhood situation.” ER 3114.

Even though Woods interviewed Wisely and Koon on

December 19, the State did not provide the information to

Cooper’s attorney until the morning of January 2, the day

Cooper was scheduled to take the stand at his capital trial.

Cooper’s investigator interviewed Wisely ten days later, on

January 12. According to the investigator, Wisely was

“wary.” He was initially unwilling to talk to the investigator,

but finally said a little. The investigator reported:

Wisely stated that the contact by the Det[ective] was

the beginning of his troubles, that he has been “in the

hole” ever since. He reported that he had not com-

mitted a violation, and he is in the hole without

cause. He further stated that the state is worried

about him[.] . . . He then stated that he knew that

Kevin Cooper did not do it, that “if you had been

there & listened to him (Koon), you would know

who did it” (or something close to those exact

words).

ER 3119.

In 2004, when the district court was making its initial plans

for mitochondrial DNA testing of the hairs in Jessica’s hand,

the California Deputy Attorney General informed the court

that Furrow had retained an attorney. Through his attorney,

Furrow declined to provide a hair sample. 6/2/04 RT 5. The

Deputy Attorney General informed the court that Koon, on

the other hand, “indicated he will provide whatever the Court

would request, voluntarily.” Id. at 5. According to Koon’s

story, as recounted to Wisely and recorded by Detective

Woods, Koon stayed in the car while the other two men went

inside with their axes. If this is true, Koon would of course

have nothing to fear from providing a hair sample.

5446 COOPER v. BROWN

On the night of June 4, three men came into the Canyon

Corral Bar, which is located near the Ryen house. Several

employees testified at Cooper’s trial that the men came into

the bar sometime around 8 or 9 p.m., left, and returned later.

Witnesses’ estimates of the time of their return range between

11 p.m. and 1:00 a.m. See ER 3648. When the men returned,

at least one of them was extremely inebriated. The bouncer,

Ralph Land, did not testify at trial, but stated in a tape-

recorded interview with Cooper’s investigator in January

1984 that “two of them were really close-cut hairs and all that

and then the other one had long, straggly like dirty, like I

thought maybe they just a couple of Marines and they ran into

an old buddy or something.” ER 3616. The witnesses who tes-

tified at trial stated that all three of the men had close-cut mil-

itary haircuts.

In 2004, the district court heard testimony from two women

— Christine Slonaker and Mary Wolfe — who were in the

bar on the evening of June 4 and were harassed by two or

three men. These women, who had not previously provided

testimony, remembered the evening in some detail. They testi-

fied in the district court that they were at the bar with a third

friend, and that the friend was receiving unwanted attention

from some men due to her low-cut blouse. Slonaker, a phle-

botomist (a person who draws blood), noticed that the man

who was most aggressive had blood all over him. 6/28/04 RT

7, 24-25. She stated that from a distance it looked like he was

just dirty, but that as he got closer “it was clearly apparent

that it was blood.” Id. at 70. Slonaker only noticed two men,

while Wolfe noticed three, but Wolfe also noted that the third

man was “pretty quiet and standoffish.” Id. at 121-22. She

also noticed that they were “definitely [wearing] tennis

shoes[.]” Id. Wolfe stated that the man who was not wearing

coveralls had “medium brown or dirty blond hair that was

longer than average and tucked behind his ears.” ER 3219.

Wolfe also noticed that the man in the tan shirt had spots of

blood on his shirt and a small bit of blood on his face. 6/28/04

RT 121-23. Wolfe recalled that at least one of the others was

COOPER v. BROWN 5447

wearing coveralls partly zipped down. Id. at 121-22. The

louder man in the coveralls also had blood on him. ER 3220.

Slonaker noted that “they were saying really weird and gib-

berish kind of things. . . . They were kind of like their eyes

were rolling in their head.” 6/28/04 RT 23. When Slonaker

told the man that he was covered in blood, he acted surprised

and then his behavior changed. Id. at 24-25. Both women

recalled that the men were asked to leave the bar. Id. at 72,

76, 79, 125.

Lance Stark, a regular at the bar, also testified for the first

time in 2004. He described “a couple of young loud mouths”

being rude to some women at the bar. 7/23/04 RT 20-21, 59.

He also commented that the third man in the group was very

quiet and not noticeable. Id. at 40. He described the men as

scruffy looking or dirty looking, and he observed that one of

the men looked like he had grease or mud on him. Id. at 22-

24, 60, 62, 63. He recalls one of the women telling that man

that he had something on him. Id. at 108-09.

Stark also testified that in early 2004 he was visited by

someone he believed was associated with law enforcement.

He testified that a man in a white Crown Victoria (which is

often a law enforcement vehicle) pulled in front of Stark’s

trailer, asked whether he was Lance Stark, told him it would

be in his best interest not to talk about the Kevin Cooper case,

and then drove off. Id. at 30-32. Stark testified that the car

was distinctive because it had a computer sticking out from

the dashboard. Id. at 32-34. This visit occurred soon after one

of Cooper’s investigators first visited Stark. Id. at 90. When

Cooper’s attorney met Stark after his encounter with the man

in the white Crown Victoria, Stark said, “Well, I’m not sure

if I should talk to you because I was told not to.” Id. at 101.

The district court denied Cooper’s efforts to investigate what

may have been witness intimidation. ER 4037-39, 4663-65.

B. Evidence Against Cooper at Trial

It was undisputed at trial that Cooper walked away from the

minimum security section of CIM in Chino on June 2. It was

5448 COOPER v. BROWN

also undisputed that Cooper spent two days hiding in the

Lease house, located about 125 yards from the Ryen house.

Telephone records show that Cooper’s last telephone call

from the Lease house ended at about 8:30 p.m. on June 4, the

night of the murders.

In addition to the above, the most important evidence

against Cooper at trial was the following:

(1) Eyewitness testimony of Josh Ryen.

(2) A spot of blood on the hallway wall of the

Ryen house that was consistent with Cooper’s

blood profile.

(3) A bloody shoeprint made by a Pro-Ked Dude

shoe on a sheet in the master bedroom of the

Ryen house, a matching shoeprint on a spa

cover outside the Ryen house, and another in

the pool room at the Lease house.

(4) Role-Rite prison-issue cigarettes and tobacco

found in the Lease house and in the Ryens’

abandoned station wagon.

(5) A missing hatchet from the Lease house, and a

hatchet sheath found on the floor of a bedroom

in the Lease house.

(6) A button found in the Lease house that matched

a prison-issue jacket.

(7) An empty beer can in the field between the

Ryen house and the Lease house.

(8) Burrs on Jessica Ryen’s nightgown.

(9) Positive Luminol tests in a shower in the Lease

house.

COOPER v. BROWN 5449

I discuss each piece of evidence in turn.

1. Eyewitness Testimony of Josh Ryen

At trial, the jury heard two recorded statements by Josh,

one stating and one suggesting that he saw only one man on

the night of the attack. However, when Josh first arrived at the

hospital, he was able to communicate to a clinical social

worker that the assailants were three or four young white

males. Deputies misrepresented his recollections and gradu-

ally shaped his testimony so that it was consistent with the

prosecution’s theory that there was only one killer.

2. A-41: The Spot of Blood in the Hallway

A single drop of blood in the hallway outside the Ryen

master bathroom — several feet away from any of the victims

— had characteristics consistent with Cooper’s genetic profile

and inconsistent with the victims’. The crime lab conducted

serological testing of this blood drop (entered into evidence as

A-41) under suspicious circumstances. The criminologist who

conducted the testing arrived at one result, and then altered

his records to show a different result that conformed to Coo-

per’s known blood characteristics. The drop of blood has a

history of being “consumed” during testing and then inexpli-

cably reappearing in different form for further testing when

such testing would prove useful to the prosecution.

3. Pro-Ked Dude Shoeprints

Within the first few days after the murders, deputies dis-

covered two distinctive matching shoeprints tying the crime

scene to the Lease house. Later, a deputy in the crime lab dis-

covered a bloody shoeprint on a bedsheet that had been col-

lected from the Ryen master bedroom. At trial, the

prosecution presented evidence that the shoe that likely made

those shoeprints — a Pro-Ked Dude tennis shoe — was

nowhere available for retail sale and was only available

5450 COOPER v. BROWN

through institutions such as CIM. The prosecution also pre-

sented evidence that Cooper had been issued such shoes at

CIM.

The shoeprints on the sheet in the master bedroom of the

Ryen house, on the spa cover outside the Ryen house, and in

the Lease house were discovered after a suspicious delay. The

shoeprint on the sheet was not discovered at the Ryen house,

but rather in the SBCSD Crime Laboratory. Deputy Stockwell

testified that he discovered the print after re-folding the sheet

in the lab to match the way it supposedly had been folded, or

crumpled, on the floor of the bedroom. 11/19/84 RT 3506-07.

Deputy William Baird was the manager of the lab where the

sheet was kept when the shoeprint was discovered. Baird pro-

vided critical testimony at trial connecting the shoeprint on

the sheet to the shoeprint in the Lease house. He also testified

that the shoeprints were made by Pro-Ked Dude shoes. ER

1676-77, 3195-3201. He testified that he already had a Pro-

Ked Dude shoe in his lab, which he matched to the print on

the sheet.

Pro-Ked Dude shoes were manufactured and distributed by

Stride-Rite Corporation. Deputy Baird admitted at trial that he

might have told the Stride-Rite official who testified at trial

that the SBCSD wanted information from him so they could

“shut down certain defenses.” ER 3200. Soon after Cooper’s

trial, Baird was caught stealing heroin from the evidence

locker at the Crime Laboratory. He stole the heroin both for

his personal use and to sell to drug dealers. ER 1714-16.

Two additional facts discovered after trial render the shoe-

print evidence particularly dubious. First, Pro-Ked Dudes

were, contrary to the testimony at trial, available (though not

in large quantities) at retail stores in the United States. Sec-

ond, an inmate who testified at trial that he had issued Pro-

Ked Dudes to Cooper shortly before his escape recanted his

trial testimony in a sworn declaration supporting Cooper’s

application to file his second habeas application.

COOPER v. BROWN 5451

4. Cigarettes and Tobacco

Cooper admitted to smoking “Role-Rite” prison-issue

tobacco while he was in the Lease house. Tobacco consistent

with Role-Rite was found on the floor between the front pas-

senger seat and the front passenger door of the Ryens’ station

wagon. Two cigarette butts were also found in the station

wagon, and blood typing tests could not exclude Cooper as

the donor of the saliva on the butts. One of the butts contained

tobacco that was consistent with the characteristics of the

Role-Rite brand.

The station wagon was discovered in a parking lot in Long

Beach, 45 miles west of the Ryen house, on June 11. When

the station wagon was discovered, dust prints indicated that

someone had recently closed the hood. ER 808-09. Cooper

arrived in Tijuana, 125 miles south of the Ryen house, at 4:30

p.m. on June 5, the day after the murders, and stayed continu-

ously at the same Tijuana hotel until June 8. 1/7/85 RT 5874.

Cooper then went to Ensenada, Mexico, where he found work

on a private boat. He worked on the boat from June 8 until the

day of his arrest. 1/3/85 RT 5468-75. The station wagon was

processed by the police under suspicious circumstances. Some

cigarette butts from the Lease house were never processed

into evidence. Some of those cigarette butts could have easily

been planted in the car. Moreover, after initial forensic test-

ing, paper from a hand-rolled cigarette butt supposedly found

in the station wagon was described as consumed. That same

paper later “reappeared” and was offered into evidence. When

the paper “reappeared,” it was significantly larger than the

paper in the cigarette butt that had been tested.

5. The Missing Hatchet and the Hatchet Sheath

On the day the bodies were discovered, detectives recov-

ered a bloody hatchet beside the road not far from the Ryen

house. People who had previously used the Lease house testi-

fied that a similar hatchet was now missing from the house.

5452 COOPER v. BROWN

Investigators found a sheath for the hatchet in the Lease house

near the closet in the bedroom previously used by Kathleen

Bilbia (“the Bilbia bedroom”), where Cooper had slept on

June 3. Fingerprint evidence strongly suggests that the hatchet

sheath was planted in the bedroom soon after the hatchet was

discovered. Further, the owners of the hatchet provided incon-

sistent testimony about the location of the hatchet before it

disappeared.

6. The Camp Jacket Button

Deputies discovered a green, blood-stained button near the

closet in the Bilbia bedroom. It resembled buttons found on

certain “camp jackets” issued at CIM. The blood on the but-

ton was type A, consistent with Cooper and Doug Ryen. The

green button was discovered under the same suspicious cir-

cumstances as the hatchet sheath, strongly suggesting it was

planted in the Bilbia bedroom after Cooper had become a sus-

pect. Further, its color showed that it came from a green

prison-issued jacket. Uncontradicted evidence at trial showed

that Cooper was wearing a brown or tan prison-issued jacket

when he escaped.

7. The Empty Beer Can

In the refrigerator in the Ryen house, there was a six-pack

of Olympia Gold beer with one can missing. Another can in

the refrigerator, as well as the wall of the refrigerator, were

smudged with reddish stains. Deputies found a stained, nearly

empty can of Olympia Gold in the field between the Ryen

house and the Lease house. The stain on the can in the field

and on the wall of the refrigerator tested positive for blood.

The blood stains on the beer cans were so degraded that the

lab could not conduct any further tests, and deputies failed to

collect the stain on the wall of the refrigerator as evidence. No

one analyzed the contents of the nearly empty beer can.

COOPER v. BROWN 5453

8. Burrs on Jessica Ryen’s Nightgown

Two burrs adhered to the inside of Jessica Ryen’s night-

gown approximately ten inches up from the bottom hem. The

prosecution argued to the jury that because the top of Jessica’s

nightgown did not have holes corresponding with some of

Jessica’s post mortem chest wounds, at some point an assail-

ant must have raised Jessica’s nightgown, and, in the process

of inflicting those chest wounds, deposited the burrs. The

prosecution also presented evidence that similar burrs were

found on the inside of the Ryen station wagon and on a blan-

ket found in the closet where Cooper slept on June 3. Plants

producing the burrs grew in the field between the Ryen house

and the Lease house.

The plant that produces the burrs is common in Chino

Hills. It is a relative of alfalfa and is a common ingredient in

horse and cattle feed. It is unusual for such burrs to transfer

from one fabric surface to another. Once the burrs have

adhered to a surface, typically they must be physically

plucked in order to be removed. 2/4/85 RT 7483-85, 7576-77.

Moreover, the coroner found a small beetle in Jessica’s body

bag. This beetle is nocturnal, suggesting that Jessica may have

been outside during or soon before the murders, when she

could have picked up the burrs.

9. Positive Luminol Tests in the Shower in the Lease

House

Detectives tested the shower and sink in the bathroom

adjoining the Bilbia bedroom in the Lease house for traces of

blood. Luminol testing revealed the possible presence of

blood on the shower walls in a broad band from approxi-

mately two feet to five feet above the floor of the shower.

When Kathleen Bilbia moved out of the Lease house a

short time before the murders, she had cleaned her bathroom

with bleach. Bleach reacts with Luminol in the same way that

5454 COOPER v. BROWN

blood does. In order to exclude the possibility that a Luminol

reaction is caused by bleach, rather than blood, a two-stage

test is required. The evidence suggests that the detectives only

conducted a one-stage Luminol test. Moreover, the staining

pattern in the shower is not consistent with a person cleaning

up after being covered in blood. The Luminol test did not

indicate blood in the bottom portion of the shower, and it did

not reveal patterns of drainage in the shower. One would

expect the blood rinsed from a person’s body to travel down-

ward in the shower, rather than moving horizontally in a

broad, uniform, 3-foot horizontal band. Hence, the Luminol

reaction in the shower is probably attributable to Bilbia’s

cleaning materials, not to the presence of blood. There was no

indication that any bloody clothing was placed anywhere in

the vicinity of the shower.

II. Discussion

Cooper advances several claims in his current habeas appli-

cation. In my view, two of them are meritorious. I mean “mer-

itorious” in a special sense. In part, I mean that they appear

to be meritorious on the current record. In part, I also mean

that if the district court had done its job — including perform-

ing the EDTA test on Cooper’s blood on the tan t-shirt as we

directed it to do — the likelihood of their being meritorious

would be much higher.

First, Cooper claims that the State presented false evidence

at trial, in violation of Mooney v. Holohan, 294 U.S. 103

(1935), and Napue v. Illinois, 360 U.S. 264 (1959). Second,

Cooper claims that the State failed to reveal exculpatory evi-

dence, in violation of Brady v. Maryland, 373 U.S. 83 (1963).

Under both claims, Cooper claims actual innocence under

Schlup v. Delo, 513 U.S. 298 (1995). I discuss the two claims

in the following sections.

A. Presentation of False Evidence

When we granted Cooper permission to file his second or

successive habeas application in 2004, we specifically

COOPER v. BROWN 5455

directed the district court to test Cooper’s blood on the tan t-

shirt “for the presence of the preservative EDTA.” Cooper,

358 F.3d at 1124. The purpose of the test was to determine

whether Cooper’s blood had been planted on the t-shirt. Judge

Silverman stated the importance of the test: “Cooper is either

guilty as sin or he was framed by the police. There is no mid-

dle ground.” Id. (Silverman, J., concurring in part and dissent-

ing in part).

I begin my discussion of Cooper’s claim that the State pre-

sented false evidence with discussion of the EDTA testing. I

do not do so because such testing will reveal directly whether

the State presented false evidence during trial. The State did

not put the t-shirt into evidence at trial. Rather, Cooper intro-

duced it into evidence because the State could not show that

any of Cooper’s blood was on it. Thus, even if state actors did

plant Cooper’s blood on the t-shirt, the State did not thereby

present false evidence at Cooper’s trial. If state actors did

plant Cooper’s blood on the t-shirt, they likely did so long

after trial — after DNA technology became available and

after Cooper requested that DNA testing be performed on the

t-shirt.

Nonetheless, for two reasons, I begin with a discussion of

the EDTA testing. First, if state actors planted Cooper’s blood

on the t-shirt, this raises a very powerful inference that

numerous pieces of evidence presented at trial were also

planted by state actors. Second, if state actors planted this evi-

dence, its presentation at trial violated Cooper’s due process

rights under Mooney and Napue and is the basis for a claim

of innocence under either Schlup or 28 U.S.C.

§ 2244(b)(2)(B).

1. Testing for EDTA

The district court was hostile to our direction to perform

EDTA testing on the t-shirt. In its order, the district court

wrote, “Based on the last-minute representations made by

5456 COOPER v. BROWN

Petitioner regarding scientific testing capabilities, the en banc

panel of the Ninth Circuit concluded [that the district court

should order EDTA testing].” Dist. Ct., 510 F.3d at 932. In

discussing the EDTA tests during a hearing, the district court

stated orally, “But the en banc panel didn’t get it.” 6/3/04 RT

74. Whether as a result of its hostility to the EDTA testing or

for some other reason, the district court failed to comply with

our direction to perform the testing.

a. Daubert

As a threshold matter, the district court concluded, incor-

rectly, that EDTA testing failed the test of admissibility under

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579

(1993). The court wrote that “the ubiquity of EDTA in the

environment prevents any meaningful interpretation of the

significance of an ‘elevated’ level of EDTA within a forensic

sample.” Dist. Ct., 510 F.3d at 941 (emphasis added). The

court found that EDTA testing was therefore not reliable. Id.

at 943-46. The court’s exclusion of EDTA evidence under

Daubert was based on an error of law, and therefore consti-

tuted an abuse of discretion. See United States v. Morales,

108 F.3d 1031, 1035 & n.1 (9th Cir. 1997) (en banc).

The district court confused the reliability of EDTA testing,

the first prong of the Daubert analysis, with the issue of what

that testing can prove, the second prong of the Daubert analy-

sis. See Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311,

1315 (9th Cir. 1995) (describing the two prongs of the Dau-

bert analysis). It was uncontested at the 2004-2005 hearing in

the district court that laboratory testing can reliably determine

the amount of EDTA in any given sample. The district court

found that “the levels of EDTA in the T-shirt were accurately

measured” by Cooper’s expert, Dr. Ballard. Dist. Ct., 510

F.3d at 941. The first prong of Daubert was thus satisfied.

The only contested issue was the second prong — what the

presence of EDTA proved or tended to prove. The district

COOPER v. BROWN 5457

court rejected Dr. Ballard’s testimony because it erroneously

concluded that his measurements, even though accurate, did

not satisfy the second prong of Daubert. See Dist. Ct., 510

F.3d at 941 (“Lacking any evidence to show that EDTA test-

ing is a reliable means of determining whether a blood sample

has been planted, the Court concludes that Petitioner’s EDTA

evidence fails the Daubert test.” (emphasis added)).

It is hornbook law that evidence is admissible under Dau-

bert if there is an accepted scientific method for making a

reliable measurement, even if the evidentiary significance of

the measurement can be disputed. See Daubert, 509 U.S. at

595 (“The focus, of course, must be solely on principles and

methodology, not on the conclusions that they generate.”).

For example, courts (including the trial court in this case) reg-

ularly admit evidence of Luminol testing for the presence of

blood, even though Luminol does not indicate the origins of

the detected blood. In fact, Luminol does not even definitively

prove the presence of blood. As noted above, other common

substances, including bleach, also react with Luminol. 11/

14/84 RT 3142, 3169-70. The district court in this case repeat-

edly referred to the results of Luminol testing as probative of

Cooper’s guilt. Dist. Ct., 510 F.3d at 907-08, 909, 910, 957.

EDTA test results, like Luminol test results, satisfy the second

prong of Daubert because they “logically advance[ ] a mate-

rial aspect of [Cooper’s] case.” See Daubert, 43 F.3d at 1315.

The district court concluded that even if EDTA testing

were admissible under Daubert, the results of the tests in this

case do not support Cooper’s contention that his blood was

planted on the t-shirt. Dist. Ct., 510 F.3d at 948. I disagree.

In the following two sections, I discuss errors committed by

the district court in conducting the EDTA tests and in refusing

to continue that testing. I then discuss the information

revealed by the testing so far conducted, and show that even

the truncated EDTA testing strongly suggests that Cooper’s

blood was planted on the t-shirt.

5458 COOPER v. BROWN

b. Errors by the District Court

In conducting the EDTA tests, the district court made six

fundamental errors.

First, the district court refused to allow any of Cooper’s

experts to assist in choosing the portions of the t-shirt to be

tested. Indeed, the court refused to allow Cooper’s experts

even to see the t-shirt.

Second, the district court refused to allow any testing of the

samples chosen in order to determine whether the stains on

the samples were actually blood stains.

Third, the district court refused to permit discovery into

why blood from vial VV-2 — the blood taken from Cooper

two days after his arrest — contained the DNA of two differ-

ent people. One obvious explanation is that someone removed

some of Cooper’s blood from the vial and then added some-

one else’s blood to conceal the fact that he or she had

removed Cooper’s blood.

Fourth, when the state-designated laboratory came back

with a result of an extremely high level of EDTA in the sam-

ple supposed to contain Cooper’s blood, thereby indicating

that the blood had been planted, the lab director withdrew his

results because of unspecified “contamination” in his lab. The

district court refused to permit Cooper’s attorneys to see the

lab’s raw data or notes, thereby preventing an inquiry into

whether, in fact, there had been contamination, and into the

significance of such contamination.

Fifth, the district court erroneously concluded that several

samples from the t-shirt were proper “controls” when, in fact,

they were not. These samples contained both human DNA

and EDTA, which indicated that they likely contained blood

that had been planted on the t-shirt. Because the district court

erroneously concluded that these samples were proper con-

COOPER v. BROWN 5459

trols, it erroneously disregarded the test results obtained by

the two laboratories.

Sixth, when the district court concluded that the results of

the EDTA testing were inconclusive, it refused to permit more

testing, even though such testing was feasible.

I discuss each of these errors in turn.

i. Refusal to Allow Cooper’s Experts to Assist in

Choosing Portions of the T-shirt to Be Tested

One of Cooper’s experts, Dr. Peter DeForest, repeatedly

sought to participate in the process of examining the tan t-

shirt and determining which parts of the t-shirt might be suit-

able for sampling. On August 4, 2004, Dr. DeForest filed a

declaration noting that “new cuttings” of the t-shirt would be

needed to perform the testing. He wrote, “[I]t is essential that

the T shirt be inspected in person to select the areas to be

sampled by cutting as well as those to serve as suitable con-

trol areas.” ER 4021. On September 4, he wrote a letter to the

district court, stating that he was concerned about the testing

protocol that had been developed. He wrote:

This protocol was generated without significant

input from me. I feel this protocol is flawed. I will

not agree [to] do any sampling according to this pro-

tocol. It will not be possible to obtain any meaning-

ful quantitative results using it. . . .

. . . Once I have examined the shirt, I am willing

to design an approach for review by another scientist

or develop one in conjunction with a criminalist rep-

resenting the prosecution. As I have been trying to

explain for some time now, there needs to be a care-

ful assessment of the shirt followed by a scientific

consensus on the pre-extraction sampling. . . .

5460 COOPER v. BROWN

The samples need to be taken in such a way that

it is possible to relate any quantitative findings [of

EDTA levels] to a specific amount of bloodstain.

This is not possible with the protocol specified in the

order. In addition, there is the possibility that a sci-

entific consensus might be that sampling that would

allow a meaningful result is simply not possible. In

such a case, samples should not be taken.

ER 4128-29.

The response of the district court was to exclude Dr.

DeForest. On September 7, three days after the date of Dr.

DeForest’s letter, the district court ordered that the t-shirt be

sent to Dr. Lewis Maddox of the Orchid Cellmark laboratory.

Dr. Maddox’s laboratory is not associated with either Cooper

or the State. The court directed Dr. Maddox and Gary Sims

(or Sims’ designee) to prepare “Area 6G” of the t-shirt for

testing, and to select other portions of the t-shirt for use as

controls. ER 4151. Mr. Sims is Director of the California

Department of Justice Laboratory. The court’s order did not

allow a representative of Cooper to be present during the

selection process.

Dr. DeForest was prescient. Area 6G of the t-shirt (the area

specified in the court’s order) was the area that had been orig-

inally tested for DNA. That earlier testing had confirmed

Cooper’s blood was present in Area 6G. Upon close inspec-

tion by Dr. Maddox, Area 6G turned out to be unsuitable for

further testing because there was no blood remaining in that

area. The State notified the district court of this fact on Sep-

tember 13.

That same day, Cooper’s lawyer wrote to the district court,

“[M]ost importantly, Petitioner vigorously requests that an

expert of his be allowed to inspect the T-shirt and be part of

the selection and preparation process for the anti-coagulant

[EDTA] testing.” ER 4205. At 5:30 p.m. that same day, the

COOPER v. BROWN 5461

district court denied Cooper’s request to have a representative

present during the selection and preparation process. The

court wrote, “The court denies petitioner’s request to have his

own observer present at the preparation of the T-shirt for the

EDTA testing. The court acknowledges that the 6-G stain is

not suitable for testing. The court orders Dr. Maddox, in con-

sultation with Dr. Myers [Mr. Sims’ designee, the State’s rep-

resentative], to select an appropriate stain area and prepare it

for EDTA testing[.]” ER 4207.

As a matter of due process, a court is required to allow both

sides to participate when important decisions are made.

Where, as here, serious objections were made to the manner

of choosing and processing samples to be tested, the district

court failed in its duty to provide a fundamentally fair pro-

cess.

ii. Refusal to Allow Testing of the Newly Chosen Sample

for the Presence of Blood

Dr. Maddox and Mr. Sims’ designee, Mr. Myers (the dis-

trict court erroneously referred to him as Dr. Myers), chose an

area of the t-shirt between stains labeled 6J and 6K as a

replacement for Area 6G. In their view, this area was likely

to contain Cooper’s blood. They therefore took their sample

from this area. They then divided the sample into three pieces.

They sent one of the pieces to the state-designated lab, sent

one to Cooper’s designated lab, and retained the third piece

at Dr. Maddox’s lab. However, no one tested the new sample

(or any part of it) to determine if any of the three pieces actu-

ally contained blood.

Cooper objected to the failure to test the newly chosen sam-

ple for blood. He specifically requested that it be tested to

determine if it contained blood. The district court denied the

request on the ground that Cooper had not previously

requested testing of the sample for the presence of blood. See

4/22/05 RT 10-11, 57-58, 171-72; see also Dist. Ct., 510 F.3d

5462 COOPER v. BROWN

at 935 n.16. The district court’s refusal to test the newly cho-

sen sample for the presence of blood was wrong on two

counts.

First, the district court was wrong procedurally. It was

unfair to fault Cooper for not having previously requested

testing of the sample for blood. Up until September 13, Coo-

per reasonably assumed that the sample to be chosen for test-

ing would come from the stain in Area 6G, which everyone

believed contained Cooper’s blood. It was therefore unneces-

sary to request testing of a sample from Area 6G for the pres-

ence of blood. Such testing only became necessary when a

new sample was chosen. After Area 6G was deemed unsuit-

able, even the State told the district court that additional test-

ing of the new subject sample “would be required to

determine whether Cooper’s blood is actually present in the

stain.” ER 4194. Cooper had no reason specifically to request

this additional testing after the State said that it was “re-

quired.”

Second, and more important, the district court was wrong

substantively. Because of the failure to test the new sample

for the presence of blood, it was possible that, as intended by

the protocol, all of the pieces of the new sample sent for

EDTA testing had Cooper’s blood. But it was also possible

that one or more of the pieces had none of his blood. This sec-

ond possibility was greatly enhanced for the new sample, as

compared to the old one from Area 6G. The new sample was

adjacent to Area 6G, and therefore Dr. Maddox and Mr.

Myers assumed that it contained Cooper’s blood. But it was

unclear how far into the new sample Cooper’s blood extended

(if indeed his blood extended into the new sample at all). Fur-

ther, the new sample was both larger and more irregularly

shaped than the old sample, making it even more likely that

any blood on the sample was not evenly distributed through-

out the entire sample.

As I discuss below, these characteristics of the new sample

may well account for the radical difference obtained by the

COOPER v. BROWN 5463

two labs in testing their pieces of the sample. The State-

designated lab found an extremely high level of EDTA in its

piece. The Cooper-designated lab found an elevated but lower

level of EDTA in its piece. This disparity could well have

happened because the state-designated lab tested a piece that

contained Cooper’s blood, and the Cooper-designated lab

tested a piece that did not contain his blood, or contained con-

siderably less of it. If the district court had permitted testing

of the new sample for blood — and, specifically, Cooper’s

blood — we would know the answer.

iii. Refusal to Permit Inquiry into Why Vial VV-2, Which

Should Have Contained Only Cooper’s Blood, Contained

the DNA of Two or More People

On August 1, 1983, two days after Cooper’s arrest, two

SBCSD criminalists drew Cooper’s blood. They put that

blood into a vial labeled VV-2. The vial contained the preser-

vative EDTA. In 2004, during the court-ordered testing of the

hairs Jessica clutched in her hand,3 the State made a mistake.

It inadvertently sent a card containing blood from vial VV-2

to Dr. Terry Melton, the expert charged with testing the hairs.

ER 3187. This was the first time since 1983 that any non-

State personnel had been permitted to see or test blood from

vial VV-2.

Dr. Melton tested the blood from VV-2, unaware of the fact

that the State had not intended to send it to her. Dr. Melton

found that the blood from VV-2 contained the DNA of two

or more people. This was a truly startling finding. On August

2, 2004, Dr. Melton informed the court of her finding. ER

5645.

3

I do not pursue the argument here, but there is ample reason to con-

clude that the district court also disregarded our directive by unduly limit-

ing the mitochondrial DNA testing of the hairs in Jessica Ryen’s hand and

by prematurely foreclosing the opportunity for further testing.

5464 COOPER v. BROWN

Vial VV-2 originally contained only Cooper’s blood, and

should have continued to contain only Cooper’s blood. The

most logical explanation for the finding is that someone added

another person’s blood to the vial. Why might that have been

done? One explanation is that someone took some of Coo-

per’s blood out of the vial for some purpose (planting it on the

t-shirt?), and wanted the vial to appear as full as it previously

had been. In order to accomplish that, he or she had to add

someone else’s blood to the vial to bring it back up to the

proper level.

On August 4, Cooper’s lawyer raised Dr. Melton’s discov-

ery with the district court. Perhaps the court thought Cooper’s

lawyer was speaking of DNA from the hairs. The court stated,

“[W]e never expected that it was going to be Cooper.” 8/6/04

RT 138. Counsel replied, “[I]t is not the hairs that were sent

that we’re talking about. It is the known sample that was sent,

and that’s been contaminated. And there is a very serious

issue about that.” Id. at 139.

On September 10, Cooper moved for an evidentiary hear-

ing, inter alia, “to determine the cause for the appearance of

a ‘mixture’ of DNA in Petitioner’s blood sample also submit-

ted to Dr. Melton.” He wrote:

VV-2 is the blood sample collected from Petitioner

at the time of his arrest[.] . . . [The] [b]lood sample

should only have contained Petitioner’s DNA[.] . . .

Dr. Melton’s report reveals that a mixture of DNA

sources was detected in VV-2. . . . In light of prior

evidence presented by Petitioner regarding tamper-

ing or contamination of biological evidence in this

case, Dr. Melton’s findings regarding VV-2 are

extremely alarming and mandate further inquiry.

ER 4168. On February 3, 2005, the district court denied Coo-

per’s motion. It did not mention vial VV-2 in its order.

COOPER v. BROWN 5465

On April 22, 2005, in final oral argument to the district

court, Cooper’s counsel returned to the subject of the blood

in vial VV-2. He said, “[W]ith regard to VV-2, I just want to

be — make this clear. There seems to be a possible misunder-

standing. VV-2, which is the sample that Doctor Melton

tested and found a mixture in, it’s Petitioner’s blood sample.

It is not a hair sample. I wasn’t sure if the Court was clear on

that.” 4/22/05 RT 153. The court immediately interrupted,

“And it’s consumed.” Id. Cooper’s counsel agreed that Dr.

Melton had consumed the sample on the card she had been

sent, but stated, “[T]hat doesn’t necessarily mean that there

isn’t more VV-2 in San Bernardino or at the DOJ that could

be tested.” Id. The State’s counsel then responded, “I can rep-

resent to the Court that VV-2 was completely consumed by

Doctor Melton. Doctor Melton was shipped the remainder of

this particular blood sample, and she consumed it, and it’s

reflected in her report. So we don’t have any more of that par-

ticular reference sample.” Id. at 156.

The State’s counsel seems to have meant to say (or at least

to have meant the court to understand) that there was no blood

remaining in vial VV-2. If that is what counsel meant to say,

it was a startling statement. The State had never before said

or even suggested such a thing. For example, when Cooper

moved in September 2004 for an evidentiary hearing on how

the DNA of two people came to be in vial VV-2, the State did

not say or even suggest that vial VV-2 was empty. Nor had

the State ever presented evidence to support such a statement.

Nor had the district court relied on the fact that vial VV-2 was

empty in denying Cooper’s motion for an evidentiary hearing.

Cooper’s counsel told the district court that Dr. Melton’s

finding that the DNA of two or more people was in the blood

that came from vial VV-2 was “extremely alarming and man-

date[d] further inquiry.” The district court refused to allow

any investigation into the issue, even though the presence of

additional DNA in vial VV-2 clearly pointed to evidence tam-

pering by the State.

5466 COOPER v. BROWN

iv. Refusal to Allow Access to the State-Designated Lab’s

Raw Data and Notes Concerning Asserted Contamination

Dr. Maddox of the Orchid Cellmark laboratory sent a total

of ten samples to each of the two designated testing labs. Dr.

Siuzdak was the tester designated by the State. Dr. Ballard

was the tester designated by Cooper.

Sample 1 was a piece of the t-shirt that had been chosen by

Dr. Maddox and Mr. Myers as likely to contain Cooper’s

blood. Samples 2-6 were taken from other parts of the t-shirt

and were intended to serve as controls. Samples 7-10 were not

taken from the t-shirt; they were also intended to serve as con-

trols.

As I will explain below, the EDTA results obtained by Dr.

Siuzdak and Dr. Ballard are remarkably consistent for all of

the samples except Sample 1 and Sample 8. Dr. Siuzdak

found that his piece of Sample 1 (the sample supposedly con-

taining Cooper’s blood) contained an extremely high level of

EDTA, more than twice as high as any other sample. If Dr.

Siuzdak’s piece of Sample 1 contained Cooper’s blood, and

if his EDTA result is valid, this indicates that Cooper’s blood

was planted on the t-shirt. By contrast, Dr. Ballard found that

his piece of Sample 1 contained a somewhat elevated, but

fairly low, level of EDTA.

Dr. Siuzdak submitted his report, containing the high

EDTA reading for Sample 1, to the district court on October

5, 2004. On October 27, without prior warning, Dr. Siuzdak

withdrew his report. His fax to the court stated in its entirety:

On Monday, October 5th I submitted a report on

the Cooper samples tested for the presence of

EDTA. I now believe that the samples tested were

contaminated with EDTA in my laboratory and

therefore must retract the report submitted. I deeply

COOPER v. BROWN 5467

apologize for the inconvenience and confusion this

report may have caused.

ER 4464.

Cooper moved to be allowed access to Dr. Siuzdak’s raw

data and bench notes relevant to his testing of all the samples.

ER 4465-82. The district court denied this access. ER 4751.

Cooper has never been permitted to see Dr. Siuzdak’s raw

data and bench notes, and has never been permitted to investi-

gate the nature and possible significance of the purported con-

tamination. Dr. Siuzdak has never been asked to provide an

explanation for his conclusion that there was contamination in

his lab.

v. District Court Reliance on Faulty Controls

As discussed in greater detail below, five supposed “con-

trol” samples were taken from the tan t-shirt. When the two

laboratories tested these samples, everyone assumed that they

contained no human material (and therefore no human DNA)

and that they contained only a background level of EDTA.

However, at least three of the five purported control samples

taken from the t-shirt (Samples 2, 3, and 4) actually contained

human DNA. ER 4659, 4669. The amount of DNA in these

samples corresponds closely with an elevated level of EDTA

in these same samples. The combined presence of DNA and

elevated levels of EDTA strongly suggest that these samples

contained preserved blood that had been planted on the t-shirt.

Therefore, these “control” samples from the t-shirt were not,

in fact, controls at all. Nonetheless, the district court assumed

that these samples were valid controls.

Because the district court assumed that Samples 2, 3 and 4

were valid controls, it concluded that the results of the DNA

tests were invalid. See Dist. Ct., 510 F.3d at 939 (“The EDTA

level in the subject stain is not elevated, but is instead lower

than that of most of the control areas. As a result, the test

5468 COOPER v. BROWN

refutes Petitioner’s tampering theory.” (emphasis added)); id.

at 941 (“From the test data, the Court concludes that the level

of EDTA in the subject stain is 110 nanograms. Comparing

the EDTA level of the subject stain to that for the control

specimens, the Court concludes that there is no reliable evi-

dence of tampering.” (emphasis added)). But because the dis-

trict court erred in assuming that these samples were valid

controls, it erred in concluding that the results of the DNA

tests were invalid.

The only sample that could provide a baseline level of

EDTA in the t-shirt, and could thus serve as a valid control,

is Sample 6. It is the only sample from the t-shirt that con-

tained no human DNA. Both Dr. Ballard and Dr. Siuzdak

found only background levels of EDTA in Sample 6. The

levels of EDTA found in Sample 6 by both Dr. Ballard and

Dr. Siuzdak were far lower than the levels of EDTA found in

any other sample taken from the t-shirt. (Recall that the dis-

trict court found that “the levels of EDTA in the T-shirt were

accurately measured” by Dr. Ballard. Dist. Ct., 510 F.3d at

941.) The virtual absence of EDTA in Sample 6 when com-

pared with the elevated EDTA levels in Sample 1, particularly

the portion of Sample 1 tested by Dr. Siuzdak, strongly sug-

gests that Cooper’s blood was planted on the shirt.

vi. Refusal to Allow Further Testing

The district court refused to allow further EDTA testing

after Dr. Ballard and Dr. Siuzdak made their reports, and after

Dr. Siuzdak withdrew his report on the ground of asserted

contamination. If the piece of Sample 1 tested by Dr. Siuzdak

contained Cooper’s blood, as Dr. Maddox and Mr. Myers

thought it did, and if Dr. Siuzdak’s finding of an extremely

high level of EDTA in his piece of Sample 1 is valid, there

is no question that Cooper’s blood was planted on the t-shirt.

The district court refused to allow further testing despite

the fact that Dr. Siuzdak and Dr. Ballard still have sufficient

COOPER v. BROWN 5469

amounts of the samples provided to them to perform further

testing. In light of the high level of EDTA detected by Dr.

Siuzdak on his piece of Sample 1, and in light of the unex-

plored nature of Dr. Siuzdak’s belief that there was contami-

nation in his laboratory, it was unreasonable not to pursue

further testing.

c. What the EDTA Test Results Tell Us When Combined

with DNA Tests on the Same Samples

After Dr. Ballard and Dr. Siuzdak submitted their reports

to the district court, the Orchid Cellmark laboratory sent other

pieces of the samples to the State of California’s DNA labora-

tory to determine how much DNA was on those samples. ER

4659, 4669. When Dr. Ballard and Dr. Siuzdak submitted

their reports, they did not know the results of this DNA test-

ing.

The results of the EDTA testing (performed by Drs. Ballard

and Siuzdak) and the DNA testing (performed by the State

lab) can be put into a single table. In reading this table, recall

that Sample 1 is the sample thought to contain Cooper’s

blood.

5470 COOPER v. BROWN

Table 1: EDTA and DNA Data (nanograms)4

We can draw two conclusions from the table.

First, we can conclude that Dr. Siuzdak’s EDTA results are

very likely valid based on a comparison of his results with

those of Dr. Ballard. A comparison of the results for Samples

2-7 and 9-10 (that is, excluding Samples 1 and 8) shows that

the results obtained by Dr. Siuzdak and Dr. Ballard are con-

sistent. Dr. Siuzdak’s results are expressed in higher absolute

numbers than Dr. Ballard’s, but the relative numbers of the

two are remarkably consistent. This may be seen in the fol-

lowing graph:

4

The data are from Lee Report (Siuzdak EDTA); ER 5414 (Ballard

EDTA); ER 4659, 4669 (DNA). The district court did not order DNA test-

ing of control Samples 7 through 9.

5

Dr. Siuzdak reported his values as concentration of EDTA. Dr. Lee’s

analysis of the EDTA results converted Dr. Siuzdak’s “values to the

equivalent amount of EDTA in the original cloth cuttings.” Lee Report at

2.

COOPER v. BROWN 5471

Graph 1: Comparison of Ballard and Siuzdak EDTA

Measurements6 (Excluding Samples 1 and 8)

The consistency in results for Dr. Siuzdak and Dr. Ballard

strongly suggests that Dr. Siuzdak’s results are valid. That is,

if Dr. Siuzdak had EDTA contamination in his lab or if his

instruments were miscalibrated, the contamination or miscali-

bration affected all of his measurements equally. If this is

true, Dr. Siuzdak’s results — as measurements of relative

rather than absolute amounts of EDTA — are valid.

6

The best fit linear regression equation for these data is: Siuzdak =

288.078 + 3.031 * Ballard. The R2 value for these data is 0.892; the

regression coefficient for the independent variable is statistically signifi-

cant at p < 0.001.

5472 COOPER v. BROWN

For purposes of this comparison (and of the above graph),

I excluded Samples 1 and 8. Sample 8 is a control not taken

from the t-shirt. It is a piece of cloth onto which Dr. Maddox

at Orchid Cellmark had placed a known amount of EDTA-

preserved blood, with a known concentration of EDTA. Both

Dr. Siuzdak and Dr. Ballard found greatly elevated levels of

EDTA in Sample 8, though Dr. Siuzdak found a relatively

higher EDTA level. That difference may be partially

explained by Dr. Siuzdak’s relatively higher amounts of

EDTA for all of his samples. The remaining disparity may not

be significant. Dr. Terry Lee, an expert hired by the State to

evaluate the results of Dr. Siuzdak and Dr. Ballard, concluded

that the disparity in results for Sample 8, considered by itself,

was not significant. Respondent’s Analysis of EDTA Test

Results, Oct. 28, 2004, Docket No. 264, Ex. A at 2.

That leaves Sample 1. Sample 1 is the new sample thought

to contain Cooper’s blood. It was chosen by Dr. Maddox and

Mr. Myers to replace the old sample from Area 6G. Though

Sample 1 supposedly contained Cooper’s blood, we cannot be

sure that it did, as I explained above. Dr. Siuzdak measured

an extremely high level of EDTA for Sample 1. Dr. Ballard

measured only a somewhat elevated level of EDTA for Sam-

ple 1. A possible, perhaps likely, reason for the disparity in

their results is that Dr. Siuzdak’s piece of Sample 1 contained

a great deal of Cooper’s blood, while Dr. Ballard’s piece con-

tained significantly less, perhaps none. Sample 1 was an

unusually large sample by comparison to the other samples.

It was also irregularly shaped, unlike the other samples which

were simple squares. ER 5202-03. Finally, Dr. Maddox and

Mr. Myers assumed that all of Sample 1 contained Cooper’s

blood. But, as noted above, they did not perform any tests on

Sample 1, or its individual pieces, to confirm this assumption.

Second, we can conclude that Dr. Siuzdak’s EDTA results

are very likely valid, based on analysis of Samples 2, 3 and

4. Samples 2, 3 and 4 were supposed to be control samples

that contained no blood. Instead, they almost certainly contain

COOPER v. BROWN 5473

significant amounts of blood. Further, it is likely that this

blood was planted on the t-shirt. This may be seen if we look

at both the DNA and the EDTA results for Samples 2, 3, 4

and 6. All four of these samples were taken from the t-shirt,

and were supposed to have been control samples. (Sample 5

has inconclusive DNA results, so I put it to one side. Samples

7, 8, 9 and 10 are control samples that were not from the t-

shirt, so I put them to one side also.)

For Samples 2, 3, 4 and 6, we have a known amount of

DNA and a known amount of EDTA. Samples 2, 3 and 4 all

have significant amounts of DNA. Only Sample 6 has no

DNA. For all four of these samples, there is a remarkably

strong correlation between the amount of DNA in the sample

and the amount of EDTA in the sample. The greater the

amount of DNA in a sample, the greater the amount of EDTA

in that sample. This holds true for the results of both Dr. Siuz-

dak and Dr. Ballard. This may be seen in two graphs, one for

Dr. Siuzdak’s results and one for Dr. Ballard’s results:

5474 COOPER v. BROWN

Graph 2: Correlation Between DNA and Siuzdak’s EDTA

Measures7 (Samples 2, 3, 4, and 6)

7

The best fit linear regression equation for these data is: DNA = -0.185

+ 0.001 * Siuzdak. The R2 value for these data is 0.974; the regression

coefficient for the independent variable is statistically significant at p =

0.013.

COOPER v. BROWN 5475

Graph 3: Correlation Between DNA and Ballard’s EDTA

Measures8 (Samples 2, 3, 4, and 6)

These graphs, showing the presence and amount of DNA

in Samples 2, 3, 4, and 6, tell us a number of things. First,

they tell us that Samples 2, 3 and 4 are not valid controls.

Thus, the district court erred in treating them as controls when

it interpreted (and disregarded) Dr. Ballard’s results. See, e.g.,

Dist. Ct., 510 F.3d at 939. The EDTA levels in Sample 6, the

8

The best fit linear regression equation for these data is: DNA = -0.093

+ 0.002 * Ballard. The R2 value for these data is 0.955; the regression

coefficient for the independent variable is statistically significant at p =

0.023.

5476 COOPER v. BROWN

only true control, are significantly lower than the EDTA

levels in Samples 2, 3 and 4, and in Sample 1, the sample

thought to contain Cooper’s blood.

Second, the variation in EDTA levels in three supposed

control samples — Samples 2, 3 and 4 — directly corre-

sponds with the variation in human DNA levels in those sam-

ples. EDTA is present in many substances, such as laundry

detergent, salad dressing, and household cleaners. See Dist.

Ct., 510 F.3d at 947 & n.34. Those substances, however, do

not contain human DNA. Human blood stored in purple-

topped EDTA tubes, such as those used by the SBCSD, has

both EDTA and human DNA. Samples 2, 3 and 4 had ele-

vated levels of EDTA and correspondingly elevated levels of

human DNA. The most plausible explanation is that the

EDTA was deposited on the t-shirt along with human DNA.

The most logical source of such a deposit is human blood

stored in a purple-topped EDTA tube.

We know that Cooper’s EDTA-preserved blood sample

(VV-2) and other EDTA-preserved blood samples from the

victims were kept in an evidence refrigerator to which up to

twenty people had ready access. 6/23/03 RT 106, 134. We

also know that blood could be withdrawn from those tubes

without breaking any seals. 6/25/03 RT 330. Finally, we know

that “anyone with access to that refrigerator . . . could take

items in and out of it without there being any record of it at

all, without any written record.” 6/23/03 RT 134. This infor-

mation, coupled with the EDTA and DNA findings described

above, strongly suggest that someone in the SBCSD took

blood from one or more purple-topped EDTA tubes and

placed that blood on the t-shirt.

Third, the district court did not account for the correlation

between human DNA and EDTA in the control samples when

it stated: “While the extraction and measurement of EDTA in

a sample may theoretically be accomplished, the ubiquity of

EDTA in the environment prevents any meaningful interpre-

COOPER v. BROWN 5477

tation of the significance of an ‘elevated’ level of EDTA

within a forensic sample.” Dist. Ct., 510 F.3d at 941. The data

demonstrate that, contrary to the view of the district court,

meaningful interpretation of the significance of an elevated

level of EDTA is possible. They demonstrate, in fact, that Dr.

Siuzdak’s test results were probably valid.

d. What Dr. Siuzdak Did Not Know

Neither Dr. Siuzdak nor Dr. Ballard, nor indeed any expert,

was given the opportunity by the district court to look at both

the EDTA and the DNA data.

When Dr. Siuzdak withdrew his results, he was unaware of

Dr. Ballard’s results. He was also unaware of the results of

the DNA testing by the State. We are now able to see what

Dr. Siuzdak could not see when he withdrew his test results.

First, Dr. Siuzdak was unaware of the remarkable congru-

ence of his supposedly contaminated results with those of Dr.

Ballard. Second, Dr. Siuzdak was unaware that Samples 2, 3

and 4 each contained significant amounts of DNA, which

closely correlated with the amount of EDTA in those samples.

Dr. Siuzdak mistakenly thought those samples contained no

blood, and therefore should have contained no EDTA. He

thus thought that Samples 2, 3 and 4 were valid controls, and

that he should have found little or no EDTA in them. Had Dr.

Siuzdak known that Dr. Ballard had obtained remarkably con-

gruent results, and that Samples 2, 3 and 4 contained human

DNA and were not valid controls, it is entirely possible, per-

haps likely, that he would not have withdrawn his results

based on supposed contamination in his lab. It should have

been an easy matter to ask Dr. Siuzdak whether, in light of

what the district court later learned, he would still withdraw

his test results. The district court, however, did not do so.

e. Summary

It is clear from the foregoing that the district court did not

properly carry out our directive to perform EDTA testing on

5478 COOPER v. BROWN

Cooper’s blood on the t-shirt. The court did not permit Coo-

per’s experts to participate in or even see the selection of the

t-shirt samples chosen for testing. It refused to allow testing

of the newly chosen sample, which was supposed to contain

only Cooper’s blood, to determine if, in fact, it contained his

blood, or any blood at all. It refused to permit an inquiry into

why vial VV-2, which was supposed to contain Cooper’s

blood, contained the DNA of two or more people. It refused

to permit discovery of Dr. Siuzdak’s raw data and bench notes

after he withdrew his test results — results that strongly sug-

gested that Cooper’s blood had been planted. It incorrectly

concluded that Samples 2, 3 and 4 were proper controls, and

therefore incorrectly concluded that the testing laboratories’

results could not be correct. And it refused to allow further

testing after it allowed Dr. Siuzdak to withdraw test results

that had been favorable to Cooper.

The test results that we do have strongly suggest that Dr.

Siuzdak may not have had contamination in his laboratory

that invalidated his results, and strongly suggest that Dr. Siuz-

dak’s sample, supposedly containing Cooper’s blood, did in

fact contain an extremely high level of EDTA. In other words,

the test results we already have strongly suggest that Cooper’s

blood was planted on the t-shirt.

2. False Evidence Presented at Trial

If the EDTA testing already performed shows that Cooper’s

blood was planted on the t-shirt, or if further EDTA testing

does the same thing, that showing greatly increases the likeli-

hood that much of the evidence introduced at trial was false.

If the State introduced false evidence at trial, it violated Coo-

per’s constitutional right to due process under Mooney and

Napue. If Cooper’s constitutional right to due process was

violated, he has satisfied the threshold test for showing actual

innocence under Schlup. In assessing whether a federal

habeas petitioner has made a showing of actual innocence

under Schlup, a district court is not limited to evidence intro-

COOPER v. BROWN 5479

duced at trial. Rather, it may consider all relevant evidence.

See Carriger v. Stewart, 132 F.3d 463, 478 (9th Cir. 1997) (en

banc).

a. The False Evidence

If Cooper’s blood was planted, that would greatly increase

the likelihood that the following evidence at trial was false.

i. Josh Ryen’s Testimony

Josh Ryen was eight years old at the time of the murders.

He was left for dead in his parents’ bedroom with his throat

cut. He did not take the stand, but his audio- and videotaped

testimony was introduced at trial. That testimony was that he

saw either a single man or a single shadow in the house dur-

ing the murders. This testimony was flatly inconsistent with

the information he provided immediately after the murders.

(a). Josh Ryen’s Testimony at Trial

Josh Ryen did not testify in person at trial. Instead, two

recorded interviews with Josh were played for the jury. One

was an audiotaped interview conducted in the office of a psy-

chiatrist, Dr. Lorna Forbes, on December 1, 1983, six months

after the murders. The other was a videotaped interview con-

ducted on December 9, 1984, in the midst of Cooper’s trial.

A transcript of the audiotaped interview with Dr. Forbes

includes the following statements:

Q [Dr. Forbes]: Who went to bed first? You guys

or everybody all together or what?

A [Josh]: I think my Mom, I, my sister and Chris

went to bed, but my Dad stayed up.

Q: You don’t remember, for sure?

5480 COOPER v. BROWN

A: That’s what I think. Then I heard my Mom

scream, and I walked in there with Chris, and I

saw someone.

Q: Well, did, did you mean? Where did you see

him?

A: Like over by the bed, my Mom’s bed.

***

Q: Okay, was the person standing up or what?

***

A: And then I went back, and . . .

Q: Well, why did you go back; what was happen-

ing with the person standing by the bed; was he

standing facing you, or what did you see?

A: He was turning his back against me.

***

Q: Do you remember seeing him doing anything to

your mother when she was screaming?

A: No, I just saw his back and his hair.

Q: And his hair? Was he bending over or standing

up straight or what?

A: Uh, he was like . . . His head was down, he was

down.

Final Stipulation Regarding Correction of Transcripts on

Appeal, July 31, 1986, Interview of Josh Ryen by Lorna For-

COOPER v. BROWN 5481

bes, Ex. D at 14-16 (ellipses in original; asterisks indicate

omitted material). Later in the interview, Dr. Forbes asked

Josh, “you went in there and saw this thing; did you think it

was a man or a woman?” Josh replied, “I didn’t . . . probably

a man because women usually don’t do that sort of thing.” Id.

at 19.

We know that in this audiotaped interview Josh had

described seeing a “puff of hair” on the killer. We also know

that the State excised the “puff of hair” reference from the

interview, and that this part of the interview was not played

to the jury. 12/13/84 RT 4991-92. (I discuss below the signifi-

cance of the “puff of hair” reference, and the significance of

the prosecution not playing it for the jury.)

During the videotaped second interview, conducted in

December 1984, counsel for both sides questioned Josh.

Josh’s grandmother, Dr. Mary Howell, was also present dur-

ing the interview. The videotaped interview was played for

the jury on December 13, 1984, immediately before the jury

heard the audiotaped interview with Dr. Forbes. The prosecu-

tor asked, “Did you ever see anybody in the house that didn’t

belong there?” The examination proceeded:

Q [prosecutor]: And when you say it could have

been someone like your mom,

who are you talking about, or

what did you see that —

A [Josh]: I don’t really — saw like a shadow or

something.

Q: Where did you see the shadow?

A: Like the bathroom was here. I saw it right like

the bathroom.

Q: By the bathroom?

5482 COOPER v. BROWN

A: Yeah.

Q: When did you see the shadow?

A: When I saw my sister.

Q: And how many shadows did you see?

A: Just one.

12/13/84 RT 4968-69 (emphasis added).

In closing argument, the last evidence the prosecutor dis-

cussed in rebuttal was Josh’s recorded interviews. He empha-

sized the consistency of Josh’s story in the two interviews,

and argued that consistency showed that Cooper was the per-

petrator:

We have from Josh the same basic story to differ-

ent people at different times that have been both tape

recorded and videotaped.

. . . During the entire time that Josh was with his

grandmother, a time of protection and love, Josh told

the same basic story, a story that you ladies and gen-

tlemen got a chance to hear, the story that shows that

there was just . . . one attacker: Kevin Cooper with

a hatchet in one hand and a knife in the other.

2/7/85 RT 7823-24. On the second day of deliberations, the

jury requested to rehear the entire audiotaped interview with

Dr. Forbes. 2/8/85 RT 7863-A. This was the first of only two

read-backs requested by the jury.

The story told in the two recorded interviews is incompati-

ble with Josh’s statements made immediately after the mur-

ders.

COOPER v. BROWN 5483

(b). Josh Ryen’s Statements Immediately After the

Murders

When Josh first arrived at the emergency room on the after-

noon of June 5, he was unable to speak because his throat had

been cut. Josh’s handwriting was illegible. A clinical social

worker named Don Gamundoy devised an effective way for

Josh to communicate basic information. Gamundoy wrote out

the letters of the alphabet, numerals 0 through 9, and the

words “yes” and “no” on a piece of paper on a clipboard. Josh

was able to point to the letters, numbers, and the two words

in responding to Gamundoy’s questions.

Josh accurately indicated his full name, his date of birth,

and his telephone number. Then Gamundoy asked Josh how

many people attacked him. Josh pointed to “3” and “4” on the

sheet. Gamundoy asked whether the attackers were male. Josh

pointed to “yes.” Gamundoy asked whether they were black.

Josh pointed to “no.” Gamundoy asked whether the attackers

looked like Gamundoy, who is Hawaiian but is frequently

mistaken for Hispanic. Josh pointed to “no.” Gamundoy asked

if the attackers were white. Josh pointed to “yes.” ER 1272-

79. Medical personnel treating Josh in the emergency room

described Josh as conscious, alert, and immediately respon-

sive during the time Gamundoy was questioning him. 1/10/85

RT 6229-30; 1/17/85 RT 6626, 6630, 6636.

SBCSD Sergeant Arthur, who was in charge of the investi-

gation, dispatched Deputy Sharp to the emergency room. 1/

8/85 RT 5980-82. Deputy Sharp was the first member of law

enforcement to question Josh. Deputy Sharp entered the emer-

gency room as Gamundoy was ending his own questioning,

at about 2:23 p.m. 1/8/85 RT 5933, 5966-67. Deputy Sharp

testified at trial that he questioned Josh in the emergency

room from about 2:30 to 2:45, and then resumed questioning

again in the CAT scan room at about 3:45. Gamundoy did not

accompany Deputy Sharp and Josh into the CAT scan room.

1/8/85 RT 6007-08, 6018-19. Periodically during the inter-

5484 COOPER v. BROWN

view, Deputy Sharp communicated with Sergeant Arthur who

was at the scene of the crime.

Deputy Sharp’s report and trial testimony suggest that even

at this early stage of the investigation, the SBCSD did not

want to be tied down to Josh’s recollection of events. Deputy

Sharp testified at trial that he dictated his report at 6 p.m. on

June 5, but that he never verified that the typed version corre-

sponded to his two or three pages of handwritten notes. He

subsequently destroyed those notes. Deputy Sharp testified

that he reviewed the typed report two days later, after having

been out in the field and working on the case, and after inter-

viewing people about the Lease house. Over the lunch recess

during his trial testimony, Deputy Sharp altered the date on

the report from June 6 to June 7, to make the date on his

report correspond to the date he gave in his trial testimony.

ER 1403; 1/8/85 RT 5991, 5994, 5998-6001.

COOPER v. BROWN 5485

Volume 2 of 2

Deputy Sharp testified at trial that he used a hand-squeeze

method of communication with Josh. The hand-squeeze

method, as described by Deputy Sharp, failed to provide Josh

with an effective means of distinguishing between “no” and

“I don’t know.” Deputy Sharp testified that a squeeze meant

“yes.” The absence of a squeeze meant “no.” ER 1291-93.

Deputy Sharp’s report states that Josh “wr[o]te his name and

point[ed] to numbers for his home phone number, date of

5486 COOPER v. BROWN

birth, etc. Then, all other information was done by the suspect

[sic] squeezing my hand in order to answer yes to any ques-

tions that I might ask.” ER 1403-04. At trial, Deputy Sharp

could not explain how he had used the hand-squeeze method

to elicit the first piece of information in his report that he attri-

buted to Josh: “The victim first advised me that there were

three white male adult subjects in the residence and he had

been asleep.” ER 1403, 1293-99. In all likelihood, Gamundoy

was the source of this information. But according to Deputy

Sharp’s report, he obtained all of this information himself.

At trial, the prosecutor dismissed the information Josh pro-

vided to Gamundoy — that the murderers were three or four

white men — as a mistake. The prosecutor contended that

Josh had been confused, and that he had described the killers

as three Mexican men who had come to the Ryen house dur-

ing the day of June 4. Deputy Sharp’s report indicates that he

received information about the Mexicans in the CAT scan

room, where, according to Deputy Sharp, Josh “seemed to be

more alert.” See also ER 1299. This part of the interview took

place after a one hour break, during which Deputy Sharp had

communicated with Sergeant Arthur at the crime scene.

Deputy Sharp initiated discussion of the three Mexicans by

asking “if there was anyone around [Josh’s] house yesterday

that didn’t belong there,” to which Josh responded “yes.”

Then, through yes-or-no questioning and hand squeezes, Dep-

uty Sharp purportedly learned that “at approx. dusk there was

an older model Chevy Impala, blue in color, four-door, no

primer, that had pulled into the driveway of his residence.”

The vehicle was “definitely a low rider.” Through the hand-

squeeze method, Josh purportedly provided a detailed descrip-

tion of the three men in the car, including precise height,

build, hair color and length, style and color of clothing, age

ranges, and nationalities.

After this detailed description, Josh gave the first response

that we know is false. Deputy Sharp wrote, “I asked the vic-

COOPER v. BROWN 5487

tim if his family owned a white station wagon. The reply was

in the negative.” ER 1404. (In fact, we know that the family

owned a white station wagon.) The question that allegedly

followed formed the basis for the prosecutor’s claim at trial

that Josh was merely “confused” and had no actual recollec-

tion of his assailants: “I then asked him if he felt these [the

Mexicans] were the people that were in his house this morn-

ing when everything went crazy, to which he advised in the

affirmative.” When Deputy Sharp “again asked the victim if

he was sure it was three Mexicans rather than three white

male adults[,] [t]he victim advised of the three Mexicans. The

victim then moved his shoulders and appeared to be con-

fused.” At that point, the interview terminated as doctors took

Josh into surgery. Deputy Sharp conceded at trial that he did

nothing in asking his questions to try to distinguish for Josh

between the three Mexican males and the three or four white

males he had initially identified as his assailants. 1/8/85 RT

6038-40.

Over the course of the interview, Deputy Sharp spoke with

Sergeant Arthur (who was at the crime scene) three times on

the telephone. Despite what Deputy Sharp later wrote in his

report, officers at the crime scene on that day — including

Detective Hector O’Campo — learned that Josh had described

his assailants as three white men. ER 1315. The communica-

tions are confirmed by the police log of the attack, which was

entered sometime between 2:06 p.m. and 2:29 p.m., describ-

ing as suspects “three young males” driving the Ryens’ sta-

tion wagon. ER 3688; 8/13/04 RT 73. Given the times in the

police log, Deputy Sharp must have communicated this infor-

mation to Arthur either before he started questioning Josh or

within a few minutes of initiating contact. 1/4/85 RT 5973-75.

On June 6, Sergeant Arthur assigned SBCSD Detective

O’Campo to make contact with Josh. At trial, Detective

O’Campo denied talking to Josh about suspects or what hap-

pened during the attack at any point prior to a formal inter-

view with Josh on June 14, 1983. ER 1322. Yet hospital

5488 COOPER v. BROWN

personnel confirmed that Detective O’Campo did speak with

Josh about a Mexican in a red shirt prior to that date. ER

1302, 1307-09. Further, both Josh’s grandmother and a nurse

on duty on June 6 testified that Detective O’Campo asked

Josh substantive questions on that date, and that Detective

O’Campo took notes about what he was learning. ER 1306-

09; 1/14/85 RT 6303-11, 6326-27; 2/7/85 RT 7795-96. At

trial, Detective O’Campo initially lied, denying that he took

any notes on June 6. He then admitted that he destroyed his

June 6 notes on June 8, after typing up a report. The docu-

mentation that Detective O’Campo had submitted to the

SBCSD as of October 1983 gives no indication he had even

spoken with Josh on any date other than June 14. Yet Detec-

tive O’Campo eventually admitted at trial that he had spoken

with Josh approximately twenty times during Josh’s stay at

the hospital, meeting with him almost every day during that

period. ER 1316-17; 1/9/85 RT 6076-84.

Detective O’Campo admitted at trial that sometime

between June 6 and June 9, he became convinced in his own

mind that Cooper was responsible for the murders. He admit-

ted that he had a very strong desire for Cooper to be con-

victed, and that he had more than a mere belief that Cooper

was responsible — he knew that Cooper was responsible. 1/

9/85 RT 6095-96. SBCSD Captain Schuyler, commander of

the public affairs division, made clear at trial that by June 6

or 7, after Cooper had become a suspect, the SBCSD’s pub-

licly stated position was that Josh could not provide any use-

ful information. 1/15/85 RT 6423-24. Captain Schuyler

testified on cross examination that he had “probably” been the

source of an Associated Press story reporting that Josh had

told investigators that three Mexicans in a blue car had come

to the Ryen house during the day before the killings. Id. at

6422-23. No public mention was made of the fact that Josh

had told Gamundoy, before any SBCSD detectives had

arrived at the hospital, that the killers had been three or four

white men.

COOPER v. BROWN 5489

On June 14, 1983, Detective O’Campo interviewed Josh

about what he remembered about the attacks. Josh was now

able to speak. Breaking with his standard policy of tape-

recording formal interviews, Detective O’Campo only took

notes on what Josh said. He testified at trial that he destroyed

his notes after writing his report the following day. 1/9/85 RT

6097-98. At trial, Detective O’Campo conceded that he could

think of no reason not to tape record the interview other than

to “shape the context that the interview is presented [and]

shape the information that is presented in the report.” 1/9/85

RT 6103.

Dr. Jerry Hoyle, a psychologist at the hospital, observed the

entire June 14 interview between Josh and Detective

O’Campo. During the interview, Dr. Hoyle took notes to

assist with Josh’s treatment. Dr. Hoyle’s testimony at trial

showed that Detective O’Campo’s report of the interview had

distorted what Josh had said. For example, Josh had used the

words “they” and “them” to refer to his assailants, while

Detective O’Campo’s report referred to only one attacker. ER

1434, 1330-32, 1422-28.

SBCSD Reserve Deputy Simo guarded Josh for part of the

time he was in the hospital. Deputy Simo testified that on the

evening of June 15 he was playing Uno with Josh when the

television news came on. The program displayed a photo-

graph of Kevin Cooper, with his hair combed out in a natural

“Afro” hairstyle. Josh stated without prompting that Cooper

was not the person “who did it.” Within fifteen minutes, Dep-

uty Simo called Detective O’Campo to report what Josh had

said. ER 1338.

As a volunteer deputy, Deputy Simo was not responsible

for preparing reports. Rather, Detective O’Campo had that

duty. 1/10/85 RT 6183-84. Detective O’Campo returned Dep-

uty Simo’s call that evening. Deputy Simo testified that Dep-

uty O’Campo told him that “he knew about that information,

that he had talked to — there was three Mexicans that had

5490 COOPER v. BROWN

come previously, apparently looking for a job, and it could

have been, either because of the trauma it was some flashback

on that,” and that Deputy O’Campo suggested to Deputy

Simo that the reason Josh made the statement that it wasn’t

Kevin Cooper was because of Josh’s trauma. 1/15/85 RT

6404-05. No one from SBCSD took an official report from

Deputy Simo. In May 1984, Deputy Simo saw newspaper

articles about Josh and contacted Detective O’Campo again.

Only then did Detective O’Campo ask Deputy Simo to come

down to the station so that Detective O’Campo could make a

report. 1/15/85 RT 6405-06.

Soon after Josh made this statement to Deputy Simo, he

made a similar statement to his grandmother, Dr. Mary How-

ell. Cooper’s picture appeared on television. Dr. Howell asked

Josh whether he had ever seen Cooper before. Josh responded

no. ER 1344-45.

Dr. Lorna Forbes is a psychiatrist specializing in treating

children who have survived the murder of a family member.

She began treating Josh in October 1983. On December 1,

1983, six months after the attacks, Dr. Forbes audiotaped an

interview with Josh using questions submitted by Cooper’s

defense counsel. This was one of the two interviews played

for the jury during Cooper’s trial.

Dr. Forbes questioned whether Cooper committed the mur-

ders. In a sworn declaration dated October 30, 1999, she

stated that she had “kept in touch with Josh and Dr. Howell

from our first contact and to this day.” Cooper v. Calderon,

No. 99-71430, Exhibits to Petition for Writ of Habeas Corpus,

Ex. 74 (S.D. Cal. 1999). While professionally and ethically

bound to maintain any confidences Josh shared with her dur-

ing the course of treatment, Dr. Forbes urged the court in

1999 to pursue all opportunities to exculpate Cooper. She

stated, “I have maintained the opinion that it would have been

extremely difficult for one person to have committed the four

murders and the assault on Josh. . . . It is in my mind that it

COOPER v. BROWN 5491

is imperative that a DNA test is performed to assure as much

as possible that an innocent man is not executed.” Id.

In his tape-recorded interview with Dr. Forbes, Josh said

that he saw a person with a “puff of hair” standing over his

mother during the attack. He made a similar statement to his

grandmother in May of 1984. 1/10/85 RT 6173 (in camera

statement of Mr. Negus). It is almost certain that Cooper did

not have a “puff of hair” at the time of the murders. It is

undisputed that Cooper’s hair was braided when he escaped

from prison on June 2. His hair was also braided on June 5,

the day after the murders. A hotel clerk in Tijuana, where

Cooper arrived at 4:30 p.m. on June 5, testified that Cooper

had braids when he arrived. Another hotel clerk, who did not

testify, provided a sworn statement that Cooper had his hair

in braids. However, pictures of Cooper that appeared on tele-

vision after the murders show him wearing a large Afro —

that is, they show him with a “puff of hair.”

The prosecutor excised the “puff of hair” statement from

the audiotape that was played to the jury. The excision of the

reference to the “puff of hair” meant that Cooper’s attorney

did not argue to the jury that Josh could not have seen Cooper

with a “puff of hair” during the killings, and that Josh was

confusing what he saw on the night of the killings with what

he saw later on television. It also meant that the prosecutor

could plausibly represent to the jury that “Josh told the same

basic story.”

(c). Josh Ryen’s Testimony at the District Court Hearing

At the invitation of the district court, Josh Ryen delivered

an in-person unsworn statement at the end of the final day of

the 2004-2005 hearing on Cooper’s second habeas applica-

tion. Josh testified on April 22, 2005:

The first time I met Kevin Cooper, I was eight

years old and he slit my throat. He hit me with a

5492 COOPER v. BROWN

hatchet and put a hole in my skull. He stabbed me

twice, which broke my ribs and collapsed one lung.

....

Every time Kevin Cooper opens his mouth, every-

one wants to know what I think, what I have to say,

how I’m feeling, and the whole nightmare floods all

over me again. The barbecue, me begging to let

Chris spend the night, me in my bed, Chris on the

floor beside me. My mother screams, Chris gone,

dark house, hallway, bushy hair, everything black,

mom cut to pieces, saturated in blood, the nauseating

smell of blood.

. . . . Helicopters give me flashbacks of the life

flight and my Incredible Hulks being cut off by

paramedics. Bushy hair reminds me of the killer.

Silence reminds me of the quiet before the screams.

Cooper is everywhere. There is no escaping him.

4/22/05 RT 129-133 (emphases added).

The district court denied Cooper’s counsel’s repeated

requests to allow discovery concerning Josh’s memory and

his testimony at trial. The court also denied Cooper’s coun-

sel’s request to cross examine Josh at the habeas hearing.

Immediately after Josh’s statement at the hearing, the district

court required Cooper’s attorneys to make their closing argu-

ments.

The district court denied Cooper’s habeas application from

the bench the same day Josh testified. The court stated:

I do recognize that the victims who came today are

technically under the federal law — it’s not man-

dated or it’s analogous they’re not required to speak.

But I did think for completion of the record, it is

COOPER v. BROWN 5493

helpful for any reviewing court to at least hear their

statements about their views of the matter. And so

the Court recognizes your objections, but believes

that because it’s a case of major importance, that it’s

appropriate to give the victims a say. And it was not

a significant period of time, but it does complete the

record for the reviewing court.

4/22/05 RT 182 (emphases added). Given the district court’s

refusal to permit discovery and cross examination, Josh’s

unsworn testimony at the end of the habeas hearing hardly

“completed the record.”

Instead, Josh’s testimony at the 2004-2005 hearing raised

new questions. In its order denying Cooper’s habeas petition,

the district court wrote that the videotape and audiotape inter-

views benefitted Cooper because “[t]he defense also avoided

the drama and sympathy that would have undoubtedly

occurred had the defense called victim Josh Ryen to the stand

in the trial and heard his firsthand recollection about a man

with bushy hair.” Dist. Ct., 510 F.3d at 1000 (citing 4/22/05

RT 133) (emphasis added). Josh’s testimony in 2005 was the

first time Josh made an in-court statement that he had seen

someone with “bushy hair” during the attack. If Cooper’s

attorneys had been permitted to question Josh in the 2005

hearing, they could have asked him about his recollection of

the attacker’s “bushy hair” (or “puff of hair”), and could have

pointed out that it was extremely unlikely that the man with

“bushy hair” on the night of June 4 — if, indeed, there was

such a man — was Cooper.

ii. Drop of Blood A-41

A drop of blood was found by Deputy Baird on the wall in

the hall across from the master bedroom in the Ryen house.

Chips of paint with the blood on them were taken from the

wall and labeled “A-41.” The State introduced evidence at

trial through SBCSD Criminologist Daniel Gregonis that his

5494 COOPER v. BROWN

testing of A-41 showed that its blood characteristics matched

those of Cooper. During deliberations the jury requested that

Gregonis’s testimony about A-41 be read back. 2/11/85 RT

7864-65. This was the second of only two read-backs

requested by the jury. (The other was Josh’s audiotaped inter-

view with Dr. Forbes.)

There is a strong likelihood that the results of the blood

tests performed on A-41, presented at trial, were false evi-

dence. There is also a strong likelihood that state actors tam-

pered with A-41 to ensure that it would generate inculpatory

results when Cooper’s post-conviction DNA testing was con-

ducted in 2002.

Gregonis delayed most of his testing of A-41 until he had

information about Cooper’s genetic profile — that is, until he

knew what he had to match. He then delayed doing the most

sensitive and discriminating tests of A-41 until after Cooper

had been arrested and had the vial of Cooper’s blood (vial

VV-2) in his lab. Without contacting Cooper’s counsel, Gre-

gonis re-ran tests that consumed more of the limited sample

that constituted A-41. Gregonis then tested a known sample

of Cooper’s blood side by side on the same testing plate with

A-41, but initially denied doing so and represented under oath

that he had tested the samples blind. ER 761.

When the results of Gregonis’s tests on A-41 were initially

inconsistent with Cooper’s expert’s results for a known sam-

ple of Cooper’s blood, Gregonis altered his lab notes and

claimed that he had misinterpreted his results. ER 747. Here

is some of Gregonis’s trial testimony:

Q [by Cooper’s attorney]: Did you change your

mind about A-41 after you learned that if your origi-

nal call was accurate, A-41 couldn’t have come from

Mr. Cooper?

A [by Gregonis]: Not immediately, no. But it was

after. Yes.

COOPER v. BROWN 5495

Q: Prior to your learning that if your original call

about A-41 was correct, then it couldn’t have

come from Mr. Cooper, how many times did

you testify on the witness stand, under oath, that

A-41 was a B and nothing else but a B?

A: It is probably about three times.

Q: And your explanation was that it was a techni-

cal fault on your part, you made a mistake?

A: Essentially, yes.

ER 746.

The blood sample in A-41 has had a disturbing pattern of

being entirely “consumed” in the testing, and then reappear-

ing in a form that could be subjected to further testing. Gre-

gonis had initially used so much of the limited sample (or so

he said) that when the parties finally did joint testing, they

were forced to place the remaining tiny flakes of white paint

in a liquid solvent to dissolve any remaining blood. The sam-

ple was so small that their results were largely inconclusive.

All of the chips that had had any traces of blood on them were

discarded. ER 722-23; 12/6/84 RT 4543-47; 1/30/85 RT

7380-87. Then, in early July 1984, “just out of curiousity [sic]

sake, [Gregonis] . . . open[ed] the [A-41] pillbox and saw a

very small quantity of blood remaining.” ER 722-24; 12/6/84

RT 4548. The parties tested those remaining small specks of

blood in October 1984, and again the results were inconclu-

sive. 12/5/84 RT 4442-45.

In August 1999, Gregonis checked A-41 out of the evi-

dence storage room for one day. ER 1629, 2650-54. When

Cooper’s post-conviction DNA testing took place in 2002, a

“bloodstained paint chip” and “blood dust” had inexplicably,

and conveniently, appeared in the A-41 canister. ER 790. The

blood on that chip was tested, and Cooper’s DNA was found.

5496 COOPER v. BROWN

The appearance of a blood-stained chip in 2002 is, to say the

least, surprising, given that Gregonis had testified at trial that

in the October 1984 testing of A-41 they had processed and

discarded all of the paint chips with blood on them. ER 722-

23.

In the 2004-2005 habeas proceeding, Cooper requested

EDTA testing of A-41. Without taking evidence on the feasi-

bility of testing any remaining A-41 for the presence of

EDTA, the district court rejected Cooper’s request. Dist. Ct.,

510 F.3d at 948-50; ER 3467; 6/29/04 RT 209.

iii. Pro-Ked Shoeprints

Three matching shoeprints made by a Pro-Ked Dude shoe

were critical evidence against Cooper at trial. According to

testimony at trial, one was a bloody print found on a crumpled

sheet in the master bedroom of the Ryen house. Another print

was found on a spa cover at the Ryen house outside the mas-

ter bedroom. The third print was found in dust on the floor

inside the Lease house near a pool table.

I discuss below difficulties with the evidence about whether

Cooper was, or could have been, wearing Pro-Ked Dude

shoes. For the moment, I am concerned only with the suspi-

cious circumstances under which the shoeprints were purport-

edly found.

The most suspicious of the shoeprints are the two found at

the Ryen house. The most incriminating was the bloody print

purportedly found on the crumpled sheet in the master bed-

room. At trial, only one person testified that he saw the

bloody print while the sheet was still in the bedroom. That

person was SBCSD Deputy Duffy. No one else claimed to

have seen the bloody print while the sheet was still in the bed-

room. However, Deputy Duffy had testified under oath at

Cooper’s preliminary hearing that he had not seen the print in

the master bedroom. ER 706, 1557. If Deputy Duffy was tell-

COOPER v. BROWN 5497

ing the truth at the preliminary hearing, no one saw the bloody

print on the sheet while it was in the bedroom. If Deputy

Duffy was telling the truth at the preliminary hearing, he lied

at trial.

SBCSD Deputies Stockwell and Schecter picked up the

crumpled sheet from the master bedroom after 5:20 p.m. on

June 5. Neither Deputy Stockwell nor Deputy Schecter

noticed the bloody print (if it was, indeed, there) when they

picked up the sheet. They folded the sheet and packaged it to

take it back to the crime lab for processing. Deputy Stockwell

testified at trial that sometime later, in the crime lab, he

refolded the sheet so it matched the way it had been crumpled

on the floor of the master bedroom. He testified that this

brought together the separated parts of a bloody Pro-Ked

shoeprint on the sheet, which he was then able to see for the

first time. Deputy Stockwell was unable to specify when he

made this discovery. ER 708; 11/19/84 RT 3506-07; 11/21/84

RT 3698. Deputy Baird, the manager of the Crime Laboratory

where the sheet and the other critical physical evidence was

kept, testified at trial that he had matched the newly discov-

ered shoeprint to a Pro-Ked Dude shoe that he already had in

the lab. (Recall that it was also Deputy Baird who found the

drop of blood, A-41, in the hall in the Ryen house.) Soon after

the trial, Deputy Baird was caught stealing heroin from the

SBCSD evidence locker for his own use and for distribution

to others. ER 1714-16.

The other shoeprint at the Ryen house was on the spa cover

outside the master bedroom. That print was discovered after

some delay. Several people testified that, even after the print

was purportedly discovered, that they had looked at the spa

cover and had not seen the print. SBCSD Sergeant Arthur,

head of the investigation, testified that he pointed the print out

to Deputy Duffy at approximately 2:07 p.m. on June 5, but

Deputy Duffy testified that he did not know about the shoe-

print until Detective O’Campo pointed it out to him at sunset

that day. SBCSD Sergeant Gilmore testified that he did not

5498 COOPER v. BROWN

see any footwear impressions on the cover on the afternoon

of June 5. 12/18/84 RT 5160-63; 11/15/84 RT 3363-64, 3396,

3299. Deputy Smith, who was ordered to sketch all of the

shoeprints on the spa cover on the morning of June 8, three

days later, testified that she sketched all of the prints that she

saw on the spa cover. However, none of her sketches matched

the print of a Pro-Ked Dude shoe. An unidentified officer

directed her back to the spa cover later on June 8. She then

saw a Pro-Ked Dude print that she had not previously seen.

1/22/85 RT 6869, 6871-73, 6878-79.

The spa cover was left out in the open, moved several

times, and stepped on by at least one deputy before it was

taken into evidence. Then the shoeprint was destroyed, pur-

portedly in a failed effort to lift and preserve the image. 11/

15/84 RT 3297-98; 11/19/84 RT 3447-48.

If the shoeprints on the sheet and the spa were planted, it

does not matter much whether a matching Pro-Ked Dude

shoeprint near the pool table in the Lease house was also

planted. It is possible that Cooper was, in fact, wearing Pro-

Ked Dude shoes while he was staying at the Lease house. If

the print in the Lease house was not planted, this would only

mean that the prints in the Ryen house were put on the sheet

and the spa cover to match the print that had been found in

the Lease house.

But the shoeprint in the Lease house could also have been

planted. The day before the Lease house search began and the

Pro-Ked Dude shoeprint was discovered, the front door to the

house had been left unlocked and other evidence was likely

planted in the house. (See the discussion below of the hatchet

sheath and jacket button.) 1/29/85 RT 7312. The print in the

Lease house was discovered after some delay, after approxi-

mately twelve people had walked through the house. 1/23/85

RT 6956-58. Deputy Baird testified that the shoeprint had

been “marked off so that it would not be stepped on” by mid-

afternoon of June 7. 11/12/84 RT 4760. Deputy Smith, who

COOPER v. BROWN 5499

arrived at 8 p.m. that day to draw sketches of the prints, testi-

fied that nobody had instructed her to sketch the print that

turned out to be the Pro-Ked Dude print. Instead, she testified

that she discovered that print on her own after first sketching

several other prints she was instructed to sketch and then

walking around the house to look for more suspicious prints.

Contrary to Deputy Baird’s testimony, Deputy Smith gave no

indication that the Pro-Ked Dude print had been marked off

at the time she sketched it. 11/22/85 RT 6864-72.

iv. Cigarettes and Tobacco

Cigarette and tobacco evidence presented at trial connected

Cooper to the Ryens’ white station wagon. Recall that the sta-

tion wagon was found in a church parking lot in Long Beach,

45 miles west of the Ryen house, seven days after the crime.

Recall also that Cooper arrived at a hotel in Tijuana, Mexico,

125 miles south of the Ryen house, at 4:30 p.m. the day after

the murders.

Cooper had left evidence in the Lease house that he was

rolling his own cigarettes, using prison-issued “Role-Rite”

tobacco. Tobacco consistent with Role-Rite was purportedly

found on the floor between the front passenger seat and the

front passenger door of the Ryens’ station wagon. Two ciga-

rette butts were also purportedly found in the car. One

appeared to be made with Role-Rite tobacco. The other was

a commercial filter cigarette. One of the cigarettes contained

evidence that it had been smoked by someone with blood type

A (Cooper’s blood type, and, according to Gregonis, the

blood type of about 40% of the population), but testing before

trial did not reveal any further information. ER 748-49.

SBCSD deputies had ample opportunity to plant incrimi-

nating cigarette and tobacco evidence in the Ryens’ station

wagon. Most of the cigarette butts that Cooper left behind in

the Lease house were never processed into evidence. ER 894,

834-35. Their whereabouts is unknown. Cooper’s own car had

5500 COOPER v. BROWN

been impounded in Los Angeles after he was imprisoned at

CIM on the burglary charge. A hand-rolled cigarette butt

recovered from Cooper’s car had been taken into evidence,

but it disappeared prior to DNA testing. ER 895, 897; 6/23/03

RT 109-10, 113, 134-35. Role-Rite tobacco in a white box

was recovered from the closet of the bedroom in the Lease

house previously used by Katherine Bilbia (“the Bilbia bed-

room”), but it was never weighed or otherwise measured.

SBCSD Deputy Mascetti obtained a paper bag of assorted

smoking tobaccos from CIM. ER 3185.

When police formally took into custody the station wagon

in the church parking lot in Long Beach, the rear door was

already unlocked. The cigarette butts and tobacco in the car

were not noted in the initial visual inspection of the car. Nor

were they noted when the interior of the car was first pro-

cessed for evidence. They first appear on a handwritten,

undated, unsigned list of vehicle contents. ER 806-11, 836-37.

Finally, the cigarette and tobacco evidence from the car has

a perplexing history much like that of A-41. The paper from

the hand-rolled butt supposedly found in the car had suppos-

edly been entirely consumed in testing in 1984. At the time

of the testing, the paper was 4 millimeters long. The paper

“reappeared” in 2001, just in time for DNA testing. When it

reappeared, it had grown to 7 millimeters by 7 millimeters

square. ER 978-79, 4947, 3170. Perhaps not coincidentally,

the hand-rolled cigarette butt from Cooper’s own car had dis-

appeared prior to the DNA testing.

v. The Hatchet Sheath and Button

On June 6, the day after the bodies were discovered, two

deputies did a sweep through the Lease house, purportedly to

check for possible assailants. During this sweep they were

aware that the department had recovered a bloody hatchet

from beside the road near the Ryen house, and that it was a

suspected murder weapon. However, they did not report find-

ing any evidence in the Lease house. Other deputies returned

COOPER v. BROWN 5501

the following day to conduct another search. Those deputies

discovered a hatchet sheath and a green, blood-stained button

in the Bilbia bedroom, in plain view on the floor near the

closet. 10/29/84 RT 2732-33; 10/30/84 RT 2838-40, 2846;

10/31/84 RT 2905-08. (The district court erroneously wrote

that the deputies found the sheath “near the bedroom.” Dist.

Ct., 510 F.3d at 898 (emphasis added).) The bedroom was vir-

tually empty, which would have made the sheath (and, indeed,

the button) very easy to see. The bedroom had no furnishings

other than a headboard.

One of the deputies who conducted the initial sweep of the

Lease house denied ever setting foot in the Bilbia bedroom,

where the other deputies later found the hatchet sheath. How-

ever, processing of physical evidence in the Lease house later

showed that this was a lie. Several of that deputy’s finger-

prints were found on the inside of the closet of the Bilbia bed-

room where the hatchet sheath and button were found. The

deputy’s insistence that he had never set foot in the bedroom,

the presence of the deputy’s fingerprints inside the closet of

the bedroom, the failure of the deputy to find the sheath and

button in plain view on the floor near the closet, and their

“discovery” the next day strongly suggest that the hatchet

sheath and button were planted in the Bilbia bedroom.

Further, the button found on the floor of the Bilbia button

was green. That means that it came from a green prison-

issued jacket. However, Cooper testified that he was wearing

a brown or tan prison jacket. 1/2/85 RT 5331, 5355-57; 1/3/85

RT 5567-68. Cooper’s testimony was confirmed by Lieuten-

ant Cornelius Shephard, who worked at the prison. On June

2, Lieutenant Shephard was driving near the prison and saw

Cooper. He testified that Cooper was wearing “what appeared

to be prison jacket and blues.” 10/24/84 RT 2388. He was

“jogging toward me . . . [and] [h]is hair was in braids. Id. at

2389. Lieutenant Shephard’s written report stated that Cooper

was wearing a jacket that was “brown in color.” Id. at 2408.

5502 COOPER v. BROWN

In his testimony at trial, he described Cooper’s jacket as

“brownish.” Id.

b. Summary

In sum, if EDTA testing shows that Cooper’s blood was

planted on the tan t-shirt, that showing would greatly increase

the likelihood that the State introduced false evidence at trial.

Indeed, in my view, the likelihood would then be so strong

that the district court would be obliged to find that the State

did so.

That evidence at trial was Josh’s two recorded interviews

in which he stated that he saw a single man or single shadow

in the house during the murders; the drop of blood labeled A-

41 that Gregonis testified was consistent with Cooper’s blood;

the bloody Pro-Ked Dude shoeprints found on the sheet in the

master bedroom and on the spa cover at the Ryen house (and

probably the print found in the Lease house as well); the Roll-

Rite cigarettes and tobacco found in the Ryen station wagon

in Long Beach; and the hatchet sheath and button found in the

Bilbia bedroom in the Lease house.

Even with this evidence, the State’s case against Cooper

was weak. (I will elaborate on this point below.) Without this

evidence, the State would not have been able to obtain a con-

viction against Cooper. That is, if this evidence was false,

Cooper would be able to make a showing of actual innocence

under either the standard of Schlup or of 28 U.S.C.

§ 2244(b)(2)(B)(ii).

B. Brady Claims

Cooper contends that the State violated Brady in several

respects. The most important of those are (1) the failure to

provide Warden Midge Carroll’s information that Pro-Ked

Dude shoes at the prison were not special prison-issue shoes;

(2) the failure to provide the Disposition Report showing that

COOPER v. BROWN 5503

a Senior Deputy approved the destruction of Lee Furrow’s

bloody coveralls, and the failure to preserve and make the

coveralls available; and (3) the failure to provide SBCSD

daily logs showing that an apparently bloody blue shirt had

been found, and the failure to preserve and make the shirt

available. I consider these contentions in turn.

1. The Pro-Ked Dude Shoes

At trial, the prosecution presented evidence that prints

made by a Pro-Ked Dude tennis shoe were found on a bloody

sheet in the master bedroom in the Ryen house, on the spa

cover at the Ryen house, and in the Lease house. To tie those

shoeprints to Cooper, the prosecution presented testimony by

Michael Newberry, General Merchandise Manager for Pro-

Keds Division of Stride Rite Corporation, that the Pro-Ked

Dude is “a tennis shoe that is manufactured only for institu-

tions,” is “supplied strictly for prison use within the State of

California,” is “unavailable for retail stores within Califor-

nia,” and is not “sold on the street.” 10/23/84 RT 2281; 2/7/85

RT 7749, 7752. Newberry testified at trial that to the best of

his knowledge the Pro-Ked tennis shoe is not “sold across the

counter on a retail basis in any state in this country,” and he

confirmed that “the only place those shoes arrive, if those

arrived in California, is in some type of state facility.” 10/

29/84 RT 2624, 2621-22.

Shortly before Cooper’s scheduled execution in 2004, now-

retired Warden Midge Carroll provided a sworn declaration in

support of Cooper’s motion to file a second or successive fed-

eral habeas application. She stated in her declaration, dated

January 30, 2004, that after reading newspaper reports during

the investigation into the Ryen/Hughes murders in 1983, she

had conducted “a personal inquiry of the appropriate staff,

including the deputy warden, the business manager responsi-

ble for procurement, and the personnel responsible for ware-

housing,” and as a result of that inquiry she had concluded

that the investigators’ assertion that the shoeprints tied to the

5504 COOPER v. BROWN

crime scene “likely came only from a prison-issue tennis shoe

was inaccurate.” Id.; see ER 1680-82. She stated that she had

conveyed this information to the SBCSD, but that the infor-

mation was not provided to Cooper’s trial counsel.

Inmate James Taylor, who worked in the recreation equip-

ment room at the prison, testified at trial that he personally

gave Cooper a pair of P.F. Flyer shoes, and then allowed Coo-

per to trade those shoes in for a pair of Pro-Ked Dude tennis

shoes just days before Cooper’s escape. ER 1689; 10/25/84

RT 2547-48. However, in a sworn declaration, dated January

8, 2004, submitted in support of Cooper’s motion to file a sec-

ond or successive application, Taylor stated that he had not

told the truth at trial. Contrary to his trial testimony, Taylor

now stated that he had issued Cooper only one pair of shoes

— P.F. Flyers — and that Cooper had not traded the P.F. Fly-

ers in for a pair of Keds or any other shoes. ER 1678-79.

An en banc panel of this court held in 2004 that Warden

Carroll’s declaration, in combination with inmate Taylor’s

declaration, was enough to make out a prima facie showing

of a Brady violation. Cooper, 358 F.3d at 1121. Based on this

prima facie showing, the en banc panel granted Cooper per-

mission to file a second or successive federal habeas applica-

tion.

During the district court hearing in 2004-2005, now-retired

Warden Midge Carroll, Stride Rite executive Don Luck, and

inmate James Taylor all testified. I discuss their testimony in

turn.

a. Warden Midge Carroll

Warden Midge Carroll testified that in 1983 she was the

Warden of CIM, the prison in which Cooper had been incar-

cerated. At the district court hearing, Carroll testified that dur-

ing the investigation of the murders, she became concerned

that the SBCSD was describing shoeprints found at the scene

COOPER v. BROWN 5505

as being from “a prison-made tennis shoe, a special shoe that

had to come from a prison.” She testified that she knew CIM

did not have prison-manufactured tennis shoes, and she

directed her staff to “look into this special shoe and get back

to me.” 6/2/04 RT 102. Her staff reported back that “there

was no special shoe, that the shoes we had and that we issued

were common, ordinary shoes that were commonly manufac-

tured and sold in retail stores.” Id. at 103-04. Carroll testified

that she then called the SBCSD and shared this information

with one of two lead detectives, whose name she could not

now recall. Id. at 104-05. Carroll testified that she “felt a little

put off by” the detective’s response. Id. at 107-08. She testi-

fied that she made a couple of additional attempts to contact

the SBCSD about the issue, but her calls were not returned.

Id. at 108-09.

Carroll also testified that there were a few inaccuracies in

her January 30, 2004 declaration. For example, she testified

that she did not keep records of all of her contacts with the

SBCSD about the Cooper case, and that she had not “kept

meticulous records of all matters stemming from Mr. Coo-

per’s case, including [her] contacts with detectives.” Id. at

147, 172. She also testified that she did not keep records of

her telephone conversations. Id. at 198.

SBCSD Detective Derek Pacifico testified during the dis-

trict court hearing that he could find no record that Carroll

had communicated with the SBCSD. He testified that he had

reviewed “all of the files and materials in the custody of the

Sheriff’s Department relating to the Kevin Cooper case” and

could not find “any indication of any contact from Ms. Car-

roll.” 6/3/04 RT 46-47. Detective Pacifico had been with the

department only since 1990. On cross-examination, Detective

Pacifico conceded that he had not spoken with anyone who

had worked on the case in 1983, and did not know more than

two names of officers who had been involved with the investi-

gation. Id. at 49-50. He also admitted that he was not familiar

with the SBCSD paperwork for processing telephone calls in

5506 COOPER v. BROWN

1983, and he conceded that although the files included the

standard pink “missed your call, please call” slips, “I would

guess that you wouldn’t take a message . . . if someone is live

to answer the phone.” Id. at 53-54.

b. Stride Rite Executive Don Luck

Stride Rite executive Don Luck also testified at the district

court hearing. Luck had managed the Keds shoe line for forty-

one years before his retirement. Luck’s testimony directly

contradicted Newberry’s trial testimony that the Pro-Ked

Dude was not “sold across the counter on a retail basis in any

state in this country.” 10/29/84 RT 2624. Luck stated that no

large chains on the West Coast sold Pro-Ked Dudes in the

early 1980s, and he stated that the market for Pro-Keds was

generally weak in the West. But he testified that Pro-Ked

Dudes “enjoyed a good business” in retail stores in New

York; that he “did lots of thousands of pairs in the five bor-

oughs of New York”; and that the demand “splash[ed] on

down to Atlanta.” 6/2/04 RT 239-40. Luck testified that smal-

ler chains and individual stores, including those on the West

Coast, could order Pro-Ked Dudes through the wholesale cat-

alog. He also left open the possibility that major chains east

of Chicago may have sold Pro-Ked Dudes. He conceded that

the Pro Ked Dude sold to institutions was the “[s]ame shoe,

same storage, same shipment point” as the Pro Ked Dude sold

to retail outlets through the catalog. Id. at 239.

Michael Newberry, who had testified as the Stride Rite rep-

resentative at the 1983 trial, now lives and works in China.

The district court initially proposed that the parties conduct a

deposition on written interrogatories. 4/2/04 RT 3-4. On May

7, 2004, Cooper’s counsel submitted to the court a list of

twenty proposed questions for Newberry. ER 127-30. The dis-

trict court, however, never authorized the deposition on writ-

ten interrogatories.

COOPER v. BROWN 5507

c. Inmate James Taylor

Inmate James Taylor testified at trial that he had issued

Pro-Ked Dudes to Cooper just before his escape. At the 2004-

2005 hearing in the district court, Taylor could not provide a

version of events contradicting his trial testimony without

risking perjury charges.

In early May 1983, Taylor began working in the equipment

room of the CIM gym, where he issued athletic shoes and

other equipment to inmates, and where he had regular access

to television. 10/24/84 RT 2466; 1/28/85 RT 7189-90. Five

days after the murders, on June 9, 1983, two SBCSD deputies

went to CIM and met with Taylor’s supervisor in the gym,

correctional officer Alfred Hill. That same day, Taylor had

heard news reports that the SBCSD was trying to connect ten-

nis shoes with Kevin Cooper, and that Cooper was the pri-

mary suspect. After the SBCSD deputies left, Hill told Taylor

that the deputies had been looking into shoe impressions, and

that the deputies had specifically mentioned a diamond-

shaped pattern. 10/25/84 RT 2507-08, 2524-26; 1/28/85 RT

7199-7201. Taylor went that day to Recreation Supervisor

Skip Arjo to report that he had information about Cooper. 10/

24/84 RT 2477-78.

On June 10, CIM Investigators Murray and Hernandez con-

ducted a tape-recorded interview with Taylor. In the interview

Taylor stated that he knew Cooper from the basketball team

and that he had given Cooper both Pro-Ked and P.F. Flyer

tennis shoes. He stated that “[s]omehow, somewhere or

another [Cooper] got them, come up with some Pro Keds.”

10/25/84 RT 2555. Murray wrote a two-paragraph report of

the interview dated June 12, 1983. The report did not mention

that the interview had been tape recorded, nor did the report

mention P.F. Flyers. The tape was not transcribed until early

December 1983 and was not made available to Cooper’s

attorneys until well after the beginning of the preliminary

hearing. 1/28/85 RT 7183-88.

5508 COOPER v. BROWN

Taylor’s testimony was the only testimony at trial that

definitively placed Pro-Keds on Cooper’s feet. His testimony

was not consistent with that of the correctional officer who

provided Cooper with his tennis shoes. Cooper had a medical

problem with one of his feet and therefore when he arrived at

CIM he obtained a “chrono” which entitled him to wear soft-

soled shoes. On May 3, Sidney Mason, a search and escort

correctional officer, assisted Cooper with filling the chrono.

Officer Mason testified that he got the shoes from “a Latin

officer that worked in . . . Palm Hall.” 1/28/85 RT 7175-77,

7181. Officer Mason testified that the officer came out with

“the standard issue Keds, hi-top black type tennis shoes” size

“either 9’s or 10’s. I remember asking two sizes in case one

size was out.” Id. at 7175-77. Officer Mason originally told

Cooper’s investigator, in a tape-recorded statement, that the

shoes “had appeared to me to be Keds, a black and white high

top type” and that “I do believe they were used because that

would be all that they issued at that time that they had on

hand.” Id. at 7178-79; 1/29/85 RT 7318; 2/7/85 RT 7805. At

trial, however, Officer Mason testified that the shoes were

new because they were in a box. 1/28/85 RT 7178-80.

Cooper’s testimony was consistent with Officer Mason’s,

except that Cooper consistently maintained that the shoes he

was given were old. 1/2/85 RT 5332-41. Cooper testified that

he did not know what type of tennis shoes they were. Cooper

testified that it was “safe to say” that he was “not paying

attention to the shoes at that particular time.” 1/3/85 RT 5553.

Taylor’s testimony was critical to Cooper’s conviction. On

March 7, 1985, a CIM internal investigator recommended to

Warden Carroll that Taylor be given a reduction in his sen-

tence based on his “testimony [that] implicated Mr. Cooper in

the Chino Hills murders.” ER 376-77. On March 11, District

Attorney Kottmeier wrote a supporting letter to Daniel

McCarthy of the California Department of Corrections stating

that “Mr. Taylor’s testimony [that he had given Cooper a pair

of shoes that were available only at institutions such as CIM]

COOPER v. BROWN 5509

was of critical importance both at the preliminary hearing and

at the jury trial.” ER 5605-06. In affirming Cooper’s convic-

tion on direct appeal, the California Supreme Court specifi-

cally referred to Taylor’s testimony that he gave Cooper a pair

of Pro-Ked Dude shoes shortly before his escape from prison.

Cooper, 53 Cal. 3d at 797-98.

Taylor’s statements during the district court habeas pro-

ceedings have been incoherent. State investigators Derek

Pacifico and Don Mahoney conducted a tape-recorded inter-

view of Taylor on April 1, 2004, at Ironwood State Prison.

FER 22-48. At various times during that interview, Taylor

stated that Pro-Keds and P.F. Flyers are the same shoe, that

P.F. Flyers are a particular model of Pro-Keds, that P.F. Fly-

ers and Pro-Keds are different shoes, that P.F. Flyers are

prison-made shoes, and that prison-made shoes are not called

P.F. Flyers. By the end of the interview, Taylor’s story was

that in the morning he gave Cooper a pair of P.F. Flyers,

which are also known as standard prison-issue shoes, and that

later in the day he allowed Cooper to exchange those shoes

for Pro-Keds. He stated that if he could change anything in his

sworn affidavit of January 8, 2004 (I quote this so that the

reader can get the full flavor of Taylor’s incoherence), he

would “distinguish the fact of what I mean right here . . . that

I gave him a pair of pf flyers the pro keds pf flyer pro keds

not the pf flyer not the pro keds ah the pf flyer prison issue.”

FER 47.

Taylor testified in the district court on June 2, 2004. He tes-

tified that P.F. Flyer shoes are an “everyday, recreational situ-

ation shoe” that was “an institutional-made shoe” also known

as “PIA tennis shoes.” 6/2/04 RT 3-4. He testified that Pro-

Keds, by contrast, were “specifically for the [basketball]

team,” and were “a better shoe.” Id. at 3. He stated that he did

not “understand that the [January 8, 2004] declaration stated

that the only shoes that [he] ever provided to Kevin Cooper

were P.F. Flyers.” Id. at 8. He testified that he signed the dec-

laration that described the shoes as P.F. Flyers because, “The

5510 COOPER v. BROWN

lango — that’s what I was trying to — that’s the only discrep-

ancy that — from what I said 20 years ago to what I’m saying

now to what I told her. These are also called P.F. Flyers.

They’re — the Pro Ked P.F. Flyers — they’re — that’s just

what they’re called. It’s a lango.” Id. at 12-13. As he was say-

ing these words, he was pointing to a photograph of actual

P.F. Flyers, not prison-manufactured shoes and not Pro-Keds.

Id. at 13; ER 427.

Taylor testified in the district court that the statements in

his January 8, 2004, declaration had not been written on the

paper when he signed it, and when he initialed each line. 6/

2/04 RT at 34-35, 56-58, 69. The following day, Sandra Coke,

the private investigator who took Taylor’s declaration, testi-

fied that she had been very careful in ensuring that the con-

tents of the declaration accurately reflected what Taylor

intended to say. She testified that she wrote the declaration by

hand in Taylor’s presence, reviewing each line with Taylor as

she wrote it. She denied that Taylor had ever claimed that he

sometimes referred to Pro-Keds as P.F. Flyers or that the term

P.F. Flyers referred to a prison-made tennis shoe. She further

testified that she again met with Taylor approximately two

months after the initial interview, when she showed him the

declaration and informed him that he would likely be called

upon to testify. She stated that Taylor reread the declaration

and stated that “everything was accurate and that he had no

changes, that he was satisfied with the declaration as it was

written.” 6/3/04 RT 92-99, 111.

d. District Court Conclusion

The district court concluded that the failure to provide War-

den Carroll’s information to Cooper was not a material Brady

violation. First, the court wrote that Don Luck’s testimony

(which contradicted Newberry’s testimony) “would not

change the inculpatory nature of the shoeprint evidence. . . .

[I]t was never assumed that the distribution of the shoes was

limited to prison inmates; what mattered was that the shoes

COOPER v. BROWN 5511

were linked to Petitioner.” Dist. Ct., 510 F.3d at 979. Second,

the court wrote that “Mr. Taylor’s credible testimony at the

evidentiary hearing corroborates his trial testimony that he

gave Petitioner a pair of Pro-Keds Dude tennis shoes, which

Mr. Taylor correctly identified by sight, and that Petitioner

never returned those shoes. Mr. Taylor was simply confused

by his interview with [Cooper’s] investigator[.] . . . [T]he

Court concludes therefore that there was no recantation by

Mr. Taylor and that Petitioner had a pair of Pro-Keds Dude

tennis shoes when he escaped from CIM.” Id. at 978.

The district court was wrong on both counts. First, the dis-

trict misstates the evidence at trial. That the distribution of

Pro-Ked Dudes was “limited to prison inmates” was not

“never assumed.” Quite the contrary — it was “assumed”;

indeed, it was shown by uncontradicted testimony of Stride

Rite executive Michael Newberry. Newberry’s testimony

effectively eliminated the possibility that the shoeprints on the

bloody sheet in the master bedroom and on the spa cover

could have come from anyone other than an escaped prisoner.

The California Supreme Court specifically relied on Newber-

ry’s testimony in affirming Cooper’s conviction and death

sentence. It wrote:

The Stride Rite Corporation sells Pro Ked tennis

shoes to the state for use in institutions such as CIM.

All “Dude” tennis shoes contain the same sole pat-

tern. The general merchandise manager for Stride

Rite testified that this pattern is not found on any

other shoe that the company manufactures nor, to his

knowledge (which was extensive), on any other

shoe. The shoes are not sold retail, but only to states

and the federal government.

Cooper, 53 Cal. 3d at 798.

Second, Taylor did not give “credible testimony corro-

borat[ing] his trial testimony.” Rather, at the district court

5512 COOPER v. BROWN

hearing Taylor gave a combination of incoherent and flatly

incredible testimony. Nor did Taylor “correctly identif[y]”

Pro Ked Dudes “by sight.” Quite the contrary — during his

testimony, he pointed at P.F. Flyers and said that they were

Pro Ked Dudes.

It is still possible that Cooper received Pro-Ked Dudes

from Officer Mason. But neither Officer Mason nor Cooper

can say for certain whether those shoes were, or were not,

Pro-Ked Dudes. The Brady evidence from Warden Carroll,

the testimony of Don Luck, as well as Taylor’s obvious lack

of credibility, substantially increase the probability that Coo-

per was not wearing Pro Ked Dudes during the time he was

in the Lease house.

2. The Bloody Coveralls

As described in detail above, Lee Furrow’s bloody cover-

alls were important evidence indicating that Furrow and two

or three others may have been the killers. Diana Roper turned

over the coveralls to SBCSD Deputy Eckley on June 9, 1983.

At that time, she told him that she had reason to believe that

Furrow had committed the murders. Deputy Eckley logged

the coveralls into evidence at the Yucaipa Station of SBCSD.

Less than six months later, Deputy Eckley destroyed the cov-

eralls without telling Cooper’s counsel.

Deputy Eckley testified at trial that he acted alone in dis-

carding the bloody coveralls, and that in so doing he failed to

follow SBCSD procedures for disposing of property. ER

4985-89. On December 1, 1998, Cooper’s investigator discov-

ered a Disposition Report for the coveralls dated December 1,

1983. This report had not previously been disclosed to Coo-

per. ER 3010, 4934. The report stated “destroyed no value

coveralls.” The initials “KS” were written on the bottom right

side of the report. In February 1999, Cooper’s investigator

learned that “KS” was likely to have been Ken Schreckengost,

a now-retired Senior Deputy in the property division of

COOPER v. BROWN 5513

SBCSD. The investigator contacted Deputy Schreckengost,

but Schreckengost refused to speak with him. Schreckengost

told him, “I don’t like [Cooper]. I won’t help him,” and hung

up the phone. ER 3113. Schreckengost told a second investi-

gator, “I know everybody who worked the case, I know all

about it but I’m not going to say nothing. . . . They should

have shot that son of a bitch when he escaped.” ER 4902.

Deputy Eckley also refused to speak with Cooper’s investi-

gators. He told one investigator that he “could not add any-

thing to the information which was written on the disposition

report.” ER 4917. Eckley told another investigator that he

would not “say anything without his attorney, unless he is

‘drug into court.’ ” ER 4939. He added that although he was

retired from the SBCSD, “he owed them allegiance.” ER

4790.

An investigator for Cooper contacted Deputy Schrecken-

gost in February 2005. This time, perhaps because the investi-

gator was a former police officer, Deputy Schreckengost

confirmed that the initials “KS” on the Disposition Report

were his. He told the investigator, “If you are trying to help

[Cooper], you are in the wrong place.” Deputy Schreckengost

stated that if proper procedures were followed no property

associated with a murder would ever be destroyed, and that

property with blood on it would have routinely been tested at

least for blood type. ER 4787-89. We now know, based on

Deputy Schreckengost’s 2005 statement, that, contrary to

Eckley’s testimony at trial, Eckley did not discard the cover-

alls on his own. Instead, his action had been approved by his

superior officer, Deputy Schreckengost. The fact that Deputy

Schreckengost had approved the disposal of the bloody cover-

alls was material information that should have been revealed

to Cooper under Brady.

This information would have impeached Deputy Eckley’s

testimony that he acted alone, and would have identified Dep-

uty Schreckengost as the SBCSD officer responsible for the

5514 COOPER v. BROWN

disposal. The SBCSD’s lead investigator testified at trial,

based on Deputy Eckley’s testimony, that the reason the cov-

eralls were never processed was “neglect.” 12/19/84 RT 5261.

We now know, based on Deputy Schreckengost’s 2005 state-

ment that his initials were on the Disposition Report, that a

responsible officer of the SBCSD deliberately destroyed

material evidence that should have been provided to Cooper.

If the prosecution had disclosed to Cooper prior to trial that

Deputy Schreckengost had authorized the destruction of Fur-

row’s bloody coveralls, his counsel could have questioned

him at that time about the circumstances under which he had

put his initials on the Disposition Report. More than twenty

years later, during the district court hearing in April 2005,

Deputy Schreckengost responded “I don’t remember,” “I

don’t know,” or “I have no idea” more than fifty times. 4/1/05

RT 2-71. He purported not to remember anything about the

policy manual or the rules for handling evidence. When

asked, “Do you remember anything about signing off on this

form?” he replied, “You know I don’t. It’s been 23 years.” Id.

at 31.

Deputy Schreckengost and Deputy Eckley are good friends.

ER 4788. They rode to the district court hearing together.

Both of them understood the value of a fading memory. In

response to one question during the hearing in the district

court, Deputy Schreckengost replied, “You’re talking about

stuff that happened many years ago. I can’t remember what

I had for lunch yesterday.” 4/1/05 RT 68. When his turn

came, Deputy Eckley similarly testified, “I can’t remember

what I ate two weeks ago.” Id. at 103.

In April 2005, Eckley testified in the district court that he

had thought the story told by Roper when she gave him the

bloody coveralls “was a goofy story.” He testified, “So in

other words there’s holes in the story. When I run it by the

supervisors, we don’t think the story had much credibility.

COOPER v. BROWN 5515

But I was told to take [the coveralls] as evidence and pass

them on which is what I did.” Id. at 151.

However, in a May 26, 1984, audiotaped interview with

Cooper’s investigator, Deputy Eckley said that he believed

Roper’s story: “She said that this guy had come from prison

and that he has a rap for crimes like murder. I would believe

that part, because the Kellison girls have a tendency or pro-

pensity to marry, live and shack-up with guys from prison.”

He also stated, “And then with my relationship with the

Kellison’s/Roper family I know their involvement in crime, as

far as committing murders as well as giving up murderers.”

The investigator asked, “They’ve done this in the past?” Dep-

uty Eckley replied, “Oh, yeh, they’ve given very good infor-

mation on a murder before. One of their sons try to commit

murder, tried to kill me once. You know, I know the family.

So knowing that what Diana said might have validity to it I

called the supervisor. . . . He told me to take the coveralls . . .

and place [them] in evidence.” ER 5000-01.

One week after this 1984 interview, Deputy Eckley was

interviewed by SBCSD Detective Woods, who was eager to

learn what Deputy Eckley had said to Cooper’s investigator.

This conversation, which Deputy Ec

This text is long and has been trimmed here. Open the source document for the complete record.