# Cooper v. Brown

> Court of Appeals for the Ninth Circuit · May 11, 2009 · 565 F.3d 581

URL: https://www.frixlaw.com/law-library/cases/9563580

## Case

- **Full name:** Kevin COOPER, Petitioner-Appellant, v. Jill BROWN, California State, Prison at San Quentin, Respondent-Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** May 11, 2009
- **Citations:** 565 F.3d 581; 2009 U.S. App. LEXIS 10944; 2009 WL 1272436
- **Precedential status:** Published
- **Opinion:** Dissent by Wardlaw
- **Judges:** Rymer, McKeown, Gould, Fletcher, Wardlaw, Fisher, Reinhardt
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9563580

## Opinion text

WARDLAW, Circuit Judge,
dissenting from the denial of rehearing en banc, joined by PREGERSON, REINHARDT, THOMAS, and BERZON, Circuit Judges:
Public confidence in the proper administration of the death penalty depends on the integrity of the process followed by the state. See Furman v. Georgia, 408 U.S. 238, 299 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972) (Brennan, J., concurring) (“[I]t is our society that insists upon due process of law to the end that no person will be unjustly put to death, thus ensuring that many more of those sentences will not be carried out.”). So far as due process is concerned, twenty-four years of flawed proceedings are as good as no proceedings at all.
We authorized Kevin Cooper to file his second or successive habeas petition so that the district court could resolve the problem so ably articulated by Judge Silverman: “Cooper is either guilty as sin or he was framed by the police. There is no middle ground.” Cooper v. Woodford, 358 F.3d 1117, 1124 (9th Cir.2004) (en banc) (Silverman, J., concurring in part and dissenting in part). Instead, through a series of errors accurately described by Judge Fletcher in his dissent, the district court precluded Cooper from having his last day in court. As Judge Fletcher states, the district 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 truncated and distorted record.” Fletcher Dissent at 583.
Because of the district court’s erroneous rulings and failure to follow the express direction of our en banc court, regrettably, we still do not know the answer to Judge Silverman’s query. See also Cooper v. Brown, 510 F.3d 870, 1004 (9th Cir.2007) (McKeown, J., concurring) (“I ... am troubled that we cannot, in Kevin Cooper’s words, resolve the question of his guilt ‘once and for all.’ ”). Granting rehearing en banc and remanding for a full and fair evidentiary hearing may not have resolved the question of guilt or innocence, but it most certainly would have given us confidence that Cooper received his due opportunity to prove the innocence he has insisted upon since his arrest. I therefore respectfully dissent from the denial of rehearing en banc.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9563580. Public record. Not legal advice.