"[I]f state actors planted this evidence, its presentation at trial violated Cooper's due process rights under Mooney and Napue”
How later courts described this case
- "[I]f state actors planted this evidence, its presentation at trial violated Cooper's due process rights under Mooney and Napue”
Written by the judges who cited it.
The opinion
REINHARDT, Circuit Judge,
dissenting from the denial of rehearing en banc:
I concur in Judge Fletcher’s thorough and highly persuasive dissent, as well as in Judge Wardlaw’s pithy summary of the judicial failures that infect this case. I would add, however, that the failures are not solely those of the district court. Our own handling of the matter, some of which has been made public and some of which has not, leaves much to be desired, and is a cause of considerable regret. There is *636 no purpose, however, to looking backward at this point. What matters is that we have an obligation to afford Kevin Cooper a full and fair judicial hearing, and that once again we fail. By denying en banc review, we add to the prior systemic judicial malfunctions, and this time, we do so under a cloak of secrecy.
I have on numerous occasions urged that we disclose the names of judges who vote for and against rehearing cases en banc. Spears v. Stewart, 283 F.3d 992, 997 (9th Cir.2002) (Reinhardt, J., dissenting from denial of en banc review); In re Silicon Graphics Inc. Securities Litigation, 195 F.3d 521, 523-24 (9th Cir.1999) (Reinhardt, J., dissenting from denial of en banc review); United States v. Koon, 45 F.3d 1303, 1308-10 (9th Cir.1995) (Reinhardt, J., dissenting from denial of en banc review); Brewer v. Lewis, 997 F.2d 550, 556 (9th Cir.1993) (Reinhardt, J., dissenting from denial of en banc review); Elder v. Holloway, 984 F.2d 991, 1001 (9th Cir.1993) (Reinhardt, J., dissenting from denial of en banc review); Harris v. Vasquez, 949 F.2d 1497, 1539-40 (9th Cir.1990) (Reinhardt, J., dissenting from denial of en banc review). Here, once again, the vote is extremely close, closer than the list of dissenters would suggest. I believe that as judges we have an obligation to let the public know how we vote on critical issues. The public, the legal academy, our colleagues on other courts, and appointing authorities have a right to judge us based on our performance on the bench. In this case, in particular, I believe that public disclosure is important. Revealing how we voted would provide information that would be of interest to those who follow the course of our circuit law and who have drawn certain assumptions about the jurisprudence of various judges that sometimes are unwarranted. Most important, this is a case in which a man’s life is at stake. Kevin Cooper may or may not be guilty, but serious flaws in our legal system have been exposed. Whether to go en banc or not is a matter of judicial discretion. An en banc review by our court would surely do no harm. Nor would revealing the names of those who agree and disagree with affording this capital defendant a final protection before sending him on his way to execution by the state.