When the Ninth Circuit Court of Appeals stayed the execution of Kevin Cooper on February 9th, 2004—a decision that was unanimously upheld by the United States Supreme Court—they ordered Cooper's case back to the federal district court in San Diego so that "numerous" issues could be heard, some for the very first time. They also ordered that EDTA testing be performed on a T-shirt so that it could be determined if Cooper's blood—which was said to be on the T-shirt during the original DNA testing in 2001—was planted there by the police, as Cooper says, or was on the T-shirt because Cooper had been wearing it during the murders for which he was convicted and was set to be executed.
It wasn't Cooper's word that his blood had been planted on that shirt that made the Ninth Circuit order the testing. It was the many other pieces of evidence that Cooper's attorneys had proved were tampered with that made this order happen.
Shortly after the ruling, Cooper's case went back to the federal district court in San Diego under the supervision of Judge Marilyn L. Huff, and EDTA testing was done on the T-shirt. As Cooper's defense team notes: "After producing test results for EDTA on the T-shirt which arguably supported Cooper's tampering theory, the state's EDTA testing expert, Dr. Gary Siuzdak, retracted his test results claiming some unspecified ‘contamination' at his lab. To this date, neither Dr. Gary Siuzdak of Scripps Medical in San Diego, nor the state of California, has shown how his testing results, which support Cooper's tampering claim and not the state's claim that Cooper had that shirt, could have been contaminated. Cooper's attorneys asked the court/Huff to order the state and its expert to produce the raw testing data in order to see just how this alleged contamination happened, but to this date, neither has, and Huff refused to intervene."
The same stain that produced high levels of EDTA in the state's testing produced inconclusive result when tested by Cooper's EDTA testing expert, Dr. Ballard. According to the Ninth Circuit's order, a blood stain from the T-shirt had to be DNA tested to find out whose it was; the state chose to use the same stain they had EDTA tested. But Cooper's attorneys learned that the chosen stain may not have been a blood stain at all because the state did not do a presumptive test to see exactly what kind of stain they were testing. If it was not, in fact, a blood stain that was first EDTA and then DNA tested, the Ninth Circuit's court order was not followed by the state of the district courts. In any case, the results of DNA testing on this stain of unknown origin and kind did not match Cooper's DNA. Only four (4) of the nine (9) numbers in the DNA sequence matched Cooper, in addition to the marker for sex.
These are the results of the EDTA and DNA tests that the state and its supporters say prove Cooper's guilt.
In struggle from death row at San Quentin Prison,
Kevin Cooper