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With an 11th-hour stay of execution for convicted murderer Kevin Cooper, the stage was set Monday for another showdown between the U.S. Supreme Court and the Ninth Circuit U.S. Court of Appeals. Heeding last-minute pleas from Cooper’s attorneys, an en banc panel reversed a ruling from the previous day and granted a stay less than seven hours before Cooper’s scheduled appointment at 12:01 this morning in San Quentin State Prison’s death chamber. Late in the afternoon, the state Attorney General’s office asked the U.S. Supreme Court to overturn the Ninth Circuit — setting up a potential replay of fights between the two courts over the executions of Tommy Thompson and Robert Alton Harris. But at press time the Supreme Court had not intervened. California’s 11-page request called Monday’s stay “considerably more egregious” than the Ninth Circuit’s actions in Thompson v. Calderon, 151 F.3d 918. “By interjecting itself into Cooper’s case only hours before his execution, the Ninth Circuit has gravely undermined the interests of justice,” according to the AG’s petition. The office was particularly troubled by the Ninth Circuit’s action because Cooper had already been denied relief multiple times in multiple courts. The same day as the Ninth Circuit action, the state Supreme Court rejected another petition that had been filed Friday. Barring further developments, the Ninth Circuit’s ruling will delay the execution at least 40 days. A death warrant expires after 24 hours, and the state will have to seek a new warrant if Cooper isn’t executed by 12:01 a.m. Wednesday. Cooper was convicted of killing four people — including two children — with a hatchet and knife in 1983 after escaping from a minimum-security facility in San Bernardino County. Cooper’s legal team, which includes high-powered lawyers from Orrick, Herrington & Sutcliffe, spent the last few weeks begging several courts to give them some time to investigate what they said was new evidence of misconduct by investigators. They were repeatedly turned down. Monday’s decision was split, with nine judges — Chief Judge Mary Schroeder and judges Alex Kozinski, A. Wallace Tashima, Barry Silverman, Susan Graber, Kim McLane Wardlaw, William Fletcher, Raymond Fisher and Johnnie Rawlinson — arguing that scientific tests should be performed before the execution to see if they support Cooper’s claim that he was framed by police. “This case centers on Cooper’s claim that he is innocent. No person should be executed if there is doubt about his or her guilt and an easily available test will determine guilt or innocence,” the unsigned majority opinion reads. The decision reversed a three-judge panel’s ruling Sunday that Cooper’s claims of evidence-tampering by investigators did not justify holding up the execution. Judge James Browning dissented from that ruling, and said the court should consider the new evidence and perform additional DNA and other tests. “There should be no hurry to execute Cooper. If he is truly guilty, these simple tests will resolve the matter. If he is truly innocent, those same tests will tell us that. When the stakes are so high, when the evidence against Cooper is so weak, and when the newly discovered evidence of the state’s malfeasance and misfeasance is so compelling, there is no reason to hurry and every reason to find out the truth,” Browning wrote. Two judges, Richard Tallman and Jay Bybee, dissented from Monday’s ruling. They argued that Cooper’s claims were procedurally barred.

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