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Nonetheless, America's death penalty system changed little since Gregg, empowering states to use it. Citing pro and con arguments, he "return(ed) to the theme of Furman" that struck down capital punishment nationally, the Court concerned that sentences were handed down capriciously, arbitrarily and unfairly.
Yale Law School Professor Charles Black, in his book "Capital Punishment, The Inevitability of Caprice and Mistake" called capital punishment fatally flawed, saying:
There are some "hanging prosecutors, hanging juries, hanging judges, and hanging governors. But, overwhelmingly, the trouble is not in the people but in the system - or nonsystem."
From his own bench experience, Fletcher expressed similar concerns, citing Kevin Cooper's case as one example. On May 11, 2009, he was among eight dissenters on a 27 US 9th Circuit Court of Appeals panel voicing opposition to his guilt, saying in a joint statement:
"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 proper tests. It "also impeded and obstructed Cooper's attorneys at every turn as they sought to develop the record." Unreasonable testing conditions were imposed, as well as "refused discovery that should have been available as a matter of course, limited testimony that should not have been limited, and found fact unreasonably, based on truncated 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. (The district court) so interfered with the design of the testing protocol that one of Cooper's experts refused to participate in the testing. (It let) the state-designated representatives (choose) samples to be tested." Cooper's experts were refused the right to participate in choosing samples or "even to see the t-shirt."
Yet the test result showed "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 maintained."
Fletcher knows that Cooper, a Black man, was bogusly convicted and imprisoned for a multiple homicide he didn't commit. Yet since June 1983, he's been incarcerated and is now on death row at San Quentin State Prison, CA, a victim of American injustice.
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