Full opinion text
ORDER The panel has voted to deny the Petition for Rehearing and Petition for Rehearing En Banc. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to hear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. RApp. P. 35. The petition for rehearing and the petition for rehearing en banc are DENIED.
WILLIAM A. FLETCHER, Circuit Judge, dissenting from denial of rehearing en banc, joined by PREGERSON, REINHARDT, PAEZ, and RAWLINSON, Circuit Judges: The State of California may be about to execute an innocent man. From the time of his initial arrest until today, Kevin Cooper has consistently maintained his innocence of the murders for which he has been convicted. Cooper was convicted of capital murder and sentenced to death by a California court in 1985. The California Supreme Court affirmed Cooper’s conviction and sentence in 1991. People v. Cooper, 53 Cal.3d 771, 281 Cal.Rptr. 90, 809 P.2d 865 (1991). The California Supreme Court denied Cooper’s state petition for habeas corpus in 1996. A three-judge panel of the Ninth Circuit affirmed the denial of Cooper’s first federal application for habeas corpus in 2001. Cooper v. Calderon, 255 F.3d 1104 (9th Cir.2001). That decision was called en banc, but the call failed. In 2004, on the eve of his scheduled execution, Cooper sought permission from the three-judge Ninth Circuit panel to file a second or successive application for federal habeas corpus under 28 U.S.C. § 2244(b)(3)(A). Among other things, Cooper claimed that he had new and previously unavailable evidence that the State had violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady requires the State to turn over exculpatory information to a criminal defendant. Based on the claimed Brady violation, Cooper claimed actual innocence under Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), and § 2244(b)(2)(B)(ii). The three-judge panel denied permission, but an en banc panel of the Ninth Circuit reversed. Cooper v. Woodford, 358 F.3d 1117 (9th Cir.2004) (en banc). We stayed Cooper’s then-pending execution until his new federal habeas application could be addressed. Two days before the murders, Cooper had escaped from the minimum security section of a nearby California state prison by walking across an open field. Shortly before Cooper’s scheduled execution date, Midge Carroll, the now-retired warden of the prison, provided a sworn declaration in which she stated that she had learned from her staff that shoes issued to prisoners “were not prison manufactured or specially designed prison-issue shoes,” but, rather, were “common tennis shoes available to the general public through Sears and Roebuck and other such retail stores.” Carroll stated that she had learned this information during the investigation and conveyed it to investigators before the trial. This information would have been critical to Cooper’s defense, for a key to the prosecution’s case at trial was that identical shoeprints at the crime scene and in the house where Cooper had been staying were made by Pro-Ked “Dude” tennis shoes, and that these shoes were distributed only to prisons and other institutions. Warden Carroll’s information, though clearly exculpatory, had not been provided to Cooper prior to trial. In granting permission to file a second or successive application, the en banc panel noted, “Once a Brady violation has been established, a federal habeas court is required to evaluate all information in the case, not just information relevant to the Brady violation.” Cooper, 358 F.3d at 1122. That is, everything in the new habeas application was properly before the district court. Woratzeck v. Stewart, 118 F.3d 648, 650 (9th Cir.1997) (per curiam) (“If [a petitioner’s] application makes a prima facie showing as to one of the claims, he may proceed upon his entire application in the district court.”). In addition to this general instruction to the district court, we specifically, directed that two tests be performed. We wrote, “As soon as Cooper’s application is filed, [the district court] should promptly order that these two tests be performed in order to evaluate Cooper’s claim of innocence.” Cooper, 358 F.3d at 1122. First, we directed the district court to conduct further testing of a bloody tan t-shirt that had been found beside the road leading away from the house where the murders took place. The tan t-shirt was found soon after the murders. Initial testing of stains on the t-shirt showed that they contained blood consistent with one of the victims and not consistent with Cooper. Cooper presented evidence of the t-shirt as part of his defense at trial. 12/6/84 RT 4602-06, 4608; 1/15/85 RT 6508-11. Long after trial, at Cooper’s insistence, the State performed a DNA test on some of the blood on the t-shirt. Cooper maintained that the test would prove his innocence. Instead, the blood tested positive for Cooper’s DNA. Cooper maintained (and continues to maintain) that his blood was planted on the t-shirt. If the blood was planted, the only possible source was blood taken from Cooper by law enforcement authorities. A vial of blood was taken from Cooper by San Bernardino County Sheriffs Department (SBCSD) personnel on August 1, 1988, two days after his arrest. That blood contained an added preservative called EDTA. We wrote, “The presence of such a preservative would show that [Cooper’s] blood was not on the t-shirt at the time of the killings[.]” Cooper, 358 F.3d at 1124. We directed the district court to test Cooper’s blood on the t-shirt for the presence of EDTA. Second, Jessica Ryen, one of the murder victims, was clutching blond or light brown hair in her hand. We directed the district court to subject the hair to mitochondrial DNA testing. The district court held hearings on Cooper’s application for habeas corpus in 2004 and 2005. It denied all relief. Cooper v. Brown (“Dist.Ct.”), No. 04-656 (S.D.Cal. May 27, 2005). A three-judge panel of our court affirmed, with one judge concurring specially. Cooper v. Brown, 510 F.3d 870 (9th Cir.2007). 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 two tests. As will be described in greater detail below, the district court impeded and obstructed Cooper’s attorneys at every turn as they sought to develop the record. The 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. 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. As will be described in greater detail below, the district court so interfered with the design of the testing protocol that one of Cooper’s scientific experts refused to participate in the testing. The district court allowed the state-designated representative to help choose the samples to be tested from the t-shirt. The court refused to allow Cooper’s scientific experts to participate in the choice of samples. Indeed, the court refused to allow Cooper’s experts even to see the t-shirt. The state-designated lab obtained a test result showing 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 has maintained. A careful analysis of the evidence before the district court strongly suggests that the result obtained by the state-designated lab was valid. However, the court allowed the state-designated lab to withdraw the. test result on the ground of claimed contamination in the lab. The court refused to allow any inquiry into the alleged contamination. The court refused to allow Cooper’s experts to review the bench notes of the state-designated lab. The court then refused to allow further testing of the t-shirt, even though such testing was feasible. The district court placed two photographs of the murder victims at the end of its 159-page order denying relief to Cooper. One is a photograph of the photogenic Ryen family — two beautiful children, ten-year-old brown-haired Jessica and eight-year-old blond-haired Josh, and their attractive parents. The other is a photograph of eleven-year-old Chris Hughes, a handsome blond-haired boy. The district court had no analytic reason to include these photographs at the end of its order. I. Background Late at night on June 4, 1983, Doug and Peggy Ryen, their daughter Jessica, and their houseguest Chris Hughes, were brutally murdered in the Ryen home in Chino Hills, California. Their son, eight-year-old Josh, suffered extensive injuries but survived. The victims had numerous chopping, cutting and stabbing injuries, caused by several different kinds of weapons. A number of cutting and stabbing wounds were inflicted after the victims were already dead. Josh was found in the late morning of June 5 in his parents’ bedroom, near the bodies of his mother and Chris. His father’s body was also in the bedroom. His sister’s body was in an adjoining hallway. Two days earlier, Kevin Cooper, a black man, had escaped from the minimum security section of the nearby California Institute for Men (CIM) at Chino by walking across an open field. He had been serving a four-year sentence for burglary. Cooper hid out for those two days in a vacant house owned by Larry Lease (the “Lease house”), 125 yards from the Ryen house. The State’s theory, at trial and now, is that Cooper acted alone in killing the four victims and in nearly killing Josh, and that Cooper committed the murders to facilitate his escape. Cooper made several telephone calls from the Lease house, seeking money and other assistance from two women friends. The women refused to provide money or other help. Money in plain view on the kitchen counter of the Ryen house was untouched. Credit cards and money in Peggy Ryen’s purse were also untouched. The last of Cooper’s telephone calls from the Lease house was completed at 8:30 p.m. on June 4, the night of the murders. Cooper testified that he waited until dark, finished his telephone call, left the house on foot immediately after the call, and hitchhiked to Mexico. There is undisputed evidence that Cooper registered at a hotel in Tijuana at 4:30 p.m. on June 5. When Cooper checked into that hotel, his hair was braided, as it had been when he escaped from prison. ER 3252, 3260. The Ryens’ white wood-paneled station wagon had been parked in the driveway of the Ryen house, with the keys in the ignition, throughout the entire evening of June 4. On June 11, the Ryens’ station wagon was discovered in the parking lot of a Long Beach church, where it had been for several days. Tijuana is 125 miles south of the Ryen house. Long Beach is 45 miles west of the Ryen house. A. Evidence Pointing to Other Killers There is substantial evidence that three white men, rather than Cooper, were the killers. Some of the evidence was introduced at trial. Some of the evidence, even though exculpatory, was deliberately destroyed by the SBCSD and was therefore not available for use at trial. Some of the evidence, even though exculpatory, was concealed from Cooper and therefore not available for use at trial. Josh Ryen, the only survivor of the attack, first communicated to SBCSD Deputy Sharp that the murderers were three white men. ER 1278-79, 1386-87. This statement was the likely source of an entry in the police log during the afternoon of June 5, stating that the suspects were “three young males” driving the Ryens’ white station wagon. ER 3688. On the night of the murders, a couple drove to Chino Hills from Los Alamitos (about 37 miles away) after the night horse races to drop off a horse trainer. As they were leaving the trainer’s driveway, they had to wait for a car driving rapidly down Carbon Canyon Road from the direction of the Ryen house. The husband, who was driving, testified at trial that he stopped to wait for the car to pass. He stated that the car was a “light color” station wagon with a luggage rack. ER 1375-76. With some coaxing from Cooper’s attorney, he admitted that shortly after the episode he had described the driver to SBCSD Lieutenant Knadler as a “young white male.” The wife, who was a passenger, described the car as “tan” or “cream” colored, with “wood grain” paneling. She - thought the car had a luggage rack. She “remembered thinking” that she saw three or four people in the car. ER 1379. The Ryens’ station wagon was white with wood paneling and a luggage rack. The injuries to the victims were consistent with the use of multiple weapons. The number of victims, and the number and nature of the wounds, led the coroner initially to conclude that there was more than one killer. ER 1367-69; see also ER 3148-56. When Josh was in the hospital after the murders, he twice saw a picture of Cooper on television. Both times he indicated that Cooper was not one of the killers. On June 7, SBCSD Deputy Field recovered a blood-stained tan, medium-size, Fruit of the Loom t-shirt with a front pocket beside Peyton Road, not far from the Ryen house and the Canyon Corral Bar. ER 1575. The characteristics of the blood on the t-shirt were consistent with Doug Ryen’s profile and inconsistent with Cooper’s profile. ER 1757-61; 1/15/85 RT 6508-13. Post-trial DNA testing, conducted at Cooper’s insistence, revealed that the shirt contained DNA consistent with Doug Ryen and possibly Peggy Ryen. ER 800. Post-trial DNA testing also revealed that at least one blood stain on the t-shirt contained Cooper’s DNA. I discuss the presence of Cooper’s DNA on the t-shirt in greater detail below. As will be described in more detail below, a woman named Diana Roper provided a statement in 1983 and again in 1998 describing an identical tan Fruit of the Loom t-shirt with a front pocket that she had purchased for her then-boyfriend, Lee Furrow. On both occasions, Roper stated that Furrow was wearing the t-shirt on the evening of June 4. ER 1571, 1573. At the time of the murders, Lee Furrow was living with Roper in Mentone, approximately 45 miles east of Chino Hills. ER 1570, 1592, 3142; 10/22/84 RT 2266. Furrow had previously been convicted of strangling Mary Sue Kitts in 1974, on the orders of Clarence Ray Allen. ER 1594, 1789-90, 1802; 10/22/84 RT 2266. Furrow had been a member of the “Allen gang,” and he testified for the prosecution at Allen’s capital murder trial. See Allen v. Woodford, 395 F.3d 979, 986, 991 (9th Cir.2005); People v. Allen, 42 Cal.3d 1222, 1236-38, 232 Cal.Rptr. 849, 729 P.2d 115 (1987). Allen was executed in 2006. In return for his testimony, Furrow was allowed to plead guilty to second degree murder. He served four and a half years in prison. Furrow was released from prison on June 12, 1982, a year before the RyenHughes murders. In a 1998 sworn affidavit, Roper stated that Furrow had “confided” in her that he “dismembered [Kitts’] body and threw the body parts in the Kern River.” ER 1570. Kenneth Koon, another acquaintance of Furrow’s, confirmed that he learned that Furrow “killed a girl, cut her up, threw her in the Kern River.” Kenneth Koon Interview, Apr. 7, 2004, Docket No. 31, Ex. 55, at 4. On June 4, the day of the murders, Furrow, Roper, Roper’s sister Karee Kelli-son, and neighbors Michael and Rebecca Darnell, attended the U.S. Festival Country Show at the Glen Helen Amphitheater approximately 30 miles northeast of Chino Hills and 24 miles northwest of Mentone. See Answer, Docket No. 30, Ex. 36; see also ER 1786. That afternoon, Furrow picked up Michael Darnell from-the county jail, where he had been held overnight. Answer, Docket No. 30, Ex. 39. ER 1786. According to Darnell, he and Furrow arrived at the festival after dark. Answer, Docket No. 30, Ex. 40 at 9, 16. Debbie Glasgow, who was having an affair with Furrow, told police that Furrow arrived at the festival at approximately 11 p.m. Answer, Docket No. 31, Ex. 53. Rebecca Darnell recalled that she left the festival with her husband, and with Roper and Roper’s sister, but that Furrow did not leave with them. Answer, Docket No. 31, Ex. 41 at 1. In her 1998 affidavit, Roper stated: On Saturday afternoon June 4, 1983, Lee [Furrow] and I were at our home getting ready to go to the U.S. Festival.... He was wearing a medium size Fruit of the Loom beige T-shirt which had a pocket on the front. I bought Lee the T-shirt at K-Mart before June 4, 1983. I also recall telling the sheriffs department fifteen years ago virtually the same, thing regarding Lee’s T-shirt.... During the early morning hours of June 5, 1983, my sister Karee Kellison, and I had returned from the U.S. Festival and were in the living room at my house in Mentone. I received a telephone call from Lee about 1:30 a.m. to 2:00 a.m. in the morning of June 5, 1983, asking me to come get him and Debbie Glasgow at the U.S. Festival. I refused and hung up the telephone. A few hours later a car pulled into our driveway. My sister, Karee, walked to the French doors to look out. I did not look out. A few moments later Lee and Debbie walked through the front door. They were in a hurry. I heard the car depart. Lee was wearing long sleeve coveralls which had a zipper in the front. The coveralls were splattered with blood and there was horse hair and dried horse sweat on the lower leg area. He did not have the beige T-shirt or Levis on that he was wearing earlier in the day. Lee walked to the back of the house and seemed to be in a hurry. Lee took the coveralls off and left them on the floor of the closet. After he changed his clothes, Lee and Debbie left immediately on his motorcycle. Lee and Debbie were not in the house for more than five minutes and were obviously in a big hurry to leave. After I learned of the Ryen/Hughes murders in Chino I turned the coveralls over to the San Bernardino County Sheriffs Department. I told the deputy the facts about how I found the coveralls and that Lee Furrow may be the murderer. A few days after the murders I saw Lee at my neighbors house.... I told Lee I turned the bloody coveralls over to the sheriffs department. Lee became furious that I had turned them in. Lee had changed his appearance by cutting most of his hair off and trimmed his sideburns and his “Fu-Manchu” moustache .... Also, a few days after the murders I heard on the news that a hatchet was found near the crime scene in Chino. I immediately walked to the washer area of our house. Lee’s hatchet was missing. All of his other tools were still hanging on the wall. [Referring to a photograph of the hatchet found near the crime scene]: The hatchet in this picture looks like the hatchet ... which I found missing after the Ryen/ Hughes murders. I cannot say for sure it is the same hatchet that Lee owned but the curvature of the handle is the same. Even more striking in similarity than the curvature of the handle is the style of the handle, which has sort of an American Indian pattern to it. [Referring to a photograph of the bloody tan Fruit of the Loom t-shirt recovered near the Ryen house]: The T-shirt in this photograph looks exactly like the T-shirt Lee was wearing on June 4, 1983 including the manufacturer, the size, the color and the pocket. I am absolutely positive the photograph of this T-shirt matches the T-shirt that Lee was wearing at our house on the afternoon of June 4,1983. ER 1571-73. The substance of Roper’s 1998 affidavit matches the substance of a May 1984 interview she gave to SBCSD Detective Stalnaker. In the interview, Roper told Detective Stalnaker that she had been under the influence of drugs on the night of June 4. ER 1588-97. In a separate November 1998 sworn affidavit, Roper’s sister Karee Kellison confirmed many of the details of Roper’s story. She added a detail about the car in which Furrow and Glasgow arrived. She stated: ... During the early morning hours of June 5, 1983, [Diana and I] were in the living room talking when we heard a car pull in the driveway. I would estimate the time after 3:00 a.m. but before sunrise. I looked out the window in the French doors and I saw Lee and Debbie get out of a car. There was not sufficient light to identify who the other occupants in the car were. However, there was enough light to see that it was a station wagon, kind of brown in color. Lee and Debbie came in the house. Lee was wearing long sleeve coveralls, which were splattered with blood. Lee walked to the back of the house and changed his clothes. When he came out of the bedroom he was no longer wearing the coveralls and apparently left them in the back of the house. Lee and Debbie left immediately on his motorcycle.... A week or so after the Ryen/Hughes murders I was interviewed by the police. I never told them the above information because I am terrified of Lee Furrow and Debbie Glasgow. I don’t recall what I told the police but I know that I did not tell them what I saw for fear of what Lee and Debbie would do to me. While I am still scared to death of Lee, I understand he is in Pennsylvania and Debbie is dead. ER 3116-17. On June 9, Roper examined the coveralls that Furrow had left at her house on the night of the murders. She called her father, who then called the SBCSD. ER 1591, 4895. According to SBCSD Deputy Eckley, who was dispatched to Roper’s house, the coveralls were “[h]eavily splattered” with blood. ER 1578. Deputy Eckley took the coveralls into evidence and gave a report to his supervisor. ER 1582. Deputy Eckley’s report, dated June 10, 1983, stated that Roper “suspects that the bloody coveralls are from the Chino murders and has further information regarding that incident and/or possible suspect/s.” ER 3105. As will be recounted in more detail below, Deputy Eckley discarded the coveralls in a dumpster during Cooper’s preliminary hearing in his capital case. Deputy Eckley claimed at trial that he acted alone in destruction of the bloody coveralls. However, the initials “KS” on the Disposition Report for the coveralls indicate that Senior SBCSD Deputy Ken Schneckengast approved the destruction. The State did not provide the Disposition Report to Cooper’s attorneys until long after trial. There is no evidence that anyone in the SBCSD ever performed tests on the blood on the coveralls. Deputy Eckley had had prior experience with Diana Roper and Karee Kellison, as well as with their father, Bill Kellison. Deputy Eckley’s prior experience caused him to take seriously the coveralls and Roper’s story. In an audiotaped interview with Cooper’s investigator, Deputy Eckley stated, “[W]ith my relationship with the Kellison’s/Roper family I know their involvement in crime, as far as committing murders as well as giving up murderers .... [T]hey’ve given very good information on a murder before.” ER 5000-01. Roper and Furrow separated immediately after the murders. Roper then began living with Kenneth Koon. ER 1592-93. In November 1984, Koon was incarcerated at the California Medical Facility at Vacaville. According to Anthony Wisely, another inmate at Vacaville, Koon confided in Wisely while they were in lockdown smoking marijuana. SBCSD Detective Woods interviewed Wisely on December 19, 1984. Detective Woods stated in his report that Wisely was in prison “for a two-year period of time under the psychotic and remission program.” ER 1601. Part of Wisely’s story directly recounts the murders. Another part of the story matches Roper’s story if Furrow’s name is substituted for Koon’s. According to Detective Woods’ report: [Wisely said that Koon told him] that he was with two other guys that were in the BRAND or Arian [sic] Brotherhood and they [had] driven to the Chino area to collect a debt. He also stated that they had driven to a residence in Chino and that the two guys got out and that they were in for about ten or fifteen minutes and that one of the guys was carrying two axes or hatchets. That he also had gloves on, and that one of them made the statement that the debt was officially collected and that the first guy that came out turned around and said who was that, and then again stated “Who the fuck is the nigger?” He said that the man that made the statement was looking in the direction of the window and he saw a black subject through the window and the one subject told him to get out of there. He states that KOON was dropped off in San Bernardino somewhere, he does not know where. He stated that KOON went to his old lady’s house and changed his overalls and that KOON also made the statement that one of the guys that came out with the axes was very upset because they apparently had left one kid alive. He stated that these persons that apparently collected the debt at the Ryen residence are debt collectors for the BRAND, the Arian [sic] Brotherhood, and that they have been to the pen for murder before and it also includes or involves someone that is currently on death row. He also stated that KOON thinks that they hit the wrong house for the collection and that after all this blows over that the BRAND will take care of business in the right way. I asked WISELY about any details when they saw the black subject there in Chino. He stated he could not tell me any other details. ... I asked [Wisely] if the female’s name, which KOON referred to as his old lady, was DIANNA [sic] ROPER. He said that it was. ER 1599-1600. Detective Woods interviewed Koon immediately after his interview with Wisely. Koon confirmed Wisely’s account about the coveralls. However, he clarified that it had been Furrow who had changed his coveralls at Roper’s house. Woods wrote: I asked [Koon] if he knew a subject by the name of DIANNA [sic] ROPER. He stated that he did----I asked him at that time does he recall an incident when she turned over some coveralls to Yucaipa authorities. He stated that he did. He stated the best of his recollection was that she found some bloody coveralls in a house apparently belonging to LEE FARRELL [sic] and this was directly after the murders were discovered in the Chino Hills. He stated that apparently the cops destroyed them or lost the coveralls and nothing else was ever heard of it. In the interview with Detective Woods, Koon provided himself an alibi. He claimed that he had not gone to the music festival with Furrow and Roper. Woods wrote, “He stated that he was aware of that particular weekend with the country music but, however, he was in the Gorman, CA area, returning back to the San Bernardino area shortly thereafter.” Koon told Detective Woods that he was not affiliated with the “Arian Brotherhood.” He refused to answer further questions “about that Arian Brotherhood situation.” ER 3114. Even though Woods interviewed Wisely and Koon on December 19, the State did not provide the information to Cooper’s attorney until the morning of January 2, the day Cooper was scheduled to take the stand at his capital trial. Cooper’s investigator interviewed Wisely ten days later, on January 12. According to the investigator, Wisely was “wary.” He was initially unwilling to talk to the investigator, but finally said a little. The investigator reported: Wisely stated that the contact by the Defective] was the beginning of his troubles, that he has been “in the hole” ever since. He reported that he had not committed a violation, and he is in the hole without cause. He further stated that the state is worried about him[.] ... He then stated that he knew that Kevin Cooper did not do it, that “if you had been there & listened to him (Koon), you would know who did it” (or something close to those exact words). ER 3119. In 2004, when the district court was making its initial plans for mitochondrial DNA testing of the hairs in Jessica’s hand, the California Deputy Attorney General informed the court that Furrow had retained an attorney. Through his attorney, Furrow declined to provide a hair sample. 6/2/04 RT 5. The Deputy Attorney General informed the court that Koon, on the other hand, “indicated he will provide whatever the Court would request, voluntarily.” Id. at 5. According to Koon’s story, as recounted to Wisely and recorded by Detective Woods, Koon stayed in the car while the other two men went inside with their axes. If this is true, Koon would of course have nothing to fear from providing a hair sample. On the night of June 4, three men came into the Canyon Corral Bar, which is located near the Ryen house. Several employees testified at Cooper’s trial that the men came into the bar sometime around 8 or 9 p.m., left, and returned later. Witnesses’ estimates of the time of their return range between 11 p.m. and 1:00 a.m. See ER 3648. When the men returned, at least one of them was extremely inebriated. The bouncer, Ralph Land, did not testify at trial, but stated in a tape-recorded interview with Cooper’s investigator in January 1984 that “two of them were really close-cut hairs and all that and then the other one had long, straggly like dirty, like I thought maybe they just a couple of Marines and they ran into an old buddy or something.” ER 3616. The witnesses who testified at trial stated that all three of the men had close-cut military haircuts. In 2004, the district court heard testimony from two women — Christine Slonaker and Mary Wolfe — who were in the bar on the evening of June 4 and were harassed by two or three men. These women, who had not previously provided testimony, remembered the evening in some detail. They testified in the district court that they were at the bar with a third friend, and that the friend was receiving unwanted attention from some men due to her low-cut blouse. Slonaker, a phlebotomist (a person who draws blood), noticed that the man who was most aggressive had blood all over him. 6/28/04 RT 7, 24-25. She stated that from a distance it looked like he was just dirty, but that as he got closer “it was clearly apparent that it was blood.” Id. at 70. Slonaker only noticed two men, while Wolfe noticed three, but Wolfe also noted that the third man was “pretty quiet and standoffish.” Id. at 121-22. She also noticed that they were “definitely [wearing] tennis shoes[.]” Id. Wolfe stated that the man who was not wearing coveralls had “medium brown or dirty blond hair that was longer than average and tucked behind his ears.” ER 3219. Wolfe also noticed that the man in the tan shirt had spots of blood on his shirt and a small bit of blood on his face. 6/28/04 RT 121-23. Wolfe recalled that at least one of the others was wearing coveralls partly zipped down. Id. at 121-22. The louder man in the coveralls also had blood on him. ER 3220. Slonaker noted that “they were saying really weird and gibberish kind of things.... They were kind of like their eyes were rolling in their head.” 6/28/04 RT 23. When Slonaker told the man that he was covered in blood, he acted surprised and then his behavior changed. Id. at 24-25. Both women recalled that the men were asked to leave the bar. Id. at 72, 76, 79, 125. Lance Stark, a regular at the bar, also testified for the first time in 2004. He described “a couple of young loud mouths” being rude to some women at the bar. 7/23/04 RT 20-21, 59. He also commented that the third man in the group was very quiet and not noticeable. Id. at 40. He described the men as scruffy looking or dirty looking, and he observed that one of the men looked like he had grease or mud on him. Id. at 22-24, 60, 62, 63. He recalls one of the women telling that man that he had something on him. Id. at 108-09. Stark also testified that in early 2004 he was visited by someone he believed was associated with law enforcement. He testified that a man in a white Crown Victoria (which is often a law enforcement vehicle) pulled in front of Stark’s trailer, asked whether he was Lance Stark, told him it would be in his best interest not to talk about the Kevin Cooper case, and then drove off. Id. at 30-32. Stark testified that the car was distinctive because it had a computer sticking out from the dashboard. Id. at 32-34. This visit occurred soon after one of Cooper’s investigators first visited Stark. Id. at 90. When Cooper’s attorney met Stark after his encounter with the man in the white Crown Victoria, Stark said, “Well, I’m not sure if I should talk to you because I was told not to.” Id. at 101. The district court denied Cooper’s efforts to investigate what may have been witness intimidation. ER 4037-39, 4663-65. B. Evidence Against Cooper at Trial It was undisputed at trial that Cooper walked away from the minimum security section of CIM in Chino on June 2. It was also undisputed that Cooper spent two days hiding in the Lease house, located about 125 yards from the Ryen house. Telephone records show that Cooper’s last telephone call from the Lease house ended at about 8:30 p.m. on June 4, the night of the murders. In addition to the above, the most important evidence against Cooper at trial was the following: (1) Eyewitness testimony of Josh Ryen. (2) A spot of blood on the hallway wall of the Ryen house that was consistent with Cooper’s blood profile. (3) A bloody shoeprint made by a ProKed Dude shoe on a sheet in the master bedroom of the Ryen house, a matching shoeprint on a spa cover outside the Ryen house, and another in the pool room at the Lease house. (4) Role-Rite prison-issue cigarettes and tobacco found in the Lease house and in the Ryens’ abandoned station wagon. (5) A missing hatchet from the Lease house, and a hatchet sheath found on the floor of a bedroom in the Lease house. (6) A button found in the Lease house that matched a prison-issue jacket. (7) An empty beer can in the field between the Ryen house and the Lease house. (8) Burrs on Jessica Ryen’s nightgown. (9) Positive Luminol tests in a shower in the Lease house. I discuss each piece of evidence in turn. 1. Eyewitness Testimony of Josh Ryen At trial, the jury heard two recorded statements by Josh, one stating and one suggesting that he saw only one man on the night of the attack. However, when Josh first arrived at the hospital, he was able to communicate to a clinical social worker that the assailants were three or four young white males. Deputies misrepresented his recollections and gradually shaped his testimony so that it was consistent with the prosecution’s theory that there was only one killer. 2. A-41: The Spot of Blood in the Hallway A single drop of blood in the hallway outside the Ryen master bathroom — several feet away from any of the victims — had characteristics consistent with Cooper’s genetic profile and inconsistent with the victims’. The crime lab conducted serological testing of this blood drop (entered into evidence as A-41) under suspicious circumstances. The criminologist who conducted the testing arrived at one result, and then altered his records to show a different result that conformed to Cooper’s known blood characteristics. The drop of blood has a history of being “consumed” during testing and then inexplicably reappearing in different form for further testing when such testing would prove useful to the prosecution. 3. Pro-Ked Dude Shoeprints Within the first few days after the murders, deputies discovered two distinctive matching shoeprints tying the crime scene to the Lease house. Later, a deputy in the crime lab discovered a bloody shoe-print on a bedsheet that had been collected from the Ryen master bedroom. At trial, the prosecution presented evidence that the shoe that likely made those shoe-prints — a Pro-Ked Dude tennis shoe — was nowhere available for retail sale and was only available through institutions such as CIM. The prosecution also presented evidence that Cooper had been issued such shoes at CIM. The shoeprints on the sheet in the master bedroom of the Ryen house, on the spa cover outside the Ryen house, and in the Lease house were discovered after a suspicious delay. The shoeprint on the sheet was not discovered at the Ryen house, but rather in the SBCSD Crime Laboratory. Deputy Stockwell testified that he discovered the print after re-folding the sheet in the lab to match the way it supposedly had been folded, or crumpled, on the floor of the bedroom. 11/19/84 RT 3506-07. Deputy William Baird was the manager of the lab where the sheet was kept when the shoeprint was discovered. Baird provided critical testimony at trial connecting the shoeprint on the sheet to the shoeprint in the Lease house. He also testified that the shoeprints were made by Pro-Ked Dude shoes. ER 1676-77, 3195-3201. He testified that he already had a Pro-Ked Dude shoe in his lab, which he matched to the print on the sheet. Pro-Ked Dude shoes were manufactured and distributed by Stride-Rite Corporation. Deputy Baird admitted at trial that he might have told the Stride-Rite official who testified at trial that the SBCSD wanted information from him so they could “shut down certain defenses.” ER 3200. Soon after Cooper’s trial, Baird was caught stealing heroin from the evidence locker at the Crime Laboratory. He stole the heroin both for his personal use and to sell to drug dealers. ER 1714-16. Two additional facts discovered after trial render the shoeprint evidence particularly dubious. First, Pro-Ked Dudes were, contrary to the testimony at trial, available (though not in large quantities) at retail stores in the United States. Second, an inmate who testified at trial that he had issued Pro-Ked Dudes to Cooper shortly before his escape recanted his trial testimony in a sworn declaration supporting Cooper’s application to file his second habeas application. 4. Cigarettes and Tobacco Cooper admitted to smoking “Role-Rite” prison-issue tobacco while he was in the Lease house. Tobacco consistent with Role-Rite was found on the floor between the front passenger seat and the front passenger door of the Ryens’ station wagon. Two cigarette butts were also found in the station wagon, and blood typing tests could not exclude Cooper as the donor of the saliva on the butts. One of the butts contained tobacco that was consistent with the characteristics of the Role-Rite brand. The station wagon was discovered in a parking lot in Long Beach, 45 miles west of the Ryen house, on June 11. When the station wagon was discovered, dust prints indicated that someone had recently closed the hood. ER 808-09. Cooper arrived in Tijuana, 125 miles south of the Ryen house, at 4:30 p.m. on June 5, the day after the murders, and stayed continuously at the same Tijuana hotel until June 8. 1/7/85 RT 5874. Cooper then went to Ensenada, Mexico, where he found work on a private boat. He worked on the boat from June 8 until the day of his arrest. 1/3/85 RT 5468-75. The station wagon was processed by the police under suspicious circumstances. Some cigarette butts from the Lease house were never processed into evidence. Some of those cigarette butts could have easily been planted in the car. Moreover, after initial forensic testing, paper from a hand-rolled cigarette butt supposedly found in the station wagon was described as consumed. That same paper later “reappeared” and was offered into evidence. When the paper “reappeared,” it was significantly larger than the paper in the cigarette butt that had been tested. 5. The Missing Hatchet and the Hatchet Sheath On the day the bodies were discovered, detectives recovered a bloody hatchet beside the road not far from the Ryen house. People who had previously used the Lease house testified that a similar hatchet was now missing from the house. Investigators found a sheath for the hatchet in the Lease house near the closet in the bedroom previously used by Kathleen Bilbia (“the Bilbia bedroom”), where Cooper had slept on June 3. Fingerprint evidence strongly suggests that the hatchet sheath was planted in the bedroom soon after the hatchet was discovered. Further, the owners of the hatchet provided inconsistent testimony about the location of the hatchet before it disappeared. 6. The Camp Jacket Button Deputies discovered a green, bloodstained button near the closet in the Bilbia bedroom. It resembled buttons found on certain “camp jackets” issued at CIM. The blood on the button was type A, consistent with Cooper and Doug Ryen. The green button was discovered under the same suspicious circumstances as the hatchet sheath, strongly suggesting it was planted in the Bilbia bedroom after Cooper had become a suspect. Further, its color showed that it came from a green prison-issued jacket. Uncontradicted evidence at trial showed that Cooper was wearing a brown or tan prison-issued jacket when he escaped. 7. The Empty Beer Can In the refrigerator in the Ryen house, there was a six-pack of Olympia Gold beer with one can missing. Another can in the refrigerator, as well as the wall of the refrigerator, were smudged with reddish stains. Deputies found a stained, nearly empty can of Olympia Gold in the field between the Ryen house and the Lease house. The stain on the can in the field and on the wall of the refrigerator tested positive for blood. The blood stains on the beer cans were so degraded that the lab could not conduct any further tests, and deputies failed to collect the stain on the wall of the refrigerator as evidence. No one analyzed the contents of the nearly empty beer can. 8. Burrs on Jessica Ryen’s Nightgown Two burrs adhered to the inside of Jessica Ryen’s nightgown approximately ten inches up from the bottom hem. The prosecution argued to the jury that because the top of Jessica’s nightgown did not have holes corresponding with some of Jessica’s post mortem chest wounds, at some point an assailant must have raised Jessica’s nightgown, and, in the process of inflicting those chest wounds, deposited the burrs. The prosecution also presented evidence that similar burrs were found on the inside of the Ryen station wagon and on a blanket found in the closet where Cooper slept on June 3. Plants producing the burrs grew in the field between the Ryen house and the Lease house. The plant that produces the burrs is common in Chino Hills. It is a relative of alfalfa and is a common ingredient in horse and cattle feed. It is unusual for such burrs to transfer from one fabric surface to another. Once the burrs have adhered to a surface, typically they must be physically plucked in order to be removed. 2/4/85 RT 7488-85, 7576-77. Moreover, the coroner found a small beetle in Jessica’s body bag. This beetle is nocturnal, suggesting that Jessica may have been outside during or soon before the murders, when she could have picked up the burrs. 9. Positive Luminol Tests in the Shower in the Lease House Detectives tested the shower and sink in the bathroom adjoining the Bilbia bedroom in the Lease house for traces of blood. Luminol testing revealed the possible presence of blood on the shower walls in a broad band from approximately two feet to five feet above the floor of the shower. When Kathleen Bilbia moved out of the Lease house a short time before the murders, she had cleaned her bathroom with bleach. Bleach reacts with Luminol in the same way that blood does. In order to exclude the possibility that a Luminol reaction is caused by bleach, rather than blood, a two-stage test is required. The evidence suggests that the detectives only conducted a one-stage Luminol test. Moreover, the staining pattern in the shower is not consistent with a person cleaning up after being covered in blood. The Luminol test did not indicate blood in the bottom portion of the shower, and it did not reveal patterns of drainage in the shower. One would expect the blood rinsed from a person’s body to travel downward in the shower, rather than moving horizontally in a broad, uniform, 3-foot horizontal band. Hence, the Luminol reaction in the shower is probably attributable to Bilbia’s cleaning materials, not to the presence of blood. There was no indication that any bloody clothing was placed anywhere in the vicinity of the shower. II. Discussion Cooper advances several claims in his current habeas application. In my view, two of them are meritorious. I mean “meritorious” in a special sense. In part, I mean that they appear to be meritorious on the current record. In part, I also mean that if the district court had done its job — including performing the EDTA test on Cooper’s blood on the tan t-shirt as we directed it to do — the likelihood of their being meritorious would be much higher. First, Cooper claims that the State presented false evidence at trial, in violation of Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Second, Cooper claims that the State failed to reveal exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Under both claims, Cooper claims actual innocence under Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). I discuss the two claims in the following sections. A. Presentation of False Evidence When we granted Cooper permission to file his second or successive habeas application in 2004, we specifically directed the district court to test Cooper’s blood on the tan t-shirt “for the presence of the preservative EDTA.” Cooper, 358 F.3d at 1124. The purpose of the test was to determine whether Cooper’s blood had been planted on the t-shirt. Judge Silverman stated the importance of the test: “Cooper is either guilty as sin or he was framed by the police. There is no middle ground.” Id. (Silverman, J., concurring in part and dissenting in part). I begin my discussion of Cooper’s claim that the State presented false evidence with discussion of the EDTA testing. I do not do so because such testing will reveal directly whether the State presented false evidence during trial. The State did not put the t-shirt into evidence at trial. Rather, Cooper introduced it .into evidence because the State could not show that any of Cooper’s blood was on it. Thus, even if state actors did plant Cooper’s blood on the t-shirt, the State did not thereby present false evidence at Cooper’s trial. If state actors did plant Cooper’s blood on the t-shirt, they likely did so long after trial — after DNA technology became available and after Cooper requested that DNA testing be performed on the t-shirt. Nonetheless, for two reasons, I begin with a discussion of the EDTA testing. First, if state actors planted Cooper’s blood on the t-shirt, this raises a very powerful inference that numerous pieces of evidence presented at trial were also planted by state actors. Second, if state actors planted this evidence, its presentation at trial violated Cooper’s due process rights under Mooney and Napue and is the basis for a claim of innocence under either Schlup or 28 U.S.C. § 2244(b)(2)(B). 1. Testing for EDTA The district court was hostile to our direction to perform EDTA testing on the t-shirt. In its order, the district court wrote, “Based on the last-minute representations made by Petitioner regarding scientific testing capabilities, the en banc panel of the Ninth Circuit concluded [that the district court should order EDTA testing].” Dist. Ct., 510 F.3d at 932. In discussing the EDTA tests during a hearing, the district court stated orally, “But the en banc panel didn’t get it.” 6/3/04 RT 74. Whether as a result of its hostility to the EDTA testing or for some other reason, the district court failed to comply with our direction to perform the testing. a. Daubert As a threshold matter, the district court concluded, incorrectly, that EDTA testing failed the test of admissibility under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The court wrote that “the ubiquity of EDTA in the environment prevents any meaningful interpretation of the significance of an ‘elevated’ level of EDTA within a forensic sample.” Dist. Ct., 510 F.3d at 941 (emphasis added). The. court found that EDTA.testing was therefore not reliable. Id. at 943-46. The court’s exclusion of EDTA evidence under Daubert was based on an error of law, and therefore constituted an abuse of discretion. See United States v. Morales, 108 F.3d 1031, 1035 & n. 1 (9th Cir.1997) (en banc). The district court confused the reliability of EDTA testing, the first prong of the Daubert analysis, with the issue of what that testing can prove, the second prong of the Daubert analysis. See Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1315 (9th Cir.1995) (describing the two prongs of the Daubert analysis). It was uncontested at the 2004-2005 hearing in the district court that laboratory testing can reliably determine the amount of EDTA in any given sample. The district court found that “the levels of EDTA in the T-shirt were accurately measured” by Cooper’s expert, Dr. Ballard. Dist. Ct., 510 F.3d at 941. The first prong of Daubert was thus satisfied. The only contested issue was the second prong-what the presence of EDTA proved or tended to prove. The district court rejected Dr. Ballard’s testimony because it erroneously concluded that his measurements, even though accurate, did not satisfy the second prong of Daubert. See Dist. Ct., 510 F.3d at 941 (“Lacking any evidence to show that EDTA testing is a reliable means of determining whether a blood sample has been planted, the Court concludes that Petitioner’s EDTA evidence fails the Daubert test.” (emphasis added)). It is hornbook law that evidence is admissible under Daubert if there is an accepted scientific method for making a reliable measurement, even if the evidentiary significance of the measurement can be disputed. See Daubert, 509 U.S. at 595, 113 S.Ct. 2786 (“The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.”). For example, courts (including the trial court in this case) regularly admit evidence of Luminol testing for the presence of blood, even though Luminol does not indicate the origins of the detected blood. In fact, Luminol does not even definitively prove the presence of blood. As noted above, other common substances, including bleach, also react with Luminol. 11/ 14/84 RT 3142, 3169-70. The district court in this case repeatedly referred to the results of Luminol testing as probative of Cooper’s guilt. Dist. Ct., 510 F.3d at 907-08, 909, 910, 957. EDTA test results, like Luminol test results, satisfy the second prong of Daubert because they “logically advance[ ] a material aspect of [Cooper’s] case.” See Daubert, 43 F.3d at 1315. The district court concluded that even if EDTA testing were admissible under Daubert, the results of the tests in this case do not support Cooper’s contention that his blood was planted on the t-shirt. Dist. Ct., 510 F.3d at 948. I disagree. In the following two sections, I discuss errors committed by the district court in conducting the EDTA tests and in refusing to continue that testing. I then discuss the information revealed by the testing so far conducted, and show that even the truncated EDTA testing strongly suggests that Cooper’s blood was planted on the t-shirt. b. Errors by the District Court In conducting the EDTA tests, the district court made six fundamental errors. First, the district court refused to allow any of Cooper’s experts to assist in choosing the portions of the t-shirt to be tested. Indeed, the court refused to allow Cooper’s experts even to see the t-shirt. Second, the district court refused to allow any testing of the samples chosen in order to determine whether the stains on the samples were actually blood stains. Third, the district court refused to permit discovery into why blood from vial W-2 — the blood taken from Cooper two days after his arrest — contained the DNA of two different people. One obvious explanation is that someone removed some of Cooper’s blood from the vial and then added someone else’s blood to conceal the fact that he or she had removed Cooper’s blood. Fourth, when the state-designated laboratory came back with a result of an extremely high level of EDTA in the sample supposed to contain Cooper’s blood, thereby indicating that the blood had been planted, the lab director withdrew his results because of unspecified “contamination” in his lab. The district court refused to permit Cooper’s attorneys to see the lab’s raw data or notes, thereby preventing an inquiry into whether, in fact, there had been contamination, and into the significance of such contamination. Fifth, the district court erroneously concluded that several samples from the t-shirt were proper “controls” when, in fact, they were not. These samples contained both human DNA and EDTA, which indicated that they likely contained blood that had been planted on the t-shirt. Because the district court erroneously concluded that these samples were proper controls, it erroneously disregarded the test results obtained by the two laboratories. Sixth, when the district court concluded that the results of the EDTA testing were inconclusive, it refused to permit more testing, even though such testing was feasible. I discuss each of these errors in turn. i. Refusal to Allow Cooper’s Experts to Assist in Choosing Portions of the T-shirt to Be Tested One of Cooper’s experts, Dr. Peter DeForest, repeatedly sought to participate in the process of examining the tan t-shirt and determining which parts of the t-shirt might be suitable for sámpling. On August 4, 2004, Dr. DeForest filed a declaration noting that “new cuttings” of the t-shirt would be needed to perform the testing. He wrote, “[I]t is essential that the T-shirt be inspected in person to select the areas to be sampled by cutting as well as those to serve as suitable control areas.” ER 4021. On September 4, he wrote a letter to the district court, stating that he was concerned about the testing protocol that had been developed. He wrote: This protocol was generated without significant input from me. I feel this protocol is flawed. I will not agree [to] do any sampling according to this protocol. It will not be possible to obtain any meaningful quantitative results using it.... ... Once I have examined the shirt, I am willing to design an approach for review by another scientist or develop one in conjunction with a criminalist representing the prosecution. As I have been trying to explain for some time now, there needs to be a careful assessment of the shirt followed by a scientific consensus on the pre-extraction sampling— The samples need to be taken in such a way that it is possible to relate any quantitative findings[of EDTA levels] to a specific amount of bloodstain. This is not possible with the protocol specified in the order. In addition, there is the possibility that a scientific consensus might be that sampling that would allow a meaningful result is simply not possible. In such a case, samples should not be taken. ER 4128-29. The response of the district court was to exclude Dr. DeForest. On September 7, three days after the date of Dr. DeForest’s letter, the district court ordered that the t-shirt be sent to Dr.' Lewis Maddox of the Orchid Cellmark laboratory. Dr. Maddox’s laboratory is not associated with either Cooper or the State. The court directed Dr. Maddox and Gary Sims (or Sims’ designee) to prepare “Area 6G” of the t-shirt for testing, and to select other portions of the t-shirt for use as controls. ER 4151. Mr. Sims is Director of the California Department of Justice Laboratory. The court’s order did not allow a representative of Cooper to be present during the selection process. Dr. DeForest was prescient. Area 6G of the t-shirt (the area specified in the court’s order) was the area that had been originally tested for DNA. That earlier testing had confirmed Cooper’s blood was present in Area 6G. Upon close inspection by Dr. .Maddox, Area 6G turned out to be unsuitable for further testing because there was no blood remaining in that area. The State notified the district court of this fact on September 13. That same day, Cooper’s lawyer wrote to the district court, “[M]ost importantly, Petitioner vigorously requests that an expert of his be allowed to inspect the T-shirt and be part of the selection and preparation process for the anti-coagulant [EDTA] testing.” ER 4205. At 5:80 p.m. that same day, the district court denied Cooper’s request to have a representative present during the selection and preparation process. The court wrote, “The court denies petitioner’s request to have his own observer present at the preparation of the T-shirt for the EDTA testing. The court acknowledges that the 6-G stain is not suitable for testing. The court orders Dr. Maddox, in consultation with Dr. Myers [Mr. Sims’ designee, the State’s representative], to select an appropriate stain area and prepare it for EDTA testing[.]” ER 4207. As a matter of due process, a court is required to allow both sides to participate when important decisions are made. Where, as here, serious objections were made to the manner of choosing and processing samples to be tested, the district court failed in its duty to provide a fundamentally fair process. ii. Refusal to Allow Testing of the Newly Chosen Sample for the Presence of Blood Dr. Maddox and Mr. Sims’ designee, Mr. Myers (the district court erroneously referred to him as Dr. Myers), chose an area of the t-shirt between stains labeled 6J and 6K as a replacement for Area 6G. In their view, this area was likely to contain Cooper’s blood. They therefore took their sample from this area. They then divided the sample into three pieces. They sent one of the pieces to the state-designated lab, sent one to Cooper’s designated lab, and retained the third piece at Dr. Maddox’s lab. However, no one tested the new sample (or any part of it) to determine if any of the three pieces actually contained blood. Cooper objected to the failure to test the newly chosen sample for blood. He specifically requested that it be tested to determine if it contained blood. The district court denied the request on the ground that Cooper had not previously requested testing of the sample for the presence of blood. See 4/22/05 RT 10-11, 57-58, 171-72; see also Dist. Ct., 510 F.3d at 935 n. 16. The district court’s refusal to test the newly chosen sample for the presence of blood was wrong on two counts. First, the district court was wrong proeedurally. It was unfair to fault Cooper for not having previously requested testing of the sample for blood. Up until September 13, Cooper reasonably assumed that the sample to be chosen for testing would come from the stain in Area 6G, which everyone believed contained Cooper’s blood. It was therefore unnecessary to request testing of a sample from Area 6G for the presence of blood. Such testing only became necessary when a new sample was chosen. After Area 6G was deemed unsuitable, even the State told the district court that additional testing of the new subject sample “would be required to determine whether Cooper’s blood is actually present in the stain.” ER 4194. Cooper had no reason specifically to request this additional testing after the State said that it was “required.” Second, and more important, the district court was wrong substantively. Because of the failure to test the new sample for the presence of blood, it was possible that, as intended by the protocol, all of the pieces of the new sample sent for EDTA testing had Cooper’s- blood. But it was also possible that one or more of the pieces had none of his blood. This second possibility was greatly enhanced for the new sample, as compared to the old one from Area 6G. The new sample was adjacent to Area 6G, and theref