SOUTH BEND, Ind. (CN) – The Indiana man who was granted the first-ever innocence pardon from the state’s governor wants compensation for the 10 years he spent in prison for an armed robbery he didn’t commit.
Keith Cooper, represented by attorneys from Loevy & Loevy in Chicago, filed a lawsuit Monday in South Bend federal court against the city of Elkhart and four police officers, claiming they fabricated evidence that led to his wrongful conviction. He seeks punitive damages for his time spent incarcerated.
“The eyewitnesses have since come forward, one by one, and revealed the extent of the defendants’ misdeeds while acknowledging that Mr. Cooper was not the person that robbed and shot at them on October 29, 1996,” the complaint states. “DNA evidence bolsters their story and conclusively illustrates that Mr. Cooper is innocent and had no involvement in the armed-robbery and attempted murder of Michael Kershner.”
The 1996 crime occurred while Kershner was watching a movie in his family’s apartment with his girlfriend, friend, mother and mother’s boyfriend. Around 9:30 p.m., Kershner answered a knock at the door.
“When Mr. Kershner opened the door, two African-American males, one short and one tall, forced their way into the apartment. Both were armed with handguns. The intruders demanded money, drugs, and asked for ‘Shell,’” according to Cooper’s complaint.
After some scuffling, the tall assailant shot Kershner in the hip and then both left with a bag of quarters, a stun gun and Kershner’s SKS rifle. Following multiple surgeries, Kershner survived.
Detective Tom Cutler assigned Detective Steve Rezutko as lead investigator in the case. Both men are named as defendants in Monday’s lawsuit.
According to the complaint, prior to being assigned to the investigation, Rezutko had been demoted within Elkhart’s detective bureau and was not permitted to work on homicide cases unless there were “serious manpower shortages.”
“According to defendant Rezutko’s former partner and supervisor, Larry Towns, the reason Detective Rezutko was removed from the investigation of homicide cases was due to his poor investigative work, his habit of rushing to judgment, his frequent manipulation of evidence, and his use of suggestive photo line-ups,” the lawsuit states.
Within 48 hours of the shooting, Rezutko had various witnesses identify Christopher Parish as the short, non-shooter intruder.
Rezutko allegedly coerced and pressured the witnesses to falsely identify Parish, used highly suggestive photo arrays and prepared false witness statements for them.
The eyewitnesses all identified Parish as the non-shooter at the criminal trial in 1998, but his conviction was later vacated in 2005.
A few months after the shooting, Cooper says he was walking home with groceries when police arrested him because a woman reported that a “tall African-American” man attempted to snatch her purse earlier that day. He claims police conducted an “unduly suggestive” show-up and drove him to the location of the victim who falsely identified him through the car window.
While awaiting trial for the purse-snatching allegation, Rezutko visited Cooper at the jail and “threatened to frame Mr. Cooper for the robbery and attempted murder of Kershner unless he pleaded guilty to purse snatching,” the lawsuit states.
Cooper and Parish did not know each other and had never met prior to being wrongfully convicted together, according to the complaint.
Cooper was tried, refused to plead guilty and was eventually found not guilty of the purse-snatching charges. On the same day of Cooper’s acquittal, Rezutko filed a probable cause affidavit for charges of attempted murder and armed robbery against Cooper.
“Defendant Rezutko began fulfilling his January 3, 1997 promise to frame Mr. Cooper by conducting unduly suggestive photo-arrays, threatening witnesses, and withholding exculpatory evidence learned during the identification process,” according to the complaint.
Cooper claims Rezutko and co-defendant Officer Steven Ambrose illegally sent a confidential informant into Cooper’s cell to obtain information in the case. The informant told them that Cooper maintained his innocence throughout that time but still signed a statement claiming otherwise after meeting with another officer, defendant Edward Windbigler, Cooper claims.
“In exchange for providing an incriminating statement against Mr. Cooper, defendant Windbigler promised [the informant] lenient treatment in his own case, consideration never before disclosed to the prosecution nor defense,” the lawsuit states.
Cooper claims that, at his criminal trial, the defendant officers did not disclose that the man was a confidential informant for the department or that he was placed in the cell to obtain information. The informant refused to testify, was held in contempt of court and has since retracted the statement, according to the complaint.
Cooper was nonetheless convicted of armed robbery and sentenced to 40 years in prison.
However, a hat left at the scene was DNA tested in 1997 and eliminated Cooper as a possible suspect.
“Considering that DNA evidence excludes Mr. Cooper, the odds of separate people independently picking out the wrong man’s photograph would have to be a huge statistical improbability,” his lawsuit says.
DNA advances led to retesting of the hat in 2002, which revealed a possible match to inmate Johlanis Cortez Ervin at the Michigan Department of Corrections.
“Unlike Mr. Cooper, a family man with no criminal record, Mr. Ervin is currently serving a 60-year sentence in the Michigan Department of Corrections for second degree murder,” Cooper’s lawsuit states.
Cooper says the same type of weapon used in the second-degree murder Ervin was convicted of was also used in the 1996 attempted murder and armed robbery. Kershner positively identified Ervin as the man who tried to kill him, according to the complaint.
Cooper was released from prison in 2006. In 2014, after reviewing evidence, the Indiana Pardon and Parole Board unanimously recommended that Cooper be pardoned.
In February, Indiana Gov. Eric Holcomb exonerated Cooper in the state’s first-ever actual innocence pardon.
Cooper says his wrongful incarceration “nearly cost him everything” and forced his wife to sell their family’s belongings and live in shelters to survive.
“Mr. Cooper was stripped of the various pleasures of basic human experience, from the simplest to the most important, which all free people enjoy as a matter of right. He missed out on the ability to raise his children, share holidays, births, funerals and other life events with loved ones, and the fundamental freedom to live one’s life as an autonomous human being,” the lawsuit states.
Cooper wants a judge to declare that Elkhart failed to properly train its officers, who he says violated his right to due process and rights to be free from false arrest, false imprisonment and wrongful conviction.
Vlado Vranjes, an attorney for Elkhart, said in an email Wednesday, “The City of Elkhart’s Law Department is aware of the lawsuit filed by Keith Cooper against the City of Elkhart, its current police chief and three former police officers. Once the City’s attorneys have had a chance to review its contents, we will file the appropriate legal response.”
One of Cooper’s attorneys, Elliot Slosar with Loevy & Loevy, said in a statement that “today begins the final chapter in Keith Cooper’s story.”
“Tragically, Keith’s 21-year wrongful conviction was not accident, but rather, the result of intentional misconduct by members of the Elkhart Police Department,” Slosar said. “It took more than two decades for Keith to finally get his name back. Today begins his much shorter journey towards rebuilding the life he once enjoyed before being framed for a crime he did not commit.”