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Judge: Exonerated man’s suit against Elkhart police may proceed

January 30, 2019

A civil rights lawsuit filed by pardoned ex-prisoner Keith Cooper has been allowed to continue, with a federal judge ruling Tuesday that Cooper’s federal malicious prosecution and related claims are not time-barred. However, the judge also raised questions as to whether the relevant statute of limitations should be revised.

Indiana Northern District Judge Philip P. Simon on Tuesday denied a motion for judgment on the pleadings brought by the city of Elkhart and several individual police officers, including Steve Rezutko, now ex-Chief Edward Windbigler, Steven Ambrose and Tom Cutler. Cooper sued the officers in November 2017 after Gov. Eric Holcomb pardoned his armed robbery conviction the previous February. Cooper was convicted in 1997 and was released with his conviction still intact in 2006.

When Holcomb pardoned Cooper in February 2017, his executive order said the clemency was based on the facts that “(1) all of the eyewitnesses who identified Mr. Cooper at trial have now recanted their testimony and said they were mistaken; (2) the jailhouse informant has recanted his trial testimony; (3) the DNA evidence from the hat worn by the robber at the crime now clearly identifies and points to another man who is currently in prison for murder and who has subsequently been identified by eyewitnesses as the actual person who shot the victim and committed the crime; [and] (4) the DNA testing confirmed that no DNA from Mr. Cooper was found on the hat.” Cooper’s lawsuit alleges the defendants intentionally fabricated and withheld evidence to secure his conviction.

According to Cooper’s version of events, as described in Simon’s order, the alleged conspiracy against Cooper and his co-defendant, Christopher Parish, began almost immediately after Michael Kershner was shot in his home during an attempted robbery in October 2006. Eddie Love, an eyewitness, said one of the assailants resembled Parish, so Rezutko “coerced and put substantial pressure on Mr. Love to falsely identify Mr. Parish.”

The other suspect was a tall black man, a description that generally matches Cooper. Thus, when Cooper was arrested for an unrelated purse snatching — for which he was acquitted — he also became a suspect in the robbery based on Rezutko’s “hunch.”

“In justifying his hunch that Cooper was the other person involved in the robbery and shooting of Kershner,” Simon wrote, “Rezutko later made the preposterous statement that ‘Elkhart, Indiana doesn’t have a whole lot of tall six-foot … black male robbers running around … so that’s probably … why I made the connection.’”

From there, Cooper alleges Rezutko began building a bogus case against him using “unduly suggestive” photo lineups and coerced witness statements, including statements from Love, Kershner and his mother, Nona Canell. A jailhouse informant, Debery Coleman, was also housed with Cooper for the purpose of eliciting incriminating statements, though Cooper maintained his innocence with Coleman. Nevertheless, Cooper alleges Coleman worked with Windbigler to create a fabricated sworn statement.

All of the allegedly false evidence and testimony was admitted at trial and led to Cooper’s conviction and 40-year sentence. Subsequent DNA testing on a hat left behind by the robber eventually excluded Cooper as a suspect, but he alleges that evidence was withheld from him. Further, the witnesses who testified against Cooper have since recanted.

Parish, who was also convicted, was eventually freed after the Indiana Court of Appeals granted his petition for post-conviction relief in December 2005, while Cooper’s motion to modify his sentence was granted in April 2006, allowing his release without parole or probation.

Then in 2011, Cooper petitioned for a pardon, which the Indiana Pardon and Parole Board unanimously recommended in 2014. However, then-Gov. Mike Pence declined to grant the pardon, though Gov. Eric Holcomb did after he took office in 2017.

In his Tuesday order, Simon acknowledged that it might seem odd that Cooper waited to seek relief for his wrongful conviction. The judge noted the state has an informal gubernatorial policy of waiting five years from the release of prison to make a pardon request, a fact that could partially explain the delay.

Even so, the defendants argued Cooper’s civil rights suit was barred by a two-year statute of limitations that began running upon his 2006 release. But under federal precedent in Heck v. Humphrey, 512 U.S. 477 (1993) and Savory v. Cannon, F.3d -- , 2019 WL 116807 (7th Cir. Jan. 7, 2019), Cooper’s time didn’t begin running until his conviction was officially vacated through his February 2017 pardon, Simon wrote.

The judge then denied the defendants’ motion for judgment on the pleadings as to claims based on Cooper’s allegedly false arrest and the allegedly false testimony the officers gave at trial. Simon noted his ruling was based on Cooper’s assertion that his false arrest claims are only factual allegations, not claims for state law torts, and that he was not pursuing claims based on the defendants’ trial testimony.

The federal judge also declined to award judgment for the city of Elkhart on Cooper’s Monell claim of widespread unconstitutional practices.

“Cooper has satisfied that standard by alleging that the City of Elkhart had a widespread policy and/or custom of coercing witnesses, fabricating evidence and concocting false eye witness identifications to frame otherwise innocent criminal defendants,” Simon wrote. “To support this allegation, Cooper points to specific facts relating to the investigation and prosecution of Cooper himself, but also that of … Parish who was allegedly railroaded and harmed in a similar fashion.”

However, Simon did dismiss Cooper’s state law claims against the defendants, finding allegations of negligent supervision, respondeat superior and negligent and intentional infliction of emotional distress defeated under the immunity provision of the Indiana Tort Claims Act. The judge noted, though, that similar claims brought under federal law could still proceed and perhaps succeed despite the state law dismissal.

Though he ruled in Cooper’s favor on the timeliness issue, Simon still raised questions about the appropriate timeframe for bringing actions such as Cooper’s.

“With memories fading fast, I have my doubts over whether any of this makes sense,” the judge wrote. “It seems to me that it would be more sensible to require people in Cooper’s shoes to bring their pardon request within two years of being released from a criminal justice sentence … and then allow the statute of limitations to toll while the pardon request is pending.

“But this is neither here nor there,” Simon continued. “As a district judge in a hierarchical system of courts, my obligation is to follow the commands of my superiors. And as discussed above, the law is clear that Cooper was within his rights to take the tack that he did, and in doing so he has overcome the statute of limitations defense.”

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