ELKHART COUNTY CIRCUIT COURT
ELKHART, INDIANA
CRIMINAL DIVISION
STATE OF INDIANA.



RESPONDENT, i Case No. 97 CF 0014
v. i Judge Eugene Duf?n
KEITH COOPER, 
PETITIONER. I ORAL HEARING REQUESTED


VERIFIED PETITION FOR POST-CONVICTION RELIEF

Elliot Slosar

Pro Hac Vice Motion Pending

THE EXONERATION PROJECT

at the University of Chicago Law School
311 N. Aberdeen, Floor

Chicago, Illinois 60607

Telephone: {7?73} 334?4488

Facsimile: {312) 243-5902

Frances Watson

IU McKinney Law Clinic
530 W. New York Street
Indianapolis, Indiana 46202

TABLE OF CONTENTS

INTRODUCTION ..5
I. PROCEDURAL BACKGROUND ..7
II. GROUNDS FOR VACATING MR. CONVICTION ..8

A. Newly Discovered Material Evidence Requires That Keith Cooper?s
Conviction be Vacated in the Interests 

l. The Underlying Crime According to the State "9
2. Testimony that Caused Mr. Cooper?s Wrongful Conviction ..12
FACTS SUPPORTING POST-CONVICTION CLAIMS ..13

1. It Was Wider Known Within the Elkhart Police Department that
Detective Rezutko Used Suggestive Identi?cation 

2. Every Witness Recants Their Prior Identi?cation of Keith 

A. Nona Canell ..16

B. Michael Kershner ..17

C. Eddie Love  

D. Jason Ackley. ..l9
3. The Jailhouse Informant Admits His Statement was False and

Fabricated ..20
4. DNA Evidence Illustrates Mr. Cooper?s Innocence and Reveals the

Culprit ..22

A. Further Evidence ofJohlanis Ervin?s Guilt ..23

5. With Far Less Evidence, an Appellate Court Ruled that Christopher
Parish Deserved a New Trial. Mr. Cooper is Entitled to the Same
Relief "24

IV. LEGAL ARGUMENT AND BASIS FOR RELIEF ..25

3. Keith Cooper Has Presented This Court With Material New Evidence
Of His Innocence That Would Change The Result On Retrial 

2

i. An overwhelming amount of new evidence has been discovered

since trial ?26
ii. This evidence is material and noncumulative, and does not merely

impeach or contradict the former evidence . .28
This evidence could not have been discovered prior to trial "29
iv. This evidence is worthy of credit and is likely to produce a

different result upon retrial  

b. Keith Cooper Has Presented This Court With New Evidence
Demonstrating That His Rights Were Violated Under Brady v.

Maryland ..30
i. Police and prosecutors had favorable evidence that they did
not disclose to Cooper  
l. Withheld Brady Material Relating to Canell and Kershner ..31
2. Detective Rezutko Conducts Undisclosed Show-up "33
3. Detective Rezutko Coerced a False Identi?cation from Love ..33
4. Detective Rezutko Instructed Ackley to Falsely Indentify
Cooper?s Voice ..34
5. Detective Rezutko was Demoted Prior to Trial Because
of Other Misconduct he Committed ..34

6. Informant was Promised Signi?cant Consideration to In
Exchange for a False Statement lmplicating 

ii. Cooper?s counsel did not have an opportunity to locate
this evidence prior to trial "36
The misconduct prejudiced Cooper  

c. Keith Cooper Has Presented This Court With New Evidence
Demonstrating That His Right To Counsel Under The Sixth
Amendment Of The Constitution Was 1Violated By His Attorney?s
Performance At Trial .  

CONCLUSION ?39

LIST OF EXHIBITS

Exhibit 1 Christofeno Correspondence Exhibit 32 Johlanis Ervin MDOC
Exhibit 2 Cooper Indictment Exhibit 33 Berrian Police Reports
Exhibit 3 Judgment of Conviction Exhibit 34 Ervin MDOC

Exhibit 4 Sentencing Order Exhibit 35 Johlanis Mugshots
Exhibit 5 Cooper PC Exhibit 36 Michael Ervin Mugshots
Exhibit 6 Cooper Amended PC. Exhibit 3? Canell Identi?cation
Exhibit 7' Parish Denial Exhibit 38 Kershner/Dolph Af?davits
Exhibit 8 Parish Appellate Opinion Exhibit 39 Parish Civil Ruling
Exhibit 9 Modi?cation Order Exhibit 40 Circuit Opinion
Exhibit 10 Cooper Trial Transcript

Exhibit 1 1 Police Reports

Exhibit 12 Recovery Report

Exhibit 13 Love Report

Exhibit 14 Kershner Deposition

Exhibit 15 Request Lab Examination

Exhibit 16 Waiver of Seizure

Exhibit 17 Statement from Coleman

Exhibit 18 Report

Exhibit 19 DNA Stipulation

Exhibit 20 Larry Towns Af?davit

Exhibit 21 Rezutko Deposition Transcript

Exhibit 22 Canell Statement

Exhibit 23 Canell Deposition

Exhibit 24 Kershner Statement

Exhibit 25 Parish Evidentiary Hearing Transcript

Exhibit 26 Love Deposition Transcript

Exhibit 27 Ackley Af?davit

Exhibit 28 Coleman Af?davit #1

Exhibit 29 Coleman Af?davit #2

Exhibit 30 Lab Comparison

Exhibit 31 Certi?cate Analysis

ELKHART COUNTY CIRCUIT COURT
ELKHART, INDIANA
CRIMINAL DIVISION

STATE OF INDIANA,



RESPONDENT, Case No. 97 CF 0014

v. Judge Eugene Duf?n

KEITH COOPER, 

PETITIONER. ORAL HEARING REQUESTED


VERIFIED PETITION FOR POST-CONVICTION RELIEF

Petitioner, COOPER, respectfully petitions for relief pursuant to the Indiana
Rules of Procedure for Post-Conviction Remedies (RC. 1). In support ofthis request,

Petitioner alleges and states as follows:

INTRODUCTION

Petitioner, Keith Cooper, was wrongfully convicted of an armed robbery that occurred in
1996. Mr. Cooper had absolutely nothing to do with the crime and his false imprisonment very
nearly destroyed his life. Mr. Cooper is now in a position to bring this Petition because newly
discovered evidence that was unavailable at trial enables him to prove his innocence.

The amount of newly discovered evidence illustrating Mr. Cooper?s innocence is
unprecedented. The newly discovered evidence is so significant that the trial prosecutor, Michael
Christofeno, now believes that Mr. Cooper is innocent and that his conviction must be reversed.
See Ex. 1, Letter from Christofeno. According to Christofeno, Mr. Cooper?s wrongful conviction
should be reversed because ?evidence not available at the time of his trial now exonerates him."
Id. In Christofeno?s opinion, the newly discovered evidence requiring the reversal of Mr.

Cooper?s conviction includes DNA results and recantations from eyewitnesses. Id. Christofeno


also cautions that ?justice should not be circumvented under this set of circumstances on
procedural grounds.? Id.

As Christofeno's letter reveals, developments in DNA technology illustrate that Mr.
Cooper is unquestionably innocent. During the course of the underlying crime. the true
perpetrator of the shooting struggled with the victim and lost his hat, which was then left at the
scene. That hat contained DNA in its headband. Since his wrongful conviction. the DNA from
the headband was tested and the results exclude Mr. Cooper from having worn the hat. These
tests also developed a pro?le for the true perpetrator. Signi?cantly. the pro?le was searched
through the national CODIS database and revealed the identity of the real culprit of the armed
robbery and attempted murder of Michael Kershner -- a man named Johlanis Ervin who is
presently incarcerated in Michigan for an unrelated murder.

The only so-called "evidence" that ever supposedly existed against Mr. Cooper included
three tainted eyewitness identi?cations. Each of those witnesses have since recanted their prior
identi?cations and have since identi?ed the people who they believe are truly responsible 
Johlanis Ervin and his brother Michael Ervin. The robbery victim. Michael Kershner. and each
of the other eyewitnesses who originally testi?ed against Mr. Cooper have also revealed that
one of the investigating police of?cers manipulated them into making false identi?cations. As a
result of this miscarriage of justice. Mr. Cooper spent more than a decade of his life imprisoned
tor a crime that he did not commit.

Every wrongful conviction is tragic in its own right. but Mr. Cooper's is particularly
heartbreaking. At the time of his arrest. he was a married father ofthree and a provider for his
family with gainful employment. He had no criminal convictions. His wrongful conviction cost
him everything; he not only lost more than a decade of liberty, but his wife was also forced to sell

all of the family's belongings and live in shelters in order to survive.
6

After serving a decade in prison. Mr. Cooper is presently free. Since his release. he has
reunited with his family and is attempting to rebuild his life as best he can under the cloud of his
wrongful conviction. Mr. Cooper now brings this Post~Conviction Petition to clear his name.
Based upon the overwhelming amount of newly discovered evidence. this Court should now
provide Mr. Cooper with the justice that he has so long deserved.

I. PROCEDURAL BACKGROUND

The relevant procedural history is as follows:

On March a, 1997. Mr. Cooper was charged in Elkhart Circuit Court Case Number
with armed robbery and attempted murder in connection with the
Kershner shooting. Ex. 2. Cooper Indictment at I. At the resulting bench trial.

Kershner. Canell. Love and Ackley testi?ed against Mr. Draper. and he was found guilty of
armed robbery. Ex. 3. udgment ot'Conviction at I. On October 16. 1997. he was
sentenced to forty years imprisonment. Ex. 4.. Sentencing Order at 1.

Though discouraged by his mistreatment at the hands of the legal system. Mr. Cooper
pursued post-conviction relief in the Indiana Courts. On August 25. 1999. Mr. Cooper ?led a
timer post-conviction petition. Ex. 5. Cooper Post-Conviction Petition at 1. His
petition was amended numerous times. Ex. 6. Cooper Amended Post-Conviction
Petition at I.

In 2000. Mr. Cooper?s co-defendant. Christopher Parish. ?led a post-conviction
petition. The petition was later amended in 2004. On October 7, 2004, after an evidentiary
hearing. Parish was denied post-conviction relief. Ex. 7. Parish Denial. On December 6. 2005. the
Appellate Court reversed the denial of post-conviction relief for Parish. overturned his conviction.

and remanded the case for a new trial. Ex. 8. Parish Appellate Opinion. Communication ensued

shortly thereafter between this Court. the Elkhart County Prosecutor?s Of?ce. and Mr. Cooper?s
counsel relating to next steps in light of the Parish decision. These exchanges resulted in Mr.
Cooper withdrawing his Petition for Post-Conviction Relief on April 25. 2006. Ex. 9. Modi?cation
Order at 1. On April 27. 2006. this Court granted Mr. Cooper?s Motion for a Sentence
Modi?cation to time served. Id. at 3.
An investigation was ultimately conducted on behalf of Mr. Cooper. On March 4. 2009.
Mr. CoOper filed a Petition for a Pardon Based Upon Actual Innocence before the Governor of
Indiana. On February 3. 2014. a hearing was held before the Indiana Pardon and Parole Board
where Mr. Cooper presented testimony from witnesses in this case. The Pardon Petition continues
to be pending betbre Governor Pence.
ll. GROUNDS FOR VACATING MR. CONVICTION
This Post-Conviction Petition sets forth the basis for Mr. Cooper?s request for relief. He is
entitled to a new trial pursuant to the Indiana Rules of Procedure for Post-Conviction Remedies
because: (I) he is actually innocent. and has located new evidence materially relevant to his
innocence that he could not with reasonable diligence have discovered and produced at trial. See
lndiana Post-Conviction Rule (2) he has new evidence demonstrating misconduct by the
prosecution under Brady v. 373 U.S. 83 (1963). materially affecting his substantial
rights. See Indiana Post-Conviction Rule l(a)(l and (3) he received ineffective assistance of
counsel in violation of Strickland v. Washington. 466 U.S. 668 (1934) that fell below an objective
standard of reasonableness and prejudiced Mr. Cooper in a signi?cant way. See Indiana Post-
Conviction Rule No court to date has considered the evidence before this Court. Each of

these grounds provides an independent basis for this Court to grant Mr. Cooper a new trial.

A. Newly Discovered Material Evidence Requires That Mr. Cooper?s Conviction
he Vacated in the Interests of Justice.

The existence of newly discovered material evidence, not previously presented and heard,
requires the vacation of Mr. Cooper?s conviction in the interests of justice. See Post-Conviction
Rule In short, the evidence previously presented at Mr. Cooper?s original trial is now
disproven by the new evidence that forms the basis for his claims. In order to fully understand the
impact and materiality of this new evidence, it is necessary to ?rst consider the evidence presented
at trial.

1. The Underlying Crime According to the State

During the evening of October 29, 1996, Michael Kershner was watching a movie in his
family's apartment on Monroe Street in Elkhart, Indiana. Also present was girlfriend
Jennifer Dolph, his friend Eddie Love, his mother Nona anell, and her boyfriend Jason Ackley.
Ex. 10. Cooper Trial Tr. at 6; Ex. 11, Police Reports at 9.

At some point that evening, Kershner received a phone call from his sister Christina
Smallwood. At the same time, someone began knocking on Kershner?s door. When Kershner
opened the door, two African-American males, one short and one tall, forced their way into the
apartment. Ex. 10, Cooper Trial Tr. at 6-7; Ex. 1, Police Reports at 9. Both were armed with
handguns. 1d,, Ex. 10. Cooper Trial Tr. at 6-7. The intruders demanded money, drugs, and asked
ihr ?Shell.? Id. at 7. Kershner lunged for his SKS Ri?e, which was laying by his side. A scuffle
ensued between Kershner and the tall intruder. Er. 1 1, Police Reports at 10; Ex. 10, Cooper Trial
at 13-14. During the scuffle, Kershner managed to knock off the tall intruder's cap. 1d.

At one point, the tall intruder shot Kershner in the hip. 1d. at 18; Ex. 11, Police Reports at 5.
The two intruders left shortly thereafter, taking a bag full of quarters, a stun gun, and the SKS ri?e.
Id. at 3; Ex. 10, Cooper Trial Tr. at 22. anell and the others took Kershner to his car in order to

9

seek medical attention. Id. at 65. They then drove directly to the Central Elkhart ?re station where
Kershner was then transported to Elkhart General Hospital. Id. at 66. Following multiple
surgeries, Kershner survived the gunshot wounds. As a result of the gunshot wounds. the police
were called upon Kershner?s arrival to the ?re station. Id.

Detective Steve Rezutko was selected to lead the subsequent investigation. Upon his
assignment as lead investigator, Detective Rezutko directed additiooal units to go to the apartment
and secure it. As part of the investigation, Detective Rezutko quickly honed in on a man named
Christopher Parish as the shorter (the non-shooter) of the offenders. 1d. at 29. Despite Parish's
insistence that he had absolutely nothing to do with the crime. Detective Rezutko quickly built a
case against him. Id. at 29.

Within 24 hours, Detective Rezutko met Canell at the Elkhart Police Department. Id. at 73;
Ex. 11, Police Reports at 1. During that meeting, Detective Rezutko took a statement from Canell
documenting what she witnessed the night before. 1d; Ex. 10, Cooper Trial Tr. at 78. Canell also
looked through 2 photo albums and identi?ed Christopher Parish as the shorter of the two men.
Ex. 11. Police Reports at 9-10. Canell was unable to make an identi?cation of the actual shooter.
Id. 011 October 30. l996. Patrolman Prugh recovered a black hat from the crime scene. Ex. 12.
Recovery Report. That hat was described as ?a black cloth hat with a vinyl bill and costume
jewelry making a and circle on front of bat." Id.

On January 8, 199?, Detective Rezutko visited Eddie Love at the Elkhart County Jail. Ex.
13. Love Report. As a result of that meeting, Love identi?ed Mr. Cooper as the person who shot
Kershner. Id.

Detective Rezutko met with Kershner on January 29. 1997 at the Elkhart Police
Department. Ex. 14, Kershner Dep. Tr. at 43. According to the report. Detective Rezutko showed

Kershner two photo arrays before asking him to identify the shooter. Id. During that meeting.
It}

Kershner identi?ed Mr. Cooper as the person who shot him. Id. at 38. According to the report,
Kershner was ?very sure? ofhis identi?cation. Id. at 43. Detective Rezutko also showed Kershner
a photograph of a hat and asked if he had seen that hat before. [11 turn, Kershner informed
Detective Rezutko that the hat was worn by the shooter and fell off during the ensuing struggle. 15!.

On February 5, 1997, Detective Joel Bourdon made a request for the Indiana State Police
Laboratory to examine physical evidence retrieved from the crime scene of the Kershner shooting.
Ex. 15. Request for Laboratory Examination. Speci?cally, Detective Bourdon sent the laboratory a
sealed plastic bag containing the black hat recovered at the crime scene on October 30, 1996. 1d.
Detective Bourdon also sent a sealed evidence collection kit containing hair and saliva samples
from Mr. Cooper. Id. It should be noted that Mr. Cooper voluntarily waived his rights and
released his hair, blood, and saliva samples to the Elkhart Police Department on January 31, 1997?.
Ex. 16, Waiver of Search and Seizure.

Less than a week later, Detective Windbigler took a written statement from an irunate at the
Elkhart County Jail. Er. 17?. Statement from Debery Coleman at 1?2. On February 10, 1997,
Debery Coleman provided a detailed two-page statement to Detective Windbigler implicating Mr.
Cooper in the armed robbery and attempted murder. Id. at 1-2. Coleman?s statement included a
detailed confession that Cooper supposedly gave to him about the shooting. Id. Speci?cally,
Coleman alleged that Cooper revealed that: he wore a hat that was left at the scene and was
worried about the police doing forensic testing on it; (2) Parish had been over his apartment earlier
in the day, which is when they ?rst discussed stealing drugs from Kershner; Kershner brought
marijuana to Parish, but Parish refused to pay for it; (4) a ?ght broke out resulting in Kershner
being shot; (5) they ran back to Cooper?s apartment after the shooting and eventually sold the
drugs obtained from Kershner; (6) he used a .357 that he stored at his apartment; (7) he intended to

?ee to Florida after being bonded out. 1d. at 2.
1

On June 17. 1997', the Indiana State Police Laboratory sent the results of the DNA
comparison to the Elkhart Police Department. Ex. 18, Indiana State Police DNA Report at l. The
DNA was analyzed by Lisa B. Black, a DNA analyst for the Indiana State Police. Id. From the
tests, Ms. Black concluded that ?the DNA isolated and ampli?ed Item the sweatband (Item lb) of
the hat (Item I) revealed a mixture of alleles from which Keith Cooper can be eliminated as a
possible contributor.? Id.

2. Testimony that Caused Mr. Cooper?s Wrongful Conviction

At trial, the State called three eyewitnesses who identified Mr. Cooper as the taller
individual who shot Kershner on October 29, 1996. Si gni?cantly. Canell, Kershner, and Love all
identified Mr. Cooper at trial as being the taller offender who ?red the gun. Ex. 10, Cooper Trial
Tr. at 60, 8, 97-98. Coleman was also called by the State to testify to the supposed confession that
Mr. Cooper made to him. Id. at 127. Coleman refused to testify and instead insisted on being
held in contempt of court. Id. at 128-140. The State then called Detective Windbigler to testify
to the substance of the written statement that he obtained from Coleman on February 10, 1997.
Id. at 142. At the conclusion of Detective Windbigler's testimony, Coleinan?s statement was
entered into evidence in its entirety. Id. lmportantly, Detective Windbigler testi?ed that he made
no promises to Coleman at any point in time. Id. at 143. (?There?s nothing I could do for him?).
The State subsequently rested their case in chief. Id. at I46.

Mr. Cooper?s counsel, Jack Smeeton, started his defense by inexplicably entering into the
following stipulation with the State: "The parties stipulate to the laboratory report of Lisa Black.
Indiana State Laboratory, as being admissible into evidence. However, the expert opinion of Lisa
Black is that neither Mr. Cooper nor any other person can be eliminated as having possibly worn

the hat.? Id. at 147-148; Ex. 19, DNA Stipulation at l. Smeeton subsequently performed a short



LI

examination of Detective Rezutko prior to calling Mr. Cooper to the stand. Mr. Cooper
proclaimed his innocence and denied any involvement in the crime. Ex. 10, Cooper Trial Tr. at
174. Mr. Cooper also rebuked any allegations that he confessed to Coleman. Id. at 177

During Mr. Cooper?s examination, the State requested that Jason Ackley be allowed into
the courtroom in an effort to determine whether he could make a voice identi?cation. Id. at 195.
Ackley ?rst testi?ed about his discovery of the hat at the crime scene. 1d. at 202-203. He further
revealed that he did not touch the strap on the hat prior to turning it over to the police. Id. at 203.
At the conclusion of his testimony, the State obtained a voice identification of Mr. Cooper from
Ackley. Id. at 210-216.

On the basis of the aforementioned evidence, Mr. Cooper was convicted at trial of being
the tall intruder in the Kershner shooting. There was never a shred of physical evidence developed
against Mr. Cooper. nor did the investigators ever establish any connection to the victims or his co-
defendant, or even any reason to suspect that Mr. Cooper had any reason to be engaged in that kind
of activity.

I. FACTS SUPPORTING POST-CONVICTION CLAIMS

In support of his claims. individually and collectively, Petitioner states the following facts.
As required by the legalities of procedural default, Petitioner reserves the right to supplement the
operative factual allegations as discovery occms before the ?nal presentation of evidence and as
the interests of justice requires.

1. It Was Widely Known Within the Elkhart Police Department that Detective
Rezutko Used Suggestive Identi?cation Procedures.

The case against Mr. Cooper was built entirely on tainted eyewitness identi?cations
obtained by Detective Rezutko. Since his conviction, Mr. Cooper has obtained newly discovered

evidence in the form of an af?davit from the supervisor of Detective Rezutko during the time of





the underlying investigation.

In that af?davit, Detective Rezutko's former partner and supervisor, Larry Towns, states
that Detective Rezutko "otten put together extremely suggestive line-ups in order to push the
witness towards his preferred suspect instead of letting the witness make an independent
decision." Ex. 20, Towns Af?davit at 1] 8. "For example, if a suspect was described as having a
mustache, Rezutko would use a photo array that included the presumed suspect with a mustache
and ?ve other individuals without mustaches." Id. This is exactly what Detective Retzuko admits
to doing in this case. Ex.21, Rezutko Deposition Tr. at 101.

Compounding the problem, when Detective Rezutko performed photo line-ups, he would
often make improper remarks, such as "How does #2 look to you?" thereby leading the witness in
a suggestive manner. Ex. 20, Towns Af?davit 11 10. According to Towns, once Detective Rezutko
obtained an identi?cation from a photo line?up, he would focus exclusively on that person. Id. at 1i
10. The problems that Detective Rezutko had as an investigator, many of which were on full
display during the Kershner investigation, were common knowledge at the Elkhart Police
Department. Id. at 1] 5-6. This includes the Department?s most senior leadership. Id. Chief of
Police Dennis Bechthel himself knew about Detective Rezutko's misconduct, including his
manipulation of witnesses and misuse of photo line-ups. Id- at 1] 15.

By 1996, Detective Rezutko had been demoted within the Detective Bureau, meaning that
he was not permitted to work on homicide eases unless there were serious manpower shortage. Id.
at ml 4-7, 12. According to Towns, the reason Detective Rezutko was removed from the
investigation ofhomicide 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. Id. at 1]

4. This testimony was based on Towns? experience (as Detective Rezutko's partner and, later,

14

supervisor) as well as reports from other detectives under Towns' supervision. Id.

Detective Rezutko's demotion, however, apparently did not preclude him ?'om working on
attempted homicides, such as the Kershner shooting. That is because Captain Towns did not have
the authority to terminate Detective Rezutko's job altogether. Nevertheless, Towns did meet with
Chief Bechthel about the problems with Rezutko's investigative practices. Id. at 17-18. Chief
Bechtel admitted to Towns that he wanted to ?re Rezutko, but he never actually did so. 1d. at 1] l8.

Even Detective Rezutko admits that near the end of his tenure, the Elkhart County
Prosecutor?s Office started refusing to issue arrest warrants and prosecute suspects in cases that
he investigated. Ex. 21, Rezutko Deposition Tr. at 22-24.

In this case, upon developing his ?hunch? about Mr. Cooper, Detective Rezutko prepared
photo spread lineups containing six photos, one of which was Mr. Cooper's. Ex. 11, Police
Reports at 3. Somehow, Detective Rezutko managed to have the victim and each of the
remaining eyewitnesses pick out his suSpect from a six-person photographic lineup. Considering
that we now have DNA proof that Mr. Cooper was in fact not involved, the odds of separate
people independently picking out the wrong man's photograph would have to be a huge
statistical improbability. Accmding to the newly discovered evidence recantations from each
of the witnesses in this case - random chance nothing to do with their wrongful identi?cations of
Keith Cooper at trial.

2. Every Witness Recants Their Prior Identi?cations.

As mentioned supra, Mr. Cooper was wrongfully identi?ed at trial by four different
individuals. Because no physical evidence has ever linked Mr. Cooper to this horrible crime. there
can be no reasonable dispute that his wrongful conviction was based almost exclusively on the

identifications from Canell, Kershner, Ackley and Love. Each of these witnesses have now come

IS



forward and recanted their prior identi?cations of Mr. Cooper. Equally as signi?cant. all of these
witnesses have revealed the underlying police misconduct that caused them to wrongfully identify
Mr. Cooper in the ?rst place.

A. Nona Canal]

According to the police reports anell was "positive" that Mr. Cooper's photograph ?'om
Detective Rezutko's photo array was the tall offender who nearly killed her son. Ex. 9. Police
Reports. at 1 1. She also testified as much at Mr. Cooper's trial.

Canell has now clarified under oath that she told Detective Rezutko that photograph #5
"looked like" the offender. not that it was the offender. and that she adamantly wanted a live line-
up to be sure. Ex. 22. anell Statement, at 2. According to Canell. Detective Rezutko responded
to her concerns by stating that "we have the right guy and that there are not enough tall. skinny.
black guys in Elkhai to do a live line-up. 1d; Er. 23. Dep. Tr. of Canal] at 9. Being frustrated
with the process. Canell continued to demand a live line-up during her ensuing encounters with
Detective Rezutko. who continued to deny her requests. telling her that she would see Mr. Cooper
at the criminal trial. Ex. 22. Canell Statement. at 1; Ex. 23. Dep. Tr. of anell at 9. 36.

On the ?rst day of Mr. Cooper?s trial for the Kershner shooting, Detective Rezutko had
Caneli and the other eyewitnesses sit outside of the courtroom in a hallway. Id. at 10. In her
deposition. Canell described how Detective Rezutko pointed Mr. Cooper out to her as he walked
into the courtroom with his children. 10?. When Mr. Cooper walked past. Detective Rezutko told
Canell and the other witnesses, "that is the person who shot your son." M. It was then. under this
highly-improper and suggestive show-up. that Canal] and the others positively identi?ed Mr.
Cooper. Canell did this not because it was the individual who had actually shot Kershner, but
because the lead detective on the case told her that this was the right person. 19'. Mr. Cooper failed

to learn the circumstances of this highly suggestive show-up until more than a decade after the fact.
16

Ms. Canell has renounced her trial testimony and the identi?cation she made of Mr. Cooper.
Ex. 22._Canell Statement at 1. Speci?cally, Canell admits that she ?misidenti?ed Keith Cooper as
the shooter of my son. Michael Kershner." Id. After being presented with her reported statement
to Detective Rezutko, Ms. Canell revealed that the statements attributed to her by Detective
Rezutko?s police reports were demonstrably false. 1d. at 2. On this score, Canell revealed that she
never positively identi?ed Mr. Cooper in a photo array in the ?rst place. Ex. 23. Dep. Tr. of anell
at 11-2. 61-2. said it looks he could have been the guy. but I can?t swear to As mentioned
above, Detective Rezutko?s report notes something entirely different. Namely, that Canell made a

positive identi?cation of Mr. Cooper without any equivocation.

Additionally, Canell has positively identi?ed the true shooter of her son, a man named
Johlanis Ervin. Ex. 22, Statement by Nona Canell at 23, Dep. Tr. of Canell at 8. At a
recent deposition, anell testi?ed ?That?s him. That was the guy that shot Michael. I?m
positive." Id. at 8. anell also now admits that she likely misidenti?ed Parish as well, as she
believes that Michael Ervin was likely the shorter individual in her apartment at the time of the
shooting. Id. at 37; Ex. 22, Statement by Nona Canell at l. Canell believes that the wrong

people were prosecuted and convicted of shooting her son. 1d. at 8., 44.

B. Michael Kershner
Like Canell. the identi?cation by Kershner of Mr. Cooper was also fatally tainted. As
mentioned above. Kershner testi?ed at trial that Mr. Cooper was the shooter. His testimony was
damning. Kershner now admits that he wrong?Jlly identi?ed Mr. Cooper and has revealed the
underlying circumstances that caused his misidenti?cation.
A police report created by Detective Rezutko suggests that Kershner identi?ed Mr. Cooper
through a photo array. However, Kershner recently testi?ed that he never truly made an

identi?cation. Instead, Kershner revealed that his tentative identi?cation. given as he lie grievously
17

injured and highly medicated in the hospital awaiting surgery, was improperly induced through
Detective Rezutko?s assurances. Ex. 14, Kershner Deposition at 13-4. Detective Rezutko
informed Kershner that the police ?had done their job  and we know this is him, this is your
guy.? Id. Due to his uncertainty regarding the photo identi?cation, Kershner repeatedly demanded
to have a live line-up with the alleged shooter in it. Id. at 12-13. In response, Detective Rezutko
replied that ?he couldn?t ?nd enough people to do a line-up." Id. at 14.

instead of organizing a live line-up, Detective Rezutko had Kershner view the same
photographic array again. According to the police reports, Kershner once again identi?ed Mr.
Cooper as the individual who shot him. This identi?cation, like Canell?s, was false. Kershner
told Detective Rezutko that he still wasn?t sure that the photograph of Mr. Cooper depicted the
actual shooter. 1d. at 13, 16. (?Just looked like the Instead of documenting that
information, Detective Rezutko told Kershner that ?we?ve been doing our work and we know this
is him, this is your guy." 10?. at 14. After telling Kershner who to identify, Detective Rezutko
falsely documented that Kershner positively made an identi?cation of Mr. Cooper. Ex. 1 1. Police

Reports at 5.
Kershner has also identi?ed a different individual as the person who nearly took his life on

October 29, 1996. Ex. 24, Statement by Michael Kershner at 2-4; Ex. 14. Dep. Tr. of Kershner at
9-10. Speci?cally. Kershner has identi?ed Johlanis Ervin as the person who shot him on the night
in question. Id; Ex. 24, Statement by Michael Kershner at 2-4. Kershner believes that Michael
Ervin was the shorter person involved in the shooting. Id; Ex. 14. Dep. Tr. of Kershner at 9-10.
In sum, Mr. Kershner has fully recanted his prior identi?cation of Mr. Cooper and has identi?ed
the two true perpetrators of this awful crime ohlanis and Michael Ervin. Id.

C. Eddie Love

On January 8, 1997, more than two months after the crime was committed, Detective
18

Rezutko documented a witness statement from Eddie Love stating that he was "positive" that Mr.
Cooper was the shooter. Ex. Love Police Report, at 1. As mentioned supra, Love also
identi?ed Mr. Cooper at trial.

During post-conviction proceedings for Parish, Love, a mentally-challenged young man
who has Spent his entire life in and out of legal trouble, testi?ed about his previous statements
and trial testimony, and revealed the conditions in which his statements was obtained. Ex. 25.
Parish EH Tr. at 63-77. Love attributed his statement to a work of ?ction that derived ?'om
being "coerced" by Detective Rezukto. Id. at 69. According to Love. Detective Rezutko told
him "this is what I want you this is how it's going down." Id. Love admitted to being afraid of
the Elkhart Police Department and testi?ed against Mr. Cooper to appease Rezutko. Id. at 69-
70. Love further disclosed that "l was in boy's school [for juvenile delinquency] and Rezutko
said you know we can get me out" ifhe testi?ed at trial. Id. at 71. In sum, Love's statement and
subsequent testimony was ?ctitious, as he was coerced into falsely testifying against Mr.
Cooper. Love also has provided deposition testimony reinforcing his allegations that the police
coerced him into making false identi?cations in this case. Ex. 26, Dep. Tr. of Love.

1). Jason Ackley

Jason Ackley made a voice identi?cation of Mr. Cooper at trial that is particularly
dubious. Ex. 10. Cooper Trial Tr. at 20] 209. Ackley has now come forward and recanted that
identi?cation and revealed the circumstances that led to it.

As mentioned supra, Ackley testi?ed at Mr. Cooper?s trial that he was in the bathroom
when the shooting occurred. Id. at 201, 209. While standing inside the shower, Ackley testi?ed
that he heard a voice state. "you know what time it is, break yourself. . .if you try to get him out.
I?m gonna kill you" Id. at 212. Ackley identi?ed that voice as Mr. Cooper?s. Id. at BIZ. Since

trial, Ackley has signed an af?davit revealing that the ?voice identi?cation [he] did in court
19

wasn?t accurate.? Ex. 27. Ackley Affidavit at 3. Ackley further revealed that he wrongly
identi?ed Mr. Cooper?s voice at the direction of Detective Rezutko. Id. at 2.

Ackley has ?illy recanted his prior identi?cation of Mr. Cooper. Id. at l. Ackley was
pressured into the voice identi?cation by none other than Detective Rezutko. Id. at 1-4. In fact.
Ackley was a spectator at trial and was present solely in support of his loved ones. But that
changed when Detective Rezutko asked him ?to identify the voice of Keith Cooper. I told him I
would be willing to testify if he needed me to.? Id. Ackley further confessed that he ?knew Keith
Cooper was the defendant on trial? and that ?Nona, Mike and others had already identi?ed him
previously.? Id. at 3. Ackley admitted that he ?would have identi?ed any voice that Rezutko.
Nona. and Mike said was the right guy. ..I did it to help the police and my girlfriends family." Id.

Prior to testifying, Ackley asked Detective Rezutko what good his testimony would do,
as numerous people had already identi?ed Cooper in court by sight. not sound. Detective
Rezutko responded by proclaiming that ?it will be the final thing to get him convicted." Id. at 4.
It is painstakingly clear that Detective Rezutko created Ackley?s voice identification in his
desperation to have Mr. Cooper convicted.

3. The Jailhouse Informant Admits His Statement was False and Fabricated.

Lacking any evidence against Mr. Cooper other than phony identifications. Detective
Rezutko and another of?cer in the Elkhart Police Department recruited a jailhouse informant
named Debery Coleman to falsely implicate Mr. Cooper in the shooting. Like the others.
Coleman has now come forward and admitted that his statement against Mr. Cooper was
demonstrably false.

Elkhart Detective Windbigler took a statement from Coleman on February 10. 1997 at

the Elkhart County Jail. In that statement. Coleman claimed that Mr. Cooper admitted to

20

participating in the botched Kershner robbery. Ex. 17, Statement from Debery Coleman.
Coleman. at the time, was incarcerated on a battery charge. 10?.

Coleman ultimately refused to go through with the false testimony against Mr. Cooper
when he was later subpoenaed for trial. After Mr. Cooper?s wrongful conviction, Coleman
signed multiple af?davits disclosing the truth about his interactions with the Elkhart Police
Department. In Coleman's words. "Mr. Coopers involvement in the event under this case was
entirely fabricated by me to gain favor with the Elkhart Drug Task Force for whom I was
working as a con?dential informant" Ex. 28, Coleman Initial Affidavit at 1. In exchange for
providing an incriminating statement against Mr. Cooper. Elkhart detectives promised Coleman
lenient treatment in his own case, consideration never before disclosed to Mr. Cooper. Ex. 29.
Coleman Supplemental Af?davit at 2. In describing the promises made in exchange for his
fabricated statement. Coleman explained:

Detective Windbigler helped me create a fabricated statement against
Keith Cooper and Christopher Parish, details about the crime that I had no
idea about. Detective Windbigler gave to me for my statement. I was
promised things in exchange for my false statement and future testimony
against Keith Windbigler promised me that in exchange for my
fabricated statement that he would get me a deal during my sentencing
hearing. He promised me that I would get suspended time and a much
lesser sentence. I was facing twenty He told me I would get a 10
year sentence with four years suspended. 1 would only have to serve 6
years. Of that 6, I would have to serve only 3 with good time. Since I

already had served around 18 months. Detective Windbigler was
promising me about 18 more months of incarceration in exchange for

lying against Keith Cooper. Id. at 4-5.3

Though Coleman did not testify against Mr. Cooper. his statement was introduced in its
entirety throngh testimony from Detective Windbigler. The newly discovered evidence relating to
Coleman casts doubt on the entire investigation into the shooting and supports the allegations put

forth by the other witnesses in this case.

21

4. DNA Evidence Illustrates Mr. Cooper?s Innocence and Reveals the Culprit.
Based on advances in science and DNA technology, we now know the true identity of the
tall African-American man who shot Kershner that evening in 1996. His name is Johlanis Ervin.
As mentioned above, according to Kershner and the other eyewitnesses, the tall perpetrator
got into a struggle with Kershner and lost his hat, a customized baseball cap with rhinestones on
the front of it in the shape of the letter (as in Johlanis} on it. The Hat' was collected on
February 5, 1997, by Detective Joel Bourdon of the Elkhart City Police Department, who sent it in
a sealed plastic bag along with an evidence collection kit from Mr. Cooper to the Indiana State
Police. Ex. 15, Bourdon Police Report at 1. On June 17, 199?, the Indiana State Police sent the
results of the DNA comparison test to the Elkhart Police Department. Ex. 18, Indiana State Police
DNA Report at I. From the tests, the lab analyst concluded that "the DNA isolated and ampli?ed
from the sweat band (Item lb) of the hat (Item 1) revealed a mixture of alleles from which Keith
Cooper can be eliminated as a possible contributor." Id.
However advances in DNA science after trial led to further testing on the hat in question.
In this regard. on June 20, 2002, approximately ?ve years after Mr. Cooper had been convicted,
the Indiana State Police Laboratory once again compared the DNA sample found in the hat to Mr.
Cooper. Ex. 30, Lab Comparison at I. This time, the DNA was further analyzed using newly-
developed Polymerase Chain Reaction testing. Id. Based on this new technology, the lab
technicians were able to identify a speci?c pro?le, the DNA of a person whose identity was
still unknown, but who was not Mr. Cooper. Id.
Mr. Coopers? attorney at the time. William Polansky from the Indiana Defender's Of?ce,
immediately requested that the DNA taken from the hat be compared to those the national DNA

database, otherwise known as ODIS. On March 8, 2004, the Certi?cate of Analysis from the

22

State Police Laboratory was mailed to the Elkhart Police Department. Ex. 31. Certi?cate
of Analysis, at 1. According to the results, "The DNA pro?le obtained from one sample of the
hat (item 1C) was searched in the National DNA Database and was found to be consistent with
Michigan Department of Corrections Inmate Johlanis Cortez Ervin." Id. Thus. after his
conviction Mr. Cooper obtained additional testing that both excluded him and demonstrated
who actually perpetrated this crime.
A. Further Evidence of Johlanis Ervin's Guilt.

Unlike Mr. Cooper, a famin man with no criminal record, Mr. Ervin is currently serving a
60-year sentence in the Michigan Department of Corrections for second degree murder. Ex. 32.
Ervin MDOC Profile. That murder occorred on July ll, 2002, in the city of Benton Harbor, a
town which is less than sixty miles away from Elkhart, Indiana. Ex. 33, Berrian Police Reports.

According to the Berrian County Police Reports, the weapon Ervin used in his Michigan
crime is the same type of weapon which was used to shoot Kershner, a Magnum .357 revolver. Id.

Even more telling, Johlanis Ervin's co-defendant in Michigan is his brother, Michael
Ervin. Michael Ervin happens to be a short and stocky African American who looks not unlike
Mr. Parish. Ex. 34, Michael Ervin MDOC Pro?le.

During a re-investigation conducted by Mr. Cooper?s post?conviction counsel, line-up
photographs of both Ervin brothers were retrieved from the time frame when Kershner was shot.
Ex. 35, Johlanis Ervin Mugshots; Ex. 36, Michael Ervin Mugshots. Separately, these photographs
were shown to the eyewitnesses who had been located. When shown the various photographs,
Canell identi?ed the shooter as Johlanis Ervin and his brother as the second individual involved.
Ex. 37, Canell Af?davit. According to Canal], "1 misidenti?ed Keith Cooper as the shooter of my
son, Michael Kershner. The individual who tried to kill my Son is Johlanis Ervin.? Id.

When shown the photographs, Kershner also immediately identi?ed Johlanis Ervin as the
23

individual who tried to kill him in October of 1996. Kershner stated in his af?davit that
"Johlanis Ervin was the individual who tried to kill me that night. not Mr. Cooper." Ex. 38.
Af?davits ot'Kershner and Dolph at 1. Jennifer Dolph also identi?ed Johlanis Ervin as the
individual who shot Kershner. Id. at 4. It is clear when comparing the line-up photographs that
Johlanis and Michael Ervin look similar to Mr. Cooper and Mr. Parish. Id.

5. With or Less Evidence. an Appellate Court Ruled that Christopher Parish
Deserved a New Trial. Mr. Cooper is Entitled to the Same Relief.

In 2000. Parish ?led a post-conviction petition. Parish's petition resulted in an evidentiary
hearing that took place in August of2004. Ex. 25. Parish EH Tr. At that hearing. Eddie Love and
Lisa Black. the lab analyst in this case. both testi?ed. Ms. Black testi?ed that the DNA recovered
from the -hat did not match Keith Cooper. Id. at 6. This. of course. is directly contrary to the
stipulation that Smeeton entered into at Keith Cooper?s criminal trial. Parish also presented
testimony from other witnesses. including Love. Eventually, Parish's post-conviction petition was
denied on October 2004. Ex. 41. Parish Denial at 1. But on December 6. 2005. the Indiana Court
of Appeals vacated Parish's convictioo and ordered a new trial. Parish v. State. 338 495.
501 (2005). The Elkhart County District Attorney's of?ce elected not to retry Parish.

What is extraordinary about Parish's situation is that he proceeded to pursue a successful
civil suit against Detective Rezutko and the City of Elkhart. alleging intentional misconduct
during the investigation. In December 2010. a federal jury agreed with Parish that he was
framed. ?nding that Detective Rezutko violated the constitution by manipulating witnesses and
withholding exculpatory evidence that would have helped Parish prove his innocence. Ex. 39.
Parish Civil Verdict. The Seventh Circuit Court of Appeals agreed that the evidence at trial
supported a ?nding that Elkhart police of?cers had committed constitutional violations during

the Kershner shooting investigation. Er. 40. Seventh Circuit Opinicm. Parish eventually settled

24

a civil suit with Detective Rezutko and the City of Elkhart relating to the underlying claims.

IV. LEGAL ARGUMENT AND BASIS FOR RELIEF

Mr. Cooper is entitled to a new trial pursuant to the Indiana Rules of Procedure for Post?
Conviction Remedies because: (1) he is actually innocent. and has located new evidence materially
relevant to his innocence that he could not with reasonable diligence have discovered and produced
at triall See Indiana Post-Conviction Rule (2) he has new evidence demonstrating
misconduct by the prosecution under Bradv v. Maryland. 373 U.S. 83 (1963). materially affecting
his substantial rights, See Indiana Post-Conviction Rule and (3) he received ineffective
assistance of counsel in violation of Strickland v. Washington, 466 U.S. 668 (1934) that fell below
an objective standard of reasonableness and prejudiced Mr. Cooper in a signi?cant way, See
Indiana Post-Conviction Rule Each of these grounds provides an independent basis for
this Court to grant Mr. Cooper a new trial.

a. KEITH COOPER HAS PRESENTED THIS COURT WITH MATERIAL NEW
EVIDENCE OF HIS INNOCENCE THAT WOULD CHANGE THE RESULT
0N RETRIAL.

In Carter v. State, The Indiana Supreme Court delineated the standard for granting a new
trial based on newly discovered evidence Carter v. State, 7'38 665, 671 (Ind. 2000). The
Court reiterated that standard in Taylor v. State. Taylor v. State, 340 324, 329-30 (1nd.
2006). Newly discovered evidence mandates a new trial only when the defendant demonstrates
each of the following nine requirements: (1) the evidence has been discovered since trial; (2) it is
material and relevant: (3) it is noncurnulative; it is not merely impeaching; (5) it is not
privileged or incompetent; (6) due diligence was used to discover it in time for trial; (7) the
evidence is worthy of credit; it can be produced upon a retrial of the cause; and it will

probably produce a different result at trial. Id. Mr. Cooper easily meets this standard.

25

i. An overwhelming amount of new evidence has been discovered since
trial.

As described supra, an overwhelming amount of newly discovered evidence has been
uncovered since trial. At trial, Mr. Cooper was convicted because he had every little ammunition
to offer against the damning testimony from the State's key witnesses: eyewitness
identi?cations from Kershner, Canell, and Love: (2) a voice identi?cation from Ackley; (3) and
Debery Coleman?s statement, admitted through Detective Windbigler, that Mr. Cooper confessed
to him. The new evidence Mr. Cooper presents here destroys the testimony on these three issues,
and makes clear that on retrial, no reasonable trier of fact would conclude that Mr. Cooper had any
role in the Kershner shooting.

As is discussed more fully above, Mr. Cooper has developed signi?cant evidence since trial
that illustrates his innocence. To begin, each of the eyewitnesses who testi?ed against Cooper at
trial have recanted their identi?cations and identi?ed the persons they believe to be responsible for
the shooting, Johlanis Ervin and his brother Michael. For instance, Canell has renounced her trial
testimony and the identi?cation she made of Mr. Cooper. Ex. 11, Canell Statement at 1; Ex. 12,
Canell Dep. Tr. 8-9. Speci?cally, Canell admits that she ?misidenti?ed Keith Cooper as the
shooter of my son, Michael Kersl'mer.? Ex. 11, Cane]! Statement at 1. Additionally, Canell has
now positively identi?ed the true shooter of her son, a man named Johlanis Ervin. Ex. 1 l, Canell
Statement at 1;Ex. l2, Canell Dep. Tr. 8-10. At a deposition in 2008, Ms. anell testi?ed ?That?s
him. That was the guy that shot Michael. l?rn positive.? Id. at 8.

The victim, Michael Kershner, also admits that he wrongfully identi?ed Mr. Cooper at trial.
Ex. 14, Dep. Tr. of Kershner at 9-10. In addition to providing information relating to his original
misidenti?cation of Mr. Cooper, Kershner has also identi?ed a different individual as the person

who nearly took his life on October 29, 1996. Ex. 14, Statement by Michael Kershner at 2-4; Ex.
26

24. Dep. Tr. of Kershner at 9-10. Speci?cally, Kershner has identi?ed Johlanis Ervin as the person
who shot him on the night in question. Id; Ex. 14. Statement by Michael Kershner at 2-4. He also
believes that Michael Ervin, the brother ofJolilanis Ervin, is the shorter person involved in the
shooting. Id; Ex. 24. Dep. Tr. of Kershner at 9-10.

Since Mr. Cooper?s trial. Love has also recanted his prior testimony in this case. Ex. 25,
Parish EH Tr. at 63-77. Love attributed his statement to a work of ?ction that derived from being
"coerced" by Detective Rezukto. Id. at 69. Ackley. too. has recanted his prior voice identification
of Cooper and disclosed the shocking circumstances which led to it. Ex. 27, Ackley Af?davit at l.
Detective Rezutko directed Ackley ?to identify the voice ofKeith Cooper.? Id. Prior to testifying.
Acldey asked Detective Rezutko what good his testimony would do, as numerous people had
already identified Cooper in court by sight, not sound. Detective Rezutko responded, ?it will be the
final thing to get him convicted." Id. at 4.

Like all of the other witnesses at trial, Debery Coleman has also come forward and
revealed that his prior statement against Mr. Cooper was demonstrably false. In exchange for
providing an incriminating statement against Mr. Cooper. Elkhart detectives promised Coleman
lenient treatment in his own case. consideration never before disclosed to Mr. Cooper. A?er Mr.
Cooper?s wrongful conviction, Coleman signed multiple affidavits disclosing the truth about his
interactions with the Elkhart Police Department. In oleman's words. "Mr. Coopers involvement
in the event under this case was entirely fabricated by me to gain favor with the Elkhart Drug Task
Force for whom I was working as a confidential informant" Ex. 28, Coleman Initial Affidavit. at
1; Ex. 29. Coleman Supplemental Af?davit.

Mr. Cooper has also developed signi?cant additional evidence relating to the hat
recovered from the crime scene. Advances in DNA science after Mr. Cooper?s trial led to further

testing on the hat in question. Based on this new technology. the lab technicians were able to
27

identify a speci?c pro?le, the DNA of a person whose identity was still unknown, but who
was not Mr. Cooper. Ex. 30, Lab Comparison at 1. According to the results, "The DNA pro?le
obtained from one sample of the hat (item 1C) was searched in the National DNA Database and
was found to be consistent with Michigan Department of Corrections Inmate Johlanis Cortes
Ervin." Id.

After learning of the DNA pro?le associated with the ?J-Hat", Mr. Cooper?s team
undertook an investigation into the Ervin brothers and determined that the weapon Ervin used in
his Michigan crime is the same type of weapon which was used to shoot Kershner and that
Johlanis Ervin's co-defendant in Michigan is his brother, Michael Ervin, who happens to be a
short and stocky African American who looks not unlike Mr. Parish. Ex. 36, MDOC Ervin
Pro?le, at l. Thereafter, Canell, Kershner, and Dolph identi?ed the shooter as .lohlanis Ervin. Ex.
22, Canell Identi?cation Affidavit, at 1; Ex. 38. Kershner and Dolph Identi?cation Af?davits at i.
All of the aforementioned evidence was discovered after Mr. Cooper?s wrongful conviction.

ii. This evidence is material and noncumulative, and does not merely
impeach or contradict the former evidence.

This petition presents an avalanche of new evidence for this Court to consider about the
merits of Mr. Cooper?s conviction. As described in this petition, this evidence has never been
considered by any court because it is newly discovered. It represents evidence that was either
withheld by the State or that is new information that was uncovered from witnesses who have only
now come forward. Perhaps most tellingly, the trial prosecutor, Michael Christofeno, believes that
Mr. Cooper?s conviction must be reversed on the basis of this newly discovered evidence. Ex. 1,
Letter from Christofeno. Speci?cally, Chri stofeno states that Mr. ooper?s wrongful conviction
should be reversed because ?evidence not available at the time of his trial now exonerates him."

Id. Importantly, Chn'stofeno cautions that ?justice should not he circumvented under this set of

28

circumstances on procedural grounds.? Id.

This evidence could not have been discovered prior to trial.

The evidence mentioned supra could not have been discovered earlier because the State
withheld exculpatory evidence that might have otherwise have led him to it. In addition, only
through extensive investigation was Mr. Cooper able to obtain several af?davits that he now
possesses. including the af?davit of Larry Towns, who is not mentioned in any of the documents
that Mr. Cooper possessed at the time of trial. As with the Brady issues that Mr. Cooper raises, the
State cannot have it both ways?because they suppressed this evidence from Mr. Cooper. they
cannot be heard to complain that he should have discovered it earlier.

iv. This evidence is worthy of credit and is likely to produce a different
result upon retrial.

All of this evidence is material and non-cumulative. It did not come up at Mr. Cooper?s
trial. This evidence has the capability to overturn Mr. Cooper?s conviction and requires this Court
to grant him a new trial.

Importantly, it also does not merely impeach or contradict former evidence. Certainly
some of the new evidence discussed above is of the impeachment variety?the numerous
statements by some witnesses, evidence of promises of deals and inducements to those witnesses,
and evidence that police engaged in misconduct in order to try to close this case. It is relevant here
because it should be part of the Court?s analysis in considering whether this evidence will change
the result on retrial. For that reason, the signi?cant additional impeachment information as set

in this petition is also relevant to the analysis of whether Mr. Cooper is entitled to a new trial.

29

b. KEITH COOPER HAS PRESENTED THIS COURT WITH NEW EVIDENCE
DEMONSTRATING THAT HIS RIGHTS WERE VIOLATED UNDER BRADY
V. MARYLAND.

Petitioner repeats and alleges the facts contained above as if fully alleged here. It is a
violation of due process for the prosecution to fail to disclose potentially exculpatory evidence to
the defense. U.S. Const. amends. V, Ind. Const. art. l, 12, 13; Brady v. Maryland, 373
U.S. 83 (1963).

New investigation in this case has revealed a shocking lack of concern by the police with
disclosing exculpatory evidence to Mr. Cooper at the time of trial. Elkhart police of?cers were
aware of exculpatory evidence that discredited witnesses, that proved that others, and not Mr.
Cooper, were involved in this crime, yet they failed to disclose it. Indeed, the failure to disclose
Brady material was a pattern and practice of the Elkhart Police Department during the entire time
that the Elkhart Police Department worked on the underlying investigation. These Brady
violations entitle Mr. Cooper to a new trial. See Indiana Post-Conviction Rule 

The State's failure to disclose favorable evidence, where the evidence is material either to
guilt or to sentencing, to an accused in a criminal proceeding violates the Due Process Clause
regardless of the prosecutor?s good or bad faith. Braciv v. Maryland, 373 U.S. 83, 87 (1963). The
Court has expanded the duty to disclose to include impeachment evidence as well as exculpatory
evidence. United States v. Bagley, 473 U.S. 667, 676 (1985). In order to comply with Bt?adv, ?the
individual prosecutor has a duty to learn of any favorable evidence known to others acting on the
government?s behalf in this case, including the police." Kyles v. let'tlev, 514 U.S. 419, 437
?995).

The evidence need only be shown to be material. with ?materiality? defined according to

opinions interpreting the Brady rule. United States v. Bagley. 473 US. 667, 682, 105 3375,

87 L.Ed.2d 481 (1985). Under Bredv, evidence is material ?if there is a reasonable probability
that, had the evidence been disclosed, the result of the proceeding would have been different.? Id.

To prevail on a Brod}: claim, a defendant must establish: (1) that the prosecution suppressed
evidence; that the evidence was favorable to the defense; and (3) that the evidence was material
to an issue at trial." Minniek v. State, 698 745, 755 (1nd.1998) (citing Br?ndv, 373 US. at
87, 83 1194), cert. denied, 528 1.1.8. 1006, 120 501, 145 L.Ed.2d 387 (1999); Bunch 
State, 964 274, 297?98 (Ind. Ct. App. 2012). ?Favorable evidence? includes both
exculpatory evidence and impeachment evidence. See Prev-it: v. State, 819 393, 401
(lnd.Ct.App.2004), trons. denied. Suppression of Brady evidence is constitutional error warranting
a new trial. Turnev v. State. 759 671, 675 (lnd.Ct.App.2001), trons. denied: Bunch v. State.
964 274, 297?98 (Ind. Ct. App. 2012). Mr. Cooper meets this standard.

i. Police and prosecutors had favorable evidence that they did not disclose
to Cooper.

As is discussed more fully supra, the Elkhart Police Department possessed, but withheld,
evidence that the eyewitnesses in this case did not actually identify Mr. Cooper and retained
signi?cant doubts about Mr. Cooper?s involvement through trial.

Canell, Kershner, and Love were eyewitnesses who identi?ed Mr. Cooper at trial as the person
who shot her son. Given that there was no physical evidence linking Mr. Cooper to the crime, this
testimony was critical for the State?s conviction. However, the prosecution failed to disclose several
pieces of that are highly relevant in evaluating the credibility of these identi?cations. At
trial, it was represented to the Court that each of these witnesses previously identi?ed Mr. Cooper in a
photographic array.

1. Withheld Brady Material Relating to Cnell and Kershner.

As mentioned supra. Canell and Kershner have now testi?ed under oath what they actually

31

told Detective Rezutko at the time of the purported photographic identi?cations. For instance,
Canel] revealed that she told Detective Rezutko that photograph #5 "looked like" the offender, not
that it was the offender, and that she adamantly wanted a live line?up to be sure. Ex. 22, Canell
Statement at 2; Ex. 23, Canell Dep. Tr. at 8-9. According to anell, Detective Rezutko responded
to her concerns by stating that "we have the right guy and that there are not enough tall, skinny,
black guys in Elkhart" to do a live line-up. Ex. 22.. anell Statement, at 1; Ex. 23, Dep. Tr. of
Canell at 9. anell, being frustrated with the process. continued to demand a live line-up during
her encounters with Detective Rezutko, who continued to deny her requests and told her that she
would see Mr. Cooper at trial. Ex. 22, Canell Statement at l; Ex. 33. Dep. OfC??ell at 9. 36.
This sequence of events, which went undisclosed by the State for more than a decade, casts
signi?cant doubt on Canell?s identi?cation of Mr. Cooper.

Similarly, a police report created by Detective Rezutko originally suggested that Kershner
also identi?ed Mr. Cooper through a photo array. However, Kershner recently testi?ed that he
never truly identi?ed Mr. Cooper. Instead, Kershner revealed that his tentative identi?cation, given
as he lie grievoust injured and highly medicated in the hospital awaiting surgery, was improperly
induced through Detective Rezutko?s assurances. Ex. 14, Kershner Dep. Tr. at 13-4. Detective
Rezutko informed Kershner that the police ?had done their job  and we know this is him, this is
your guy.? Id. Due to his uncertainty regarding the photo identi?cation, Kershner repeatedly
demanded to have a live line-up with the alleged shooter in it. Id. at 12-13. In response, Detective
Rezutko replied that ?he couldn?t ?nd enough people to do a line-up" and had Kershner view the
same photo array once again. 1d. at 14. According to the police reports, Kershner once again
identi?ed Mr. Cooper as the individual who shot him.

This reported identi?cation, like Canell?s, was false. During this process, Kershner told

Detective Rezutko that he wasn?t sure that the photograph of Keith Cooper depicted the actual
32

shooter. Ex. 14. Kershner Dep. Tr. at 13, 16. (?Just looked like the Instead of
documenting that information, Detective Rezutko instead told Kershner that ?we?ve been doing
our work and we know this is him, this is your guy.? Id. at 14. After telling Kershner who to
identify. Detective Rezutko falsely documented that Kershner positively identi?ed Keith Cooper
in a photo array. Ex. 1 1, Police Reports at 6. This sequence of events, which went undisclosed by
the State for more than a decade, casts signi?cant doubt on Kershner?s identi?cation of Mr.
Cooper.

2. Detective Rezutko Conducts Undisclosed Show-up.

The State also failed to disclose that Canell the other eyewitnesses were instructed to meet
the lead detective on the ?rst day of trial as a result of their uncertainties as to the identity of the
shooter. During that meeting. Detective Rezutko had Canell and the other eyewitnesses sit outside
of the courtroom in a hallway so that Detective Rezutko could point out Mr. Cooper as he walked
into the courtroom. Ex. 23. Dep. Tr. of Canell at 10. When Mr. Cooper walked by. Detective
Rezutko told Canell and the other eyewitnesses "that is the person who shot your son." Id. It was
then. under these hi y-improper and suggestive show-up. that the eyewitnesses positively
identi?ed Mr. Cooper. 10?. Mr. Cooper failed to learn the circumstances of this highly suggestive
show-up until more than a decade after the fact.

3 . Detective Rezutko Coerced a False Identi?cation from Love.

The State further failed to disclose the coercion that led to the creation of Love?s false
identi?cation of Mr. Cooper. At Parish? Post-Conviction Proceedings. Love testi?ed about his
previous statements and trial testimony, and revealed the conditions in which his statements
were obtained. Ex. 25, Love Testimony at 68-77. Love attributed his statement to a work of
?ction that derived from being "coerce by Detective Rezukto. Because of Detective

Rezutko?s threats, Love was frightened and went along with Rezutko?s plan- 10'. at $73. None of
33

this information was disclosed to Mr. Cooper prior to his trial.

4. Detective Rezutko Instructed Ackley to Falsely Identify Cooper?s
Voice.

Ackley made a voice identi?cation of Mr. Cooper at trial that is particularly dubious. Ex.
10. Cooper Trial Tr. at 201. 209. Ackley has now come forward and recanted his identi?cation
and revealed the circumstances that led to it. The State failed to disclose the circumstances in
which Mr. Ackley?s false identi?cation oer. Cooper?s voice occurred.

Mr. Ackley was pressured into the voice identi?cation by Detective Rezutko. Er. 27.
Ackley Af?davit at 1-4. Detective Rezutko requested that Ackley ?identify the voice of Keith
Cooper. . Id. It is painstakingly clear that Detective Rezutko created Ackley?s voice
identi?cation in his desperation to have Mr. Cooper convicted. Prior to testifying. Ackley asked
Detective Rezutko what good his testimony would do. as numerous people had already identi?ed
Cooper in court by sight. not sound. Detective Rezutko responded. ?it will be the ?nal thing to get
him convicted." Mr. Cooper failed to learn the circumstances of this highly suggestive
identi?cation until more than a decade after the fact.

5. Detective Rezutko was Demoted Prior to Trial Because of Other
Misconduct he Committed.

Detective Rezutko was in a position to botch this investigation because he had been
recently demoted at the Elkhart Police Department. In fact. Detective Rezutko?s investigation
skills were so improper that prosecutors from the Elkhart County Prosecutor?s Of?ce refused to
prosecute his cases. Again. the State failed to disclose this type of information to Mr. Cooper
prior to his trial-

The case against Mr. Cooper was built entirely on tainted eyewitness identi?cations
obtained by Rezutko. Since his conviction. Mr. Cooper has obtained newly discovered evidence

in the form of an af?davit from the supervisor of Detective Rezutko during the time of the
34

underlying investigation. In that af?davit, Rezutko's former partner and supervisor, Larry Towns.
states that Rezutko "often put together extremely suggestive line-ups in order to push the witness
towards his preferred suspect instead of letting the witness make an independent decision." Ex.
20, Towns Af?davit at 11 8. Compounding the problem. when Rezutko would perform photo 1ine~
ups. he would often make improper remarks. such as "How does #2 look to you?" thereby leading
the witness in a suggestive manner. 1d. at 1} it}. The problems that Rezutko had as an investigator.
many of which were on Full display during the Kershner investigation, were common knowledge
at the Elkhart Police Department. Id. at 1] 5-6.

Further. by 1996. Rezutko had been demoted within the Detective Bureau. meaning that he
was not permitted to work on homicide cases unless there were serious manpower shortage. Id. at
4?7. 12. According to Towns. the reason 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. Id. at 1] 4. Rezutko's
demotion. however. apparently did not preclude him from working on attempted homicides. such
as the Kershner shooting. Finally, Detective Rezutko even admits that near the end of his tenure~
the prosecutor's of?ce started refusing to issue arrest warrants and refusing to prosecute Rezutko's
suspects in cases that Rezutko put together. Ex. Rezutko Deposition at 22*24. Although the
State had a duty to disclose this information prior to trial, they failed to do so.

6. Informant was Promised Signi?cant Consideration to in
Exchange for 3 False Statement lmplicating Cooper.

The State called Debery Coleman to testify against Mr. Cooper at trial. Though Mr.
Coleman re?Jsed to implicate Mr. Cooper in the crime. his written statement was introduced as
evidence at trial. The State failed to disclose that the statement was fabricated by police
of?cers and was the product of coercion and promises of leniency. In Coleman's words,

35

"Detective Rezutko told me that he would help me out with the sentencing in my case if I

provided him with the information he Ex. 28, Coleman Supplemental Affidavit, at 2.

In describing the promises made in exchange for his fabricated statement, Coleman explained:
Detective Windbigler helped me create a fabricated statement against
Keith Cooper and Christopher Parish, details about the crime that I had no
idea about. Detective Windbigler gave to me for my statement. I was
promised things in exchange for my false statement and future testimony
against Keith Windbigler promised me that in exchange for my
fabricated statement that he would get me a deal during my sentencing
hearing. He promised me that I would get suspended time and a much
lesser sentence. I was facing twenty He told me I would get a 10
year sentence with four years suspended. I would only have to serve 6
years. Of that 6. I would have to serve only 3 with good time. Since I
already had served around 13 months, Detective Windbigler

waspromising me about 18 more months of incarceration in exchange
for lying against Keith Cooper. Id, at 4-5.

The newly discovered evidence relating to Coleman?s interactions with the investigating
of?cers casts doubt on the entire investigation into the shooting and supports the allegations put
forth by the other witnesses in this case. Under Br'aafv and Gigh'o. the State had an obligation to
disclose this information to Mr. Cooper prior to trial and did not do so.

ii. Cooper?s counsel did not have an opportunity to locate this evidence
prior to trial.

Smeeton could not have. with any reas0nable diligence. located and produced this evidence
at trial. Nor can the State seriously argue at this stage that he could have. The Supreme Court has
rejected any argument ?declaring that the prosecutor may hide. defendant must seek . .  as it is
?not tenable in a system constitutionally bound to accord defendant?s due process." Banks r.
Dretke. 540 U.S. 668, 696 (2004'). Defense counsel cannot be required to ?scavenge for hints of
undisclosed Brady material." Id. at 695.

Further. Mr. Cooper need not speculate about whether his trial prosecutor knew about the

withheld evidence. ?[T]he individual prosecutor has a duty to learn of any favorable evidence

36

known to the others acting on the government?s behalf in the case, including the police.? v.
Whittier), 514 U.S. 419. 437 (1995'). All evidence indicates that the Elkhart Police Department
knew about all the suppressed evidence at issue, so it is also clear that the prosecutor was obligated
to disclose such evidence to Jalowiec?s counsel. See Strickler v. Greene, 53?? U.S. 263, 280?281
rule encompasses evidence known only to police investigators and not to the
Because the prosecutor failed to disclose this evidence, Cooper cannot be held
accountable for having failed to present this evidence during his initial trial.

The misconduct prejudiced Cooper.

It is hard to envision a case where the withholding of evidence prejudiced a defendant more
than the police?s misconduct prejudiced Mr. Cooper in this case. Mr. Cooper was sentenced to
forty years in prison for a crime he did not ceinrnit because Elkhart police of?cers coerced
witnesses into wrongfully identifying him. Even more, the newly discovered evidence relating to
Mr. Coleman reveals that the Elkhart police of?cers not only promised him signi?cant
consideratiOn in exchange for his false statement against Mr. Cooper. but those of?cers actually
scripted that statement in the ?rst place. The false testimony from these witnesses sealed Mr.
Cooper?s fate, and his lawyer had little ammunition to attack these witnesses.

Because the prosecution failed to disclose the aforementioned exculpatory and favorable
evidence to Mr. Cooper. and because this information could have resulted in a different outcome at
trial, the prosecution?s omission constituted a Bradv violation that requires that a new trial be

granted for Mr. Cooper.

37

c. KEITH COOPER HAS PRESENTED THIS COURT WITH NEW EVIDENCE
DEMONSTRATING THAT HIS RIGHT TO COUNSEL UNDER THE SIXTH
AMENDMENT OF THE CONSTITUTION WAS VIOLATED BY HIS
PERFORMANCE AT TRIAL

Mr. Cooper?s trial counsel, Jack Smeeton. attempted to provide Cooper with a defense. He

was hamstrung in his efforts by misconduct. In this Motion. Cooper has presented evidence that
police and prosecutors withheld significant evidence ofhis innocence and that the testimony of the
jailhouse snitch was purchased in exchange for promises of consideration on a pending case.
Cooper has presented evidence that police and prosecutors withheld other evidence impeaching
key State?s witnesses. As argued above. Cooper believes that all of this evidence supports his
claims that he is innocent. or claims that his right to due process was violated under Brady v.
Marviand. However. Mr. Cooper also makes an additional claim that his trial counsel was
ineffective for entering into a stipulation relating to DNA at the underlying trial.

Smeeton's ineffectiveness entitles Mr. Cooper to a new trial. See Indiana Post?Conviction

Rule Smeeton?s actions on this score illustrate that his performance was so de?cient that
Mr. Cooper was denied effective assistance of counsel. in violation of the Constitution of the
United States. Amendments VI and XIV. and the Constitution of the State of Indiana. Article I 
12. To succeed on a claim of ineffective assistance of counsel. Mr. Cooper must first demonstrate
that counsel?s performance was de?cient. Strickland v. Washington. 466 U.S. 668. 687 (1984).
Second. Mr. Cooper must show that the deficient performance prejudiced him. M.

Mr. Cooper?s counsel. Jack Smeeton. started his defense by inexplicably entering into the
following stipulation with the State: "The parties stipulate to the laboratory report of Lisa Black.
Indiana State Laboratory. as being admissible into evidence. However. the expert opinion of Lisa

Black is that neither Mr. Cooper nor any other person can be eliminated as having possibly worn

the hat." Id. at 147-148; Ex. 19. DNA Stipulation at I. This stipulation is unexplainable. Put

38

simply, it is false. Black's lab report states unequivocally that the DNA excludes Mr. Cooper. Ex.
18, Indiana State Police DNA Report at 1. Why Smeeton, whose job was supposed to be
defending Mr. Cooper, would enter into a stipulation that nullifies that DNA exclusion is
something known only to Smeeton.

Smeeton?s decision to nullify the most signi?cant evidence at trial proving the innocence of
his own client is indefensible. The lab report from Ms. Black illustrated that the DNA evidence
from the hat excluded Mr. Cooper from having worn it. In sum, this evidence proved that Mr.
Cooper was not the shooter of Kershner on October 29, 1996. By entering into the aforementioned
stipulation, Smeeton nulli?ed this evidence in its entirety. There can be no doubt that if the DNA
evidence was properly introduced, instead of being dismissed through a stipulation, there is a
reasonable probability that the results would have been different. In addition, there is no
reasonable trial strategy that this stipulation could be attributed to. Because Smeeton?s
performance was constitutionally inadequate under Strickland, Mr. Cooper is entitled to a new
trial.

CONCLUSION
Keith Cooper has discovered new evidence material to his defense which he could not
with reasonable diligence have discovered and produced at trial. This evidence illustrates Mr.
Cooper?s innocence and reveals that the prosecution, through the Elkhart Police Department,
withheld material exculpatory evidence. Further, this new evidence also proves that Mr.
Cooper's trial counsel was wholly ineffective for entering into a stipulation relating to the DNA
evidence. Under Indiana Post-Conviction Rules and this Court should grant Mr.

Cooper a new trial.

AFFIRMATION

I af?rm under the penalties for perjury that the foregoing representations are true to the

Respectfully

Elliot Slosar

Pro Hac Wee

Motion Pending

No. 

The Exoneration Project

Mandel Legal Aid Clinic
University of Chicago Law School
31 I N. Aberdeen, 3rd Floor
Chicago, Illinois 60607

(773) 18

best of my knowledge and belief.

Frances Watson

McKinney Law Clinic
530 W. New York Street
Indianapolis, Indiana 46202

40

CERTIFICATE OF SERVICE
I af?rm that a copy of the foregoing Notice of Appearance was duly served on Vicky Becker of the

Elkhart County Prosecutor?s Of?ce by electronic mail on October 3, 2016.

Respectfully submitted,

2?s! Elliot Slosar

41

ELKHART COUNTY CIRCUIT COURT

ELKHART, INDIANA
CRIMINAL DIVISION
STATE OF INDIANA. 

RESPONDENT, Case No. 97 CF 0014

v. Judge Eugene Duf?n

KEITH COOPER, 

PETITIONER. ORAL HEARING REQUESTED


 

VERIFICATION AND CONSENT

1, Keith Cooper. being duly sworn upon my oath. depose and say that have read the
foregoing petition. that I know the contents therein, that it includes every known ground to me at
this time for vacating. setting aside. or correcting the conviction and sentence attacked in this
petition, that the matters set forth are true, and that the documents and exhibits attached to the
petition are authentic.

2621124 Q: 

Keith Cooper, Petitioner

State of Illinois 

County ofCook 

Subscribed and sworn to before me, a Notary Public, in and for the County of Cook, State
of?iinois, this 28?'1 day of September, 2016.

OFFIGIAL SEAL
El

new PM: - Sun at Illinois
Ily communion Elmira Jun t, 2019