USDC IN/ND case 3:17-cv-00834 document 1 filed 11/06/17 page 1 of 42

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF INDIANA, SOUTH BEND DIVISION
KEITH COOPER,

)
)
Plaintiff,
)
)
v.
)
)
CITY OF ELKHART, STEVE
)
REZUTKO, EDWARD WINDBIGLER, )
STEVEN AMBROSE, and TOM
)
CUTLER, in their individual capacities, )
)
Defendants.
)

Case No.

JURY TRIAL DEMANDED

COMPLAINT
Plaintiff, KEITH COOPER, by his undersigned attorneys, complain of
Defendants, CITY OF ELKHART, STEVEN REZUTKO, EDWARD WINDBIGLER,
STEVEN AMBROSE, and TOM CUTLER as follows:
Introduction
1.

Plaintiff Keith Cooper spent ten years in prison for an armed-robbery

that he did not commit.
2.

Mr. Cooper spent an additional decade of his life fighting his wrongful

conviction after his 2006 release from prison.
3.

Mr. Cooper had absolutely nothing to do with the crime and his

wrongful conviction nearly destroyed his life.
4.

Every wrongful conviction is tragic in its own right, but Mr. Cooper’s is

particularly heartbreaking. At the time of his arrest, Mr. Cooper was a married

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father of three and a provider for his family with gainful employment and no
criminal convictions.
5.

His wrongful conviction nearly cost him everything; he lost his liberty

and his wife was forced to sell their family’s belongings and live in shelters to
survive.
6.

Mr. Cooper’s wrongful conviction was caused by Defendants’ egregious

wrongdoing of manufacturing and fabricating all the evidence of his supposed guilt.
7.

Fortunately for Mr. Cooper, the Defendants’ misconduct ultimately

unraveled.
8.

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.
9.

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.
10.

Ultimately, Mr. Cooper filed a petition for an actual innocence pardon

in 2011.
11.

On February 9, 2017, Governor Holcomb exonerated Mr. Cooper

through the first actual innocence pardon ever awarded in Indiana.
12.

This lawsuit seeks to bring the injustice that happened to Mr. Cooper

to light so that it will never occur again.

 

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Jurisdiction
13.

This action is brought pursuant to 42 U.S.C. § 1983 to redress the

deprivation under color of law of Plaintiff’s rights as secured by the United States
Constitution.
14.

This Court has jurisdiction of Plaintiff’s federal claims pursuant to 28

U.S.C. § 1331 and supplemental jurisdiction of his state-law claims pursuant to
U.S.C. § 1367.
15.

Venue is proper under 28 U.S.C. § 1391(b). The Defendants reside in

this district and the events and omissions giving rise to Plaintiff’s claims occurred
in this district.
Parties
16.

Plaintiff Keith Cooper is a 50-year-old resident of Country Club Hills,

Illinois. Mr. Cooper is married and a father of three children.
17.

At all times relevant hereto, Defendants Steve Rezutko, Edward

Windbigler, Steve Ambrose, and Tom Cutler (hereinafter “Defendant Officers”) were
police officers in the Elkhart Police Department. All are sued in their individual
capacities, and acted under color of law and within the scope of their employment
during the investigation at issue.
18.

Defendant City of Elkhart is a municipal corporation under the laws of

the State of Indiana. The City of Elkhart is liable for all torts committed by the
Defendant Officers while employed by the City of Elkhart pursuant to the doctrine
of respondeat superior. Defendant City of Elkhart is additionally responsible for the

 

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official policies of the Elkhart Police Department. The City of Elkhart is or was the
employer of each of the Defendant Officers.
The Crime
19.

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 Kershner’s girlfriend Jennifer Dolph, his friend Eddie Love, his
mother Nona Canell, and her boyfriend Jason Ackley.
20.

Around 9:30 P.M., Mr. Kershner received a phone call from his sister

Christina Smallwood. At the same time, someone began knocking on Mr.
Kershner’s door.
21.

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.”
22.

Shortly thereafter, Mr. Kershner lunged for his SKS rifle, which was

laying by his side.
23.

A scuffle ensued between Mr. Kershner and the tall intruder. During

the scuffle, Mr. Kershner managed to knock off the tall intruder’s hat.
24.

At one point, the tall intruder shot Mr. Kershner in the hip. The two

intruders left shortly thereafter, taking a bag full of quarters, a stun gun, and Mr.
Kershner’s SKS rifle.

 

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25.

Ms. Canell and the others took Mr. Kershner to the Central Elkhart

fire station, where the police were called and Mr. Kershner was transported to
Elkhart General Hospital.
26.

Following multiple surgeries, Kershner survived the gunshot wounds.

27.

Upon information and belief, Defendant Cutler assigned Defendant

Rezutko as the lead investigator for the subsequent investigation. Upon his
assignment as lead investigator, Defendant Rezutko directed additional units to go
to the apartment and secure it.
28.

Mr. Cooper had absolutely nothing to do with this heinous crime. He

knew none of the individuals involved and had never been to this apartment in his
life.
Defendant Rezutko Frames Christopher Parish
Within 48 Hours of Beginning His Investigation
29.

Christopher Parish was also wrongly convicted of the armed-robbery of

Mr. Kershner.
30.

In October 1996, Mr. Parish lived in Elkhart and was working at his

own tow truck service business.
31.

In the evening hours of October 29, 1996, Mr. Parish and his family

attended a family gathering in Chicago, Illinois. Corroborated by twelve witnesses,
Mr. Parish left Elkhart in the afternoon and arrived back at his home in Elkhart
after midnight.
32.

Mr. Parish was not in Elkhart at the time of the Kersnher shooting

and had never seen Kershner in his life.

 

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33.

Mr. Parish first came to Defendant Rezutko’s attention for one reason:

he received a police report which memorialized an interview on October 29, 1996
conducted by Defendant Windbigler with Eddie Love, a witness who was in the
apartment and witnessed the shooting.
34.

In that conversation, Mr. Love told Defendant Windbigler that he saw

the two individuals involved the shooting in the past but did not know their names.
35.

After receiving this report, Defendant Rezutko went to meet Mr. Love.

36.

In that conversation, Mr. Love adamantly maintained to Defendant

Rezutko that he did not know the names of the individuals.
37.

Nevertheless, Ruzutko pressed Love to describe the assailants and

Love eventually stated that one of them bore a physical resemblance to someone
that he did know, Mr. Parish.
38.

Put another way, Mr. Love told Defendant Rezutko that he did not

know the two black males who committed the crime and that neither one was Mr.
Parish, who he knew.
39.

Undeterred by Mr. Love’s version of events, Defendant Rezutko

coerced and put substantial pressure on Mr. Love to falsely identify Mr. Parish.
40.

Defendant Rezutko eventually obtained a false identification of Mr.

Parish from Love.
41.

Shortly thereafter, Defendant Rezutko rushed to judgment and

“solved” the case with respect to the second offender, the non-shooter, with uncanny
speed by blocking any other possible suspects from view and manipulating

 

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witnesses to make identifications that would confirm his false identification from
Love.
42.

Within 48 hours, Defendant Rezutko prepared false witness

statements for Ms. Canell and Mr. Kershner implicating Mr. Parish in the shooting.
43.

In those statements, Defendant Rezutko documented that both

witnesses were “positive” that Mr. Parish was the non-shooter shorter assailant.
44.

In the process of manufacturing his case, Defendant Rezutko also used

highly suggestive photo-arrays, where he included a juvenile photo of Mr. Parish
and adult photographs of fillers.
45.

On October 31, 1996, Defendant Rezutko initiated charges against Mr.

Parish for the attempted murder and armed-robbery of Mr. Kershner. That same
day, Mr. Parish was arrested.
46.

Importantly, Mr. Cooper and Mr. Parish did not know each other and

had never met prior to being wrongfully convicted.
Defendants Wrongfully Arrest Mr. Cooper for Purse-Snatching
47.

On or about January 2, 1997, several months after the Kershner

shooting and Mr. Parish’s arrest, but before the police apprehended any alleged
shooter, Mr. Cooper was headed home to his wife and children carrying several
grocery bags when he stopped at a train crossing.
48.

While waiting for the train to pass, Mr. Cooper was not bothering

anyone nor breaking any laws.

 

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49.

Apparently, a woman had reported that a tall African-American

attempted to snatch her purse earlier that day.
50.

Mr. Cooper was tall and African-American. Because of this, Officer

McConnell of the Elkhart Police Department arrested him upon sight.
51.

Minutes later, officers from the Elkhart Police Department conducted

a show-up with Mr. Cooper.
52.

In the process, Mr. Cooper was driven to the location of the victim and

remained in the squad-car while the victim falsely identified him through the car
window. This show-up was unduly suggestive and belied any sense of reliability.
53.

Later that day, Defendant Ambrose took a statement from the victim

which falsely implicated Mr. Cooper in the purse-snatching.
54.

Defendant Ambrose then interviewed Mr. Cooper, who steadfastly

maintained his innocence.
55.

On January 6, 1997, Defendant Rezutko initiated false charges against

Mr. Cooper for robbery based on the purse-snatching allegations.
Defendant Rezutko’s Threat to Frame Mr. Cooper
56.

By January of 1997, several months passed without any leads on who

the taller African-American suspect might be.
57.

After Mr. Cooper was arrested for purse-snatching, Defendant Rezutko

developed a “hunch.”
58.

According to Defendant Rezutko, Mr. Cooper became a suspect based

on two things: (1) his “general description” and (2) his supposed similarity to a

 

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composite sketch. In his opinion, “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.”
59.

As is shown below, the composite sketches from Ms. Canell and Mr.

Kershner look dissimilar to each other and neither resemble Mr. Cooper.

Composite by Kershner
60.

Composite by Canell

To corroborate his hunch, Defendant Rezutko went to see Mr. Cooper

at the jail on or about January 3, 1997.
61.

There, Defendant Reuzkto threatened to frame Mr. Cooper for the

robbery and attempted murder of Kershner unless he pleaded guilty to pursesnatching. Specifically, Defendant Rezutko told Mr. Cooper that he was going to
“sit on this egg,” or words to that effect, if he did not plead guilty to the pursesnatching charges. Then, Defendant Rezutko pulled out a newspaper article
describing the shooting.

 

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62.

Mr. Cooper responded by revealing to Defendant Rezutko that he had

nothing to do with the crime and never met nor seen Mr. Kershner in his life.
63.

Because he was innocent of both crimes, Mr. Cooper refused to plead

64.

On March 6, 1997, Mr. Cooper was tried and found not-guilty of the

guilty.

false purse-snatching charges.
Defendant Rezutko Follows Through on Threat to
Frame Mr. Cooper by Engaging in Eyewitness Identification Improprieties
That Violated Mr. Cooper’s Due Process Right to a Fair Trial
65.

On March 6, 1997, the same day of Cooper’s acquittal on the false

purse-snatching charges, Defendant Rezutko filed a probable cause affidavit and
initiated charges against Mr. Cooper for the attempted murder and armed robbery
of Michael Kershner.
66.

The contents of the affidavit and the initiation of charges were based

upon evidence that was fabricated, manipulated, and improperly created by
Defendant Rezutko and the other Defendant Officers.
67.

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.
68.

According to Defendant Rezutko, the case he built against Mr. Cooper

depended entirely on the witness identifications.

 

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69.

On January 8, 1997, Defendant Rezutko met with Nona Canell and

Michael Kershner regarding the shooting investigation. According to the reports
drafted by Defendant Rezutko, Ms. Canell and Mr. Kershner both identified Mr.
Cooper’s photograph in the photo arrays as the shooter and tall-offender that the
police were searching for. These arrays were unduly suggestive and belied any
sense of reliability in that the fillers did not have similar characteristics to Mr.
Cooper
70.

Three weeks later, on January 29, 1997, Defendant Rezutko asked to

meet again with Ms. Canell and Mr. Kershner.
71.

At that meeting, Defendant Rezutko showed another photo-array to

Ms. Canell and Mr. Kershner.
72.

According to Defendant Rezutko’s reports, Ms. Canell and Mr.

Kerhsner identified Mr. Cooper once again as the tall-man who shot Kershner and
were “very sure” of their identifications.
73.

Defendant Rezutko’s report memorializing the January 29, 1997

interviews with Ms. Canell and Mr. Kershner do not include an explanation for why
he showed the witnesses photo-arrays of the alleged shooter when they both made a
previous identification of Mr. Cooper three weeks earlier.
The Eyewitnesses Recant Their Identifications of Mr. Cooper
74.

Both Ms. Canell and Mr. Kershner have recanted their eyewitness

identifications of Mr. Cooper that they made with Defendant Rezutko in January of
1997.

 

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75.

Ms. Canell and Mr. Kershner’s recantations are accompanied by

allegations that Defendant Rezutko misrepresented, concealed, and distorted the
true facts surrounding them.
76.

In 2008, Ms. Canell and Mr. Kershner revealed that they told

Defendant Rezutko in January of 1997 that Mr. Cooper’s photograph “looked like”
the offender, not that he was the shooter.
77.

Additionally, Mr. Kershner told Defendant Rezutko that he “needed to

see a lineup” because he “couldn’t really identify anybody…” In response,
Defendant Rezutko pointed to Mr. Cooper’s photograph and informed Mr. Kershner
that this “is your guy.”
78.

Ms. Canell, too, demanded a live line-up because she was unsure about

whether Mr. Cooper was the right person. Defendant 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, or words to that effect.
79.

Instead of documenting that Ms. Canell and Mr. Kershner could not

make an identification of anyone – including Mr. Cooper – and had doubts about
who committed the crime, Defendant Rezutko fabricated false reports claiming that
Ms. Canell and Mr. Kershner were “very sure” of their identifications of Mr.
Cooper.
80.

Frustrated with the process, Ms. Cannell and her son continued to

demand a live line-up during her ensuing encounters with Defendant Rezutko. And
in response, Defendant Rezutko continued to deny their requests.

 

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81.

Defendant Rezutko failed to document in any reports that Ms. Canell

and Mr. Kershner had requested a live line-up and failed to make an identification.
82.

Instead, Defendant Rezutko’s reports state that Ms. Canell and Mr.

Kershner positively identified Keith Cooper in four separate photo-arrays during
January of 1997.
83.

According to Defendant Rezutko’s reports, these witnesses definitively

identified Mr. Cooper without prompting.
84.

Significantly, none of this following information was disclosed to the

prosecution or defense prior to Mr. Cooper’s trial.
Defendant Rezutko Coerces Eddie Love
Into Falsely Implicating Mr. Cooper
85.

On January 8, 1997, Defendant Rezutko met with Eddie Love at the

Elkhart County Detention Center.
86.

In that meeting, Defendant Rezutko obtained a statement from Mr.

Love that implicated Mr. Cooper as the person who shot Mr. Kershner.
87.

By the conclusion of that meeting, Defendant Rezutko created a report

which documented that Mr. Love “positively” identified Mr. Cooper as the shooter in
a photo-array.
88.

After Mr. Cooper’s wrongful conviction, Mr. Love revealed the

circumstances of his false identification of Mr. Cooper.
89.

According to Love, Defendant Rezutko fabricated his January 8, 1997

report indicating that he was “positive” that Mr. Cooper was the tall individual who
shot Mr. Kershner.

 

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90.

At the time he drafted this report, Defendant Rezutko knew that the

substance of it was false, and that Mr. Love maintained to him that he could not
identify Mr. Cooper.
91.

Indeed, Defendant Rezutko’s coercion and threats to Mr. Love were

omitted from his report and never disclosed to the prosecution and defense prior to
Mr. Cooper’s trial.
92.

Defendant Rezutko threatened to charge Mr. Love with a drug arrest

unless he acquiesced to his commands. As a result of Defendant Rezutko’s coercion,
Mr. Love falsely identified Mr. Cooper in a photo-array.
93.

Mr. Love’s statement was a work of fiction that derived from being

“coerced” by Detective Rezukto. According to Mr. Love, Detective Rezutko told him
“this is what I want you - this is how it’s going down,” or words to that effect.
94.

Mr. Love also was afraid of the Elkhart Police Department and testified

against Mr. Cooper to appease Defendant Rezutko.
95.

In sum, Love’s statement and subsequent testimony against Mr. Cooper

was false and the result of Defendant Rezutko’s coercion.
Defendants Rezutko, Ambrose, and Windbigler Withhold Exculpatory
Evidence and Fabricate False Statement for Jailhouse Informant
96.

In 1996, Defendants Rezutko and Ambrose enlisted Debery Coleman

as a confidential informant for the Elkhart Police Department.
97.

During the first week of February 1997, Mr. Coleman met with

Defendant Rezutko at the Elkhart County Jail. In that meeting, Defendant
Rezutko informed Mr. Coleman that he was placing him into a cell with Mr. Cooper

 

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for the sole purpose of eliciting information from him regarding the Kershner
shooting.
98.

Defendant Rezutko was aware that Mr. Cooper was represented by

counsel at the time he instructed Mr. Coleman to speak with Mr. Cooper.
99.

According to Mr. Coleman, Mr. Cooper maintained his innocence

during the entire time they were incarcerated with one another.
100.

Nonetheless, on February 10, 1997, Defendant Windbigler met with

Mr. Coleman and manufactured a false and fabricated statement for him.
101.

This fabricated statement for Mr. Coleman implicated Mr. Cooper in

the armed robbery and attempted murder of Mr. Kershner. Mr. Coleman’s
statement includes a detailed confession that Mr. Cooper supposedly gave to him
about the shooting.
102.

Specifically, Coleman alleged that Cooper revealed that: (1) 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 first discussed stealing drugs from Kershner; (3) Kershner brought
marijuana to Parish, but Parish refused to pay for it; (4) a fight 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 flee to Florida after being bonded out.

 

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103.

In an affidavit signed in 2009, Mr. Coleman revealed that his February

10, 1997 statement was completely fabricated by Defendant Windbigler and was
only signed as a result of undisclosed promises of consideration.
104.

In Coleman’s words, “Mr. Cooper’s involvement in the event under this

case was entirely fabricated … to gain favor with the Elkhart Drug Task Force for
whom I was working as a confidential informant.”
105.

In exchange for providing an incriminating statement against Mr.

Cooper, Defendant Windbigler promised Coleman lenient treatment in his own case,
consideration never before disclosed to the prosecution nor defense.
106.

In describing the promises made in exchange for his fabricated

statement, Mr. Coleman explained in his 2008 affidavit that:
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 Cooper... 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
years... 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 18 months, Detective Windbigler was promising me about
18 more months of incarceration in exchange for lying against Keith
Cooper. .3
107.

Mr. Coleman also revealed that Defendant Windbigler told him that

“he could not write down his promises to [him] because it was illegal, which is why
he promised stuff orally,” or words to that effect.

 

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108.

At Mr. Cooper’s criminal trial, Defendants Ambrose and Rezutko never

disclosed that Mr. Coleman was a confidential informant for the Elkhart Police
Department.
109.

Nor did Defendant Rezutko disclose that he placed Mr. Coleman into a

cell with Mr. Cooper for the sole purpose of obtaining information.
110.

And of course, none of these Defendants disclosed that Mr. Coleman’s

statement was fabricated and manufactured in exchange for promises of
consideration.
111.

However, the Defendants’ misconduct did not end after manufacturing

a false statement for a jailhouse informant.
Defendant Rezutko Stages Show-up to Frame Mr. Cooper
112.

In his on-going quest to frame Mr. Cooper, Defendant Rezutko staged a

show-up on the first day of Mr. Cooper’s trial as a result of the eyewitnesses’
undisclosed reservations about committed the shooting.
113.

This, too, was never disclosed to Mr. Cooper nor the prosecution prior

to Mr. Cooper’s conviction.
114.

Ms. Canell and Mr. Kershner have revealed that Defendant Rezutko

requested that they come to the first day of trial early and sit outside of the
courtroom in a hallway.
115.

In a recent deposition, Ms. Canell described how Defendant Rezutko

pointed Mr. Cooper out to her as he walked into the courtroom with his children. As

 

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Mr. Cooper walked past, Defendant Rezutko instructed Ms. Canell and the other
eyewitnesses that this was the person who committed the crime.
116.

Defendant Rezutko told these witnesses to identify Mr. Cooper at trial.

117.

Because of these highly- improper and suggestive conditions, Ms.

Canell and Mr. Kershner identified Mr. Cooper at trial as the person who robbed
and shot at them.
118.

Mr. Cooper failed to learn the circumstances of the suggestive

identification until more than a decade after the fact.
Testimony that Caused Mr. Cooper’s Wrongful Conviction
119.

As a result of the Defendants’ misconduct, Mr. Cooper was wrongfully

convicted of armed-robbery and sentenced to 40 years in prison.
120.

At trial, the Defendants not only suborned perjury – e.g., telling

witnesses to testify consistent with their false and fabricated identifications and
statements – but also committed perjury themselves by lying about their conduct
during the investigation, their role in procuring false statements, and about the
reliability of various statements obtained in the investigation.
121.

Without the Defendants’ misconduct, Mr. Cooper would not have been

prosecuted or convicted.
122.

At trial, the State called three eyewitnesses who identified Mr. Cooper

as the taller individual who shot Kershner on October 29, 1996. Significantly, Ms.
Canell, Mr. Kershner, and Mr. Love all identified Mr. Cooper at trial as being the
taller offender who fired the gun.

 

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123.

Mr. Coleman was also called by the State to testify to the supposed

confession that Mr. Cooper made to him. Mr. Coleman refused to testify and
instead insisted on being held in contempt of court.
124.

The State then called Defendant Windbigler to testify to the substance

of the written statement that he fabricated for Mr. Coleman on February 10, 1997.
At the conclusion of Defendant Windbigler’s testimony, Coleman’s statement was
entered into evidence in its entirety.
125.

Importantly, Defendant Windbigler testified that he made no promises

to Coleman at any point in time. (“There’s nothing I could do for him.”).
126.

Mr. Cooper proclaimed his innocence and denied any involvement in

the crime. Mr. Cooper also rebuked any allegations that he confessed to Coleman.
127.

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 identification. At the conclusion of his testimony, the State obtained a
voice identification of Mr. Cooper from Ackley.
128.

On the basis of the aforementioned evidence, Mr. Cooper was convicted

at trial of armed-robbery and sentenced to 40 years of imprisonment.
129.

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.

 

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130.

Mr. Ackley now admits that Defendant Rezutko took him outside

during trial and instructed him to falsely identify Mr. Cooper’s voice.
DNA Evidence Illustrates Mr. Cooper’s Innocence
and Identifies True Culprits in Kershner Shooting
131.

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 ”J” on it.
132.

The ‘J Hat’ was collected from the crime-scene 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.
133.

On June 17, 1997, the Indiana State Police sent the results of the DNA

comparison test to the Elkhart Police Department. From the tests, the lab analyst
concluded that “the DNA isolated and amplified from the sweat band (Item 1b) of
the hat (Item 1) revealed a mixture of alleles from which Keith Cooper can be
eliminated as a possible contributor.”
134.

However advances in DNA science after trial led to further testing on

the hat in question.
135.

In this regard, on June 20, 2002, approximately five 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. This time, the DNA was
further analyzed using newly-developed Polymerase Chain Reaction testing. Based
on this new technology, the lab technicians were able to identify a specific profile,

 

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i.e., the DNA of a person whose identity was still unknown, but who was not Mr.
Cooper.
136.

Mr. Cooper’s attorney at the time, William Polansky from the Indiana

Defender’s office, immediately requested that the DNA taken from the hat be
compared to those in the national DNA database, otherwise known as CODIS.
137.

On March 8, 2004, the Certificate of Analysis from the State Police

Laboratory was mailed to the Elkhart Police Department. According to the results,
“The DNA profile 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.”
138.

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.
139.

That murder occurred on July 11, 2002, in the city of Benton Harbor, a

town which is less than sixty miles away from Elkhart, Indiana.
140.

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 .357 magnum revolver.
141.

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 similar to Mr. Parish.

 

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142.

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. Separately, these photographs were shown to the
eyewitnesses who had been located.
143.

Upon being shown the various photographs, Ms. Canell identified the

shooter as Johlanis Ervin and his brother as the second individual involved.
According to Ms. Canell, “I misidentified Keith Cooper as the shooter of my son,
Michael Kershner. The individual who tried to kill my son is Johlanis Ervin,”
144.

When shown the photographs, Mr. Kershner also immediately

identified Johlanis Ervin as the individual who tried to kill him in October of 1996.
Mr. Kershner stated in his affidavit that “Johlanis Ervin was the individual who
tried to kill me that night, not Mr. Cooper.”
Mr. Parish is Exonerated in 2005
145.

Based upon false and fabricated testimony, Mr. Parish was ultimately

wrongfully convicted in June of 1998.
146.

As a result of Defendant Rezutko’s misconduct, the eyewitnesses all

identified Mr. Parish at trial.
147.

In 2005, the Indiana Court of Appeals vacated Mr. Parish’s conviction

and ordered a new trial.
148.

Shortly thereafter, the State of Indiana dismissed Mr. Parish’s

criminal case.

 

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149.

Ms. Canell and Mr. Kershner both reject the claims made by

Defendant Rezutko that they positively identified Mr. Parish and have since
revealed the misconduct committed by the Defendants in this case.
Mr. Cooper is Exonerated in 2017
150.

Never giving up hope and remaining steadfast in his protestation of

innocence, Mr. Cooper filed a pardon petition based upon actual innocence to the
Governor of Indiana in 2011.
151.

In February of 2014, the Indiana Pardon and Parole Board was

presented with extensive evidence regarding Mr. Cooper’s convicted for armedrobbery.
152.

At that hearing, the board was presented with testimony from Ms.

Canell and Mr. Kershner, in addition to a number of other witnesses.
153.

Based on their thorough review of the evidence, the Indiana Pardon

and Parole Board ultimately made a unanimous recommendation to the Governor of
Indiana that Mr. Cooper be granted a pardon based upon his actual innocence.
154.

On February 9, 2017, Governor Holcomb exonerated Keith Cooper.

Governor Holcomb did so because of his belief that Mr. Cooper was wrongfully
convicted and deserved a pardon based upon his actual innocence.
155.

At a press conference where he announced the pardon, Governor

Holcomb exclaimed, “[A]fter careful and thoughtful consideration and review,
something that I’ve thought about every day over the last month, just earlier today
I issued a pardon to Mr. Keith Cooper for his past and I believe wrongful armed

 

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robbery felony…it’s for all of these reasons, and personally believing that Mr.
Cooper has waited long enough and needs not endure any further uncertainty that I
issued this pardon this morning.”
156.

The contents of Governor Holcombe’s executive order includes the

following rationale: “(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 scene 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; (4)
the DNA testing confirmed that no DNA from Mr. Cooper was found on the hat.”
A Federal Jury Has Already Determined that Defendants Rezutko and the
City of Elkhart Violated Mr. Parish’s Constitutional Rights
157.

On September 24, 2007, Mr. Parish filed a federal civil-rights action

against Defendants Rezutko, Ambrose, Cutler, and the City of Elkhart. See Case
No. 07-cv-452 at Dkt. No. 1.
158.

In that suit, Mr. Parish alleged that the Defendants violated his

constitutional right to a fair trial and due process of law by fabricating evidence,
coercing witnesses, conducting photo-arrays that were improper and unduly
suggestive, and by withholding exculpatory evidence.
159.

Mr. Parish alleged that the Defendants engaged in such misconduct

pursuant to the policies, practices and customs wrongfully maintained by the
Defendant City of Elkhart.

 

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160.

Mr. Parish was ultimately afforded a trial on his claims against

Defendants City of Elkhart and Steve Rezutko.
161.

Mr. Parish presented three Monell theories before a jury in his federal

civil trial: 1) that the policy maker, Chief Bechtel, turned a blind eye to misconduct
and did nothing about it, thus allowing Defendant Rezutko to violate Mr. Parish’s
constitutional rights; (2) that the City of Elkhart failed to train it’s employees, thus
allowing an untrained Defendant Rezutko to violate Mr. Parish’s constitutional
rights; and (3) that the City of Elkhart had a custom and practice of withholding
exculpatory information, thus causing the violation of Mr. Parish’s constitutional
rights.
162.

On October 27, 2010, a jury found in favor of Mr. Parish and against

Defendant Steve Rezutko. On Mr. Parish’s policy and practice claim against
Defendant City of Elkhart, the jury once again found in favor of Mr. Parish.
163.

The Seventh Circuit Court of Appeals affirmed the jury’s liability

determinations against Defendants Rezutko and the City of Elkhart on December
20, 2012. See Parish v. City of Elkhart, 702 F.3d 997 (7th Cir. 2012).
The City of Elkhart Failed to Provide Sufficient Training and Supervision
to Avoid Brady Violations and Has Exhibited Deliberate Indifference as to
Whether or Not Brady Violations Will Continue to Occur
164.

Just like Mr. Parish, the constitutional injuries Mr. Cooper suffered

were caused by the policies and practices of the Elkhart Police Department.
165.

Indeed, within the Elkhart Police Department, there was a policy and

practice of taking short cuts to solve criminal investigations, including by

 

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fabricating statements, coercing witnesses and withholding exculpatory and
impeachment evidence.
166.

Policymakers and supervisory personnel were aware of and failed to

curb the improper investigative practices that led to the numerous Brady violations
in this case.
167.

Importantly, Defendant Rezutko had been demoted within the

Detective Bureau prior to the Kershner investigation, meaning that he was not
permitted to work on homicide cases unless there were serious manpower shortages.
168.

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.
169.

Detective Rezutko’s demotion, however, apparently did not preclude

him from 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.
170.

Nevertheless, Towns did meet with Chief Bechthel about the problems

with Rezutko’s investigative practices. Chief Bechtel admitted to Towns that he
wanted to fire Rezutko, but never actually did so.
171.

According to Mr. Towns’s recent affidavit, it was widely known within

the Elkhart Police Department, prior to the investigation into the Kershner

 

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shooting, that Defendant 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.” “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 five other individuals without mustaches.”
172.

Compounding the problem, supervising officers in the Elkhart Police

Department were aware that when Defendant 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.
173.

The problems that Defendant Rezutko had as an investigator, many of

which were on full display during the Kershner investigation, were common
knowledge at the Elkhart Police Department. This includes the Department's most
senior leadership. Chief of Police Dennis Bechthel himself knew about Defendant
Rezutko’s misconduct, including his manipulation of witnesses and misuse of photo
line-ups.
174.

Even Defendant 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.
175.

In this case, upon developing his “hunch” about Mr. Cooper, Defendant

Rezutko prepared photo spread lineups containing six photos, one of which was Mr.
Cooper's. Somehow, Defendant Rezutko managed to have the victim and two other
eyewitnesses pick out his suspect from a six-person photographic lineup.

 

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176.

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. According to the newly discovered evidence –
recantations from each of the witnesses in this case - random chance had nothing to
do with their wrongful identifications of Keith Cooper at trial.
177.

This policy and practice repeated itself in numerous criminal

investigations conducted by the Elkhart Police Department. As Mr. Towns has
testified, that misconduct was widespread.
178.

Nonetheless, and despite notice to (and often involvement of)

policymakers in the above-described unconstitutional policies and practices, there
was no effort to rectify any such misconduct.
179.

The City of Elkhart and officials within the Department failed to act to

remedy the abuses described in the preceding paragraphs, despite actual knowledge
of the pattern of misconduct.
180.

They thereby perpetuated the unlawful practices and ensured that no

action would be taken (independent of the judicial process) to remedy Plaintiff’s
ongoing injuries.
181.

The policies and practices described in the foregoing paragraphs were

consciously approved by City of Elkhart policymakers who were deliberately
indifferent to the violations of constitutional rights described herein.
182.

Those policies and practices were the proximate cause of the

constitutional injuries that Plaintiff sustained, as described more fully above.

 

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183.

Moreover, The City’s failure to train its officers effectively condones,

ratifies, and sanctions the kind of misconduct that the Defendant Officers
committed against Plaintiff in this case.
184.

Constitutional violations such as occurred in this case are encouraged

and facilitated as a result of the City’s practices and de facto policies, as alleged
above.
Mr. Cooper’s Damages
185.

Mr. Cooper spent over a decade in prison for a crime that he did not

commit. Upon his release, Mr. Cooper spent an additional eleven years of his life
fighting his wrongful conviction.
186.

As such, Mr. Cooper was wrongfully convicted for a total of twenty

187.

During his wrongful incarceration, Mr. Cooper was stripped of the

years.

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
188.

As a result of his wrongful incarcerations, Plaintiff must now attempt

to rebuild his life all without the benefit of a decade of life experience that
ordinarily equip adults for that task.

 

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189.

Plaintiff has suffered tremendous damage, including physical sickness

and injury and emotional damages, all proximately caused by Defendants’
misconduct.
Count I - 42 U.S.C. § 1983
Due Process
190.

Each of the Paragraphs of this Complaint is incorporated as if restated

fully herein.
191.

As described more fully above, all of the Defendants, while acting

individually, jointly, and in conspiracy, as well as under color of law and within the
scope of their employment, deprived Mr. Cooper of his constitutional right to a fair
trial.
192.

In the manner described more fully above, the Defendants conducted a

reckless investigation, deliberately withheld exculpatory evidence, and fabricated
false reports, false testimony, and other evidence. Absent this misconduct, the
prosecution of Mr. Cooper could not and would not have been pursued.
193.

The Defendants’ misconduct also directly resulted in the unjust

criminal conviction of Mr. Cooper, thereby denying each of his constitutional right
to a fair trial in violation of the Due Process Clause of the Fourteenth Amendment
to the United States Constitution.
194.

As a result of this violation of his constitutional right to a fair trial, Mr.

Cooper suffered injuries including but not limited to emotional distress and pain
and suffering, as is more fully alleged above.

 

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195.

The misconduct described in this Count was objectively unreasonable

and was undertaken intentionally and with willful indifference to Mr. Cooper’s
constitutional rights.
196.

The misconduct described in this Count was undertaken pursuant to

routine practice of the Elkhart Police Department to pursue wrongful convictions
through reckless and profoundly flawed investigations, provision of false evidence
and reports, coerced evidence, and failure to properly supervise employees knowing
that those employees were providing false evidence. In this way, the municipal
defendants violated Mr. Cooper’s rights by maintaining policies and practices that
were the moving force driving the foregoing constitutional violations.
197.

These widespread practices, so well-settled as to constitute de facto

policy in the Elkhart Police Department, were able to exist and thrive because
municipal policymakers with authority over the Division of Police exhibited
deliberate indifference to these problems, thereby effectively ratifying them.
198.

The widespread practices described in the preceding paragraphs were

allowed to flourish because the municipal Defendants declined to implement
sufficient training and/or enforce legitimate oversight and punishment.
Count II – 42 U.S.C. § 1983
Malicious Prosecution
199.

Each of the Paragraphs of this Complaint is incorporated as if restated

fully herein.
200.

As described more fully above, the Defendants, individually, jointly

and in conspiracy with each other, as well as under color of law and within the

 

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scope of their employment, deprived Mr. Cooper of his constitutional right to be free
from unlawful prosecution and continued detention without probable cause.
201.

In the manner described more fully above, the Defendants made,

influenced and/or participated in the decision to prosecute Mr. Cooper for these
crimes, for which prosecution there was no probable cause and which caused Mr.
Cooper to suffer a deprivation of liberty. Their misconduct included falsifying
evidence and withholding exculpatory evidence.
202.

The Defendants’ misconduct directly resulted in the unlawful

prosecution and incarceration of Mr. Cooper, thereby denying each of his
constitutional right to liberty in violation of his constitutional rights.
203.

As described more fully above, the prosecution was ultimately resolved

in Mr. Cooper’s favor.
204.

Because of this violation of his constitutional rights, Mr. Cooper

suffered injuries, including but not limited to bodily harm and emotional distress,
as is more fully alleged above.
205.

The Defendants’ misconduct, as described in this Count, was

objectively unreasonable and was undertaken intentionally with malice and willful
indifference to Mr. Cooper’s constitutional rights.
206.

The misconduct described in this Count was undertaken pursuant to a

routine practice of the Elkhart Police Department to pursue wrongful prosecutions
and wrongful convictions through reckless and profoundly flawed investigations and
coerced evidence. In this way, the municipal defendants violated Mr. Cooper’s

 

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rights by maintaining policies and practices that were the moving force driving the
foregoing constitutional violations.
207.

These widespread practices, so well-settled so as to constitute de facto

policy in the Elkhart Police Department, could exist and thrive because municipal
policymakers with authority over the Division of Police exhibited deliberate
indifference to the problem, thereby effectively ratifying it.
208.

The widespread practices described in the preceding paragraphs could

flourish because the municipal defendants declined to implement sufficient training
and/or enforce legitimate oversight and punishment.
Count III – 42 U.S.C. § 1983
Fourth and Fourteenth Amendments Fabrication of False Evidence
209.

Each paragraph of this Complaint is incorporated as if restated fully

herein.
210.

In the manner described more fully above, the Defendants,

individually, jointly and in conspiracy with each other, fabricated evidence,
including without limitation, false police reports and fabricated testimony offered at
trial proceedings. The Defendants knowingly fabricated this evidence. A reasonable
likelihood exists that the false evidence affected the decision of the jurors and the
courts that considered this false evidence.
211.

Defendants were acting under color of law and within their scope of

employment when they took these actions.
212.

The Defendants’ misconduct directly resulted in the unjust continued

incarceration of Mr. Cooper, thereby denying each of his constitutional right to due

 

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process as guaranteed by the U.S. Constitution. Absent this misconduct, there
would have been no probable cause for Mr. Cooper’s continued detention, and the
prosecution of the Plaintiff could not and would not have been pursued.
213.

As a direct and proximate result of the Defendant’ actions, Mr.

Cooper’s constitutional rights were violated, and each suffered from injuries and
damages, including but not limited to the loss of liberty, physical sickness and
injury, emotional pain and suffering, and other grievous and continuing injuries
and damages as set forth above.
Count IV – 42 U.S.C. § 1983
Supervisory Liability
214.

Each paragraph of this Complaint is incorporated as if restated fully

herein.
215.

The continued wrongful detention of Mr. Cooper was caused by the

deliberate indifference and recklessness of supervisory defendants, including but
not limited to Defendant Cutler, when he failed to adequately train and supervise
the individual Defendants.
216.

Specifically, the supervisory defendant was personally involved in the

case against Mr. Cooper and knew or, in the absence of their deliberate indifference
and recklessness, should have known of his subordinates’ unconstitutional actions
and related misconduct in the case.
217.

Furthermore, the supervisory Defendant failed to supervise the

Defendant Officers in constitutionally adequate law enforcement practices,
particularly those concerning the interviews of witnesses, the preparation of

 

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forensic reports and the production of exculpatory evidence, thereby encouraging
and/or permitting these employees and other Defendants to engage in a reckless
investigation, to coerce and fabricate false inculpatory evidence and to withhold
exculpatory and impeachment evidence, which caused the constitutional
deprivations suffered by Mr. Cooper.
218.

These interview techniques, failures in producing exculpatory

evidence, fabrications and other investigative procedures were contrary to accepted
methods used by law enforcement agencies. The fact that the Defendant supervisor
failed to train and supervise his subordinates to ensure that they employed proper
investigation procedures demonstrates deliberate indifference and reckless
disregard for Mr. Cooper’s constitutional rights.
219.

The personal involvement of the Defendant supervisor, through their

actions and omissions, proximately and directly caused the constitutional
deprivations and grievous personal injuries suffered by Mr. Cooper, including the
above-mentioned injuries and damages.
220.

The misconduct described in this Count was objectively unreasonable,

and was undertaken intentionally, with malice, willfulness, and deliberate
indifference to Mr. Cooper’s clearly established constitutional rights.
Count V - 42 U.S.C. § 1983
Failure to Intervene
221.

Each of the Paragraphs of this Complaint is incorporated as if restated

fully herein.

 

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222.

In the manner described above, during the constitutional violations

described above, one or more of the Defendant Officers stood by without intervening
to prevent the misconduct, despite having a reasonable opportunity to do so.
223.

Because of the Defendant Officers’ failure to intervene to prevent the

violation of Mr. Cooper’s constitutional rights, Mr. Cooper suffered pain and injury,
as well as emotional distress.
224.

The misconduct described in this Count was objectively unreasonable

and was undertaken intentionally and with willful indifference to Mr. Cooper’s
rights.
225.

The misconduct described in this Count was undertaken pursuant to

the policy and practice of the Elkhart Police Department in the manner described
more fully in the preceding paragraphs, and was tacitly ratified by policymakers for
the Municipal Defendants with final policymaking authority.
Count VI - 42 U.S.C. § 1983
Conspiracy to Deprive Constitutional Rights
226.

Each of the Paragraphs of this Complaint is incorporated as if restated

fully herein.
227.

After Kershner was shot, the Defendants reached an agreement

amongst themselves to frame Mr. Cooper for the crime and to thereby deprive him
of his constitutional rights and liberty to be continuously taken away from him, all
as described in the various Paragraphs of this Complaint.

 

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228.

In this manner, the Defendants, acting in concert with other unknown

co-conspirators, conspired by concerted action to accomplish an unlawful purpose by
unlawful means.
229.

In furtherance of the conspiracy, each of the co-conspirators committed

overt acts as described in this Complaint and was an otherwise willful participant
in joint activity.
230.

As a direct and proximate result of the illicit prior agreement

referenced above, Mr. Cooper’s rights were violated, and he suffered financial
damages, as well as severe emotional distress and anguish, as is more fully alleged
above.
231.

The misconduct described in this Count was undertaken with malice,

willfulness, and reckless indifference to the rights of others.
232.

The misconduct described in this Count was undertaken pursuant to

the policy and practice of the Elkhart Police Department in the manner described
more fully in the preceding paragraphs, and was tacitly ratified by policymakers for
the municipal defendants with final policymaking authority.
Count VII - 42 U.S.C. § 1983
Monell Claim Against Defendant City of Elkhart
233.

Each of the Paragraphs of this Complaint is incorporated as if restated

fully herein.
234.

The actions of the Elkhart Police Officers in withholding material

exculpatory information from Mr. Cooper and his counsel were undertaken
pursuant to the policies and practices of the Elkhart City Police, described above,

 

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which were created, maintained, or ratified by policymakers for the City of Elkhart
with final policymaking authority.
235.

The policies and practices described in this Count were maintained

and implemented by the City of Elkhart with deliberate indifference to Mr. Cooper’s
constitutional rights.
236.

As a direct and proximate result of the City of Elkhart’s actions, Mr.

Cooper’s constitutional rights were violated and he suffered injuries and damages,
as set forth in this Complaint.
237.

The City of Elkhart is therefore liable for the misconduct committed by

its officers.
STATE LAW CLAIMS
Count VIII
Negligent Supervision
238.

Each of the Paragraphs of this Complaint is incorporated as if restated

fully herein.
239.

The Municipal Defendants, as well as supervisory Defendant Cutler,

had a duty to properly train and supervise officers, detectives, and supervisor
employees of the City of Elkhart Police Department and to provide adequate policies
to prevent the above conduct, including fabricating evidence, fabricating witness
statements, and concealing material impeachment evidence.
240.

The Municipal Defendants and the supervisory Defendant were grossly

negligent and negligent in the training, supervision and discipline of the Defendant

 

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Officers, resulting in Mr. Cooper being deprived of his right to due process, and his
right to be free from false arrest, false imprisonment, and wrongful conviction.
241.

Because of this misconduct, Mr. Cooper suffered injuries, including

bodily harm and emotional pain and suffering as more fully alleged above.
Count IX 
Respondeat Superior
242.

Each of the Paragraphs of this Complaint is incorporated as if restated

fully herein.
243.

In committing the acts alleged in the preceding paragraphs, the

Defendants were members and agents of the Elkhart Police Department, acting at
all relevant times within the scope of their employment.
244.

Defendants City of Elkhart are liable as principals for all state law

torts committed by their agents.
COUNT X
Intentional Infliction of Emotional Distress
245.

Mr. Cooper hereby incorporate by reference the foregoing paragraphs

and further allege as follows.
246.

Defendants intentionally and/or recklessly, directly and proximately

caused Mr. Cooper, innocent men, to be falsely arrested, maliciously prosecuted,
and wrongly imprisoned, in breach of the duties they owed to Mr. Cooper to refrain
from a) destroying evidence, b) fabricating evidence, c) withholding material,
exculpatory and impeachment evidence, d) failing to conduct a constitutionally

 

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adequate investigation, and e) maliciously prosecuting Mr. Cooper and causing his
false arrest and imprisonment.
247.

The Defendants’ actions caused Mr. Cooper to suffer physical harm,

including physical ailments and unauthorized physical contact resulting from the
circumstances and duration of his wrongful incarceration, and to fear for his
physical safety throughout the period of his pretrial and post-conviction
incarceration.
248.

The Defendants’ actions caused Mr. Cooper to experience severe

emotional distress, including, but not limited to humiliation, embarrassment,
degradation, loss of trust, permanent loss of natural psychological development,
ongoing depression and the continued effects of post-traumatic stress disorder.
Count XI
Negligent Infliction of Emotional Distress
249.

Mr. Cooper hereby incorporates by reference all the foregoing

paragraphs and further alleges as follows.
250.

Defendants, directly, proximately, and with negligence and/or gross

negligence, caused Mr. Cooper, an innocent man, to be falsely arrested, maliciously
prosecuted, and wrongly imprisoned, in breach of the duties they owed to Mr.
Cooper to refrain from a) compelling him to be a witness against himself, b)
destroying evidence, c) fabricating evidence, d) withholding material, exculpatory
and impeachment evidence, e) failing to conduct a constitutionally adequate
investigation, and f) maliciously prosecuting Mr. Cooper and causing his false arrest

 

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and imprisonment, directly and proximately caused Mr. Cooper to be falsely
arrested, maliciously prosecuted, and wrongly imprisoned.
251.

The Defendants’ actions caused Mr. Cooper to suffer physical harm,

including physical ailments resulting from the circumstances and duration of his
wrongful incarceration, and to fear for his physical safety throughout the period of
his pretrial and post-conviction incarceration.
252.

The Defendants’ actions caused Mr. Cooper to experience severe

emotional distress, including, but not limited to humiliation, embarrassment,
degradation, loss of trust, permanent loss of natural psychological development,
ongoing depression and the continued effects of post-traumatic stress disorder.

WHEREFORE, Plaintiff KEITH COOPER, respectfully requests that this
Court enter judgment in his favor and against Defendants CITY OF ELKHART,
STEVE REZUTKO, EDWARD WINDBIGLER, STEVEN AMBROSE, and TOM
CUTLER awarding compensatory damages, attorneys’ fees, and costs against each
Defendant, and punitive damages against each of the individual Defendants, as well
as any other relief this Court deems appropriate.

 

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JURY DEMAND
Plaintiff, KEITH COOPER, hereby demands a trial by jury pursuant to
Federal Rule of Civil Procedure 38(b) on all issues so triable.

Respectfully submitted,
/s/ Elliot Slosar
One of Plaintiff’s Attorneys

Arthur Loevy
Jon Loevy
Michael Kanovitz
Gayle Horn
Heather Lewis-Donnell
Elliot Slosar* (Pro Hac Vice Motion Forthcoming)
LOEVY & LOEVY
311 N. Aberdeen, 3rd Floor
Chicago, IL 60607
(312) 243-5900
Fax: (312) 243-5902

 

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