ADVISING THE HONORABLE MICHAEL PENCE, GOVERNOR OF THE STATE OF INDIANA Response in Opposition to a Petition for Executive Pardon for Keith D. Cooper The City of Elkhart and the members of its Police Department, having been advised of a Petition for Executive Pardon ?led by Keith D. Cooper with the State Parole Board, submit the following response in opposition. INTRODUCTION In 2009, attorneys for Mr. Cooper ?led what they termed a ?Petition for Executive Pardon Based Upon Actual Innocence? which they thereafter modi?ed and re-submitted in 2011.1 The State Parole Board earlier this year advised the City of Elkhart that it was considering Mr. Cooper?s petition and that the City could present any response or comments to the Governor?s Of?ce. The City appreciates the opportunity to do so and asks that the following be considered in opposition to Cooper?s petition. Mr. Cooper was convicted on September 8, 1997, after a bench trial before Judge Gene R. Duf?n of the Elkhart Circuit Court, of the crime of Robbery Resulting in Serious Bodily Injury (shooting a resident in his apartment). He was also convicted on November 6, 1997, upon a voluntary plea of guilty to an unrelated charge of Battery Resulting in Serious Bodily 1 To avoid con?Jsion, all references to Cooper?s Petition for Pardon will be to the 2011 version. Page 1 of 38 Injury (assaulting a fellow county jail inmate). He was sentenced by the Elkhart Circuit Court to 40 years on the ?rst conviction and 8 years on the second to run concurrently.2 Mr. Cooper is not asking for a pardon for his conviction of Battery Resulting in Serious Bodily Injury. Mr. Cooper?s claim of ?innocence? misstates facts, fabricates others, and draws conclusions that are not supported by the evidence introduced against him at his 1997 trial. When Judge Duf?n offered Mr. Cooper an opportunity to challenge his conviction in a new trial in 2006, he chose not to do so and instead accepted guilt without objection. Although Cooper?s attorneys now frame his request for a pardon as a simple call for justice to allow him the opportunity to vote and to obtain the same employment opportunities as someone without a criminal conviction, that reasoning does not stand up to scrutiny in light of the fact that he is not challenging his second violent felony conviction for injuring a fellow inmate which has the same negative impact on his job prospects and voting rights. In fact, the driving force behind Cooper?s petition is purely ?nancial. Cooper needs to obtain ?'om the Governor a pardon overturning his conviction so that he can ?le a multimillion dollar civil rights suit against the City and its of?cers. This is not idle speculation. Cooper is represented by the same attorneys who represented Christopher Parish, the co-defendant in the shooting, in just such a civil suit.3 The attorneys know that because Mr. Cooper was previously given an opportunity to challenge his 2 Cooper was sentenced under Indiana?s ?good time credit? statute in effect at the time which allowed a person imprisoned for a crime to earn one day of credit time for each day his is imprisoned, so his actual period of incarceration was 20 years on these two felony convictions. Former I.C. 35-50-6-3. 3 After serving 8 years in prison and being released on a post-conviction relief motion, Parish ?led a federal civil rights law suit in 2007 in the United States District Court in Hammond against the City and Detective Steve Rezutko alleging that the City failed to properly train and supervise Rezutko and that he violated Parish?s due process rights to a fair trial by performing an improper and sloppy investigation which lead to his unjust conviction. At the conclusion of an 8 day jury trial, Parish?s (now Cooper?s) attorneys asked for an award of $14,500,000 in compensatory and punitive damages arguing that he was an innocent man. The City and Rezutko countered that Parish was in fact guilty and any due process violations were minimal and that the jury should take that into consideration in determining damages. The jury returned a verdict against the City for $73,125 and against Rezutko for $5,000. Later, after the 7th Circuit Court of Appeals reversed the judgment on an evidentiary issue, the suit was settled by the City?s insurers for $4,900,000. Page 2 of 38 conviction in 2006 but admitted guilt at that time, the only way that he will be permitted to prosecute his suit against the City is if the Governor now intervenes to override his conviction. With a pardon, Cooper?s attorneys will argue to the court that his conviction ended in a ?manner favorable to the plaintiff,? which is a necessary legal ?nding to allow his civil rights suit to proceed. When Cooper?s lawyers state in the petition that pardon is a critical and necessary step in his quest for justice? (Pardon Request, 2011, p. 2), the next ?step? is their desire to sue the City and its of?cers. Although Cooper?s petition is salted with declarative statements such as ?he is completely innocent,? the ?evidence is surprisingly thin? or ?false? and that he ?did not rob or shoot anyone,? the evidence presented against him contradicts those statements. Cooper presents three maid arguments to support his pardon request: 1) DNA evidence ?exonerated? him of his crime; 2) he is a good man without any criminal record and just wants to vote and get a job all of which are denied him because he was arrested for no apparent reason; and 3) the Witnesses who testi?ed against him were coerced into identifying him by the police and later recanted their testimony. As shown by the evidence and sworn testimony in his criminal prosecution and in the civil rights trial of his co?defendant, Christopher Parish, reasons number 1 and 2 are simply not true and reason number 3 claiming witness recantations are suspect at best and at worst a result, not of any change in recollection by the witnesses, but because of the coercive efforts by Cooper?s attorneys suggesting to those Witnesses the need to change their testimony. For the following reasons, therefore, Mr. Cooper?s petition for pardon should be denied. 1. Facts of Cooper?s robberv resulting in serious bodily iniurv Page 3 of 38 Not surprisingly, the account of Cooper?s crime as recited in his petition is a glossed?over version of the actual brutal event. The following, rather than a sanitized summary by the lawyers, is what occurred. On October 29, 1996, 18 year old Michael Kershner was watching TV at about 9:30 pm. inside his family?s apartment at the Prairie-Middlebury Housing Project at 729 Monroe Street in downtown Elkhart. With him were his long-time friend, Eddie Love, who was a member of local gang af?liated with the Black Disciples, a Chicago street gang, and Love?s friend, Jermaine Bradley. Also in the room were Kershner?s mother, Nona Canell, and his girlfriend, Jennifer Dolph. In the bathroom of the apartment at the time of the robbery and shooting was Jason Ackley, Canell?s boyfriend. Upon hearing loud banging on the door, Kershner got up, looked in the peep hole and when he couldn?t see anyone he cracked it open to look outside and two men, later identi?ed as Cooper and Christopher Parish, barged inside with handguns drawn from their pants. When Cooper demanded a .38, money and drugs, Kershner tried to grab a loaded ri?e near the TV but dropped it as Cooper pushed him away and waved his long barreled hand gun at the occupants. When Canell stood up and screamed ?You got the wrong apartment,? Cooper pointed the gun directly at Love and ?red. As the moment he pulled the trigger, however, Kershner struck the gun with his wrist and the bullet discharged past Love?s head and ricocheted in fragments off the cement wall behind his chair. Cooper then pointed the gun at Kershner?s chest and ?red just as he turned away and that bullet struck him in his hip and he fell backwards on top of Love. Cooper then turned his gun at Canell but Kershner jumped up when he saw his mother threatened and began to struggle with him but after few moments lost all his energy and slumped back to the ?oor wounded. During the scuf?e, the hat that Cooper was wearing fell off of his head to the Page 4 of 38 ?oor. Cooper picked up the ri?e and put his foot on Kershner?s throat and stuck the barrel in his chest pulling the trigger once and then again in an attempt to shoot him at point blank range but the safety was on and the ri?e would not discharge. Cooper then turned and talked to Parish but when he saw Canell trying to use a phone to call for an ambulance he ripped it off the wall. Parish, who had his gun against Bradley?s head, grabbed a roll of quarters and a stun gun that was laying on the table and told Cooper, who had the ri?e in his hand, ?at least we got something? and as they backed out the door Cooper said that if anyone tried to take Kershner out of the apartment they would kill them all. During the entire event, Kershner, Canell, Love, and Dolph looked directly at Cooper and Parish and got a clear and unobstructed view of their faces and physique. Canell immediately grabbed a towel from the kitchen and told Love to hold it against her son?s gunshot wound. Because they had no phone, she told Love and Bradley to carry Kershner down the steps to the parking lot where she, Dolph, and Love loaded him into their car to drive to the hospital. As they drove several blocks from the apartment however they stopped at an Elkhart City Fire Station where an ambulance was called that transported Kershner to the hospital where he underwent emergency surgery to repair massive damage to his intestines and stomach caused by the gunshot. II. The Investigation A. Elkhart Police immediately investigate. Contrary to the claims made in the petition, the Elkhart Police Department immediately and thoroughly investigated the crime and followed witness leads and information all of which resulted in the charge against Cooper and his co-defendant Parish. Cooper now suggests that the investigation was ?unusual? from the start because the crime scene was not located by the Page 5 of 38 Elkhart Police after the shooting. Petitionalso argues that his identi?cation, and that of the co-defendant Parish, were tainted because Elkhart Police Detective Steven Rezutko ?honed in on Parish? and that he suggested to the witnesses that both Parish and Cooper were the perpetrators and then directed the witnesses to identify them. Id. Cooper?s argument about Parish being misidenti?ed is ironic at best given the fact he testi?ed at his criminal trial that he had information from several sources that Parish was the person who ?red the shots in the apartment. In addition, Cooper had an imnate, Debery Coleman, write a letter on his behalf asking the prosecutor and investigators to question Parish about the shooting. Ex. A, Cooper Tr. p. 180, 1. 1-25. P. 181, 1. 1-7. In any event, the facts do not support Cooper?s claims that the police were slow to investigate or fabricated the case against him. As stated below, immediately following the Kershner shooting, the Elkhart Police began the investigation and followed all leads that led to Cooper and Parish?s arrests and convictions. At approximately 9:53 Patrolman Todd Katowitch of the Elkhart Police Department was dispatched to the ?re station in reference to the shooting that had occurred. Ex. B, Parish Tr. 971 -972.4 Upon arrival, Ptlm. Katowich separated the witnesses and obtained suspect information. Parish Tr. 972. He learned from Canell that the shooting had occurred in Kershner's apartment after two black males had forcibly gained entry. Parish Tr. 972?973. Ptlm. Katowitch then went to the scene of the crime where he observed cushions knocked off the couch and de?nite signs of a struggle. Parish Tr. 974. He assisted with a canvassing of the surrounding apartments for potential witnesses. Parish Tr. 974-975. The occupants of the apartment across the hall, Apartment E, were not home. Parish Tr. 975. The occupants of 4 References to ?Parish Tr.? are citations to the sworn testimony in the civil rights case brought by Parish against the City of Elkhart and Of?cer Rezutko in the United States District Court in Hammond, Cause No. 3 :07-cv-452. Page 6 of 38 downstairs Apartment reported hearing a loud commotion and the occupants of downstairs Apartment recalled two loud banging noises. Parish Tr. 975-976. Patrolman Mark DeJong was dispatched to Apartment at approximately 10:30 pm. Parish Tr. 1428-1429. At that time, he acted as both a uniformed of?cer and the duty evidence technician who performed initial evidence collection assignments for incident occurring on that shift. Parish Tr. 1425-1428. With respect to the Kershner shooting, Ptlm. DeJong took the initial photographs of the scene. Parish Tr. 1428. At that time, he did not locate a bullet hole, blood stain, or shell casings and noted that no crime scene evidence was located. Parish Tr. 1437. He then traveled to Elkhart General Hospital where he collected the victim?s clothing and took photographs of his injuries. Parish Tr. 1444. Also at approximately 10:30 pm, Detective Michael Posthuma was contacted at home by Captain Larry Towns with respect to the Kershner shooting. Parish Tr. 839-840. Det. Posthuma reported initially to Elkhart General Hospital where he was briefed by Lt. Tom Lerner and Ptlm. Katowitch who had previously responded to the scene. Parish Tr. 836-83 7. He interviewed Canell who described the break-in and shooting and provided general descriptions of the individuals involved. Parish Tr. 837-841. Speci?cally, she identi?ed the shooter as being the taller of the two men. Parish Tr. 841 . He also spoke with the victim?s sister, Christina Smallwood, regarding Kershner?s background and activities. Det. Posthuma was later responsible for collecting the bullet that had been removed from the victim during surgery. Parish Tr. 841. Witness Jennifer Dolph?s statement was taken by Det. Steve Ambrose at approximately 11:00 pm. that night. Parish Tr. 684-685. Dolph, like Canell, identi?ed the shooter as being taller about 6? 3? and the accomplice as being shorter about 5? Id. Page 7 of 38 While witness statements were being taken, Detective Joel Bourdon the senior evidence technician, went to the Kershner apartment at about 11:14 pm. to process the crime scene by taking photographs or video, taking measurements and collecting evidence as well as assisting in the evidence room. Parish Tr. 1309-1313. Sgt. Brent Long was already on scene and advised Bourdon of what he had heard regarding the shooting and work that had already been done at the scene by Ptlm. DeJong. Parish Tr. 1313. Bourdon con?rmed that the position of the telephone was consistent with it having been dropped on the ?oor during the incident. Bourdon, like DeJong, did not observe any blood or spent casings during his initial inspection. Id. The apartment was locked and Bourdon returned to the police station to gather information from the investigators who had interviewed the witnesses as to what occurred. Parish Tr. 1315. At 11:21 pm, Detective Edward Windbigler took the statement of witness Eddie Love at the Elkhart Police Department. Parish Tr. 1282, 1285-1287. During his interview, Love described the shooter as being about 6? 0? and thin with a dark winter hat and the accomplice as being about 5? 7? and a little on the heavy side. He also told Det. Windbigler, know that I?ve seen these two guys in the past, I think on Sixth Street and in the area of Prairie and Middlebury. I don?t know their names, but the second guy that came into the apartment looks like a guy I know (Chris Parish).? Tr. 1287-1288. Cooper lived about 2 1/2 blocks from the victim?s apartment. Cooper Trial, S. Rezutko, Parish Tr. p. 166, 1. 1-25; p. 167, 1. 1-9. Detective Windbigler interpreted Love?s statement to mean that Love thought that Parish was involved in the Kershner shooting and was identifying him accordingly. Parish Tr. 1288-1291, 1300. Detective Steve Rezutko received a call from Capt. Towns at home just after the shooting, at which time he was asked to come to the police station and assist in taking witness statements. Parish Tr. 671. At 11:40 pm, he took the statement of witness Jason Ackley. Page 8 of 38 Parish Tr. 426-428. Ackley told Detective Rezutko that at the time of the forced entry, he was in the bathroom changing clothes because he had gotten wet riding his bike in the rain that evening. Id. He stated that he had heard a struggle and gunshot from the bathroom but he never saw the individuals involved. Id. After learning additional information about the crime, including that there was a question as to how many shots had been ?red as well as reports of damage on the east wall of the living room, Detective Bourdon and Ptlm. Katowich returned to the apartment shortly after 1:00 am. on October 30, 1996. Parish Tr. 1315?1317. Detective Bourdon took additional photographs of the apartment and living room and proceeded with searching for evidence related to a gunshot. Parish Tr. 1318, 1320-1322. In examining the wall, he found a defect on its surface and slug fragments on the carpet and furnishings. Parish Tr. 1323. During the course of Detective Bourdon?s search he recovered several additional metal fragments and some ammunition. Parish Tr. 1325-1327. B. Parish was independently identi?ed from photograph books and photograph line?ups by four witnesses as the shorter accomplish in the robbery. Detective Rezutko was ultimately designated as lead investigator with respect to the Kershner shooting. Parish Tr. 405. At that time, he had been a police of?cer for 25 years and a detective for at least ten years. Parish Tr. 739. He reviewed all the information available from the investigation, including the identi?cation of Parish made by Love. Parish Tr. 434-435. Det. Rezutko, like Det. Windbigler, interpreted Love?s statement to mean that he thought that one of the men involved in the shooting was Parish. Parish Tr. 444, 448, 452. As such, he obtained two different juvenile photographs of Parish that were on ?le with the Elkhart Police Department for use in photographic lineups to be shown to Victims. Parish Tr. 242-244, 467-468, 737. Page 9 of 38 Nona Canell was very angry that her son had been hurt, so much so that she immediately confronted Eddie Love demanding that he tell her the names of the two men before she spoke to the police. Love told her that the shorter man looked like Chris Parish, someone he knew. As she explained in her deposition testimony in Parish?s civil rights trial, Rezutko never told or suggested Parish?s name to her: Q. Did [Steven] Rezutko ever given you Parish?s name and say the person you identi?ed was Chris Parish? A. No. Well, that?s what I was getting to. Eddie Love that night~?I was pretty angry and I wanted to kill these guys, I really did, I would have went to prison for the rest of my life and I told Eddie, I said I want to know their names, I want to know who they were before the cops do and Eddie said the one guy looks like a friend of mine or somebody I know named Chris Parish so I didn?t tell the police. Ex. C, Canell Deposition testimony, p. 18, lines 13-25. Jason Ackley also testi?ed at Cooper?s trial that Love told them that he knew one of the robbers: Q. Did anybody in the room discuss, in your presence whether or not they knew either one of the offenders? Uh-huh. Who discussed that? Um, I believe it was Eddie. And what did Eddie say? He just said that he might know who one of the people were. Do you remember on August the 29th of 1996 talking to the Detective Rezutko after having your conversation with Eddie Love? A. Um, No. Q. Did you tell Detective Rezutko that you asked the people in the apartment if any of the?if they knew the two guys that were there, and did you tell?did you tell Rezutko that no one knew them or knew why they were in the apartment? A. Um, I don?t even remember. Q. You don?t remember if you told Rezutko that? A. No. Ex. A, Cooper Tr. p. 207, 1. 5-24. At 8:45 am. on October 29, 1997, the morning after the shooting, Canell came to the police station and was given two multipage photograph albums to review pictures without any Page 10 of 38 identifying names and asked to identify anyone who looked like the assailants. Ex. B, Parish Tr. 521, 710?713. As she was turning the pages of one of the books, she saw a photograph that she instantly recognized as the shorter of the two men. The photo was of Parish taken in 1991 as she testi?ed: A. I just didn?t say anything to the Police and the next morning when I did the line up, you know, there?s no names in these books, I picked him out and I actually dropped the book because I was?I was still in shock and when I saw that face I just?re?exes, I just drOpped the book and I say that?s him, what?s his name and Steve [Rezutko] says oh I don?t know, just a minute and he went and looked and he says uh, Parish, Chris Parish. So in my mind that was a positive ID. I knew I had the right guy. I swore I had the right guy. Ex. C, Canell Deposition p. 19, lines 15-25: page 18, lines 13-25; Parish Tr. 1392-1393. At 11:45 am. that same morning, Dolph looked at the same photograph albums although the 1991 photograph of Parish had been replaced with a more recent photo from 1993. Dolph selected that photograph and told the investigators that she thought it resembled the shorter of the two men that came into the apartment. Parish Tr. 73 8-73 9. On October 30, 1996, Patrolman Brian Prugh went to Kershner?s Middlebury apartment to recover bullet fragments and a black hat with a on it that Canell and Dolph had found. Parish Tr. 1455?145 8. According to the victims, this hat was worn by the shooter during the altercation. Parish Tr. 763, 1229, 1387. Rezutko showed a photo line-up to Kershner and Love and they also selected a photograph of Parish as the shorter man in the apartment. Based upon these identi?cations and Love?s statement that the man looked like Parish, the police arrested Parish on October 31, 1996, and charged with attempted murder later amended to include robbery resulting in serious bodily Page 11 of 38 injury. 5 Parish Tr. 71; Tr. 934-935. When asked by Rezutko Where he was just 48 hours before his arrest, Parish replied was at home or I was in Chicago or somewhere? but then ended the interview by requesting to see an attorney. Parish Tr. 718?719; 231-233. Although Parish claimed that he was with 20 or 30 relatives on the night of the shooting, no one, including his live-in girlfriend at the time, called the police to con?rm they were with him that night. Parish Tr. 246-248. C. Cooper?s arrest: Cooper, who had been known by an alias, Keith Morehead, was arrested in Elkhart on an unrelated robbery charge on January 2, 1997.6 At the police station, Detective Rezutko saw that Cooper ?t the general description given by Love, Canell, Kershner, and Dolph and that he matched the composite sketch put together from an interview with Love. (Ex. D, Rezutko Supplemental Report, 1/3 0/97). On January 8, 1997, Detective Rezutko interviewed Love and asked him to look at photo array to see if he could identify the man who shot Kershner. Love identi?ed photo #5 from the array as being the man who shot Kershner and said that he was positive of that identi?cation. After he picked out the photograph, Rezutko told Love that the person?s name was Keith Morehead, also known as Keith Cooper. Love also identi?ed the hat from a photograph that he said Cooper wore at time of the robbery. (Ex. E, Love Witness Statements). On this same day, Rezutko met with Kershner and Canell and they picked Cooper?s 5 Positive photographic identi?cations of Parish as the accomplice were also obtained from Eddie Love and Michael Kershner. Parish Tr. 489-492, 497, 1231?1233. There remains a dispute about the exact date and details of the Kershner identi?cation, because Sgt. Rezutko did not document the date or make copies of the photo used but Kershner?s testimony con?rms that he selected a photograph of Parish from a photo line-up and that Parish ?looked just like the guy I saw.? Parish Tr. 489-492, 1230-1231. 6 Cooper was identi?ed on the police records at the time of his arrest under the alias, ?Keith Morehead.? Cooper went by the alias of Keith Morehead, his mother?s husband?s name, because he was scared to use his real name because of something he did when he was a kid. Cooper Tr. p. 201, 1. 7-25. The Presentence Report to the Elkharrt Circuit Court submitted prior to his sentencing also shows that Cooper used this alias. Page 12 of 38 photograph as well and each gave written statements identifying Cooper as the shooter. (Ex. F, Kershner Witness Statement, 1/8/ 1997; Ex. G, Canell Witness Statement, 1/8/1997). On January 29, 1997, Michael Kershner gave and signed another statement to Detective Rezutko identifying Cooper. Kershner was asked to View two six-person photo arrays and selected Cooper?s picture from them. Kershner told Detective Rezutko that he was very sure of his ID. (Ex. H, Kershner Witness Statement, 1/29/ 1996). On this same day, Canell gave and signed a statement to Detective Rezutko identifying Cooper as the shooter. In her identi?cation, Canell told Detective Rezutko that she remembered Cooper as the man who was wearing a coat too large but being very tall and thin. Canell also stated that she was ?very sure? that the people she identi?ed are the two people involved in the shooting. (Ex. I, Canell Witness Statement, 1/29/ 1997). On February 10, 1997, Debery Coleman, an inmate at the County Jail, wrote a request to meet with Det. Winbigler. He told Windbigler that he was placed in a cell with Keith Cooper, who he knew as Morehead, who told him that he was nervous that the police were taking saliva and hair samples from him. Coleman said that Cooper also said, ?Well it was my hat but I?m not going to tell the police that? and that he admitted that he shot Kershner. Cooper wanted Coleman to help him write a letter to Captain Towns giving ?his side of this incident.? (Ex. J, Coleman witness statement, 2/10/1997). On March 6, 1997, the Elkhart County Prosecutor ?led an Amended Information Charging Two Counts, Count I: Attempted Murder, Class A felony, and Count II: Robbery Resulting in Serious Bodily Injury, Class A Felony. This Amended Information was signed and ?led by Rezutko. (Ex. K, State of Indiana v. Keith Cooper, Amended Charging Information; Af?davit to Show Probable Cause). Page 13 of 38 D. Cooper?s trial and the evidence presented and considered by Judge Duf?n: Cooper chose to be tried Without a jury before Elkhart Circuit Court Judge Gene R. Duf?n on January 8, 1997 and was found guilty of Count II, Robbery Resulting in Serious Bodily Injury and on October 16, 1997, he was sentenced. On November 6, 1997, Cooper pleaded guilty to another violent felony after he attacked a county jail inmate and on November 13, 1997, he was sentenced to 8 years for Battery Resulting in Serious Bodily Injury to run concurrently with his prior sentence. At his trial, Kershner, Canell, and Love positively identi?ed Cooper as the man who shot Kershner and took the ri?e from the apartment. EX. A, Cooper Tr. pp. 11, 18, 25, 73, 100?101. Kershner testi?ed in detail about the break in, the ?ght and the shots by Cooper and that he stared at Cooper?s face before being shot and got a good look at him and knew that Cooper was the same man who shot him. Id. pp. 9-18; 25, 1. 17-25; 7-52; 52, 1. 6?7; He testi?ed how he selected Cooper from six person photograph array shown to him by Det. Rezutko after he got out of the hospital. Id. pp. 18, 1. 7?8; 31, 1. 19-25also testi?ed that he gave Det. Rezutko a description of Cooper who tried to create an image on a computer program. Id. p. 53, 1. 5-12. He testi?ed how Cooper waived the gun at everyone, shot him and how he tried to kill him by putting the ri?e to his chest and pulling the trigger twice. Id. pp. 21?22. He also testi?ed that he ?rst identi?ed Parish from a photograph array at the hospital. Id. p. 31-32. At the trial, Kershner testi?ed that there was no doubt Cooper was the man who shot him with the handgun and tried to kill him with the ri?e. Id. p. 25, 1. 22-24. Canell testi?ed that she ?vividly? remembered the events of the night her son was shot. Id. p. 60, 1. 22-23. Canell testi?ed that the two men came barging into the apartment with guns that they had pulled out of their pant. Id. p. 62, 1. 8-9. Canell further testi?ed that Cooper was Page 14 of 38 the taller/shooter who came into her apartment and shot her son. Canell made a positive ID of Cooper at his criminal trial1?14. Canell testi?ed that she ?was watching everybody and trying to see everything that was going on.? Id. p. 65, 1. 22-23. When asked how good of a look she got at the man who shot her son, Canell testi?ed ?very good. We were only standing a couple feet away from each other as well.? Id. p. 73, 1. 1-4. Canell testi?ed: A. At one point we were face-to-face when I was telling him that he had the wrong house. I mean, we were closer than you and me. It was just between the table. Q. What feature of that person stood out in your mind? A. The eyes; his eyes. Q. As you sit here today, are you positive that Mr. Cooper was the man who shot your son? A. Yes, I am. Q. Why? A. Because I see him and I remember that face. I?ll always remember that face. Ex. A, Cooper Tr., p. 73, 1. 7-17. Eddie Love also identi?ed Cooper as the person who he saw shoot Michael Kershner on the night of October 29, 1996. He testified to the following at Cooper?s Criminal Trialthe courtroom today that you saw in Michael Kershner?s apartment that said, What?s up now?or you know what time it is? Yes, I do. And who is that man? Cooper. Can you point him out to the Court, please? Right over there. Are you pointing at the defense table? Right. . Which man seated at the defense table is the guy you saw in Kershner?s apartment on October 29, 1996? A. The one in the middle. Q. Would that be the black male with the white shirt and the black vest? A. Right. Mr. Christofeno: Let the record re?ect that Eddie Love has identi?ed the defendant, Keith Cooper. The Court: The record will so re?ect. Page 15 of 38 O>p>p>p> Ex. A, Cooper Tr. p. 100, 1. 25; p. 101, 1. 1-18. Q. Okay, Who shot Mick? A. Cooper. Ex. A, Cooper Tr. p. 104, 1. 16-17. Q. Eddie, is there any doubt in your mind that Mr. Cooper is the man that shot Mick? A. That?s him. Q. Why are you so sure? A. ?Cause I seen his face that night when it happened; I seen it real good. Ex. A, Cooper Tr. p. 107, 1. 13-18. After Cooper?s criminal defense attorney called Cooper to testify, Chief Deputy Prosecutor Michael Christofeno petitioned Judge Duf?n to allow Jason Ackley to sit in during a portion of Cooper?s testimony and hear his voice. Cooper Tr. p. 197, 1. 19-21. Cooper?s criminal defense attorney, Jack Smeeton, objected and argued that was pre-trial police investigation work and should not be allowed. Id. p. 197, 1. 22-24. Christofeno argued that Ackley was the individual who was in the bathroom at the time of the robbery and could only hear the voices of the intruders. Mr. Christofeno stated that he did not know if Ackley would be able to identify Cooper?s voice as the voice he heard in the apartment that day, and wouldn?t be able to know that unless Ackley was given the opportunity to hear Cooper?s voice. Id. p. 198, 1. 1-9. Attorney Smeeton also objected on the grounds that he asked for him to be excluded and that he intends to call him as a witness. Id. p. 198, 1. 11-12. Judge Duf?n allowed for Ackley to hear speci?c phrases spoken by Cooper but refused to allow him to hear any evidence. Christofeno requested that Cooper repeat the phrases that the witnesses testi?ed that they heard Cooper say on October 29, 1996. During the State?s rebuttal and over objection, Christofeno called Ackley to testify. Ackley testi?ed to the following: Page 16 of 38 Q. Mr. Ackley, you recall earlier today hearing Mr. Cooper testify in this courtroom? Yes. Have you ever heard that voice before? Yes. When did you hear that voice before? In the apartment the night of the shooting. What did you hear that voice say? You know what time it is break yourself. What else did you hear that voice say? . When he was leaving, I heard him say, if you try to get him out, I?m gonna kill you. Q. How is it that you were able to identify the voice you heard on October 29, 1996 with Mr. Cooper?s voice here today? A. It?s very deep and there is a certain way, you know, a style, people present their voices and it matches. Ex. A, Cooper Tr.p. 214,1. 25; p. 215, 1. 1-16. Debery Coleman, an inmate at the county jail with Cooper, was called as a witness to testify that Cooper admitted to him to being at the apartment with Parish on the night of the robbery and that he was concerned about having his hair and blood sample being checked against the hat found in the apartment. Coleman, however, refused to testify. Ex. A, Cooper Tr. p. 131-133. Det. Windbigler was called and testi?ed that Coleman asked to meet with him and told him that Cooper admitted to being in the apartment with Parish. EX. A, Cooper. Tr. 143-148. Cooper?s attorney and the prosecutor also stipulated that Love told Windbigler that the man with the gun who shot Kershner was tall and thin. Ex. A, Cooper Tr. 168. Det. Rezutko testi?ed and con?rmed that what Kershner had testi?ed to in court is what he told Rezutko. Ex. A, Cooper Tr. 163-164. He also testi?ed that Cooper was not a suspect in the shooting until January 1997 when Kershner, Love and Canell selected his picture from a photograph array that was presented to them because he matched the general description of the man they identi?ed as the shooter and that Cooper lived near Page 17 of 38 the apartment. Ex. A, Cooper Tr. 155-15 6, 159-160, 165-167. He testi?ed that Dolph was not positive but that she independently selected his picture from a photo array as well and thought he was the man who shot Kershner. He also testi?ed that Kershner and Canell described the height and weight of the man who shot him generally matched that of Mr. Cooper. Rezutko testi?ed that Cooper lived about 2 1/2 blocks from Kershner?s apartment. Cooper took the stand and testi?ed that he did not shoot Kershner and was not involved in the robbery. He said he is 6? 4? tall and weighed 185. Ex. A, Cooper Tr. p. 185. He also admitted to using an alias. Ex. A, Cooper Tr. p. 201. He testi?ed that he told Coleman to write a letter to the police telling them that he had witnesses who would testify that Parish was the shooter but he forgot to send it. Ex. A, Cooper Tr. p. 180?1 81, 190, 197. Cooper?s wife was present in the audience during the trial but did not testify. Cooper, through his attorney and the State prosecutor agreed that Lisa Black, the expert witness on DNA from the Indiana State Police Laboratory would not need to be called as a witness and instead that her expert opinion would be admitted as follows: ?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 Keith D. Cooper nor any other person can be eliminated as having possibly worn the hat. (emphasis added) Ex. S, Trial Stipulation. At the conclusion of the evidence, Cooper was convicted of robbery resulting in serious bodily injury and acquitted of attempted murder. Response to the allegations in Cooper?s petition: Taking in the same order the arguments presented by Cooper in his petition for pardon, the City and its police of?cers ask the Governor to consider the following: Page 18 of 38 A. Cooper has a signi?cant criminal record. Inexplicably, Mr. Cooper?s lawyers have told the Governor that their client has ?no criminal record? other than for the arrest and conviction for this charge. (Petition pp. 3, 16). Cooper?s Presentence Investigation Report however shows that he has a signi?cant criminal history with two standing convictions. Cooper was arrested and charged twelve times in Chicago from 1985 to 1996. These charges show dispositions identi?ed as ?Stricken on Leave.? Unfortunately, we cannot tell if any of these charges were stricken for plea agreements or the circumstances behind the dispositions. In any event, it is un?contradicted that Cooper was arrested and charged with the following: 6/24/1985-Possession of Marijuana, Misdemeanor; 4/23/1986-Theft; 5/24/1989-Tampering with Motor Vehicle; 6/1 7/1 990-Disorderly Conduct; 8/2/1990-Disorderly Conduct; 1 1/24/1992-Domestic Battery; 12/28/1992-Disorderly Conduct; 4/ 1 4/ 1993 ?Disorderly Conduct; 9/ 17/ 1993?Un1awful Use of Weapon, Misdemeanor; 11/22/1993-Unlawfu1 Use of Weapon, Misdemeanor; 11/25/1995-P0ssession of irearrn in Public; and 11/3/1 996-Carrying /Possession of Firearm. Ex. L, Elkhart Circuit Court Probation Presentence Investigation Report, 10/ 10/ 1997. In fairness to Cooper?s counsel, perhaps they thought that because his arrest records may not be admissible as evidence in a criminal trial, they could ignore their existence in this petition for a pardon. This would show a misunderstanding about the basis of an executive pardon which demands all relevant information to be considered and not excluded under technical rules of evidence. Moreover, even attorney William Polansky, Cooper?s criminal defense lawyer at the time of Cooper?s decision to accept his conviction and be released for time served, realized the relevance to Cooper?s past criminal record and the need to acknowledge and consider those Page 19 of 38 charges. When advising Cooper, Polansky?s considered the charge of Attempt to Commit Robbery in Elkhart, ?led prior to the attempted murder and robbery at the apartment, and for which Cooper was not convicted. Ex. M, letter from William D. Polansky to Keith D. Cooper dated March 24, 2006. Cooper?s criminal record was a concern for Polansky because it could affect his status as an ?habitual offender.? As he stated in the letter to Cooper, ?Your presentence report shows that you were arrested and charged in Illinois about ten times and each case was disposed as ?stricken on leave.? Id. Clearly, Cooper has a signi?cant criminal record showing charges that should have been noted in his petition for a pardon, which is an Executive Branch function, not a judicial proceeding. By not admitting to his criminal record in the petition, Cooper?s attorneys are misleading the Governor with an impression that Mr. Cooper has never had any involvement with the criminal justice system, an impression that is clearly inaccurate. B. Cooper did not have a signi?cant work record. Much is made in Cooper?s petition of his hard work and job potential. His petition states that at the time of the shooting he ?was working two jobs.? Again, as with the claim that he had no criminal record, this misstates the facts in the record. According to his Presentence Report and his testimony at trial, Cooper was a high school drop-out and was not trained in any special work skills prior to the arrest on this charge. Ex. L, Presentence Report. He worked two jobs after moving to Indiana from Chicago in early 1996, however he did not work at both jobs during the same time frame. He worked about ?ve months from March 1996 to September 1996 at Banks Lumber in Elkhart. His next job lasted only about 30 days, from September to October 1996, at Creation Window in Elkhart. Mr. Cooper was not employed after October 1996 until the time of his conviction in September 8, 1997. Id. Page 20 of 38 There is no indication that Mr. Cooper would have completed high school or his GED without the structure that prison provided. All of his educational advances were made while he was in a prison environment. Despite the claim in his petition that Mr. Cooper desires only to move forward with his life, there is no indication that he has made any efforts to do with any additional education or job training since his release from prison in 2006. C. Cooper has not been exonerated by DNA evidence. Cooper suggests in his petition that both he and Parish have been ?exonerated? of the crimes for which they were convicted. This is not true. Parish? conviction was vacated by the Indiana Court of Appeals in 2005, reversing the trial court?s ruling on his Post-Conviction relief hearing and remanded for a new trial. The Court of Appeals vacated Parish?s conviction on the grounds that he established, by a preponderance of the evidence that he received ineffective assistance of counsel. The State of Indiana was forced to dismiss the charges against Parish without prejudice after the victims had moved to Kentucky and were not willing to go through the trial again eight years later. The State of Indiana, however unlikely, can re-?le the charges against Parish if it chooses to do so. It must be noted that Parish?s post?conviction relief motion was based upon his claim of newly discovered evidence that the shooting occurred outside the apartment and that his attorney failed to follow up on this evidence to his Cooper?s attorney?s references this ?newly discovered evidence? in footnote 2 of his original request for pardon by stating that several new witnesses came forward at the post-conviction relief hearing with an alternative location of where this crime actually occurred. Those witnesses, Eddie Love, Bryant Wheeler and Stellana Neal, testi?ed that the shooting actually had occurred outside in a parking lot. This account of events, if presented at trial, they now argue, ?certainly would have aided Cooper in getting an Page 21 of 38 acquitta Wheeler and Neal?s testimony however is inherently unbelievable, and was in fact later abandoned by Parish after he was granted his post-conviction relief. Not one of the victims ever stated that the shooting occurred outside nor have they recanted or changed their testimony to that effect. (There was a massive storm the evening of the murder, see Ex. N, The Elkhart Truth News Article from Wednesday, October 30, 1996: Wind rips trees, power lines, Ex. 0, Certi?ed Weather Records from 10/29/1996 and 10/3 0/1996, making testimony of the event occurring outside inherently untrustworthy). Wheeler and Neal, having served their purpose of creating a false lead of evidence at the post-conviction relief hearing, were never heard from again and were not called by Parish to give testimony. At his federal civil rights trial, Parish completely abandoned this false premise and never contested the fact that the shooting occurred in the apartment nor did he offer any evidence to support it. Indeed, when Canell heard that Parish was suggesting that the shooting took place outside the apartment, she testi?ed: Q. Later Eddie recanted his story and wouldn?t testi?z against Chris Parish and then I read false statements that he had made that it happened in the parking lot. Now A. Eddie Love says it happened in the parking lot? A. That?s a lie. All these other witnesses, I don?t know where they came from, but? Q. Witnesses who said they saw it in the parking lot you mean? A. Yeah, it was storming that night. There was nobody in the parking lot. When we carried Michael down it was still raining. Ex. C, Nona Canell Deposition, page 20, lines 12?25: To haul out this phony evidence that the shooting occurred outside the apartment to support Cooper?s petition is a cynical attempt by Cooper to misrepresent the actual facts of the case in the hopes that the Governor will buy what he is selling. Page 22 of 38 Mr. Cooper inaccurately claims that new DNA evidence has exonerated him of the crime for which he was convicted. This is a misstatement of the DNA ?ndings and of legal consequences of those test results. Mr. Cooper was never ?exonerated,? that is, he was never ?cleared? of the charge by the DNA test results and to suggest otherwise ignores the ?ndings of those tests and of the evidence that Cooper stipulated into his criminal trial. The hat that the witnesses saw fall from Cooper?s head at the time of the shooting was given to the police and tested for skin alleles that might match Cooper?s collected DNA sample. On June 17, 1997, three months before his trial began, Cooper and his lawyer, Jack C. Smeeton, received a DNA test report from Lisa Black, the DNA Analyst at the Indiana State Police Laboratory that eliminated Cooper as a possible contributor to the DNA found on the hat. Ex. R, Indiana State Police Lab. Report, 6/17/97 (emphasis added). The report however also stated that a second sample from the hat was too limited in size to be analyzed. Id. The ?nding that Cooper?s DNA was not found on the hat is of course much different than ?nding that Cooper did not wear the hat which is exactly what the prosecutor wanted to argue. Rather than call Black as a witness to testify to the test results and to the fact that not all surfaces touched by someone?s skin will leave a signi?cant sample for DNA testing that therefore she could not say that Cooper (or anyone else) did not wear the hat, the parties stipulated to the admission of Black?s opinion that neither Cooper or any other person can be eliminated as having possibly worn the hat. (Ex. S, Stipulation, 9/8/97) Cooper?s attorneys criticize his former criminal defense attorney for entering into this stipulation. Petition p. 15. However, that criticism is unwarranted in light of the undisputed test results for the ISP Lab and most likely a product of Monday morning quarterbacking by those not involved in the serious nature of the criminal case at the time. Simply put, Cooper wasn?t Page 23 of 38 ?excluded? from possibly wearing the hat as he implies in his petition. He was only excluded as being a contributor to the DNA that the tester collected (or was collectable), analyzed and interpreted from the hat. The stipulation by Cooper?s criminal defense attorney was both accurate and had the bene?t of eliminating the risk of very seasoned expert witness for the State?s case who would only reinforce her opinion through live testimony all to the detriment of Cooper. Although he does not wish to concede the obvious, just because the DNA found on the hat wasn?t Cooper?s cannot exclude him from wearing the hat. It was certainly within the discretion of the trial judge to ?nd that Cooper wore the hat but didn?t leave any DNA, or not enough DNA to be collected and analyzed for a match. More importantly, Cooper?s lawyers misstate the record by declaring that the report by ISP Analyst Black ?unequivocally? states that the DNA excludes Cooper. Petition, p. 15. Black?s report states that the sample that was retrieved from the hat excluded Cooper as a contributor to that sample and that no test could be performed on the second sample from the hat due to its limited size. The testimony of Black is un-contradicted that the DNA did not eliminate Cooper as someone who could have worn the hat. Black testified at Parish?s post-conviction relief hearing that the DNA samples of Ervin found on the hat don?t necessarily exclude any other individual (including Cooper) as having worn that item: Q. It?s certainly possible that more than one individual could wear a particular hat; is it 9 :(it That is correct. Q. And do you know if a person wearing a hat, say on one occasion for example, would leave sweat suf?cient to have been suf?cient for testing purposes? A. It?s possible. Q. And the fact that you might identify one particular individual such as this ohlanis Ervin, that doesn?t exclude others from perhaps wearing that hat on another occasion; does it? A. That is correct. Page 24 of 38 Ex. Q, Christopher Parish?s Post Conviction Relief Hearing, Transcript of L. Black testimony, page 8, lines 18-25; page 9, lines 1-3. Black?s opinion that the lack of finding a person?s DNA evidence on clothing does not exclude that person from ever possibly wearing the hat is supported by other experts and studies on DNA testing. This opinion is con?rmed by other DNA experts. Ex. T, Touch DNA: From the Crime Scene to the Crime Laboratory, Joe Minor, published on Forensic Magazine Where the author comments: ?However, just because a surface is touched and a few skin cells are left behind does not guarantee a meaningful DNA pro?le can be obtained. Detecting and obtaining an interpretable DNA pro?le are two different concepts. . . . Some suspects are known to shed cells more than others.? Minor also identi?es problems with testing DNA samples ?om clothing as: - ?Complex Mixtures: A mixed sample may contain background DNA, crime-related DNA, and post?crime contamination, and it may be dif?cult to identify the relevant pro?le.? 0 ?Touch DNA does not tell you ?when? or ?how? DNA was deposited.? - ?Background DNA obtained from clothing which was handled by someone else or by the manufacturer? may have been deposited on the item.? Ex. T, J. Minor, Touch DNA: From the Crime Scene to the Crime Laboratory In the article, Collecting DNA Evidence-How Stu? Works, William Harris also states that ?Matching DNA from a crime scene to DNA taken from a suspect is not an absolute guarantee of the suspect?s guilt. . . Even more troubling are cases of DNA fraud-instances where criminal plant fake DNA samples at a crime scene. Ex. U, Collecting DNA Evidence-How Stuff Works. In 1992, Canadian physician John Schneeberger planted fake DNA evidence in his own body to avoid suspicion in a rape case. Planting fake DNA obtained from someone else is only part of the problem. Scientists at Nucleix, an Israeli company, recently reported that they could, with access to pro?les stored in the DNA databases, manufacture a sample of DNA without obtaining Page 25 of 38 any tissue from that person.? The City does not suggest that Cooper planted fake DNA, however, ISP Analyst Black and the above authors caution against relying upon a lack of ?nding DNA samples on the item as proof that a party did not touch or wear it as suggested by Cooper. Id. Similarly misplaced is Cooper?s claim that he is in a better position to bring his petition because of developments in DNA technology in 2008 that identi?ed the DNA of a man named Johlanis Ervin as matching the DNA ?om the hat. (Petition, p. 14) The March 8, 2004 Certi?cate of Analysis from the Indiana State Police states the following: 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 ohlanis Cortez Ervin (Michigan Department of Corrections #454577) The DNA pro?le obtained from a second sample of the hat (item 1B) demonstrated the presence of a mixture from which ohlanis Cortez Ervin (Michigan Department of Corrections #454577) and an unfmown individual cannot be excluded as possibie contributors. Keith D. Cooper (item 2A1) can be excluded as a possible contributor. (emphasis added) Ex. V, Certi?cate of Analysis, State of Indiana 3/8/04 There was a mix of two different DNA pro?les contained in the second sample that was taken from the hat. True that the pro?les ?om this sample did not match Cooper, but this just shows the possibility that more than one person wore this particular hat. This report also does not exclude Cooper ??om ever wearing the hat. It simply states that his DNA did not match the only two samples that were taken from the hat. Id. Therefore, the 2004 testing does not detract from Black?s 1997 ?nding but only puts a name to the individual whose DNA matches that found on the hat. It does not change in anyway the report?s ?nding that Cooper?s DNA was eliminated as a match or that the second sample was Page 26 of 38 too limited to analyze. The existence of Ervin?s DNA does not prove his guilt, nor does it say when the DNA was deposited or the manner that it was deposited. Indeed, if Cooper?s attorneys are now suggesting to the Governor that Mr. Ervin is the perpetrator of the crime, that would be remarkable because they know full well that Ervin has previously denied to them under oath in an af?davit they solicited from him in the case involving their other client, Christopher Parish, that he ever was hanging around Elkhart, Indiana or that he knew Parish, who was involved in the Kershner shooting. Ex. W, aff., J. Ervin. Moreover, although Cooper claims that he was never in the apartment (although he lived only two blocks away and was seen by Love around the housing project, Ex. A, Cooper Tr. p. 106), his is now blaming Ervin for the crime when Ervin has sworn to Cooper?s attorneys that he was not even in the same city at the time of the shooting. Ex. W, aff. J. Ervin. Cooper?s petition also misuses the word ?exoneration? as an incantation of sorts to suggest to the Governor that his innocence has been declared or his name has been cleared of the crime by the fact that his DNA could not be matched or found on the hat or to the second sample on the hat that was too limited to test. Cooper?s lawyers have tried unsuccessfully in the Parish case to use this descriptive word ?exoneration? to suggest a ?nding of innocence where no such conclusion was ever made or intended by a court. In Parish? 5 civil rights suit the federal district court refused to allow the attorneys to claim he was ?exonerated? merely because his Post? Conviction Relief motion was granted and he was remanded for a new trial. The State dismissed the charge against Parish but did so without prejudice, subject to the charges being re?led. Cooper has not been exonerated of the crime. Rather, he has accepted his conviction in exchange for a sentence modi?cation. The correspondence from Cooper?s Post-Conviction Relief Attorney Polanski shows that the Judge was going to grant Cooper?s PCR petition. Ex. Page 27 of 38 and Y, Z. Polansky letters. Instead of challenging the charge with a new trial, Cooper accepted his conviction. Ex. Y, Cooper letter to W. Polansky. He did this with full and complete advice Mr. Polansky, his attorney representing him on his post-conviction relief claims. Ex. and Z. Cooper was never exonerated of his crime although his attorneys have made the same misstatement in the Parish civil rights suit. Ex. X, Parish?s Complaint, 1, 8, 22, 30. The mistaken characterization of a reversal and remand for a new trial as an ?exoneration? has been criticized by the Supreme Court in Kansas v. Marsh, where Justice Scalia, in concurrence, bemoaned the cavalier nature in which parties utilize the term ?exonerate.? In citing the Illinois Supreme Court, the concurrence quotes the following: While a not guilty ?nding is sometimes equated with a ?nding of innocence, that conclusion is erroneous. Courts do not ?nd people guilty or innocent. . .A not guilty verdict expresses no view as to a defendant?s innocence. Rather, [a reversal of conviction] indicates simply that the prosecution has failed to meet it burden of proof. 548 U.S. 163, 194 (2006)(Sca1ia, ., concurring), v. Smith, 708 NE. 2d 365, 371 (1999). The Marsh concurrence referred to the case of Sheets v. Butera, 389 F. 3d 772, 775 (8th Cir. 2004), the accomplice to a murder gave a taped confession implicating Sheets and also agreed to testify against him but he died before trial and, without this key evidence, the state could not retry Sheets. Id. at 195. Upon dismissal of the criminal charge, Sheets sought money damages under ?1983 against the state for his arrest but his suit was ultimately dismissed and af?rrned by the 8th Circuit. The Marsh concurrence noted: Sheets also sought the $1,000 he had been required to pay the Nebraska Victim?s Compensation Fund; the State Attorney General?far from concluding that Sheets had been ?exonerated: and was entitled to the money?refused to return it. The court action left open the possibility that Sheets could be retried, and the Attorney General did ?not believe the reversal on the ground of improper admission of Page 28 of 38 evidence. . .is a favorable disposition of charges,? Neb. Op. Atty. Gen. No. 01036 (Nov. 9) 2001 Neb. AG LEXIS 35, 2001 WL 1503144, Marsh, 548 U.S. at 195-196. Both Parish and Cooper too easily con?ate the concept of ?exoneration? or actual innocence with reversible error or a jury? determination of not guilty. The two are not the same and the Governor should not be misled by this misstatement. D. Cooper admitted his guilt after his Post-Conviction Petition was reviewed by the Elkhart Circuit Court and he stands convicted of the charge. Cooper has admitted his guilt and cannot now walk that admission back in an effort to sue the City and it police department for his arrest and conviction. After the Indiana Court of Appeals granted Parish?s Post-Conviction Relief on the grounds of ineffective assistance of counsel, Cooper was informed and advised by his attorney the Elkhart Circuit Court was offering him one of two options: Since his Petition for Post?Conviction Relief was still pending, Judge Duf?n advised Cooper?s attorney that he could grant the petition for post-conviction relief and from there the State would decide What to do. The second option he afforded to Cooper was to have him accept his conviction and in return receive a sentence modi?cation for time served. Speci?cally, the following communications were exchanged: Last, assuming the Parish decision stands after further review, [Judge] Duf?n offers you a choice. On one hand, you can choose a sentence modi?cation for time served (and I would want to work that so there is no parole), but that leaves the conviction intact. The other choice is for him to grant the PCR, but that would leave the possibility of the State appealing the grant of the PCR, and also the possibility of a retrial. Ex. Z, Letter from W. Polansky to Keith Cooper, 12/22/2005. In response to his attorney, Cooper sent the following letter: In answering your question about the choices posed by Judge Duf?n my answer is yes. I would accept the sentence modi?cation for the time served with the Page 29 of 38 acceptance that I would not have to do any parole upon my release. . .In return Judge Duf?n can keep the conviction. Ex. Y, Letter from Keith Cooper to W. Polansky, 1/9/2006. COOper?s attorneys now suggest in his petition that Cooper?s choice was ?agonizing and unfair,? because both Cooper and his attorney ?were concerned that the police misconduct would continue.? A careful review of the correspondence exchanges reveals that no such ?concerns? were ever mentioned. Cooper?s attorneys reference a memo in a footnote of their petition from W. Polansky?s investigator that had attempted to interview the Victim and witnesses. According to Cooper?s attorneys, they claim that the witnesses were ?unwilling to cooperate? at the time, and if they had been ?willing to cooperate? Cooper?s attorney would have advised Cooper to take the grant of his PCR. This assertion is simply inaccurate. The Victim?s sister, Christina Smallwood spoke with the Investigator who documented the following in her memo: She said that they all identi?ed Cooper and that the reason they did not testify is that the lawyer said that three identifying witnesses was enough. She said that she was in the apartment on the telephone when the crime occurred. She said that Jennifer would tell us the same thing and it was no question that it was Cooper, the person who had been identi?ed. She also asked if he was trying to get out and I advised her that this is part of the appeal process and that his attorney must check out any leads. . . Since Jennifer is still with Kershner, the victim, it is highly unlikely that she would say it was not Cooper, especially since they are now living with Michael?s sister. Ex. AA, Memo to W. Polansky from J. Ranson, 6/11/2002. The victim and witnesses therefore were unwilling to change their stories at this time, not that they were unwilling to cooperate. Cooper?s attorney fully advised Cooper as to his two choices: I have your letter of March, 14, discussing your status as to habitual offender eligibility and the decision of taking a time cut or having the PCR granted and taking your chances with what happens after that. You said you feel the court can keep the conviction as long as you walk away free, with no parole. Page 30 of 38 Your presentence report shows that you were arrested and charged in Illinois about ten times, and each case was disposed as ?stricken on leave.? Assuming stricken on leave means dismissed, you have two felony convictions, this class A robbery of Kershner and a class felony battery that was committed while you were in Elkhart jail on the Kershner charges. Under Indiana law, those two conviction count as only one prior conviction for habitual offender purposes, because both commission dates occurred before any conviction. That makes it easier to choose the option of a time cut for time served with the PCR dismissed with prejudice. The alternative is having Duf?n grant the PCR and taking your chances on what came after that. What might come after that is unknown and unknowable now. The state could appeal, which would mean another year incarcerated while the appeal proceeds, and if the grant of PCR is reversed, doing the rest of the time. Or, if the grant of the PCR is af?rmed, your conviction would be vacated and you would be free unless Elkhart went for a retrial. My hunch is that you would make out okay if you chose the option of having the PCR granted. . .the next question would be whether Elkhart wanted to retry you. My hunch is they would not bother. They are unlikely to ?nd Kershner (assuming he is still living the underground life?style in Kentucky), and he would be a fairly indispensable witness. And even if they bothered with a retrial, I think there is a good chance you would be acquitted because you have a good DNA case (assuming it is properly handled) and also the testimony of Stellana Neal and Bryant Wheeler would create a reasonable doubt. However, you might have to spend several months in Elkhart jail while the case resolved itself by having the prosecution dismiss it or by having the trial. In my analysis, the odds are good that if you took the option of having your PCR granted, you would end up okay. But as you can see, there are signi?cant risks?? if you take the option of having your PCR granted, will the state appeal; if so, and it turns out good for you, will Elkhart re?le the charge; if so, will there be an eventual dismissal, or a trial; if a trial, what verdict. Considering having this conviction on your record would not leave you habitual- eligible, and that you cannot get back the time you have already served, and the risks that are part of the other option, my advice is take the deal for time served, as long as it includes no parole, so that you would walk away and be entirely ?nished with this case. If the deal is anything less than that, say for example, that it includes parole or probation, my advice would be go for the other choice of having the PCR granted and taking your chances on what happens after that. Ex. M, letter from W. Polansky to Keith Cooper, 3/24/2006. Page 31 of 38 On April 3, 2006, Polansky emailed Judge Duf?n and stated: ?As to Mr. Cooper, regarding the choice between having you grant the PCR and Cooper taking his chances on ?lrther proceedings, or, withdrawing the PCR with prejudice for a sentence reduction, he prefers sentence reduction, as long as it is time served with no parole.? Ex. BB, Polansky Email, 4/3/2006. On April 25, 2006, Judge Duf?n granted Cooper?s sentence modi?cation and he was released shortly after. Cooper?s PCR was Withdrawn with prejudice. Ex. CC, Order granting Sentence Modi?cation. Cooper?s conviction therefore still stands, not just because of the evidence that was presented at trial against him in 1997 but because in 2006, he accepted his guilt. Mr. Cooper has not been falsely branded as an armed robber. He has voluntarily accepted his conviction and decided to admit that he was guilty of the charge. As speci?cally addressed previously, Cooper?s pardon request is not based on actual innocence. He has never been proven innocent and to suggest otherwise intentionally misstates the facts. E. Victim?s Statements of Cooper?s Innocence are misrepresented in the petition and obtained as a result of improper suggestions and confusion by his attorneys. Cooper argues that ohlanis Ervin and Michal Ervin, who match the general description of a tall thin black man and a short stocky black man, committed the crime. However, other than ohlanis? DNA being found on the hat in the apartment, there are no other facts connecting them to the robbery. Cooper presents no evidence that either Johlanis or Michael were in Elkhart or even the state of Indiana at the time of the shooting. Unlike Cooper, ohlanis did not live in the neighborhood nor was he seen hanging around the housing project. His face is distinctively different than Cooper?s and yet Love, Kershner and Canell all identi?ed Cooper as the man who shot Kershner. (Petition, pp. 14?16). What Cooper wants the Governor to do is engage in Page 32 of 38 speculation that some other man committed the crime. Without more, his request should be denied. Cooper?s petition argues that Det. Rezutko improperly manipulated evidence to ?rst identify Parish and then him as participants in the robbery and to identify their photographs from the lineup array. (Petition, p. 6) Rezutko, however, never ?honed in on? Parish or Cooper as suspects and to suggest that he did misrepresents the facts of the investigation. Love identi?ed Parish immediately after the shooting and told Canell when she demanded to know who the men were. Within hours, Love also told Det. Windbigler that the shorter man in the apartment looked like Parish. The next morning, while Canell was looking through the photo albums at the Elkhart police station, she immediately identi?ed Parish?s picture as the ?shorter? individual who entered the apartment. Canell denied that Rezuko suggested Parish or Cooper as the men in her apartment that night. Contrary to Cooper?s claim that Rezutko suggested to the witnesses that it was Parish, the case against him started when Love identi?ed him and Canell and later Dolph selected his picture from the books of photographs of offenders. Each book contained about 60 pictures and Nona Canell testi?ed at her deposition in the Parish civil case that she ?dropped the book? when she came across Parish?s photograph. It was not until two months later that the witnesses were shown a photo array of six different men and they selected Cooper?s photograph as the person who looked like the shooter. The claim of improper suggestion therefore has no factual basis. Cooper relies upon an af?davit of Rezutko?s former supervisor, Larry Towns, to suggest that Rezutko manipulated evidence against him. Towns claims that Rezutko was known to use a photo arrays improperly by inserting pictures of the suspect with others who did not have similar physical traits, such as a mustache, and that Rezutko admitted to doing just that in this case in his Page 33 of 38 deposition. (Petition, p. 7) This allegation completely misstates Rezutko?s testimony. He didn?t admit to preparing and using suggestive photo line-ups. On Page 101 of his deposition in Parish?s federal civil rights case, the attorney asked a hypothetical question on photo arrays that he asked Rezutko to comment upon. Q. But in my hypothetical, only one of them looks like Chris. A. In your hypothetical, if that?s the only one in there that looked like him, I would assume there?s some danger that they would pick him out. Q. All right. In the photo line?up that you showed the other witnesses, did you take steps to make sure the other people also looked like Chris Parish? A. I put six pictures?six photographs together that generally matched the description of the robber that included Chris Parish.? Ex. GG, Rezutko?s Deposition p. 101, l. 25: p. 102, 1. 1-10. Rezutko therefore testi?ed that he prepared and administered the photo array in a non- suggestive manner. In addition, Towns? recent claim that Rezutko did something wrong in the 1996-97 investigation should carry little, if any, credibility because he as the captain of detectives called Rezutko to assist the evening of the shooting and appointed him lead investigator on the case and had no qualms about doing so at the time. Ex. B, Parish Civ. Tr. p. 322-323. Towns therefore believed that Rezutko was quali?ed and could perform the tasks necessary to complete the investigation at the time he assigned him to do so. Indeed, Towns testi?ed that he never saw Rezutko make something up or intentionally lie on an investigation document and that he never suspended him for falsifying evidence for or any other misconduct. Ex. B, Parish Civ. Tr. p. 358-359 Only later, after Towns had been accused of 14 counts of stealing money from the drug task force fund and had an ax to grind with the City police of?cers who testi?ed against him did he change his opinion about Rezutko. Although he was not convicted and left the department Page 34 of 38 after that, these charges are a motivation to offer such critical testimony and Towns? statements should therefore be discounted. Ex. B, Parish Civil Tr. pp. 341?351. Cooper also claims that he has further evidence of his innocence by suggesting that another person, ohlanis Ervin, used the same type of handgun, a Magnum .357 revolver that was used in the Kershner shooting. (Petition, p. 16) This statement is not accurate. It was never determined by anyone that the weapon used to shoot Kershner was a Magnum .3 57 revolver. Kershner testi?ed at Cooper?s criminal trial that Cooper had a ?long barreled revolver, chrome. Looked like a .357.? Ex. A, Cooper Tr. page 20, lines 11-12. Kershner testi?ed at Parish?s criminal trial that Cooper had a long revolver, chrome. They?re not sure what type caliber it was. They couldn?t test ballistics. Ex. HH, Parish Crim. Tr., Page 20, lines 10-11. Cooper also claims that Canell testi?ed that Rezutko improperly ?pointed [him] out? on the ?rst day of trial. Actually, what she testi?ed to was that on the ?rst day of Cooper?s trial she asked Rezutko: A: Steve, how did you know this is him, he said because we did our job and you?ll see him in the courthouse so when we come up the stairs he was carrying a child and he turned around and looked at me with so much hate, I swore that was him an I was convinced because Steve Rezutko had told me he did job, this was the guy and I believed him. Ex. C, Canell Deposition Page 10, lines 19-25; Page 11, line 1. With Keith Cooper, I was?I was questioning it until I seen him in the courthouse and he looked at me like he could kill me, like that guy [looked] at me that night. Ex. C, Canell Dep. Page 12, lines 6-9: Canell testi?ed that she identi?ed Cooper by selecting his photo from an array without any prompting by Rezutko prior to the trial and con?rmed her identi?cation later at the trial. Cooper next claims that when his attorneys showed Canell photographs of Johlanis Ervin and Michael Ervin, she identi?ed Michael as the shorter person. Cooper argues now that the Page 35 of 38 victims, nearly 19 years after the event, independently changed their mind about the identi?cation of Parish and Cooper by carefully looking at booking photographs of Johlanis Ervin and his brother, Michael Ervin. (Petition p. 17) This is not at all what occurred. Instead, Cooper?s attorneys showed the booking photos of the Ervins to Canell and Kershner while at the same time erroneously telling them that they had DNA evidence ?exonerated? both Parish and Cooper. To do this to vulnerable and gullible victims causing them to second guess their original testimony is the very improper and suggestive photo array that they accuse Det. Rezutko of performing. The statements and af?davits of Canell and Kershner provided to Cooper?s attorneys were only given after Elliot Slosar, one of the paralegals working for Cooper?s attorneys, incorrectly suggested to them that the police had identi?ed the wrong individuals and that the DNA evidence and Eddie Love?s changed testimony proved Cooper was not in the apartment. Eddie Love It is interesting that Cooper?s attorneys now characterize Eddie Love to the Governor as a ?mentally challenged young man? who ?has spent his entire life in and out of legal trouble.? Petition, p. 11 Interesting because those same attorneys used Love in the Parish civil case in an attempt to keep Jermaine Bradley from testifying in the federal court trial and to suggest to Bradley that he change his testimony to not implicate Parish in the robbery. After the shooting, Bradley identi?ed Parish?s photo as one of the men who broke into the apartment and held a gun to his head. He later testi?ed in both Parish?s state criminal trial and federal civil rights trial and did not change his testimony. During the preparation for the Parish civil rights trial, the City?s private investigator, Steve Radde, met with Bradley and his older brother, Israel Johnson, and sister, Felicia Bradley (both active military) and his mother, to Page 36 of 38 con?rm his attendance as a witness. Bradley told Radde on October 19, 2010, that he was visited earlier that week by Slosar and Love and that Love who told him they wanted him to change his testimony and say that it wasn?t Parish that he saw on the night of the shooting. Ex. EE, af?davit of S. Radde with attached aff. Exhibit A, notes of interview with J. Bradley. Love told Bradly that if he changed his story and said that Parish wasn?t there that night and it was someone else, he would only have to stay in jail for one month. Id. Slosar told Bradley that they had DNA evidence that proved Parish wasn?t there. Id. Bradley told Slosar and Love that he would not change his story and he saw Parish and he was there on the night of the shooting. Id. After Slosar and Love left, Bradley told Radde that he received a telephone call from Slosar who invited him to Chicago where he could party with Love. Bradley declined. Id. Bradley also told Radde that Love told him that he was did not testify against Parish in his criminal case because they were both members of the Gangster Disciples. Id. Love said the same thing to Judge Duf?n at his contempt hearing for failing to honor the subpoena to testify at Parish?s criminal trial telling him that he was afraid of Parish because they are both Gangster Disciples. (Ex. FF, Elkhart Truth News Article, 7/24/1998) In their opening statement in the Parish federal civil rights trial, Cooper?s lawyers told the jury that they would be hearing from Love who would explain that he didn?t really identify Parish to Det. Windbigler but they never called him although he was hiding out with Slosar to avoid getting served a subpoena to testify in the trial on behalf of the City. Ex. B, Parish Civil Tr., pp. 14-16. Cooper also claims that Johlanis Ervin and Michael Ervin, two black men are the real perpetrators. Cooper has no evidence that either man was even in the state of Indiana at the time of the shooting, let alone in the same area as the apartment in Elkhart. Page 37 of 38 G. Lack of supporting letters from the community. It appears that the only letters that were submitted were from C00per?s ex-wife and his children. This does not amount to an endorsement of Cooper?s innocence. H. Reasons supporting the Requested Pardon do not exist. The grant of a pardon is within the executive?s discretion and should be made only when facts support such a decision and when the applicant shows that he is deserving of such an award. Neither has been shown by Mr. Cooper. He has misrepresented the facts of his conviction and of his background and criminal record. He has previously accepted his conviction without objection even when he had an opportunity to challenge it at a new trial. His attorneys have exploited the vulnerable victims of the shooting by misrepresenting to them that Mr. C00per has been exonerated by DNA evidence and their change in identi?cation is therefore suspect. Mr. Cooper is merely seeking an opportunity to sue the City and its police of?cers and needs the Governor?s pardon to do so. The City and its police of?cers ask that the above information be considered by the Governor and that he DENY Mr. Cooper?s Petition for Pardon. Respectfully submitted, mm Martin W. Kus #5377-46 Newby, Lewis, Kaminski Jones .O. Box 1816 La Porte, IN 46350 (219) 363-1577 Page 38 of 38