PASSAGE OF THE DAY: "Through the discovery process in the case, Cooper and his attorneys also learned that Rezutko had been forced to resign from the Elkhart Police Department in 2001 because of sexual misconduct with an informant. The department did not disclose until January 2019 that the detective had been accused of paying an informant for oral sex. Rezutko died by suicide a month after those records were disclosed."
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STORY: "Wrongly convicted man receives $7.5 million settlement in Indiana," The South Bend Tribune (Reporter Marek Mazurek) reports, on May 5, 2022.
SUB-HEADING: "In 2018, the South Bend Tribune and ProPublica reported on major flaws in a prosecution in Elkhart, Indian. Years later, the city expressed regret and agreed to pay the man millions."
GIST: "A man who spent more than eight years in prison after being wrongfully convicted of an armed robbery in Elkhart, Indiana, will receive $7.5 million in a settlement with the city and with former police officers involved in the investigation, his attorney has announced.
The city’s settlement with Keith Cooper is the largest amount paid to a plaintiff in a wrongful conviction lawsuit in Indiana, according to the University of Michigan’s Exoneration Registry, and marks the end of his legal saga, which was chronicled by the South Bend Tribune and ProPublica.
Cooper, now 54, was pardoned in 2017 by Gov. Eric Holcomb.
The record-breaking settlement follows a series of other wrongful conviction proceedings and lawsuits in Elkhart.
Cooper’s co-defendant in the 1996 robbery, Christopher Parish, was exonerated and awarded nearly $5 million in a 2014 settlement. In March, Andrew Royer filed a lawsuit saying police and prosecutors coerced him into a false confession. A handful of other cases against the Elkhart Police Department are pending.
“It’s been a long uphill battle. I’ve been waiting 14 years for this day and now it’s here,” Cooper said during a press conference Wednesday afternoon in Chicago. “There’s no amount of money that can get me back the time I lost. But it helps build a better tomorrow for me and my family.”
In a separate press conference, Elkhart city spokesperson Corinne Straight read a prepared statement in which the city apologized for its handling of Cooper’s case.
“We hope this settlement brings to a conclusion the obvious injustice that has been rendered to Mr. Cooper,” the statement read in part. “The current administration and current leadership in the Elkhart Police Department have set upon a path of accountability in the hopes that this kind of case will never happen again.
“To Mr. Cooper and his family, we regret the suffering you experienced.”
Elliot Slosar, an attorney who represented Cooper throughout the civil litigation, said he appreciates the city’s apology, but he called on Elkhart’s mayor to bring in a special prosecutor to review every case investigated by the officers named in Cooper’s lawsuit.
(Christian Sheckler, the Tribune reporter who worked with ProPublica’s Ken Armstrong on a series of stories published in 2018 and 2019 about the criminal justice system in Elkhart, began working this year as an investigator for the Notre Dame Law School Exoneration Justice Clinic. Slosar is also affiliated with the clinic.)
The Case
On Oct. 29, 1996, police were called to a housing project in Elkhart where 17-year-old Michael Kershner had been shot and nearly killed. Friends and family of Kershner’s said two Black men — one short and one tall — had forced their way into his apartment, and the tall suspect shot the teenager during a struggle.
Cooper and Parish were charged in the crime after witnesses identified them as the suspects from photo arrays. Cooper was identified as the taller of the suspects and the alleged shooter. Both men were convicted: Cooper in 1997, of robbery, and Parish in 1998, of robbery and attempted murder. Cooper was sentenced to 40 years, Parish to 30.
Cooper’s suit claimed that Elkhart police officials, including detective Steve Rezutko, framed the men through false witness statements and unduly suggestive photo lineups.
Eyewitnesses who testified at Cooper’s trial later recanted and said they had been manipulated by Rezutko into implicating Cooper.
Additionally, an investigation done in the years after Cooper’s trial concluded that DNA obtained from the shooter’s hat matched a man who had been convicted of a 2002 murder in Benton Harbor, Michigan, and then sent to prison.
In 2005, a state appeals court threw out Parish’s conviction. Afterward, a judge offered Cooper a choice. The judge could overturn Cooper’s conviction, allowing for a possible retrial, or modify Cooper’s sentence, allowing Cooper to be released immediately. Cooper chose the sentence modification and was freed in April 2006.
Standing by Their Convictions
Though he was no longer in prison, Cooper was not exonerated of the robbery. So, in 2009, he filed a petition for a pardon. In 2014, the Indiana Parole Board voted unanimously in Cooper’s favor and forwarded its recommendation to then-Gov. Mike Pence.
But for nearly three years, Pence allowed the recommendation to sit, taking no action. Pence’s successor, Holcomb, issued the pardon in 2017, one month after taking office.
Cooper is the first Indiana man to win a pardon based on actual innocence.
Through the discovery process in the case, Cooper and his attorneys also learned that Rezutko had been forced to resign from the Elkhart Police Department in 2001 because of sexual misconduct with an informant.
The department did not disclose until January 2019 that the detective had been accused of paying an informant for oral sex.
Rezutko died by suicide a month after those records were disclosed."
The entire story can be read at:
https://www.propublica.org/article/wrongly-convicted-man-receives-7-5-million-settlement-in-indiana
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PASSAGE OF THE DAY: National Registry of Exonerations; "After Parish’s conviction was affirmed on appeal in 1999, Parish filed a petition for post-conviction relief in 2002, which was amended in 2004. At a hearing on the petition, Parish presented evidence that his trial attorney had failed to adequately investigate the case prior to trial. He presented evidence that showed that Kershner was shot in the parking lot outside the building and falsely reported it as occurring in the apartment because he was on home detention for a gun charge. Love testified that police coerced him to identify Parish. Further, a crime scene technician said he found no blood in the apartment although Kershner was bleeding from his gunshot wound. In addition, DNA tests conducted after Parish’s trial on the hat found inside the apartment, which the prosecution argued at trial belonged to Cooper, showed not Cooper’s DNA, but that of a man who was convicted in 2002 of attempted murder and was serving a 62-year sentence in a Michigan prison. Parish also presented evidence that there were 12 alibi witnesses who could account for his whereabouts, including at least one who was not a family member. The trial court, however, denied the petition."
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Read the National Registry of Exonerations entry by Maurice Possley, updated on May 4, 2022, at the link below: (What a slaughter! The Registry lists a humungous total of five contributing factors to this wrongful conviction, HL) Contributing Factors: "Mistaken witness ID; False or misleading forensic evidence; perjury or false accusation; Official misconduct; Inadequate legal defence."
GIST: On October 29, 1996, police were called to a third-floor apartment in Elkhart, Indiana, where 17-year-old Michael Kershner, his mother, Nona Canell, and four friends reported that two gunmen had burst in and robbed them. Kershner was wounded by a gunshot in the abdomen. The gunman left behind a hat that fell off his head. Two days later, one of the witnesses, 15-year-old Eddie Love, told police that 20-year-old Christopher Parish looked like one of the robbers. In January 1997, 29-year-old Keith Cooper was arrested on a purse snatching charge. Detective Steve Rezutko concluded that Cooper resembled a computerized sketch of the gunman and he was black, tall and skinny—the description of the gunman given by the witnesses—he must have been the gunman. So Cooper’s photograph was put into a photographic lineup and ultimately, Canell, Love and Kershner identified him as the gunman. Those witnesses also identified Parish from a photo lineup, as did other witnesses who were in the apartment. Cooper went on trial first in Elkhart County Circuit Court in the fall of 1997. Testifying before a judge who heard the case without a jury, Canell, Kershner and Love identified Cooper as the gunman. The prosecution called Debery Coleman, a jail inmate, as a witness, but Coleman refused to testify. So the prosecution was allowed to call a detective who testified that Coleman reported that after Cooper was arrested and was awaiting trial, he confessed to Coleman that he committed the crime. By that time, DNA tests had been performed on the sweatband of the hat left behind by the gunman. Although the tests identified a DNA profile that did not match Cooper, Cooper’s lawyer inexplicably allowed the prosecution to tell the jury that the testing did not eliminate Cooper. Cooper testified and denied involvement in the crime. The prosecution then called 19-year-old Jason Ackley to testify. Ackley said he was in the bathroom at the time of the crime and did not see the robbers. However, he testified that he recognized Cooper’s voice as the voice of the gunman. On September 9, 1997, the judge acquitted Cooper of attempted murder, but convicted him of robbery resulting in serious bodily injury. Cooper was sentenced to 40 years in prison. In 1998, Parish went on trial. He was identified by Kershner and Canell, as well as by Jermaine Bradley, who was also in the apartment at the time of the crime. Seven witnesses, all family members, testified that Parish was in Chicago at the time of the shooting. On July 23, 1998, the jury convicted Parish and he was sentenced to 30 years in prison. After Parish’s conviction was affirmed on appeal in 1999, Parish filed a petition for post-conviction relief in 2002, which was amended in 2004. At a hearing on the petition, Parish presented evidence that his trial attorney had failed to adequately investigate the case prior to trial. He presented evidence that showed that Kershner was shot in the parking lot outside the building and falsely reported it as occurring in the apartment because he was on home detention for a gun charge. Love testified that police coerced him to identify Parish. Further, a crime scene technician said he found no blood in the apartment although Kershner was bleeding from his gunshot wound. In addition, DNA tests conducted after Parish’s trial on the hat found inside the apartment, which the prosecution argued at trial belonged to Cooper, showed not Cooper’s DNA, but that of a man who was convicted in 2002 of attempted murder and was serving a 62-year sentence in a Michigan prison. Parish also presented evidence that there were 12 alibi witnesses who could account for his whereabouts, including at least one who was not a family member. The trial court, however, denied the petition. On December 6, 2005, the Court of Appeals of Indiana reversed the trial court, set aside the verdict and ordered a new trial, finding that Parish had received an inadequate legal defense. By not investigating the possibility that the shooting occurred outside the apartment, Parish was denied an opportunity to undermine eyewitness accounts that the shooting took place inside the apartment, the court ruled. The charges against Parish were then dismissed. By that time, witnesses had begun to recant their testimony. Coleman, the jail informant who said Cooper had confessed, said Cooper never confessed. Coleman also said that he was promised leniency in his own charges—a promise that the detective who took the statement had failed to disclose at Cooper’s trial. At that time, Cooper had a petition for a new trial pending. The judge offered him a choice of overturning the conviction and a possible retrial or a sentence modification that would allow Cooper to be released immediately. Cooper chose the sentence modification and was released in April 2006. Parish filed a wrongful conviction lawsuit and on October 27, 2010, a civil jury awarded him $78,125 in damages. A total of $191,000 in attorney’s fees and costs also was assessed. Parish's attorneys appealed the damage award, arguing that it was too low. In December 2012, the U.S. Court of Appeals for the 7th Circuit set aside the damage award and sent the case back for a new trial on damages, ruling that the trial judge had improperly barred evidence of Parish's innocence to be presented to the jury. In January 2014, the case was settled for $5 million. In 2013, Elliott Slosar, Parish’s attorney from the Exoneration Project at the University of Chicago Law School, requested a pardon for Cooper from Indiana Gov. Mike Pence. The pardon, which the prosecutor in Cooper’s 1997 trial supported, included the evidence of the recantations from Canell and Kershner, which were part of the lawsuit brought by Parish. Canell and Kershner said that detective Rezutko had manipulated them into identifying Cooper and Parish, even though they were unsure. Rezutko, they said, refused their requests for a live lineup. At Cooper’s trial, they said, Rezutko pointed out Cooper in the hallway so they would know to identify him in court. Love recanted his identification of Cooper and Parish, as did Ackley, who said that he would have identified anyone that Rezutko told him to identify. The petition for a pardon also disclosed that further DNA testing on the hat had identified the DNA as that of Johlanis Ervin, who was serving a 60-year prison term for a murder committed in Berrien County, Michigan in 2002—six years after the Elkhart crime. Canell and Kershner had identified Ervin and his brother as the two men who came to their apartment. Although the Indiana Parole Board recommended that Cooper be pardoned, Pence declined to act on the request. On February 9, 2017, Indiana Gov. Eric Holcomb, who was elected after Pence left office to join Donald Trump as his vice presidential running mate, granted Cooper’s pardon. In November 2017, Cooper filed a federal lawsuit against the city of Elkhart and four of its police officers. Cooper settled the lawsuit in April 2022 for $7.5 million. He did not seek state compensation because to do so would have required him to dismiss the lawsuit." --------------------------------------------------------------------- |
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PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
