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Cooper v. City of Elkhart

United States District Court, N.D. Indiana, South Bend Division

January 29, 2019

KEITH COOPER, Plaintiff,
v.
CITY OF ELKHART, STEVE REZUTKO, EDWARD WINDBIGLER, STEVEN AMBROSE, and TOM CUTLER, Defendants.

          OPINION AND ORDER

          PHILIP P. SIMON, JUDGE

         This lawsuit is the latest chapter in a long running story involving Keith Cooper, a man who was convicted of armed robbery, sentenced to 40 years in prison, and served more than eight years before his conviction was called into question, and he was released. Cooper's prison sentence was cut short because of the granting of a motion for immediate release from an Indiana state court judge in 2006. But Cooper maintained that he was more than just an innocent man convicted of a crime he did not commit, and that is where the case before me comes in. Cooper alleges that his arrest, prosecution and conviction were the result of intentional wrongdoing, including the manufacturing and fabrication of false evidence by the defendants. This wrongdoing he says, amounted to a violation of his civil rights.

         Cooper has sued the City of Elkhart, as well as individual police officers Steve Rezutko, Edward Windbigler, Steven Ambrose and Tom Cutler (who I'll refer to by their last names or collectively as the “individual defendants”) under state and federal law seeking redress for violation of his civil rights. One might reasonably wonder why Cooper waited nearly eleven years from his release from prison to bring this lawsuit. Indeed, that is the issue that is principally before me on the present motion for judgment on the pleadings.

         Here's why: on February 19, 2017, almost eleven years from his release from prison, Cooper secured a pardon from Indiana Governor Eric J. Holcomb. The effect of this pardon on the timeliness of this lawsuit is the issue that is presently before me. The defendants have filed a Motion for Judgment on the Pleadings [DE 45] arguing primarily that I am unable to reach the merits of Cooper's claims because his lawsuit is barred by the statute of limitations. But because I find the legal reasoning behind defendants' argument to be unpersuasive and contrary to Supreme Court precedent, I will deny the majority of what their motion seeks.

         Background

         Cooper alleges he was the victim of a coordinated effort to convict him of a crime he had nothing to do with. In his complaint, he tells a story of rogue police officers who were so overzealous in their pursuit of someone to convict that they improperly coerced witnesses to fabricate incriminating evidence and concealed exculpatory evidence not just from Cooper, but from prosecutors who would later try Cooper. It is a harrowing and deeply troubling story, that if true, shows disturbing intentional misconduct on the part of the Elkhart Police Department. Given this is a motion for judgment on the pleadings, I must take all of plaintiff's well-pled allegations as true, and so the following summary of comes from Cooper's complaint.

         A. The 1996 Robbery and Shooting of Michael Kershner.

         On the night of October 29, 1996, Michael Kershner was shot and robbed inside his family's home in Elkhart, Indiana. [Compl., DE 1 at ¶ 19.] Here's what happened: while he was watching a movie with members of his family and friends, Kershner heard a knock on the door, and when he opened it, he was greeted by two African-American men, one short and one tall. The men were armed and forced themselves into the apartment. They demanded money and drugs. Kershner reached for his own gun, and a scuffle ensued during which Kershner was shot in the hip by the taller of the two robbers. The assailants soon fled, taking a bag of quarters (the home's laundry money) and two weapons. But during the altercation, the taller intruder (who shot Mr. Kershner in the hip) lost his baseball cap and left it behind. And it wasn't just any standard Cubs or White Sox cap, but a customized leather cap, embroidered on the front with the letter “J” in rhinestones. [Id. at ¶¶ 21-24, 131.] Kershner was transported to a nearby hospital and thankfully, survived his injuries. [Id. ¶¶ 25-26.]

         B. The Elkhart Police Department Investigates the Shooting.

         Steve Rezutko was the Elkhart police officer assigned to lead the investigation into the shooting and armed robbery. [DE 1 at ¶ 27.] As part of the investigation, defendant Windbigler (and later defendant Rezutko) interviewed a man named Eddie Love, who was in the apartment and witnessed the shooting. During the interviews, Love described the two individuals he witnessed enter the apartment but denied knowing who they were or their names. When describing the shorter individual, Love told the police that the suspect bore a resemblance to a man he knew who lived in Elkhart named Christopher Parish. Apparently, Love was adamant that the intruder was not Parish, only that he bore a resemblance to Parish, but Rezutko “coerced and put substantial pressure on Mr. Love to falsely identify Mr. Parish, ” eventually obtaining statement from Love falsely identifying Parish as the non-shooter intruder. [Id. at ¶ 33-41.]

         Cooper alleges that the coercion of Love included highly-suggestive and biased photo arrays to secure a false identification. Using similar tactics, Rezutko also prepared a false witness statement for Nona Canell, Kershner's mother. In that statement, like the one given by Love, Canell stated she was “positive” that Parish was one of the intruders. [Id. at ¶¶ 42-45.] The Canell statement was a pack of lies conjured up by Rezutko. But if did the trick because two days later, on October 31, Parish was arrested. [Id. at ¶ 45.] Parish's arrest still left the identity of the alleged shooter himself, then known only to police as a “tall African-American man.”

         On January 2, 1997, a little over two months after the shooting and Parish's arrest, plaintiff Keith Cooper was arrested for a crime wholly unrelated to Kershner's shooting. The circumstances of his arrest as he tells it are extremely troubling in and of themselves. On that day, Cooper was waiting at a train crossing holding several grocery bags while walking home. While he was waiting at the crossing, seemingly minding his own business, he was seen by an Officer McConnell of the Elkhart Police Department who arrested Cooper on sight because he was a tall African-American man and earlier that day a woman reported a tall African-American man had snatched her purse. [Id. at ¶¶ 47-50.] Cooper was placed in a squad car and driven to the purse-snatching victim for a show up identification. The victim apparently identified Cooper through the car window. He was later charged, but he maintained his innocence throughout. [Id. at ¶¶ 52-55.]

         Even though months had passed and there was no real connection between the crimes, very soon after Cooper's arrest, Rezutko developed a “hunch” that Cooper was Kershner's shooter based upon his “general description” and supposed similarity to composite sketches done based on Kershner and his mother's descriptions. [Id. at ¶¶ 56-59.] In justifying his hunch that Cooper was the other person involved in the robbery and shooting of Kershner, Rezutko later made the preposterous statement that “Elkhart, Indiana doesn't have a whole lot of tall six-foot ... black male robbers running around . . . so that's probably . . . why I made the connection.” [Id. at ¶ 58.] According to Cooper, however, Rezutko's reasoning wasn't even that innocent. Far from it. Instead, Cooper tells me that on January 3, Rezutko visited the jail and threatened to frame Cooper for the robbery and attempted murder of Kershner unless he pleaded guilty to the purse-snatching charges. Rezutko took out a newspaper article describing the robbery and shooting to Cooper and told him that he was going to “sit on this egg” unless he pleaded guilty to purse snatching. [Id. at ¶ 61.] Cooper refused.

         From there, Rezutko began building his case, apparently not in the hopes of finding the actual perpetrator, but instead pinning crimes on Cooper. He did so by using “unduly suggestive” photo lineups featuring “fillers” who bore no resemblance to Mr. Cooper. With these tactics, he was able to draft statements in which Canell and Kershner identified Cooper's photograph as being the shooter and were “very sure” of the identification. [Id. at ¶¶ 67-73.] Rezutko was even more coercive with other witnesses. On January 8, 1997, Rezutko met with Eddie Love (the eyewitness to the shooting), at the Elkhart County Detention Center and threatened to charge Love “with a drug arrest unless he acquiesced to his commands.” [Id. at ¶ 92.] Although Love later recanted, at the time he acceded to Rezutko's demands and provided a statement falsely identifying Cooper as the shooter and then later, testified against Cooper at trial.

         Rezutko's next tactic was to enlist the assistance of the Elkhart Police Department's resident jailhouse snitch, Debery Coleman. Coleman had previously been enlisted by the Elkhart Police Department to work as a confidential information, and in February 1997, Rezutko informed Coleman he was going to be placed in a cell with Cooper “for the sole purpose of eliciting information from him regarding the Kershner shooting.” [Id. at ¶ 97.] Rezutko knew that Cooper was represented by counsel, but Coleman was nonetheless instructed to elicit information from Cooper after the two were housed together. Coleman has stated that Cooper maintained his innocence when they two spoke, but that nonetheless, on February 10, 1997, defendant Windbigler met with Coleman and the two manufactured a statement implicating Cooper in the armed robbery and attempted murder. [Id. at ¶ 101.] This included a detailed confession that Cooper supposedly made which contained numerous fabricated details. Coleman later stated in sworn testimony that he went along with Windbigler because Windbigler had made promises of leniency for Coleman with regard to his own drug sentence, if he helped the Elkhart Police Department frame Cooper. [Id. at ¶¶ 104-107.]

         On March 6, 1997, Cooper was tried and acquitted of the purse-snatching charges. [Id. at ¶ 65.] That same day, Rezutko filed a probable cause affidavit and charges were initiated for the attempted murder and armed robbery of Michael Kershner based upon the allegedly fabricated evidence Rezutko had been securing through improper means and intimidation in the weeks before. [Id.]

         C. Cooper is Tried and Sentenced to Forty Years in Prison.

         At trial, it is alleged that the defendants' misconduct continued. Cooper tells me that defendants suborned perjury from four witnesses and themselves committed perjury when they testified at trial. This included the three eyewitnesses to the shooting - Ms. Canell, Mr. Kershner, and Mr. Love - all of whom identified Cooper as the “tall shooter” from the night in question. Likewise, while Coleman (the jailhouse informant) had provided a statement to police that Cooper had confessed to him in their cell, Coleman refused to testify and was held in contempt of court. But Coleman's statement to police nonetheless came into evidence after it was introduced during the examination of defendant Windbigler who testified to its substance. Finally, Jason Ackley, identified Cooper during his testimony by his voice, a statement which he later recanted and has stated that was done only at the instruction of Rezutko. It was upon this supposed eyewitness testimony and testimony from police that Cooper was convicted. Cooper's co-defendant Parish, was likewise convicted of the robbery. During the trial, no physical evidence linking Cooper to the crime was introduced. [DE 1 at ¶¶ 119-129.]

         D. A Reversal of Fortune for Cooper and Parish.

         Approximately five years after a jury convicted Mr. Cooper, further DNA testing was conducted on the hat left behind by the assailants at the scene of the robbery. In 1997, more rudimentary DNA testing had concluded that “the DNA isolated and amplified from the sweat band (Item 1b) of the hat (Item 1) revealed a mixture of alleles from which Keith Cooper can be eliminated as a possible contributor.” [DE 1 at ¶ 133.] But, shockingly, it seems those conclusions were never shared with Cooper or his defense. And then, five years later, the evidence became even more ...


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