Mimesis Law
22 February 2020

Keith Cooper: Cowardice Cubed

October 7, 2016 (Fault Lines) — Keith Cooper is innocent. Yet a conviction remains on his record. Not because public safety demands it. Not because he deserves it. But because financial and political considerations make it easier to keep him as a felon than an innocent person, wrongfully convicted and incarcerated.

In 1997, Cooper was convicted of shooting Michael Kershner in the stomach as he answered his door, then robbing three others in his apartment of their guns, drugs, and cash. Cooper’s attorney made the unusual decision to ask for a bench trial, which did not pay off. Though Cooper was acquitted of attempted murder, his armed robbery conviction carried a 40-year sentence.

Fortunately for Cooper, his co-defendant, Christopher Parish decided to fight things out a little harder. Despite being offered a one year jail sentence for a plea, he went to trial. And although Parish was convicted, he successfully appealed his conviction in 2005. The Indiana Court of Appeals found that Parish’s attorney had been ineffective for calling only seven alibi witnesses, all family members, when there were twelve witnesses available who would have said he was not at the scene.

But that’s not all. The evidence showed that Kershner hadn’t been sitting peacefully in his apartment when he had been shot. In fact, he had been wandering around with another man selling drugs. When Kershner was shot, an officer, Detective Rezutko, began coercing people to name Parish and Cooper as the shooters. One man in particular, Eddie Love, told Rezutko that Parish had not been one of the shooters. But because Love sold drugs on Retuzko’s behalf, he was quite vulnerable to the detective’s insistence that he name Cooper and Parish.

Because there was powerful evidence that the crime hadn’t unfolded as the witnesses had claimed, and because Love’s testimony push a serious dent in his identification of Parish, Parish’s conviction was overturned. And Parish had brass balls, refusing the State’s offer of a plea deal to time served to seek a new trial.

That steely will led to an eventual civil trial, at which Parish was awarded a measly (unfathomably low, in the 7th Circuit’s opinion) $78,125.00 because he was not allowed to present all of the evidence of his innocence, including the existence of two other perpetrators who had been named by eyewitnesses as the shooters, one of whom left behind (seriously) a rhinestone bedazzled hat with his DNA in it. At his second civil trial, Parish won a five million dollar verdict, enough to bedazzle all of his possessions for years.

Unfortunately for Cooper, he didn’t have quite Parish’s confidence. Immediately after Parish had his conviction overturned, prosecutors offered Cooper a devil’s bargain. He could have himself a new trial, if he wanted, in front of the same judge who had convicted him at a bench trial. Or he could go home immediately, having served only ten years of his jail sentence, to help his struggling family. Except he would walk out a felon.

We’d all like to believe that we are Christopher Parishes. But most of us are Coopers. He chose the better part of valor and settled, accepting a conviction in exchange for no jail time. In one sense, this was a good deal for Cooper. But in a greater sense, it was an awesome deal for the Elkhart police department, who couldn’t be sued by Cooper[1] for their shoddy investigation so long as his conviction remained on the books.

While Parish successfully became a free person, with all of his constitutional rights restored, Cooper lingered on as a felon, outside the cell but wearing the shackles of an ex-convict around his neck. He sought the most reasonable remedy for an innocent person suffering under an unreasonable conviction, he asked the governor, Mike Pence, for a pardon. This wasn’t some namby-pamby mercy pardon either, based on something stupid like shared human decency or Biblical values. It was an honest-to-gosh actual innocence request, backed up by the man who had originally prosecuted Cooper.

Apparently, that was the problem. Pence’s spokesperson argued that “[a] pardon based on innocence requires a governor to substitute his judgment for that of the judicial branch.”

There are a few reasons why this is wrong. First, the judicial branch has been pretty clear that this conviction should have never happened in the first place. When it has spoken, it has been to overturn Parish’s conviction and urge ample reparations by the State. The only people who had been working to keep Cooper’s conviction in place were firmly members of the executive branch—the prosecutors and police officers who offered him a deal to avoid being sued.

Second, a governor’s pardon power is there explicitly so that he can substitute his judgment for that of the judicial branch. The Indiana Constitution gives the General Assembly the power to limit a Governor’s discretion, and to force him to report all pardons and reprieves. Thus, any pardon by the Governor is really the action of two branches of government, and no more violative of the judicial power than the imposition of mandatory minimums, or the retroactive legislative reduction of sentences.

Third, Pence’s suggestion, that Cooper return to the criminal justice system and seek “exhaustion” of his remedies before he asks for a pardon, is ridiculous. There is no statutory requirement of exhaustion, nor would one make sense. Exhaustion requirements are designed to winnow out huge, difficult to review caseloads so that a court can, for instance, reasonable manage its AEDPA caseload. They are not designed to prevent an executive officer from exercising his full discretionary privilege.

Naturally, the reasons given by the Governor are unlikely to be the real reasons. It is possible he hopes that whoever comes into office next will take the load off of his back. In the meantime, Cooper suffers from the consequences of his own moment of fear—when he chose his family and his safety over his good name. There are some places where that wouldn’t doom him to life as a felon. But not in Indiana.

[1] This is known as a “Heck” bar.

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  • Caleb Walden
    7 October 2016 at 11:03 am - Reply

    Excellent Article! One of the best on this case! Thank you, Andrew!