By Christy Gutowski
Indiana Gov. Mike Pence has declined to rule on a historic pardon request involving the wrongful conviction of an Illinois man.
In a letter Tuesday, the governor's general counsel told Keith Cooper's attorney they first must exhaust all possible judicial options for appeal. The letter essentially allows the Republican vice presidential candidate to avoid ruling on the Country Club Hills man's claim of innocence until a new Indiana governor takes over in January.
"It crushed me a little bit," Cooper, a 49-year-old forklift operator, said after reading the letter. "I haven't give up hope. My hope is what keeps me strong, but I'm human and it hurts."
Cooper spent nearly 10 years in prison for a 1996 armed robbery in Indiana before a co-defendant's conviction was reversed. Cooper was offered a deal in 2006 to take his chances at a new trial or be freed from prison with a felony conviction on his record. He chose immediate release, but Cooper said he struggles as a convicted felon to find a better paying job.
DNA evidence points to another man in the armed robbery, and the victims and former Elkhart County prosecutor who helped convict him now say Cooper is innocent. The Indiana Parole Board recommended in March 2014 that Pence grant the pardon, which experts believe would be the first pardon based on a claim of innocence in state history.
"Although the judicial system may not be perfect, given the extraordinary nature of Mr. Cooper's request, we need to be certain the judicial process is complete and has been given every opportunity to address any error that may have occurred," general counsel Mark Ahearn wrote on behalf of Pence. "When Mr. Cooper made a deal to be released from prison he withdrew his pending post-conviction relief petition, but it is unclear from the official record whether this precludes Mr. Cooper from refiling a petition."
The letter continued, "Out of respect for the judicial process, before this office will consider Mr. Cooper's request further, he will need to exhaust his judicial remedies."
Attorney Elliot Slosar, who represents Cooper, said the letter was not an outright denial. Still, Slosar described it as a delay tactic that has the potential to prolong Cooper's quest to clear his name for several years. Slosar said it's unclear whether they will be allowed to file another post-conviction petition after the original was withdrawn. Even if they overcome that hurdle, Slosar said, prosecutors may argue the new evidence is too old to meet the requirement of being new.
"He's punting to the next governor," said Slosar, an attorney with Loevy & Loevy in Chicago. "It's so punitive for them to hold on to a pardon petition this long and may prevent him from getting justice in court."
Late Tuesday, a Pence spokesman reiterated that the governor has not ruled yet on Cooper's pardon request.
"When Mr. Ahearn talkesd with Mr. Slosar (Tuesday) he made clear that this is not a final decision from the governor," said Matt Lloyd, the governor's deputy chief of taff. "He also made clear that because of the unique circumstances regarding this request, the nature of which are outlined in the letter, Mr. Slosar must exhaust all of the possible judicial options for appeal before the governor can consider the pardon request."
Given the Donald Trump-Mike Pence ticket's "Make America Safe Again" theme, delivered amid a difficult time of violence and unrest nationwide with police shootings and racial tensions, political pundits say granting a pardon -- even one based on innocence -- may be tricky.
The pardon request also has possible political implications for Curtis Hill, the Republican nominee in the race for Indiana attorney general. Hill, an Elkhart County prosecutor, was not involved in Cooper's conviction but he did play a role years later when Cooper was offered the deal.
Cooper was sentenced to 40 years in prison for the robbery, in which a teen survived being shot in the stomach. The Indiana Court of Appeals overturned a co-defendant's conviction in 2005 and prosecutors dropped charges against him when he elected for a new trial. The man later received a nearly $5 million settlement in a civil rights case against police.
Cooper, though, said he chose to go home to his wife and three young children who at times were homeless during his incarceration. Cooper said he does not regret his decision, but living with the felony conviction on his record has stunted his ability to earn a better living.
Slosar argues that Cooper was wrongly imprisoned based on flawed police work, tainted witness identifications, an unreliable jailhouse snitch and a trial attorney who mishandled key DNA evidence. The witnesses and the snitch later recanted.
Now, long after advances in DNA testing and a nationwide offender database excluded him as the perpetrator and identified another man, which sparked eyewitness recantations, even the original trial prosecutor who secured Cooper's conviction urged Pence to support the pardon.
Cooper began his pardon quest about four years ago. More than 100,000 supporters have signed an online petition at change.org. Cooper also has an active social media following.
The case was the subject of a Chicago Tribune investigation last year. The Tribune's review of trial transcripts, police reports, witness interviews and depositions showed the case was fraught with problems.
For example, Cooper's former defense attorney agreed to a stipulation that DNA test results from inside the sweatband of the shooter's hat showed Cooper could not be excluded as a suspect. But the Indiana State Police lab report stated the opposite. Years later, the DNA evidence was linked to a man serving a prison term in Michigan for his role in a 2002 murder. He has denied involvement in the Elkhart case and has not been charged.
Pence has pardoned three people, none claiming actual innocence, since he became governor in 2013. His predecessor, Republican Mitch Daniels, pardoned more than 60 people during his eight years in office.
"This doesn't make sense," Cooper said. "How can you pardon guilty people and here I'm innocent and you pass it forward? I just hope I'll still be alive (when pardoned) because I'm tired of walking around with the stigma of being a convicted felon."
(c)2016 the Chicago Tribune