Illinois man’s historic pardon is up to Pence
Indiana governor’s VP nominee status may factor into call.
By: Christy Gutowski, Chicago Tribune: July 21st, 2016
As Mike Pence cultivates a national image as Donald Trump’s running mate, abandoning a re-election bid for a second term as Indiana governor in the process, he may leave unanswered a historic pardon request involving the wrongful conviction of an Illinois man.
It’s been more than two years since the Indiana Parole Board recommended to Pence the pardon of Keith Cooper for a brutal armed robbery 20 years ago.
Though Indiana governors have long used their pardon powers for those they think have earned it, legal experts say Cooper, if successful, would be the first they can recall exonerated in the state through a gubernatorial pardon based on innocence.
Cooper, 49, watched Wednesday from his Country Club Hills home as Pence introduced himself to a national television audience during a 30-minute speech highlighting his conservative Midwestern values at the Republican National Convention in Cleveland.
Cooper said he couldn’t help but wonder — what about me?
“He had the power to do what was right and pardon me — an innocent man — and he hasn’t,” said Cooper, a forklift operator.
“Listening to Pence’s speech angered me,” he continued. “Hearing him say, ‘That we are, as we have always been, one nation under God, indivisible, with liberty and justice for all.’
“Does that apply to me?”
Cooper was sentenced to 40 years in prison for a 1996 robbery in Elkhart that left a teen clinging to life with a gunshot wound to the stomach.
The Indiana Court of Appeals overturned his co-defendant’s conviction in 2005, and Cooper was given the choice of being set free with the felony conviction on his record or facing a new trial before the same judge.
The Chicago native chose to go home to his wife and three children, who were 8, 6 and nearly 2 when he lost his freedom and who at times were homeless during his nearly decade long 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 and truly clear his name.
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 is urging Pence to support the pardon.
“Justice demands that Mr. Cooper be pardoned,” attorney Michael A. Christofeno, now in private practice, wrote in a January 2016 letter to Pence obtained by the Tribune. “We cannot undo the wrongful imprisonment of Mr. Cooper, but we can undo his wrongful conviction with a pardon.”
His petition is one of 18 pardon requests awaiting Pence’s signature. He has pardoned three people since he became governor in 2013. His predecessor, Republican former Gov. Mitch Daniels, pardoned more than 60 people during his eight years in office.
Given the Trump-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 actual innocence — may be tricky.
Bruce Haynes, founding partner and president of Purple Strategies, a Washington-based bipartisan communications consulting firm, said it’s unlikely that Pence will make a move before the November election. It would be more of a distraction to Trump’s presidential campaign than actual political gain, Haynes said, and because Cooper is a free man anyway, there’s no harm in waiting.
“If you’re Pence, you could say I can wait a few more months and make that decision after the election and, in the meantime, I’m not (affecting) this man in any significant way.”
He added, “You can’t steal the spotlight from the presidential nominee, in particular when it’s Donald Trump. … That would be a cardinal sin for a vice presidential nominee.”
The topic of pardons and clemency can be controversial. Candidates don’t want to be perceived as too lenient and may fear the recipient could commit future crimes.
There’s actually a name for that fear: the Willie Horton syndrome, say criminal justice experts, noting the convicted murderer in Massachusetts who was furloughed on a weekend and committed rape and armed robbery while out. Then-Vice President George H.W. Bush used the issue to help defeat Massachusetts Gov. Michael Dukakis in the 1988 presidential election.
Former Arkansas Gov. Mike Huckabee has faced scrutiny during his two unsuccessful presidential campaigns regarding the more than 1,000 commutations and pardons he issued during 11 years in office.
Huckabee commuted the 108-year prison sentence of a career criminal in 2000 who nine years later killed four police officers as they sat in a Washington state coffee shop.
But, on the other side, being too tough also may have pitfalls. Reporters during George W. Bush’s first presidential run pored over several controversial executions carried out while he was Texas governor.
Gov. Rick Perry presided over more than 200 executions in 14 years in Texas. Questions over one execution in particular — the notorious arson case in which Cameron Todd Willingham was convicted, in part through disproved forensics, of killing his three children — persisted during both of Perry’s failed presidential runs.
Though Trump, a billionaire businessman who has never held public office, hasn’t been faced with the decision to grant a pardon or clemency, he has offered opinions.
Take the infamous case involving the rape of a white Central Park jogger in 1989. Five young men — all black or Latino — were convicted. Trump took out full-page newspaper ads calling for the restoration of New York’s death penalty.
The men, though, eventually were cleared and reached a $41 million wrongful conviction settlement. Trump called the 2014 payout “a disgrace” in a newspaper op-ed piece.
Fran Watson, a clinical professor of law at Indiana University McKinney School of Law, who directs a wrongful conviction clinic, said she wouldn’t bet on the socially conservative Pence pardoning Cooper, especially while in the national spotlight.
“I think the governor deserves his reputation for being tough on crime, which means he doesn’t lend an ear to someone convicted of (charges related to) an attempted murder,” she said. “One would think under these circumstances — where even the prosecution and victim and their family are saying you got the wrong man — it would be a bit of a given. He’s got this really good opportunity to do what is right without anyone objecting.”
Cooper was set free in 2006. Two years after his release from prison, a recent college graduate named Elliot Slosar who was working on the co-defendant’s lawsuit soon began researching Cooper’s case as well.
Slosar, now an attorney with Loevy & Loevy in Chicago, 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.
The case was the subject of a Chicago Tribune article last year. The Tribune’s review of more than 2,000 pages of trial transcripts, police reports, witness interviews and depositions gathered in Slosar’s quest 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 he could not be excluded as a suspect. But the Indiana State Police lab report stated just the opposite.
Years later, the DNA evidence was linked to a man serving a prison term of up to 60 years in Michigan for his role in a 2002 murder. That man has denied involvement in the Elkhart robbery and has not been charged.
Cooper’s co-defendant won a nearly $5 million settlement after a federal jury in late 2010 ruled that police violated his civil rights.
Cooper petitioned the Indiana Parole Board for a pardon in 2011. It took three years before his case was heard. At the February 2014 hearing, the crime victims urged his pardon.
The board unanimously recommended in March that Pence grant Cooper a pardon, but the governor has not acted.
“The request for Keith Cooper is still under review,” said Stephanie Hodgin, the governor’s spokeswoman. “It has not been approved or denied.”
According to Slosar, the holdup doesn’t seem to be about innocence but rather whether Cooper has exhausted all other legal avenues for challenging his conviction.
“It will be extraordinary if Gov. Pence uses his executive power to pardon Keith, an innocent black man, while a national conversation occurs regarding the interplay between race and the criminal justice system,” Slosar said.
Ironically, Cooper said he had moved his family from Chicago to the small Indiana town just months before the crime because he wanted to escape the city’s violence and find a better job.
Cooper said some good did come from his time in prison. He went from being a high school dropout to, while in prison, receiving his GED, associate’s degree and certificates of achievement in hospice care and prison ministry. He has since remarried and is a doting grandfather.
Cooper said he suspects his pardon request will be left unanswered before the governor leaves office. Still, he said, he won’t give up.
“Never,” he said. “I’m not a quitter. I didn’t give up in prison and I’m sure not going to give up now.”