Madeline Buckley

madeline.buckley@indystar.com

Keith Cooper, a man imprisoned for a crime he didn't commit, thought he had checked off all the boxes.

A jailhouse informant in his armed robbery case recanted his statement. New DNA evidence pointed to someone else. The deputy prosecutor who helped send Cooper to prison later wrote to Gov. Mike Pence, saying, "We cannot undo the wrongful imprisonment of Mr. Cooper, but we can undo his wrongful conviction with a pardon."

And, most importantly, after hearing Cooper's case in 2014, the Indiana Parole Board recommended that Cooper be pardoned.

For more than four years, Cooper has doggedly pursued exoneration. He has pinned his hopes on a pardon from Pence that would erase a felony conviction that hangs over his head and pave the way to better employment.

But now, Pence's office has told Cooper's attorney he must face yet another hurdle to clear his name, a step that a legal expert says poses an "uphill battle" for Cooper.

As Pence takes national stage, innocent man waits for pardon

On Tuesday, Pence's general counsel wrote a letter to Cooper's attorney, Elliot Slosar, that said Cooper must exhaust his options in court by filing a petition for post-conviction relief. Such petitions are generally last-ditch efforts by convicts seeking to reduce a sentence or vacate a conviction.

The letter marked the first signal from Pence's office on where the governor stood on the pardon, which has gained traction online with a petition that has collected more than 100,000 signatures appealing to Pence to exonerate the 49-year-old Chicago man.

"Apparently it has taken (Pence) and his staff years to make this nondecision," Slosar said.

It's a move that Slosar said is a punt, allowing Pence to skirt the issue while he wages a national campaign for vice president. It leaves exoneration to the courts or his successor in office. And attorneys say it's not clear how much recourse Cooper would have in the court system because of a deal he made a decade ago.

In 2005, Cooper was offered a sentence modification if he would withdraw his petition for post-conviction relief, meaning he could walk out of jail immediately but remain a convicted felon. The deal was proposed as the evidence that led to his conviction began falling apart.

Keith Cooper: A man imprisoned for a crime he didn't commit

In Tuesday's letter, General Counsel Mark Ahearn questioned whether Cooper could still have his conviction vacated in court by filing another petition. He noted it is unclear in court records whether the deal Cooper struck precludes him from filing such a request.

In order to make a decision on Cooper's case, Ahearn wrote, the governor's office wants to know whether Cooper can pursue relief from the courts.

"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."

The letter says that no other Indiana governor has granted a pardon based on the petitioner's innocence.

In a statement sent to IndyStar on Wednesday afternoon, Pence spokeswoman Kara Brooks said: “The letter in no way is punting a decision but rather it points out the judicial process Keith Cooper’s attorney needs to follow to better help his client."

Taking this additional step would no doubt be a technical and prolonged process.

"I think Mr. Cooper is going to have an uphill battle to vacate his conviction because of the earlier agreement," said Fran Watson, professor at the Indiana University Robert H. McKinney School of Law in Indianapolis. "That said, uphill battles can be won."

Still, Watson said, the easiest and most efficient path to exoneration is through the governor's office. And there is nothing that requires the governor to defer to the judicial system in such cases.

For Cooper, the fight is not over. He was disappointed after learning about the letter from Pence's office, saying, "I'm tired."

He is struggling financially, having worked the same forklift job for 10 years with little chance for advancement because of the felony conviction. But, he said, "I still have my hopes."

Slosar said he will meet with Cooper this week to discuss how to proceed.

If Cooper were to ask a judge to vacate his conviction, Watson said, he could refile the petition for post-conviction relief that he withdrew in 2006. But, like Ahearn, she said it is unclear how the deal he made to get out of prison could affect this effort.

"It's very hard for a man who is innocent in prison to give up the opportunity to open the door," Watson said. "The court might just say, 'You agreed to this. You can't go back and do it again now.'"

The success could hinge on whether the local prosecutor fights the petition, Watson said. The case was tried in Elkhart County, where Curtis Hill — also entangled in a political campaign, but for Indiana attorney general — is the prosecutor.

If Cooper is rejected by the courts, Watson said, perhaps then he could go back to Pence and ask for the pardon.

By then, though, a new person could be living in the governor's residence.

Keith Cooper supporters eye new target in quest for pardon

Call IndyStar reporter Madeline Buckley at (317) 444-6083. Follow her on Twitter: @Mabuckley88.