The Madison County Record Sep. 11, 2014, 2:10pm

Fifth District appellate judges reversed former St. Clair County judge Michael Cook three times in four months after his sentencing on heroin charges.

In two cases they ruled that Cook failed to give proper consideration to motions from prisoners claiming ineffective assistance of counsel.

In a third case they found he committed an error by ruling that a suspect reasonably expected privacy in a neighbor’s garage.

In another case they didn’t reverse Cook but they found he created confusion that added three years to a defendant’s term of supervised release.

Cook resigned last year after drug agents arrested him, and he pleaded guilty to possessing heroin and using it while possessing firearms.

This March, U.S. District Judge Joe McDade of Peoria sentenced him to two years in prison.

At the Fifth District, appeals that started before his arrest reached decision points.

In April, Fifth District judges affirmed Cook in finding Charles Zamarron guilty of sexual assault but upheld Zamarron’s challenge to a five year term of supervised release.

They found that the mittimus, a document that a judge sends to prison ahead of a prisoner, did not reflect any specific term of supervised release.

They ordered the circuit clerk to correct the mittimus, to reflect a two year term.

In May, Fifth District judges found that Cook should have taken prisoner Andrew Scott more seriously in his claim of ineffective assistance against Lloyd Cueto and Thomas Keefe III.

Cueto and Keefe defended Scott at trial for second degree murder, armed violence, and aggravated battery in 2009, before Circuit Judge John Baricevic.

The trial ended in conviction and Baricevic sentenced Scott to 44 years, 32 of them on the armed violence charge.

The Fifth District affirmed the conviction and sentence in 2011.

In 2012, Scott filed a petition in circuit court alleging his counsel failed to interview Rodney Roberts, a pertinent witness to the armed violence charge.

Scott attached an affidavit of Roberts, casting doubt on prosecution testimony.

Scott also attached hospital records that might cast doubt on prosecution testimony.

He wrote that he made counsel aware of several witnesses, and counsel brushed him off or changed the subject.

Baricevic assigned the petition to Cook, who denied it in six weeks without holding a hearing.
“The court finds that petitioner has failed to assert the gist of a constitutional claim,” Cook wrote.

Fifth District judges disagreed, finding Scott’s petition worthy of further proceedings.

Presiding Justice Thomas Welch wrote, “The affidavit from Roberts sets forth the proposed testimony from the supposedly pertinent witness, and the information contained in it is capable of corroboration if an evidentiary hearing is held.”

“Moreover, the facts in the defendant’s petition and attached affidavits are not positively rebutted by the trial record.

“In short, the petition, affidavits, and record raise unanswered questions as to counsel’s failure to interview Roberts, and reveal no strategic reason for not interviewing him.”

Welch wrote that defense attorneys have an affirmative obligation to explore readily available sources of evidence that may benefit their clients.

Baricevic, in charge of the case once again, has set a status conference Oct. 15.

In June, Fifth District judges found Cook should have taken Kareson Chapman more seriously in a claim of ineffective assistance against appellate defender Joyce Randolph.

Fifth District judges remanded the case to St. Clair County, where Chapman can ask for a new lawyer to file a new appeal that could gain him a new trial.

At trial in 2009, judge Milton Wharton presided and Richard Roustio represented Chapman.

Jurors found Chapman guilty of second degree murder, armed violence, and aggravated battery with a firearm.

He appealed, and the Fifth District appointed Joyce Randolph to represent him.

In 2010, Chapman sent Randolph a letter urging her to add issues to his brief including an assignment of error for Wharton’s instructions to jurors.

She didn’t add his issues, and the Fifth District affirmed judgment in 2011.

Chapman filed a petition for relief at St. Clair County court in 2012, claiming Randolph failed to argue his legitimate claims.

Wharton had retired, and Baricevic as chief judge assigned Cook to the petition.

Cook denied the petition in two months, without holding a hearing, writing that Chapman failed to assert the gist of a constitutional violation.

Fifth District judges read the record and found that Chapman understood his situation better than Roustio, Randolph or Cook.

In jury selection, Wharton recited the principles of a criminal trial to prospective jurors but didn’t make sure they understood.

He told them a defendant is presumed innocent, the state must prove guilt beyond reasonable doubt, a defendant is not required to offer evidence, and failure to testify can’t be held against a defendant, but he didn’t follow up with questions.

That violated a Supreme Court rule requiring a judge to ask each potential juror, individually or in a group, whether they understand and accept the principles.

Roustio didn’t preserve the issue, Randolph didn’t raise it, and Cook didn’t spot it.

Fifth District judges Gene Schwarm, Thomas Welch and Judy Cates spotted it, finding support in the record for Chapman’s contention that Wharton broke the rule.

Schwarm wrote, “A general statement of applicable law followed by a general question concerning a juror’s willingness to follow the law is insufficient.”

He wrote that the Supreme Court requires a specific question and response process, and that failure to ask jurors if they understand is error in and of itself.

“If a defendant fails to properly preserve an issue for review on direct appeal, appellate counsel may raise the issue under the doctrine of plain error,” Schwarm wrote.

He wrote that Chapman claimed self defense and evidence was closely balanced, at least with respect to second degree murder.

Upon remand, Baricevic assigned Chapman’s petition to Circuit Judge Zina Cruse.

In July, Fifth District judges agreed with state’s attorney Brendan Kelly that Cook substantially impaired prosecution of burglary suspect Brandon Davis.

In 2012, at age 18, Davis often slept in a home near his mother’s home in East St. Louis. He could not enter the home by day but could enter the garage.

When police questioned him about a home burglary, he signed a consent form for a search of the garage.

He led them to the garage where they found knives apparently from the burglary.

Kelly charged him with residential burglary and three other burglary counts.

Davis moved to suppress the knives as evidence and Cook granted the motion, finding Davis lacked actual, apparent, or common authority to consent to a search of the garage.

On appeal, Kelly argued that Davis had no reasonable expectation of privacy in the garage.

Fifth District judges agreed, finding the U.S. Constitution didn’t protect Davis because he didn’t show that he personally had a reasonable expectation of privacy.

Baricevic assigned the case to Circuit Judge Robert Haida, who set a status conference Sept. 16.

Cook’s actions have resulted not only in reversals at the appellate court but also in new trials at St. Clair County courthouse.

Haida erased jury verdicts against murder suspects Gregory Muse and William Cosby last year, finding they suffered prejudice from Cook’s addiction.

Haida conducted a bench trial for Muse and found him guilty.

Haida plans a trial for Cosby in December.

This year, prisoner Kenny Wicks moved to set aside a murder conviction from Cook’s court.

Haida plans an Oct. 16 conference for Wicks.

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