MOUNT VERNON – Fifth District appellate judges found St. Clair County Circuit Judge Zina Cruse improperly immunized Katherine O’Malley, daughter of the late circuit judge Michael O’Malley, against drug possession charges.
On March 19, they rejected Cruse’s finding that police found drugs in O’Malley’s vehicle while she tried to obtain assistance for a person who overdosed.
Cruse applied Illinois law that provides limited immunity in such situations so that persons can report overdoses without fear of arrest.
Fifth District judges found no evidentiary basis for her decision.
Justice David Boie wrote that every witness stated they couldn’t recall O’Malley indicating that she was driving to a hospital.
O’Malley, age 40, was girlfriend of Sean McGilvery while he supplied heroin to former judge Michael Cook.
She picked up 14 traffic tickets in 2011, and faced a shoplifting charge.
She pleaded guilty of shoplifting, improper lane use, and a seat belt violation, and paid $1,000 in fines.
Also in 2011, police charged her and McGilvery with felony drug possession.
An anonymous judge dismissed the charge against her and expunged the record.
Cook dismissed the drug charge against McGilvery.
In 2013, U. S. prosecutors charged McGilvery as Cook’s distributor.
They charged Cook with using heroin while possessing firearms.
Cook resigned as judge, and he and McGilvery served prison sentences.
In 2017, sheriff’s deputy Kurt Eversman and stopped O’Malley on Route 15.
He observed four passengers with her and drugs on the seats and the floor.
He charged her with felony possession of controlled substances.
In 2019, her counsel Grant Menges moved for immunity.
At a hearing, Menges called Eversman as sole witness for O’Malley.
Eversman said he received a dispatch about an overdose at a home on North Belt West and the call was changed to an overdose in a vehicle headed west.
He said he stopped the vehicle and saw an individual in the back seat, “kind of slumped over” and “responsive but not responsive.”
He said an individual in the front seat was having effects of “heroin or fentanyl or whatever it was they took.”
He said he called for an ambulance.
He said the sole purpose of the stop was to check on the well being of the individuals and he wasn’t investigating any sort of criminal activity.
He said he spoke with all the individuals and couldn’t recall anyone saying they were seeking medical assistance.
Sheriff’s investigator Kevin Kocurek testified for the state that he interviewed O’Malley a day after her arrest.
He said O’Malley stated she had no idea where they were going but the individuals with her wanted her to head toward the highway.
He said she didn’t mention seeking medical attention or heading toward a hospital.
He said someone going from North Belt West to Touchette Regional Hospital would likely get on Highway 15.
Nancy Reifschneider testified last, as aunt and landlord of the overdose victim.
She said she arrived to check on her niece who came to the door with slurred speech and unsteady feet.
She said she called 911 and started talking to a dispatcher but her niece, O’Malley, and at least two others left and entered a vehicle.
She said she told the dispatcher they fled.
She said the vehicle backed into grass to get around her vehicle and headed west.
Menges told Cruse that proving immunity would have required O’Malley to waive her Fifth Amendment privilege against self incrimination.
Cruse immunized O’Malley, finding she was driving toward a local hospital.
She found Touchette Regional “is known for its drug detox program and she was seeking medical attention for the passenger suffering from an overdose.”
Boie’s reversal opinion first disposed of the argument on self incrimination.
“This court cannot comprehend how the defendant making a statement that she was seeking medical attention for an overdosing victim is a waiver of her Fifth Amendment right,” Boie wrote.
He wrote that driving to a hospital and seeking aid for an overdosing person aren’t illegal activities.
Then he disposed of the finding that O’Malley was headed for Touchette Regional.
“Simply heading in the direction of a hospital, and we would note heading in the opposite direction of two closer hospitals, only evidences the direction of travel and not the destination,” Boie wrote.
He wrote that it was Reifschneider who contacted 911.
Max Miller of the State’s Attorneys’ Appellate Prosecutor represented the people.
Christina O’Connor of the State Appellate Defender represented O’Malley.