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Thursday, October 17, 2019

Appellate record shows Cook made eight reversible errors leading up to heroin arrest; Two murder suspects also got new trials

By Record News | Oct 4, 2016

Former St. Clair County judge Michael Cook abused the rights of 10 suspects and prisoners in 10 months prior to his arrest on heroin charges.


Fifth District appellate judges reversed eight orders from that time, and Circuit Judge Robert Haida granted two new murder trials.

Michael Cook


Haida and two other judges, John Baricevic, chief judge, and Robert LeChien, took the unusual step of running for election this year, instead of retention, so they could more openly discuss issues related to Cook’s drug addiction while campaigning.

Cook’s drug use and that of associate judge Joe Christ, who died from a cocaine overdose in 2013 while the two were together at a Cook family hunting lodge, became campaign issues for judges seeking election to Cook’s vacancy in 2014.

The drug issue also has arisen this election cycle in a contest between Baricevic, Democrat, and Belleville attorney Ron Duebbert, Republican, who says in campaign literature that “the dark cloud of heroin still hangs in the courthouse.”

Baricevic has demanded that Duebbert abandon that line of attack, saying that he has worked to ensure that there are no remaining drug problems in the court system.

The two also remain at odds over drug testing for judges.

Cook’s record on appeal


Court records at the Fifth District show a plain possibility that Cook made good decisions until addiction overtook him.

Cook was elected circuit judge in November 2010, after having served as an associate judge for three years.


From the start of 2011 to the middle of 2012, he committed no errors that the Fifth District judges caught.


He made his first error on a petition from prisoner Kareson Chapman, who claimed that in 2009 his judge broke a Supreme Court rule at jury selection.


Chapman claimed he tried to raise the issue on appeal but his lawyer ignored it.


Cook dismissed Chapman’s petition in July of 2012, for failure to present the gist of a constitutional claim.


Fifth District judges reversed Cook in 2014, finding they arguably would have granted a new trial on the first appeal if counsel had raised the issue.


They didn’t identify the trial judge or appellate counsel.


Cook made another error on a petition from prisoner Andrew Scott, who claimed counsel brushed off his request to interview a witness who could exonerate him.


Cook dismissed the petition in August of 2012, for failure to present the gist of a constitutional claim.


Fifth District judges reversed him in 2014, finding it at least arguable that Scott would have benefited from the witness’s testimony.


They held that a defense lawyer must make a reasonable investigation or a reasonable decision that makes a particular investigation unnecessary.


They didn’t identify Scott’s counsel.


Cook made another error in September of 2012, letting jurors watch too much video of a police interrogation.


Jurors convicted Rachael Howard of aggravated criminal sexual assault, on a theory of accountability for actions of other defendants.


Cook denied a motion for a new trial, sentenced Howard to 17 years in prison, and denied reconsideration of the sentence.


Fifth District judges granted Howard a new trial this January, finding jurors could have easily understood her responses without hearing inflammatory statements.

Justice Melissa Chapman wrote that officers repeatedly exaggerated the brutality of the assault and the extent of the injuries.


Chapman quoted a detective telling Howard three times that she was just as responsible as the other defendants.


“This, of course, was the ultimate question jurors were called on to decide,” Chapman wrote.

Cook made another error on a petition from prisoner Tiffany Hall, who alleged ineffective assistance and her own mental incompetency.


In 2008, she agreed to plead guilty to four counts of murder in the first degree and one count of intentional homicide of an unborn child.


At a hearing on June 9, 2008, former judge Milton Wharton asked defense counsel James Gomric if anything created a doubt in his mind about her fitness to plead.


Gomric said psychologist Daniel Cuneo examined her sanity and fitness.


“We have confirmed that in point of fact she was then and is now and has been throughout this process both fit and sane,” Gomric said.

He said he believed some issues involved mental health and limited intellect.


Wharton imposed four concurrent life sentences for the murders and 60 concurrent years for the death of the unborn child.


Hall sought relief in 2012, claiming Gomric failed to investigate her mental health.


She wrote that he didn’t receive documentation of her psychiatric evaluation until two days after she pleaded guilty.


She attached a report of Robert Heilbronner, stamped, “Received Jun 11 2008.”


Heilbronner found Hall’s history included several psychiatric hospitalizations.


He found her symptoms relevant to the commission of the crime and mitigation.


“Psychiatric examination would also be helpful to assist in further differential diagnosis and to ascertain whether the voices she claims to hear represent actual auditory command hallucinations or some form of obsessive thinking,” he wrote.


Hall’s petition claimed that evaluations at Dwight correctional center resulted in diagnoses of psychotic disorder, traumatic stress, schizophrenia, mood disorder, bipolar disorder, and mild mental retardation.


Cook dismissed her petition in January 2013, finding that the record refuted her allegations and that she failed to state the gist of a “constitutional deprecation.”


Fifth District judges reversed him in 2014, finding Cuneo’s report was completely silent on Hall’s sanity at the time of the murders.


Justice Stephen Spomer wrote, “Counsel were awaiting Dr. Heilbronner’s report, which explicitly addressed the issue of the defendant’s sanity at the time of the alleged offenses, but had not received it at the time they advised the defendant to plead guilty.

“As the defendant points out on appeal, it was Dr. Heilbronner’s report, not Dr. Cuneo’s, which if followed up on might have supported a possible insanity defense at trial, which in turn might have led to a finding of not guilty by reason of insanity, a crucial distinction that would not have been lost on capable and diligent trial counsel.”


He found it worth mentioning that Cook scribbled the order in two sentences.


Cook made another error by missing the point of a petition from prisoner James Cherry, who alleged ineffective assistance against two lawyers.


Grand jurors indicted Cherry in 2010, on Class X felony charges of armed violence and aggravated battery with a firearm.


The state predicated the armed violence count on his knowingly causing great bodily harm to another as prohibited by the aggravated battery statute.


Jurors convicted him in 2011.


Prior to sentencing, Cherry sent Cook a letter claiming ineffective assistance.


Cherry read the letter out loud at his sentencing hearing.


Cook told him his complaints were more properly brought up on appeal and not relevant to sentencing.


Cook merged the offenses for sentencing purposes and imposed 25 years.


Cherry moved for a different lawyer on the spot, and Cook granted the motion.


A new lawyer moved to reconsider the sentence, and Cook denied the motion.


In January 2013, Cook held a hearing on Cherry’s letter and denied relief.


On appeal, Cherry claimed his lawyers should have argued that the armed violence statute specifically excludes aggravated battery as a predicate offense.


Fifth District judges vacated the armed violence conviction and ordered a new sentence in 2014, in an opinion they published as official precedent.


They found it patently unreasonable to conclude that the prosecution might sidestep the statutory exclusion.


They absolved the lawyers of ineffective assistance, and left out their names.


Two Fifth District opinions from this period, both on ineffective assistance, lack specific dates for Cook’s errors.


In one, Jamaul Harris agreed to plead guilty to a Class One felony charge that he received for distribution a package of cannabis weighing more than 2,000 grams.


The weight jumped to more than 5,000 grams at his plea hearing, as the state tied him to another package from the same shipment.


That made it a Class X felony, but Harris didn’t withdraw his plea on the spot.


Associate judge Jan Fiss sentenced him to 10 years.


Harris later moved for a new sentence, claiming counsel should have discovered that the second package was never in his possession.


Chief Judge John Baricevic assigned the motion to Cook, who dismissed it.


He found Harris failed to state the gist of a constitutional claim, failed to show that counsel’s performance fell below standard, and failed to show prejudice.


On appeal, state’s attorney Brendan Kelly confessed error and agreed that Harris deserved a post conviction hearing in circuit court with appointed counsel.


The Fifth District’s opinion didn’t identify Harris’s counsel.


In the other case with no date of error in the opinion, prisoner Floyd Robinson claimed he got 10 years after his lawyer promised probation.


He pleaded guilty of retail theft and escape in May of 2012, saying he understood the possible penalties and understood that he would be sentenced later.


At a hearing the state requested 14 years for escape and six for theft, claiming he committed the offenses on supervision three months after release from prison.


Cook sentenced Robinson to 10 years on the escape and three concurrent years on the theft, with two years of supervised release.


Robinson moved to withdraw his plea the next day, pro se.


He claimed that if he had known the state would extend the sentence on escape, he would have accepted their original offer of three years.


He claimed he discussed the offer with his second public defender, Alex Baker, and that Baker told him to plead guilty and get probation.


Baker moved for reconsideration of the sentence, but Cook ruled that a conflict of interest existed between him and his client.


Public defender Andrew Liefer entered and moved to vacate the judgment.


He certified that he consulted with his client in person, ascertained his contention of error, and examined the trial court file and the report of the plea proceedings.


At a hearing in October 2012, a prosecutor said he wanted to make sure Robinson would withdraw all motions that he and Baker filed.


Liefer agreed, and Cook asked Robinson if he understood.


Robinson said, “This is the first time I’ve known about it but I guess so. Yes, sir.”


Cook denied Liefer’s motion.


Robinson then filed a motion claiming he told Liefer about the original offer and Liefer told him he would bring it to the court’s attention.


At a hearing, Cook told Robinson he waived everything except the motion to vacate judgment.


Cook told him he entered his plea knowingly with the advice of counsel.


Cook told him he didn’t show that but for Liefer’s errors he would have refrained from pleading guilty.


Fifth District judges reversed Cook this May, ruling that he should have detected a clear communication problem between Liefer and his client.


They found he violated a Supreme Court rule providing that a court shall not accept a guilty plea without first determining that it is voluntary.


Justice Richard Goldenhersh wrote, “If the trial court asked defendant whether any promises had been made and defendant denied any such promises, then we might be inclined to rule differently.”


Errors in all these cases occurred before March 10, 2013, the day Cook found associate judge Joe Christ dead at the Cook family hunting lodge in Pike County.


An autopsy would find he died of cocaine intoxication, and Pike County sheriff Paul Petty kept it confidential while leading an investigation.


Cook returned from the lodge to preside over a murder trial that ended in a guilty verdict against Gregory Muse.


Muse moved for a new trial, alleging various errors.


In April 2013, Cook presided over a murder trial that ended in a guilty verdict against William Cosby.


Cook committed another reversible error on May 10, 2013, when he denied an ineffective assistance petition from prisoner Robert Plair.


Fifth District judges would later find nothing in the record contradicting Plair’s assertion that counsel ignored his request to perfect an appeal.


Cook’s judicial career ended on May 23, 2013, when federal agents arrested him at the home of Belleville heroin dealer Sean McGilvery.


Federal prosecutors charged Cook with possessing heroin and using it while possessing firearms.


Agents arrested McGilvery, who admitted he distributed heroin.


They arrested county probation officer James Fogarty, who admitted he sold cocaine to Christ but denied providing the cocaine that killed him.


Muse filed another motion for a new trial, claiming Cook’s addiction affected his judgment and slurred his speech.


Cosby also moved for a new trial.


Haida granted new trials to both in October 2013.


At a hearing, he cited a rule providing that a judge must recuse himself if his impartiality might be questioned.


Muse bargained a plea, and Cosby gained acquittal.


Cook and Fogarty served their sentences, and McGilvery remains behind bars.

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St. Clair County Circuit Court Twentieth Judicial Circuit of Illinois