Appellate court orders new hearing on murder conviction

By John Breslin | Oct 12, 2018

Leonard Cotton was charged with first-degree murder in 2007.  

MT. VERNON –– A man convicted of murder should receive a hearing on his claims of ineffective assistance of counsel, an appeals court ruled.

The Fifth District Appellate Court reversed a lower court's decision denying post-conviction relief to Leonard Cotton. In the 38-page opinion, the appellate court found Cotton's attorney failed to review important documents in his case that could have made for an effective defense of his charges.

In 2007, Cotton and Josha Custer were charged with the murder of Kirk Anthony, a 40-year-old truck driver from Cahokia. Custer was 19 at the time and Cotton was 15. 

According to court records, Cotton waived his Miranda rights during questioning by Detective Ricky Perry of the East St. Louis Police Department. A psychologist later testified Cotton was "moderately mentally retarded" and may not have understood what his Miranda rights were. He was declared unfit to stand trial. 

In a May 2009 hearing, a judge found him fit to stand trial. Two months later, Cotton pleaded guilty to first-degree murder. He was sentenced to 20 years in prison. 

Earlier that year, the murder charges against Custer were dismissed. Court records point to a January 2009 article blaming the dismissed charges on Perry, the police officer who took Custer's and Cotton's statements about the murder.

In his petition, Cotton claims the attorney who filed his motion for post-conviction relief did not properly review all documents related to the case, including the May 2009 competency hearing and information about possible illegal statements taken by Perry. In addition, the attorney did not include the 2009 article about Perry. Without affidavits or other corroborating evidence, a post-conviction relief motion can be dismissed summarily. 

The Fifth District Appellate Court agreed Cotton's attorney provided ineffective assistance. 

"This series of events affirmatively demonstrates that before filing the defendant's amended petition, appointed counsel failed to examine as much of the transcript of the proceedings as was necessary to adequately present and support the defendant's claims," Judge David Overstreet wrote in the opinion. "The record therefore rebuts the presumption that post-conviction counsel provided a reasonable level of assistance."

The appellate court also granted Cotton's request for a new attorney. His case will go back to St. Clair County Circuit Court for the second stage of post-conviction proceedings.

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Illinois Fifth District Appellate Court St. Clair County Circuit Court

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