BELLEVILLE - St. Clair County State’s Attorney Brendan Kelly has wiped clean the record of Michael Foxworth of East St. Louis, who served a sentence on a faulty conviction for sexual abuse of his granddaughter.
Assistant state’s attorney Bernadette Schrempp moved to “nolle pros” in December, eight months after appellate judges overturned the conviction.
Foxworth said he received even better news in September, when Illinois state police removed him from the offender registry.
He said he spent more than a year and four months in county jail, 35 days at Menard prison, and two and a half months at Big Muddy prison.
“They all asked me what I was doing in prison,” Foxworth said. “I want my dignity back. I don’t want anybody pointing fingers at me.”
Kelly charged Foxworth with two counts of predatory sexual assault of a child and two counts of aggravated abuse in 2013.
“They tried to get me 127 years,” Foxworth said.
He laughed and said, “I told them y’all done lost your regular minds. I told them they might give me 127 years but I’m taking nothing.”
Judge John Baricevic brought him to trial in 2014, and broke an Illinois Supreme Court rule as soon as potential jurors settled into their seats.
The rule states that a judge explaining the principles of a fair trial “shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section.”
According to a transcript of the proceedings, Baricevic said, “Okay, I am now going to read to you some premises of the law.”
He said at the end of the case, he would read the law they would have to apply.
“But there are some issues that I need to go over,” he said. “So, I’m going to give you the premise of the law.
“If you don’t understand it, raise your hand. I’ll try to explain, more detail. If you disagree with it, then I need to know.
“If you don’t raise your hand, I will assume that you understand it and that you agree with it.”
Baricevic said they could not use sympathy, bias or prejudice in reaching a decision.
“If you quarrel with that, raise your hand,” he said. “Seeing no hands, you must wait until your hear all the evidence, all the arguments of the lawyers and my instructions on the law before you make up your mind about this case.
“Anybody quarrel what that or not understand it, raise your hand. Seeing no hands, you must follow the law as I give it to you even if you disagree with it.
“Thank you, seeing no hands, you may consider evidence in light of your own observations and experiences in life. This means you may use your common sense in reaching a decision.
“Anybody disagree with that? No hands.
“As a juror, you must operate under the premise that a person accused of a crime is presumed to be innocent of the charge against him.
“In this case Mr. Foxworth is presumed innocent, and that innocence stays with him throughout the trial and is not overcome unless from all the evidence, you believe the state has proved Mr. Foxworth guilty beyond a reasonable doubt.
“Anybody disagree with that?
“This further means that the state of Illinois, the people of the state, have the burden of proving Mr. Foxworth’s guilt beyond a reasonable doubt. Mr. Foxworth does not have to prove his innocence.
“Anybody disagree with that?
“And finally, Mr. Foxworth is not required to testify unless he chooses to do so and is not required to present evidence unless he chooses to do so.
“If he chooses not to produce evidence or not testify, you are still held to the same burden of judging the case on what is presented, not what is not presented.
“Anybody quarrel with that? Thank you.”
The trial ended in a verdict of guilty on one count, not guilty on two counts, and no decision on one count.
Foxworth appealed.
Last April, the Fifth District appellate court reversed the conviction.
Justice Melissa Chapman wrote, “The judge never asked the potential jurors if they understood the mandated principles.”
She cited a Supreme Court precedent that failure to ask jurors if they understand the principles is error in and of itself.
“While the potential jurors tacitly implied their agreement with the legal principles, we find no basis in law or fact to assume that the potential jurors also understood the legal principles,” Chapman wrote.
She wrote that Baricevic’s error was not reversible in itself, “because a trial judge’s failure to comply does not necessarily result in jury bias.”
She wrote that after plain error has been established, the only question the court must resolve is whether the evidence was closely balanced.
She wrote that Foxworth claimed it was close because there was no confession, no physical evidence, and no corroborating eyewitness accounts.
“Finally, the defendant asserts that his acquittal on two charges and a hung jury on a third charge, coupled with over eight hours of deliberations, supports his claim that the jurors had difficulties with the victim’s credibility in light of her conflicting disclosures to family members and law enforcement officials,” she wrote.
Consistency of the victim’s testimony was especially important in this case, she wrote.
“The state does not cite any factually similar cases, and we have found none in our research,” she wrote.
She declared the case closely balanced and wrote, “Our supreme court has found that when the guilt or innocence of a defendant comes down to a credibility contest, no error should be allowed to intervene.”
“The trial court’s clear instructional error alone may have tipped the scales in favor of the state,” she wrote.
“We choose to err on the side of fairness and remand for a new trial.”
Foxworth said that, at first, prosecutor Schrempp planned to bring him to trial on the count the jury upheld and the count the jury didn’t decide.
He said that while awaiting the outcome of the appellate court decision, his defense counsel Patrick Sullivan called one day and said, “You’re a free man.”
Foxworth said, “I asked for Patrick Sullivan. I demanded it. I said if I don’t get him, I don’t want anyone else.
“God is good. I’ve been through the storm but he told the storm to cease.
“Everything they stole from me, he gave me back a hundred fold.
“When you’re right and you know you’re right, and you trust in God, he sends people to protect you.
“There’s a lot of them in the penitentiary now that don’t belong there.”