Overstreet and Cates
MOUNT VERNON – Former judge John Baricevic improperly denied prisoner Marvin Parker’s claim that former judge Michael Cook violated his constitutional rights, Fifth District appellate judges decided on July 1.
They ruled that a St. Clair County judge must determine whether Parker can make a substantial showing that Cook’s heroin addiction deprived him of a fair trial.
If Parker can make such a showing, he can proceed to an evidentiary hearing.
The decision will rest with Circuit Judge John O’Gara, who took the case by assignment of Chief Judge Andrew Gleeson on July 2.
Jurors convicted Parker of armed violence, aggravated battery, and attempted armed robbery in 2011. Cook sentenced him to 29 years, and Parker appealed.
In 2013, former U.S. attorney Stephen Wigginton filed a misdemeanor charge alleging that Cook possessed weapons while using heroin. Cook pleaded guilty, and visiting judge Joe McDade sentenced him to two years in prison.
Parker‘s appeal failed in 2014.
He filed a request in circuit court for an extension of time to file a post conviction petition due to his inability to access his prison’s law library.
Baricevic, who replaced Cook on the case, didn’t rule on the request.
Parker requested an extension in 2015, and Baricevic didn’t rule on it.
On March 24, 2016, Parker filed a “Petition for leave to file late post conviction.”
He wrote that he discovered that the time for a post conviction petition expired.
Baricevic denied the petition for leave on April 4, 2016, finding it contained no allegations of constitutional violations. He wrote that Parker didn’t itemize the days he lacked access to the library.
The order didn’t deter Parker, who filed a petition alleging constitutional violations on April 21, 2016.
“My 6 amendment rights was violated due to me not having a fair trial due to the fact my judge was under the influence of drugs,” Parker wrote.
He wrote that petitioners, apparently meaning counsel on appeal, “failed to raise the issue of judge Michael Cook being under the influence.”
“Petitioner states judge Cook was ‘nodding out’ during trial, under the influence of heroin,” he wrote.
He attached a newspaper article about an investigation of Cook and the charges against him, with a photograph of him in his judicial robe.
Baricevic denied the petition on May 11, 2016, on the basis of state law prohibiting successive post conviction petitions.
“There is nothing in the petition to indicate why the claims could not have been made in the earlier petition,” he wrote.
On a second appeal, three years later, Parker prevailed.
For the panel, Justice David Overstreet wrote that Baricevic erroneously characterized Parker’s March 24 filing as a post conviction petition.
He wrote that although it indicated Parker had difficulty accessing the library, it set forth no allegation of a constitutional violation, that it was no more than a request for permission to file late.
He wrote that Baricevic should have notified Parker of his intent to characterize it as a post conviction petition, should have warned Parker that any subsequent petition would be subject to restriction and should have provided Parker an opportunity to withdraw or amend the March 24 filing.
Overstreet found it entirely reasonable that Parker construed the April 4 order as no more than a denial of his request to file late.
He wrote that the April 21 petition was, in form and substance, the initial post conviction petition.
Justices Judy Cates and Randy Moore concurred. Appellate defender Daniel Janowski represented Parker; appellate prosecutor David Robinson represented the state.
Other cases were appealed after Cook resigned.
Circuit Judge Robert Haida granted new trials to murder suspects William Cosby and Gregory Muse.
Jurors in Cook's court convicted Muse on March 12, 2013, two days after associate judge Joe Christ died in Cook's hunting lodge. Christ's autopsy spurred the investigation that led to Cook's arrest.
Jurors in Cook's court convicted Cosby in April 2013. Haida held trial for Cosby in 2014, and jurors acquitted him.
Muse later negotiated a plea.