MOUNT VERNON – Former St. Clair County circuit judge Michael Cook didn’t know or follow the law on jury selection at a murder trial in 2013, Fifth District appellate judges ruled on Feb. 27.
They ordered a hearing in circuit court for prisoner Kenny Wicks, a Black defendant who stood trial in front of 11 White jurors and one Black juror.
Cook resigned four months after the trial, pleaded guilty to possessing firearms while using heroin, and served a sentence of two years.
Wicks allegedly murdered James Rogers in 2007, in Cahokia.
At his trial, after lawyers picked a jury, Cook asked defense counsel Paul Storment if he had a motion.
Storment said, “It possibly is not a representative jury for the trial of this case in which a Black man goes on trial.”
He said the state’s attorney’s office struck juror number 12 for no reason.
“There was absolutely nothing that she said or implied or any associations or any work situations which would require anybody to strike her as a juror except the fact that she is Black,” Storment said.
A prosecutor said there would have to be a finding of a pattern.
Assistant state’s attorneys Nicole Rice and Judith Dalan represented the state, but the Fifth District opinion didn’t state which one argued the point.
The prosecutor said, “There is no pattern because only one juror was struck by the state that was African American in race.
“However, one African American was struck by the defense, and it was not for cause. We struck one peremptorily, he struck one peremptorily, and everybody else who was African American was stricken for cause.”
Cook held that striking one juror did not rise to the level of a pattern.
The jury found Wicks guilty, and Cook sentenced him to 45 years.
Wicks appealed, but a year later he petitioned the circuit court for a new trial on the basis of Cook’s addiction.
At his request, the Fifth District held its proceedings in abeyance.
For two years, with a series of lawyers representing Wicks, Circuit Judge Robert Haida continued a hearing on the petition.
Prosecutor Dalan brought forth a plea agreement in 2016, carrying 20 years.
Wicks dismissed his appeal and the Fifth District issued a mandate accordingly.
He changed his mind and petitioned the Fifth District to recall the mandate in 2017.
Fifth District recalled the mandate, and granted relief this year.
Justice Randy Moore wrote that according to the state, a reviewing court should presume that a trial judge knows and follows the law.
“However, we agree with the defendant that this is a case where the record before us clearly indicates otherwise, and in fact demonstrates unequivocally that the trial judge did not know and follow the law,” Moore wrote.
He wrote that when a defendant challenges a jury, a judge must consider the totality of relevant facts and circumstances surrounding a peremptory strike to determine if it gave rise to a discriminatory purpose.
He also wrote that a judge must examine the state’s questions and the responses of prospective jurors; that the state must articulate a race neutral reason for striking a juror; that a judge must then determine whether the defendant made a showing of purposeful discrimination and that a judge must evaluate not only whether the demeanor of the state belied discriminatory intent but also whether the demeanor of the potential juror exhibited the basis that the state attributed for the strike.
Moore quoted a Fifth district opinion that although a pattern of strikes is one factor a judge must consider, it is not a dispositive factor.
He wrote that if the absence of a pattern of strikes were enough by itself, “the state would always be able to exercise at least one peremptory strike in a discriminatory manner without fear of being held to its constitutional responsibilities.”
He wrote that exclusion of even one potential juror on the basis of race requires reversal of any criminal conviction.
He found the record insufficient for meaningful review and wrote that the proper course was to remand to the trial court for a hearing.
He wrote that the passage of time might create difficulties, particularly in light of credibility determinations.
He directed the judge to file findings of fact and conclusions of law within 60 days of reaching a decision, along with a record of proceedings.
He wrote that the Fifth District retained jurisdiction to address other issues Wicks raised, if the trial judge’s decision didn’t render them moot.
Justices David Overstreet and Mark Boie concurred.
Nathan Swanson, of Scott Rosenblum’s criminal defense firm in Clayton, Mo. represented Wicks.
Appellate prosecutor Valerie Ozment represented the state.
Cook’s May 2013 arrest followed associate judge Joe Christ’s March 2013 death from cocaine intoxication at the Cook family’s hunting lodge in Pike County.
Local sheriff Paul Petty obtained a confession from Cook.
U.S. attorney Stephen Wigginton and Cook negotiated a guilty plea with a sentence of 18 months.
Senior District Judge Joe McDade of Peoria rejected the deal and added six months, in light of the impact of Cook’s crimes on public confidence in the courts.
McDade wrote that a combination of addiction and judicial office was lethal to the integrity of any court system.
He estimated that Cook used 552 grams of heroin, about 19 ounces, in three years.
He found Cook made no effort to remediate his enslavement until he was caught.
In 2014, St. Clair County Circuit Judge Robert Haida granted new trials to two murder suspects that juries convicted in Cook’s court.