Supporters of Illinois Supreme Court candidate Judy Cates accuse opponent David Overstreet of "releasing" a "child rapist" from prison because he concurred with other judges in June that the accused should not have been convicted in absentia while hospitalized.
Cates also attacks Overstreet for having "released" a child "molester" as an "unregistered sex offender," even though the accused, Jerad Peoples, awaits a second trial as a suspect, not a convict.
But court records show that four years ago Cates, as appellate court justice in the same court where Overstreet serves, made a very similar concurrence in the case of a Bethalto man.
Cates, Democrat, runs against Overstreet, Republican, for the seat of retiring Justice Lloyd Karmeier.
In a Nov. 22, 2016 opinion, Cates concurred with a majority to reverse the first conviction of Michael Burgund, who upon second trial was convicted of sexually assaulting his two minor daughters between the ages of one and three.
The appellate court decision that Cates concurred in, like the one Overstreet concurred in, remanded the case back to the trial court for a second trial. The second Burgund trial took place a year and a half later, in Madison County.
In Burgund, the appellate court concluded that in the first trial Judge Ann Callis improperly excluded defense witnesses. It was a binding opinion authored by Justice Bruce Stewart.
The appellate court held that Burgund's oldest daughter’s trial testimony was vague and inconclusive.
"Medical testimony presented by the prosecution also was inconclusive; while some of the medical evidence supported the State’s allegations, the evidence was also explainable by potential innocent causes,” the ruling stated.
At a second trial in May 2018, Burgund was convicted and months later sentenced to life in prison by Circuit Judge Kyle Napp.
Despite Cates’ concurring judgment in Burgund, she does not disavow attack ads paid for by supporters who accuse Overstreet of releasing a "child rapist.".
She’s gone as far as calling for his resignation from the Illinois Judge’s Association, saying he has no integrity.
“The victim’s mother (in Peoples) came forward to talk about about how she and her daughter were failed by Judge Overstreet, who released the predator that sexually assaulted her 6-year-old daughter. Instead of responding to the victim’s statements, Judge Overstreet spends $2 million dollars to spread lies throughout Southern Illinois to drown out a victim’s voice. I am calling for Overstreet to resign from the Illinois Judge’s Association for these attack ads. He has no integrity,” Cates’ campaign responded to advertising paid for by Overstreet supporters countering the negative attacks on his record.
After the appellate court in Peoples found that he didn’t miss the trial date willfully but was in the hospital after attempting suicide, the court remanded the case for a retrial. Peoples posted bond and left Big Muddy prison this June while the case is still pending.
Burgund also posted bond after his first conviction was overturned. He was released for approximately a year and a half before jurors convicted him a second time.
Cates' campaign has not responded to a request for comment.