MOUNT VERNON – Appellate judges ordered a second trial for murder suspect Kenny Wicks on Aug. 18, finding former St. Clair County judge Michael Cook allowed the state to strike a prospective juror due to skin color at his first trial.
Jurors convicted Wicks in 2013, and Cook sentenced him for 45 years.
Fifth District judges pinned the reversal not on Cook but on Circuit Judge Robert Haida, for denying a second trial last October.
The Fifth District had remanded the case to Haida in February 2020, finding he didn’t conduct a proper hearing.
On a second appeal, Fifth District judges took the decision away from Haida.
Justice Randy Moore wrote that their review “leaves us with the definite and firm conviction that Judge Haida’s denial of the defendant’s claim was based upon one or more mistakes of law.”
He found no evidence from which one could conclude that there was no purposeful discriminatory intent.
Justices Thomas Welch and Barry Vaughan concurred.
The murder occurred in 2007, when James Rogers died from a gunshot.
Police interviewed Wicks as a suspect in 2008.
Grand jurors indicted him in 2011.
As trial began, Cook asked 41 white prospective jurors and four black prospects to state their names, where they worked and lived, and their hobbies.
Jonetta Watson, a black prospect 25 years old, gave her name and said she was a lifelong resident of East St. Louis and she worked at JC Penney.
Cook asked if she had hobbies and she said no.
Cook’s survey ended and he handed the group over to prosecutor Judith Dalan and defense counsel Paul Storment.
They put questions to various prospects, and neither asked Watson a question.
The prospects left the room and the lawyers struck jurors.
They struck two black prospects for cause, leaving two in the pool.
Dalan tendered one and exercised a peremptory strike against Watson.
Cook asked Storment if he had a motion.
“The jury of course has one black person and 11 white people and it’s not a representative jury of St. Clair County,” 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 there was nothing Watson said or any associations or any work situations that would require a strike, “except the fact that she is black.”
Dalan told Cook that in order to challenge jury selection, “I believe that there would have to be a finding of a pattern.”
Dalan said, “There is no pattern because only one juror was struck by the state that was African American in race.”
Cook said, “Striking one juror does not rise to the level of a pattern.”
Trial proceeded, jurors found Wicks guilty, and he appealed.
In May 2013, drug agents arrested Cook and federal prosecutors charged him with using heroin while possessing firearms.
He resigned, and would later plead guilty and serve a sentence of two years.
Wicks decided to hold his appeal in abeyance and ask a St. Clair County judge for a second trial on the basis of Cook’s addiction.
Haida took the case and continued it while various lawyers represented Wicks.
In 2016, Dalan and Wicks agreed on a guilty plea at 20 years.
Wicks dismissed his appeal and Fifth District judges issued a mandate, but he petitioned to recall it in 2017.
They recalled it and returned to the original question of jury selection.
Thirteen years after the crime and seven years after trial, Fifth District judges found Dalan and Cook incorrectly contended that a pattern was necessary.
They found Cook relied on a misunderstanding to abruptly terminate the process by which he was required to evaluate the defendant’s claim.
They found the record insufficient to conduct meaningful review, and they directed Haida to hold a hearing.
At the hearing, defense counsel Nathan Swanson of Clayton, Mo. told Haida that Wicks, Rogers, and several witnesses were black.
“There are other jurors who say just as little, but they were tendered,” Swanson said.
He said the state tendered two white males, 29 and 24 years old, single and employed like Watson.
Dalan said she had no notes of her own and no independent memory, but she believed it was Watson’s youth that concerned her.
“That’s all I can provide to the court. I apologize,” Dalan said.
Haida asked Swanson if he was arguing that her reason was pretext, and Swanson said he was.
“I can’t find that merely because there were other jurors of similar age who were retained on the jury while this African American woman of a similar age was excused, I can’t find that that is pretext,” Haida said.
Swanson asked Haida if he was finding Watson’s youth the reason for the strike, and Haida said he wasn’t.
He said he primarily based his ruling on Dalan’s demeanor and her explanations that there was no discriminatory intent.
On appeal, Fifth District judges reached an opposite conclusion.
Moore found Wicks put the state on notice that he took issue with the strike.
He found that blame for failure to make adequate notes about the strike could be attributed to no one but the state.
“We cannot overlook the fact that at trial, the state deflected the issue of its use of the strike by incorrectly stating to Judge Cook the law related to the issue,” Moore wrote.
“In essence, the state invited the error that was made by Judge Cook and that led to the limited remand in this case.”
He found Dalan’s concession that she didn’t know the reason should have ended Haida’s inquiry.
He found the only basis he could imagine for Haida’s conclusion was his personal subjective belief.
“For us to construe this as the basis for Judge Haida’s conclusion would be highly speculative, however, because he never stated that it was the basis or that it played any part all,” he wrote.
Claims about Cook’s addiction remained active on appeal, but Moore found them moot because Cook wouldn’t preside at trial.
Justice Vaughan specially concurred to disagree with the contention of his colleagues that a claim succeeds if the state fails to recall its reason.
He agreed with his colleagues that Haida shouldn’t have relied on Dalan’s bare assertion that she wouldn’t make a strike on the basis of race.
Moore wrote in a footnote that Haida was state’s attorney at the time of the murder and at the time police first interviewed Wicks.
He wrote that Wicks didn’t contend that Haida labored under a conflict of interest.