MOUNT VERNON - St. Clair County Circuit Judge John O'Gara replaced a juror in deliberation at a criminal trial without guarding against prejudice, Fifth District appellate judges ruled on Nov. 14.
They granted a second trial to defendant Cortez Wilson on charges of aggravated battery.
Justice Milton Wharton wrote that substitution of an alternate after other jurors had declared their opinions "created a strong likelihood that the alternative juror would enter a coercive environment."
He found jurors deliberated for almost four hours before the substitution and 26 minutes after it.
He also found O'Gara failed to take precautions to ensure that the substitute wasn't exposed to outside information.
Wilson stood accused of hitting Interfaith Food Pantry director Michael Foppe, 62, in his left eye in 2018, causing him to lose sight in the eye.
Prosecutors filed three felony counts for the hit and a furth county alleging Wilson hit pantry volunteer Roscoe McCoy.
At tral in 2019, Foppe testified that Wilson received a week's worth of food and returned the next day to request more.
He said he told Wilson he'd have to return in 30 days.
He said he saw Wilson at the delivery door the next day and pressed a button to call police.
He said he escorted Wilson to the parking lot and Wilson struck him.
He said he didn't put his hands on Wilson.
McCoy testified that Wilsaon asked for hand sanitizer and a bottle of water.
He said Foppe and Wilson grabbed each other.
He said shoving began in the warehouse and continued on the parking lot.
He said Wilson's arm came forward and Foppe screamed and retreated inside.
He said he followed Wilson so he could tell police where to find him and Wilson hit his jaw.
Wilson testified that he walked to an aunt's house to pick up food he received two days earlier and to ask for water.
He said she wasn't home so he asked for sanitizer and water at the pantry.
He said volunteers asked him to wait outside while they got the items.
He said Foppe stopped them, got in his face, pushed him and told him to leave.
He said he asked if he did anything wrong to anyone and Foppe didn't answer.
He said two volunteers tried to restrain Foppe but he got away and ran toward him.
He said he struck Foppe because he was bigger and had already shoved him.
O'Gara sent jurors to deliberate and told alternate juror William Raby he could leave but he shouldn't discuss the case with anyone, read news accounts, or perform research.
After 48 minutes jurors asked O'Gara about the meaning of "knowingly" and he told them to review their instructions.
They asked similar questions twice and got the same answer.
O'Gara later told lawyers that jurors had phones and one asked to be excused early so he could pick up his son from day care.
O'Gara called bailiff Wendell Vaughn who said ten jurors had phones and one played solitaire.
O'Gara stopped deliberation and questioned jurors one by one.
Terris Gully said he stopped paying attention and was getting mad.
Shaquita Hicks said a juror looked up "knowingly" but didn't show others what she found.
Connie Stanley said she tried to look it up but Vaughn took her phone.
O'Gara removed Stanley and told jurors to wait for a substitute.
He said they must deliberate from the beginning.
A juror said some verdict forms were already signed and O'Gara said he'd destroy them.
Jurors quickly convicted Wilson and O'Gara sentenced him for seven years.
On appeal Wharton and Justices Judy Cates and Barry Vaughn found indications that jurors allowed themselves to be distracted from their duties.
They found serious questions about whether jurors were able to begin deliberation anew and whether Raby felt pressure to agree to a conclusion they had already reached.
They found no indication that O'Gara asked Raby about the previous five hours.
"Questioning an alternate juror upon his or her return to court is an important step for the trial court and an important consideration for this court," Wharton wrote.
Gregory Nester of Belleville represented Wilson at trial.
State appellate defenders represented him on appeal.