MOUNT VERNON - Latosha Cunningham, who faces 49 years in prison, won a second chance to plead that her lawyers ignored her when she said former St. Clair County judge Michael Cook didn’t pay attention and slept in a hearing.
Fifth District appellate judges ruled in her favor on Dec. 2, finding Van-Lear Eckert of Belleville ineffectively represented her on a petition for relief that she filed in 2021.
They found former associate judge Julie Katz erred in dismissing the petition.
They directed her successor to determine whether Cunningham’s lawyers Thomas Keefe III and Robert Bas represented her ineffectively in 2012 and 2013.
“Eckert did not amend the petition to allege that either Keefe or Bas provided ineffective assistance of counsel, despite the defendant having provided information to support that argument," Justice Judy Cates wrote.
She found Cunningham rebutted a presumption that Eckert fulfilled his duties.
Justices John Barberis and Barry Vaughan concurred.
Appellate defender Ellen Curry of Mount Vernon represented Cunningham.
Grand jurors indicted her in 2011, finding she and two men robbed 85 year old Yoko Cullen, locked her in the trunk of her car and set the car on fire.
Daquan Barnes and Demarcus Barnes committed the fatal violence but Cunningham faced the same first degree murder charge because then state's attorney Brendan Kelly alleged she took part in the robbery.
Former chief judge John Baricevic set bond at $3 million and assigned Cook as trial judge.
At Cunningham’s first hearing Keefe expressed doubt about her fitness to stand trial.
Cook ordered psychologist Daniel Cuneo to evaluate her.
Cuneo filed a report and Cook found her fit.
In 2012, Keefe moved to suppress Cunningham’s statements to police as involuntary.
He claimed police interrogated her for 90 minutes starting at 3 a.m. and for three and a half hours on the same date starting at 6:40 p.m.
“Defendant repeatedly indicated she doesn’t wish to answer any more questions," Keefe wrote.
He wrote that two officers left the room and, “not two minutes later a different investigator, Orlando Ward, who had a prior relationship with the defendant, entered the room.”
“In other words, less than five minutes after telling an investigator she was finished answering questions about this incident, she was answering a different investigator’s questions about this incident," he wrote.
He wrote that paramedics came to assess her blood pressure but interrogation continued.
He wrote that at the end of the second interrogation she sobbed uncontrollably, could scarcely breathe and couldn’t stand without support.
He wrote that in the second interrogation she was repeatedly told she had to say something in her defense, suggesting she had no right to remain silent.
He wrote that the second interrogation ceased because of a need for medical attention.
Cook held a hearing in August 2012 and wrote, “Motion to suppress statements is heard, argued and is hereby denied.”
In January 2013, Cook set trial that June.
Keefe withdrew in that April and Bas substituted.
At a hearing on May 15, 2013, Cook postponed trial to September.
Eight days later, state's attorney Kelly moved to substitute for Cook in all cases on account of a federal misdemeanor charge that Cook owned weapons while using heroin.
Haida took the case and held trial without a jury that October.
He found Cunningham guilty and sentenced her for 60 years.
She sought review at the Fifth District, where appellate defender Curry argued that she invoked her right to silence and officers did not honor her request.
Fifth District judges affirmed Cook’s denial of the suppression motion in 2017, finding police read Cunningham’s rights to her.
They found she “failed to unambiguously invoke her right to remain silent.”
Former Fifth District judge Melissa Chapman delivered the opinion.
Barberis and Cates, who ruled in Cunningham’s favor this time, ruled against her then.
Cook’s drug habit didn’t figure into that appeal but Cunningham brought up the subject in 2021.
“Defense counsel failed to make the proper complaint to the courts that the judge Michael N. Cook who had presided over the petitioner’s case was sleeping during portions of the petitioner’s pretrial motion to suppress hearing," she wrote.
She wrote that she advised Keefe after he questioned detectives that Cook was sleeping.
“Petitioner counsel tried to persuade her that the judge was paying attention," she wrote.
She wrote that she informed a bailiff who told her the exact same thing he heard Keefe say.
“Keefe refused to raise issues of the judge behaving inappropriately while presiding over this case," she wrote.
She wrote that she didn’t have the judge’s undivided attention.
She wrote that he was “very disconnected, impaired, in poor condition, showing negligence.”
“Cook was under surveillance by law enforcement months before his arrest, even as he sat on murder and other serious felony cases," she wrote.
She wrote that he should have been removed from all cases.
“Mr. Cook was sworn in and had taken an oath, vowed before God and man,” she wrote.
She wrote that heroin distorts perception and degrades judgment.
“In the vernacular it is a substance that with chronic abuse renders smart people average and average people stupid,” she wrote.
“Having a decision maker who suffers from impairment due to mental illness can violate due processes.”
She wrote that Orlando Ward resigned after he was charged with and pleaded guilty to conspiracy to distribute cocaine and possession with intent to distribute it.
She attached a letter she received from Bas after trial letting her know he researched the existence of audio or video recordings from the hearing.
She wrote that he checked with court security and no audio or video existed.
“Which proves I discussed the judge sleeping with Mr. Bas and I tried to provide proof," she wrote.
Chief Judge Andrew Gleeson assigned the petition to Katz, who found Cunningham passed a first stage of review by stating the gist of a constitutional claim.
Katz appointed Eckert who amended the petition in January 2023 to lay all blame on Cook.
He claimed the taint of Cook’s drug use violated Cunningham’s due process rights.
He attached affidavits of Cierria Fultz and Tremail Wright stating they attended the suppression hearing and observed Cook sleeping or incapacitated.
He stated Cunningham filed a timely petition for relief.
He certified that he made necessary amendments to the petition.
Assistant state’s attorney Daniel Lewis moved to dismiss it, claiming Cunningham pointed to no ruling, comment or conduct that demonstrated prejudice against her.
“There is a complete absence in the record of any evidence whatsoever that the trial court committed error during the motion to suppress hearing," he wrote.
He wrote that the affidavits illustrated at best harmless error.
He wrote that the petition wasn’t timely.
At a second stage hearing he said Cunningham failed to plead timeliness due to an absence of culpable negligence or a claim of innocence.
He said she waived contentions regarding Cook’s misconduct because she didn’t raise them in her direct appeal.
Katz asked Eckert about timeliness and he said, “I can’t speak to why she would not have filed her post conviction petition when she got the decision back from the Supreme Court.”
Katz asked Eckert if the issue of misconduct was waived as Lewis argued.
Eckert said, “Again I can’t speak to what she was thinking. I don’t know what she did or didn’t know at that time.
“Whether or not she was under the misunderstanding that her attorney was going to do something I’m not sure, but I can’t speak to anything other than what she’s telling me which is what’s raised by our amended petition is what she actually experienced.”
Katz dismissed the petition, finding Cunningham didn’t file it on time and she waived it anyway.
She ordered payment of $4,358.50 to Eckert.
Fifth District judges found Eckert called the petition timely but couldn’t explain why.
“Eckert’s duty to present the defendant’s claim in a proper legal form included making amendments to overcome procedural bars that would result in the dismissal of a petition if not addressed," Cates wrote.
She found that after the state raised the issue of timeliness Eckert failed to amend the petition or provide an explanation at the hearing.
She found Eckert could have avoided waiver of the claim regarding Cook’s misconduct by amending the petition to allege ineffective assistance at the trial court.
Daquan Barnes serves a sentence of 60 years.
Haida found Demarcus Barnes unfit to stand trial and a threat to the public.
Haida sent him to a secure facility for 80 years or until well enough to stand trial.