Cook trial date set; attorneys unsure whether former judge will plead guilty

--September 23, 2013 

St. Clair County Circuit Judge Michael Cook during his swearing-in ceremony in 2010.

DHOLTMANN@BND.COM

— For the first time since his arraignment in May on federal heroin-possession and weapons charges, former St. Clair County Judge Mike Cook appeared in court on Monday.

Cook's lawyers, Thomas Q. Keefe III and William Lucco, told U.S. District Judge Joe McDade they were still unsure whether Cook would plead guilty or go to trial on the charges.

A trial date was set for Dec. 9.

"With the understanding that if you want to enter a change of plea, I can make a special trip to accommodate that," McDade told the lawyers.

Lucco initially requested a January trial date, telling the judge that Cook was in a Minnesota drug treatment facility since May and was only released a couple of weeks ago, making Cook unavailable to help with his defense. Lucco also told the judge that he was still reviewing the investigative reports.

McDade initially told the lawyers he wanted a trial date in late October or early November, but when McDade and the lawyer checked their calendars the earliest date was Dec. 9.

Cook didn't speak during the hearing. He also declined to comment to reporters after the hearing.

Cook was arrested by federal agents on May 22 outside a home on North 38th Street in Belleville. He was later charged with misdemeanor possession of heroin. He was also charged with a felony of being a user of a controlled substance in possession of a firearm.

Lucco said Monday that Cook did not actually have a gun with him at the time of his arrest.

Under federal law, users of controlled substances, such as cocaine or heroin, are barred from possessing a firearm. Steve Beckett, a law professor at the University of Illinois, said the federal statute is rarely used. Beckett said he's never seen the statute used in his practice in federal court.

"The prosecution would have to prove that at the time a gun was possessed, the person was using drugs or addicted to drugs," Beckett said.

Keith Williams, who wrote a paper on federal firearms laws and practices federal criminal defense in Greenville, N.C., said that these kinds of prosecutions are rare.

"I have seen a few, but they that aren't common," Williams said.

Under the law, Williams and Beckett said possession of the gun may either be "active" possession, having physical control of the gun, or "constructive" possession, keeping the gun in a place where an individual has actual control of it without being in physical possession. For example, Beckett said a person could be in constructive possession of a weapon if the gun were kept in a safe-deposit box and the defendant has the key.

Lucco said during the hearing, "It's an interesting case, from a lawyer's point of view."

Beckett agreed.

"If I was a betting man, I would say that case has definite defense possibilities," Beckett said.

There have been challenges to the statute under the Second Amendment, but the 7th Circuit Court of Appeals, which reviews judges' decisions from the Southern District of Illinois, has upheld prosecutions, said Cody Jacobs, a staff attorney for the Law Center to Prevent Gun Violence.

Cook's former client and friend, Sean McGilvery, who lived at the North 38th Street house faces charges of conspiracy to distribute and possession with intent to distribute heroin.

Former St. Clair County Probation Officer James Fogarty was also charged in May with possession with intent to deliver cocaine. Fogarty told federal agents that he used and sold cocaine to Cook and Joe Christ, a longtime St. Clair County prosecutor.

Christ died only 10 days after being sworn as an associate judge. Christ was at Cook's hunting cabin in Pike County. An autopsy later revealed that Christ died of cocaine toxicity.

Deborah Perkins, 65, and her son, Douglas Oliver, also face heroin distribution charges. The two entered guilty pleas and await sentencing. Perkins made numerous trips to Chicago with McGilvery. Perkins and Oliver are set for sentencing on Dec. 13.

Fogarty and McGilvery are both set for trial on Nov. 18.

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