A man convicted of first-degree murder charges received a new trial on Wednesday after his attorneys claimed prosecutors should have disclosed that the judge and the investigator in his case were under federal investigation for drugs.
William Cosby, 29, of East St. Louis, and his lawyers Charles "CJ" Baricevic and Cathy MacElroy, appeared before St. Clair County Circuit Judge Bob Haida to argue the state should have told his lawyer about federal investigations into former Circuit Judge Mike Cook, who presided over Cosby's trial, and former East St. Louis detective Orlando Ward, who was the primary investigator in his case.
"The Court acknowledges that the state was in a difficult position as far as how to proceed at the time of this trial," Haida said. "... In the interest of justice, I must grant a new trial. I don't do this lightly."
Cosby was convicted by a jury on April 26 of the first-degree murder of Antwan "Twix" Thomas, who was shot in the stomach outside an East St. Louis bar on April 9, 2012. His conviction came just over three weeks before Cook's arrest. Cook presided over the trial and all preliminary matters, motions and arguments in Cosby's case, Baricevic said.
Deborah Phillips, an assistant state's attorney working for State's Attorney Brendan Kelly, countered in her written motion that the state couldn't reveal the federal investigation into Cook.
"(Cosby) ignores the fact that such disclosure would have destroyed the ongoing federal investigation and fails to acknowledge that disclosure would have compromised the federal investigation given its complexity and the involvement of multiple suspects (in addition to Cook) represented by the defense bar," Phillips wrote.
Phillips further argued that defense lawyers failed to point to any error Cook made during the trial.
Baricevic and MacElroy argued prosecutors failure to disclose Cook was under federal investigation gave the public the appearance of impropriety and unfairness.
"The failure to disclose that knowledge is a drape on the window of transparency," Baricevic told Haida during the hearing.
In criminal cases, prosecutors are required to disclose "any relevant material" to the case, including, Baricevic argued, that prosecutors were assisting in a federal investigation into the judge presiding over Cosby's murder trial.
Prosecutors could have delayed the trial or asked another judge to issue an order substituting Cook in the case before the trial, Baricevic said, but chose instead to allow the trial to go forward.
After the hearing, Kelly said, "The very limited personnel in my office who participated in the investigation were under a federal nondisclosure agreement which, if violated, could mean severe penalties, so seeking a continuance or substitution from another judge was not an option."
The day after Cook's arrest, Kelly filed more than 500 motions, asking Cook to be substituted from all the cases on his criminal docket.
In their motion for a new trial, Baricevic and MacElroy stated that "the state's attorney's office had knowledge of an ongoing investigation of Judge Cook and failed to disclose that information to the defendant, thus avoiding his absolute right to substitute the judge for cause."
MacElroy and Baricevic also argued the state failed to disclose Ward, who was the lead East St. Louis detective on the case, was suspected of dealing drugs at the time of trial. Phillips contended that Ward was only tangentially involved in the case being a liaison between Illinois State Police, who headed the investigation, and East St. Louis Police.
Cook, who resigned from the bench after his May 22 arrest, faces federal heroin and weapons charges. Ward, who also resigned after he was arrested for drugs on May 6, was involved in the investigation of the case.
Another man convicted of first-degree murder has asked for a new trial based on prosecutors' failure to disclose the ongoing federal investigation of Cook as well.
Gregory Muse was convicted of first-degree murder on March 17. Cook presided over his jury trial.
Muse and Correy Ransom, 34, held up the Pawn Pros at 1115 State St. in East St. Louis at gunpoint on Aug. 27, 2011, according to police. As the two left the store with a plastic shopping bag and a pillowcase filled with jewelry, the pawn shop's owner, who legally possessed a gun, shot Ransom, who fell dead out of the store, falling on the sidewalk. Muse got away on foot, carrying money and merchandise, police have said. He was arrested a block away from the store.
The week of Muse's trial, Cook met with Pike County Sheriff Paul Petty, who interviewed him regarding the death of Joe Christ, a longtime assistant state's attorney. Christ died at Cook's Pike County hunting cabin. It was later revealed that Christ died of cocaine toxicity.
Arguments are scheduled for Oct. 30 on Muse's case.
Prosecutors became aware of the federal investigation into Cook sometime in January, Public Defender John O'Gara said.
That would have been weeks before Christ's death in March. That disclosure may have come in the wake of the state and federal charges against Deborah Perkins and her son, Douglas Oliver, who were charged in January in federal court with heroin trafficking charges. Cook's longtime friend and former client, Sean McGilvery, was using Perkins to obtain heroin, according to federal documents. Cook was arrested outside of McGilvery's home on North 38th St. in Belleville on May 22. Cook was later charged with in federal court with possession of heroin.
McGilvery is facing federal charges of distribution of heroin.
In 2011, Baricevic, the lawyer who argued Cosby's motion on Wednesday, represented McGilvery on another drug case before Cook. The case was originally scheduled before then-Circuit Judge Milton Wharton. Baricevic asked for a continuance because he had a conflict with another scheduled case. After that, and without a motion for substitution of judge, Cook, who presided over drug court, became the presiding judge over McGilvery's drug case and dismissed it March 19, 2012 after noting that he completed drug school.
During Wednesday's hearing on Cosby's case, Phillips said that the state agreed to allow some defendants who pleaded guilty to criminal charges before Cook to withdraw their guilty pleas, and "likewise are prepared to review this ... request for a new trial."
O'Gara said that allowing some defendants to withdraw their pleas while opposing efforts of defendants who went to trial and were convicted to getting a new trial punishes defendants for exercising their Constitutional right to trial.
"It's the right thing to do. The case law supports it," O'Gara said. "It's the fairest way to accomplish the ends of justice."
In this case, Kelly said prosecutors needed to fight to keep Cosby's conviction intact.
"The People argued as strongly as we could on behalf of the victim's family and tried unsuccessfully to preserve this conviction," Kelly said. "Judge Haida is a person of great integrity, we respect the court's decision and we will prepare for trial."