Binding agreement in Cook case calls for judge to either accept or reject 18-month sentence

News-DemocratJanuary 25, 2014 

In a November 2013 file photo, Michael Cook tries to make his way past reporters and camera crews outside the federal courthouse.

DERIK HOLTMANN — Derik Holtmann/BND

Under the terms of former St. Clair County Circuit Judge Michael Cook's plea agreement, U.S. District Judge Joe Billy McDade can't just impose a sentence on Feb. 26, he can only accept or reject the plea agreement that calls for an 18-month sentence.

Assistant U.S. Attorney James Porter said Cook could have received probation up to six months in prison under federal sentencing guidelines and prosecutors wanted to ensure Cook received a prison sentence so they agreed to a binding plea agreement in the heroin possession and weapons case.

"We made sure the plea agreement contained a sentence that was higher than he may have received," Porter said.

If McDade rejects the plea agreement, Cook would likely withdraw his guilty plea and go to trial or his lawyers would go back and try to negotiate another deal with prosecutors but with the understanding the judge is going to expect a longer prison sentence, said Andrew Leipold, University of Illinois School of Law professor.

"For the defense, something bad has happened," Leipold said. "They may go back and still be willing to stick with the guilty plea and renegotiate the deal, but the drawing board looks different now. They may have to enter into a less favorable deal to the defense."

Cook, 43, then a sitting St. Clair County Circuit judge, was arrested on May 22 outside Sean McGilvery's home on North 38th Street in Belleville. He later was charged with possession of heroin and being the user of a controlled substance in possession of weapons. Cook resigned from the bench after his arrest.

McGilvery was sentenced to 10 years on Thursday.

Federal sentencing guidelines are no longer mandatory and now judges use them in an advisory capacity, said University of Missouri School of Law professor Frank Bowman, who served as special counsel to the U.S. Sentencing Commission. He said prosecutors may drop the binding agreement, make a recommendation and leave it to the judge to decide the sentence.

In those type of plea agreements, the judge has wide discretion to impose sentence, as long as the reasons for a longer or shorter sentence are enunciated.

"As long as they give an explanation and it's not stark raving mad, the appellate court will uphold it," Bowman said.

McDade ordered a new investigation on Jan. 8, stating that there were reasons to impose a stiffer sentence than the 18 months agreed to by prosecutors and the defense.

McDade stated in a written order that there were three reasons to impose a longer sentence: The fact that Cook was a judge and never sought help even after the death of friend and colleague Joe Christ, that the charges disrupted governmental functions, and that they caused the loss of public confidence in the judicial system.

Leipold and Bowman agreed McDade properly notified the defense and prosecutors when he asked for more investigation before the sentencing.

"It appears that he had some questions and he wanted those answered and he wanted to let them know what he was thinking in his order," Leipold said.

In his order, McDade references the original pre-sentence report that stated: "Specifically, the defendant was a Circuit Court Judge and presided over cases involving the very conduct for which he is now convicted. The potential impact of his conduct, in how it may have affected trials he presided over and sentences he imposed while addicted to illegal substances, are immeasurable yet cannot be ignored. In addition, based on his position in the community, his actions erode public confidence in the judicial system."

Contact reporter Beth Hundsdorfer at bhundsdorfer@bnd.com or 618-239-2570.

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