A recent U.S. Supreme Court opinion may have sentencing implications for former St. Clair County Probation Officer James Fogarty, who is accused of cocaine distribution.
U.S. District Chief Judge Michael Reagan filed an order Friday referencing a U.S. Supreme Court ruling in the case Burrage v. United States.
Fogarty, 46, pleaded guilty in November to possession with intent to distribute cocaine. Fogarty told FBI agent Joe Murphy that he sold an eighth of an ounce of cocaine to Circuit Judge Michael Cook and Joe Christ, a new associate judge and longtime prosecutor, days before Christ died on March 10 from cocaine toxicity at Cook's Pike County hunting cabin. The judges paid $280 for the drugs.
At Fogarty's change of plea hearing in November, Reagan told Fogarty that he would not accept a plea bargain that would send Fogarty to prison for five years if it could be shown that the eight ball of cocaine sold to the judges led to Christ's death.
Reagan stated in the order that he intends to ask a question of government prosecutors: "Is there credible evidence that 'but for' the drug distribution by defendant Fogarty there would have been the death of any person, including but not limited to Judge Joseph Christ?"
If prosecutors say yes, then Reagan will reject the plea agreement which recommends a sentence of five years for Fogarty.
Reagan noted that barring an unusual change in the case, he does not believe that the agreed-upon sentence of five years is inappropriate and does intend to accept the agreement.
Clyde Kuehn, Fogarty's lawyer, said Friday there is no evidence of a causation of death. The "but for" provision in the Burrage case raises the requirements for whether the sale of drugs causes a death.
"Neither I nor the U.S. attorney believe that there is established a causation factor between the small amount of drugs Jimmy Fogarty supplied to Christ and Christ's death," Kuehn said.
This was understood by the defense and the prosecution when the plea agreement was agreed upon, Kuehn said.
Contact reporter Beth Hundsdorfer at firstname.lastname@example.org or 618-239-2570.