St. Clair County prosecutors may have to answer when they found out that former judge Michael Cook was under investigation by federal drug agents.
Circuit Judge Bob Haida will allow attorney Gil Sison to move forward in efforts to win a new trial for his client Kenny Wicks, who was convicted of first-degree murder during a jury trial presided over by Cook in January 2013.
When asked whether Sison will subpoena State's Attorney Brendan Kelly or his assistants, Sison replied, "We aren't ruling it out."
Kelly declined to comment because the case is pending.
There is a status hearing in Wicks' case set for Sept. 4.
A jury convicted Wicks on Jan. 31, 2013, for the murder of James Earl Rogers Jr. The jury also found Wicks was the one who fired the gun. Cook sentenced Wicks to 20 years in the murder charge, plus 25 years for the firearm enhancement.
But it isn't just when prosecutors found out Cook was under investigation, but when he started to use heroin that Sison wants to discover. Confidential informants put Cook's drug use back to before he became an associate judge in 2007, according to federal search warrant applications, and that's part of what Sison wants to know.
"I think that matters. This isn't just because he was under investigation for drugs but because he was a heroin addict who was on the bench making decisions on criminal cases," Sison said.
Federal agent Julie Neiger swore in an application for a search warrant for Cook's home that Justin Cahill told her on July 29, 2011, that he provided OxyContin, a prescription painkiller, to another man who would then provide the drug to Cook.
In mid-2012, the federal investigation intensified with Neiger talking to confidential informants about Cook's drug usage.
On Jan. 21, 2013 -- a week before Wicks' trial began -- Deborah Perkins and Douglas Oliver were arrested after state drug agents executed a search warrant on their home at 20 Kassing Drive in Fairview Heights. Sean McGilvery, who admitted that he was Cook's heroin supplier and had a user's relationship with Cook since 2006, arrived at the home during the search. The day after the search, a prosecutor and a state drug agent appeared before Cook to find probable cause to sign the arrest warrant against Perkins, 66, and Oliver, 48.
Kelly has previously confirmed the state investigation of Cook began after the search of the home at 20 Kassing Drive.
Cook continued to sit on the bench, adjudicating cases. On March 10, 2013, Cook's friend, newly appointed associate judge and former longtime prosecutor Joe Christ, was found dead at Cook's Pike County hunting cabin.
Pike County Sheriff and Coroner Paul Petty first publicly said Christ's death was natural, but he knew a vial of cocaine fell out of Christ's clothes during the autopsy. When he received the results of Christ's toxicology reports in early April, Petty went to federal agents.
Cook was arrested outside McGilvery's house on North 38th Street on May 22, 2013. Cook, 44, pleaded guilty and is currently serving a two-year prison sentence at the Pensacola Federal Prison Camp in Florida. Former probation officer and Cook friend James K. Fogarty, 46, is at the same prison.
The morning after Cook was arrested, Kelly filed more than 500 motions to substitute Cook in criminal cases.
"Those hundreds of recusals are proof that they didn't believe Judge Cook should not have input into the administration of justice in those cases," Sison told Haida during a hearing earlier this month.
In their motion to dismiss Wicks' petition for post-conviction relief, prosecutor Judy Dalan stated that Wicks must show a constitutional violation and prejudice resulting from that violation.
Dalan argued that Wicks and his trial attorney Paul Storment were only entitled to prosecutors' knowledge related to the criminal charge against Wicks, not the ongoing federal investigation of the presiding judge.
And Dalan's motion does suggest who knew what when.
"Though, arguably, two members of the state's attorney's officer were aware of the investigation at the time, the individual trial attorneys were not. Further, there is no evidence that Judge Cook was aware of an ongoing investigation," Dalan wrote.
It was the jury that found Wicks guilty, not Cook, the prosecutors argued. At the sentencing, Cook gave Wicks the minimum sentence of 20 years, but was forced by the law to give him the 25-year enhancement because of the jury's finding that Wicks fired the gun that killed Rogers.
The motion also asserts that Kelly was under specific instructions from U.S. Attorney Steve Wigginton not to disclose the investigation and if he would have he would have been placed in the position of committing a crime.
Sison said he will continue to investigate, research and talking to attorneys on Wicks' case, which is also before the 5th Appellate Court in Mount Vernon. If he doesn't win a retrial before Haida, Sison can raise the issue to the appellate court.
"We are trying to move as quickly as we can to get this resolved," Sison said.
And other cases may also find their way to the appellate courts. Chief Judge Baricevic is ruling on post-conviction motions on cases that pre-date 2010 when Haida, then State's Attorney, won a seat as a circuit judge.
Baricevic has denied 15 to 20 of those petitions.
Haida vacated three convictions and ordered new trial on three of Cook's cases. Gregory Muse was convicted in April of first-degree murder and sentenced to life in prison. Dwayne Tottleben pleaded guilty to burglary charges and was sentenced to a 1 !/2 in prison, half of the three-year prison sentence he originally received. William Cosby was again face trial on Sept. 8 on first-degree murder charges for the shooting death of Antwan Thomas.
Sison argued to Haida that there is a matter of public perception in the cases where Cook presided.
"We have to ask ourselves, "Do they have confidence in the outcomes of these trials?'" Sison asked.
Contact reporter Beth Hundsdorfer at firstname.lastname@example.org or 618-239-2570.