* After those trial lawyers ran a really misleading ad about Republican Appellate Judge David Overstreet on The Southern Illinoisans’ website today, I asked for oppo on Democratic Appellate Judge Judy Cates, just to even out the karma. Links are in the original…

PEOPLE v. FOLLIS
Cates Concurred In An Opinion Throwing Out A Man’s Confession To Sexually Assaulting A Child

In 2012, Ross D. Follis Jr. Was Charged With Predatory Criminal Sexual Assault Of A Child. “The State appeals from an order of the circuit court of Washington County granting the motion to suppress filed by defendant, Ross D. Follis, Jr. The issue raised in this appeal is whether the trial court erred in concluding that defendant was in custody at the time of the interview. We affirm. FACTS Defendant, age 18, was charged by information with one count of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2010)) for allegedly committing an act of sexual penetration on the victim, who was 3 years of age, by inserting his finger in the victim’s vagina.” (Opinion, People v. Follis, Illinois 5th District Court of Appeals, Case #5-13-0288, 6/6/14)

When Interviewing Follis, An Officer Told Him That He Was Not In Custody, But Read Him His Miranda Rights And Had Him Initial A Form Indicating He Understood His Rights. “Even though the police officers said defendant was not in custody, Styninger read defendant his Miranda rights (Miranda v. Arizona, 384 U.S. 436 (1966)) from a police-department-issued form. Defendant nodded his head a few times, which Styninger interpreted as meaning that defendant understood his rights. Defendant initialed the individual paragraphs and signed the form. The interview was conducted in a room approximately 10 by 12 feet with the door closed, except when Officer Reel would occasionally leave.” (Opinion, People v. Follis, Illinois 5th District Court of Appeals, Case #5-13-0288, 6/6/14)

During The Interview With Police, Follis Confessed To Sexually Assaulting His Father’s Girlfriend’s Daughter. “The alleged victim was his father’s girlfriend’s daughter. During the interview, defendant admitted that he touched the victim’s vagina and the victim touched his penis. Defendant never admitted inserting a finger or anything inside the victim. Defendant agreed to make a statement. Defendant told Styninger what occurred and Styninger wrote it down. Defendant then signed the paper. Styninger testified that he never told defendant he was under arrest, but did tell defendant ‘multiple times’ that he could go home that day. Defendant asked the police officers after making the statement whether he needed a lawyer. Styninger responded that was up to defendant.” (Opinion, People v. Follis, Illinois 5th District Court of Appeals, Case #5-13-0288, 6/6/14)

The 5th District Appeals Court Affirmed The Lower Court’s Ruling Suppressing Follis’ Statement, Ruling That “It Is Abundantly Clear From The Record Before Us That The Defendant In This Case Did Not Knowingly And Intelligently Waive His Miranda Rights.” “Under these circumstances, we find the trial court did not err in finding that defendant was in custody during the interrogation by police on December 6, 2012. Both experts who examined defendant concluded that defendant could not knowingly, intelligently, and voluntarily waive his Miranda rights. It is abundantly clear from the record before us that the defendant in this case did not knowingly and intelligently waive his Miranda rights. The State does not even attempt to argue to the contrary here. Accordingly, we hereby affirm the order of the circuit court of Washington County which found defendant was in custody at the time of the interrogation and granted defendant’s motion to suppress.” (Opinion, People v. Follis, Illinois 5th District Court of Appeals, Case #5-13-0288, 6/6/14)

Cates Joined In The Opinion, But Did Not Write It. (Opinion, People v. Follis, Illinois 5th District Court of Appeals, Case #5-13-0288, 6/6/14)

(Opinion, People v. Follis, Illinois 5th District Court of Appeals, Case #5-13-0288, 6/6/14)

After His Confession Was Suppressed, Follis Was Able To Plead To A Lesser Charge And Avoid Jail Time

After His Confession Was Suppressed, Follis Pled Guilty To A Lesser Charge – Aggravated Battery To A Child Under The Age Of 13, Resulting In Bodily Harm – And Was Sentenced To 30 Months Probation. “A 20-year-old man was sentenced today in Washington County court to 30-months probation, after he pleaded guilty to a reduced charge of aggravated battery to a child under the age of 13, resulting in bodily harm – a Class 3 felony. Ross Follis was originally charged in the 2012 case with Class X felony predatory criminal sexual assault of a 3-year-old girl, but the Illinois Appellate Court ruled that Follis was indeed in custody at the time of an interrogation, and granted a defense motion that his confession be thrown out. Both experts in the case testified that Follis could not knowingly, intelligently and voluntarily waive his Miranda rights and prosecutors did not argue against that finding. The experts found Follis has the cognitive abilities of a 10-year-old and that both his short and long-term memory are impaired. In addition to serving 30-months probation, Follis also agreed to have no contact with the victim, pay $1,000 in fines and costs, plus a $250 DNA fee. He must also complete an evaluation and complete any specified treatment.” (“Nashville Man Gets Probation After Sex Crime Confession Tossed,” X95Radio, 1/27/15)

PEOPLE v. BURGUND
Cates Concurred In An Opinion That Granted A New Trial To A Man Who Confessed To Molesting His One- And Three-Year Old Daughters

In 2012, Michael S. Burgund Was Convicted Of Five Counts Of Predatory Criminal Sexual Assault Of A Child After He Repeatedly Molested His Two Young Daughters, Who Were Both Less Than Three Years Old When The Abuse Occurred. “The charges against the defendant stem from allegations that he committed acts of sexual penetration upon his two minor daughters, M.B. and K.B. At the time of the trial, M.B. was five years old, and K.B. was three years old. The alleged abuse occurred when M.B. was between the ages of 1 and 3½, and K.B. was between one and two years old.” (Opinion, People v. Burgund, 5th District Court of Appeals, Case #5-13-0119, 11/22/16)

Burgund Confessed To Police On Tape That He Had Molested His Daughters. “The State’s evidence of the defendant’s guilt consisted largely of a videotaped confession that he voluntarily gave to a detective with the Alton police department at a time when he was not under any suspicion of any wrongdoing.” (Opinion, People v. Burgund, 5th District Court of Appeals, Case #5-13-0119, 11/22/16)

Burgund Claimed That He Had Been Psychologically Manipulated Into Giving A False Confession By His Wife And Her Mother, Who Told Him They Had Supernatural Powers Of “Discernment.” “The defendant testified in his defense and denied abusing his daughters. His defense was based on a claim that he gave a false confession because of coercion, suggestion, and manipulation by Melissa and Buttry. He claimed that they created a coercive and accusatory psychological environment throughout his marriage. He emphasized that he, Melissa, and Buttry had deeply held religious beliefs and that Melissa’s and Buttry’s coercion involved religious overtones, false accusations of sexual lust, and claims by both Buttry and Melissa as to having God-gifted, supernatural powers of “discernment.” He maintained that the coercion ultimately caused him to falsely believe and confess that he had abused his children. He claims that, after his arrest and removal from Melissa’s and Buttry’s influence, he realized that he had given a false confession to crimes that had never occurred.” (Opinion, People v. Burgund, 5th District Court of Appeals, Case #5-13-0119, 11/22/16)

Burgund Appealed His Conviction, Saying The Trial Court Had Improperly Excluded Expert Testimony To Collaborate His Claim That He Had Been Manipulated Into A False Confession. “On appeal, the defendant argues that the circuit court improperly excluded testimony from witnesses who would have corroborated important aspects of his testimony concerning the psychological conditions leading up to his false confession, particularly his description of continual accusations by Melissa involving religious and sexual overtones and her claim to have the power of discernment. The defendant also argues that the court improperly excluded testimony from a psychological expert who would have opined that his psychological conditions made him highly suggestible and easily led, especially in matters involving religious or sexual overtones.” (Opinion, People v. Burgund, 5th District Court of Appeals, Case #5-13-0119, 11/22/16)

The Appeals Court Agreed With Burgund And Ruled That He Be Given A New Trial. “In the present case, we agree with the defendant that the circuit court improperly excluded evidence that was relevant to his version of the facts and the credibility of his confession. The errors unfairly impaired his substantial right to fully present his defense to the jury ‘so it may decide where the truth lies.’ Washington v. Texas, 388 U.S. 14, 19 (1967). As explained in detail below, because of the trial errors, we cannot confidently state that the defendant’s trial was fundamentally fair. Accordingly, we are obligated to order a new trial.” (Opinion, People v. Burgund, 5th District Court of Appeals, Case #5-13-0119, 11/22/16)

Cates Joined In The Opinion, But Did Not Write It. (Opinion, People v. Burgund, 5th District Court of Appeals, Case #5-13-0119, 11/22/16)

(Opinion, People v. Burgund, 5th District Court of Appeals, Case #5-13-0119, 11/22/16)

GLENN HOWARD
Cates Got Charges Against An Accused Child Molester Thrown Out
In 1989, Glenn Howard Was Accused Of Misdemeanor Sexual Abuse After Allegedly Making Sexual Advances On Multiple Girls Aged 5 To 9 Years Old, But Was Freed After The State Failed To Bring Him To Trial Quickly Enough. “Parents of four girls who are reported to have been sexually abused say they are fuming at prosecutors because the man charged with the attacks has been ordered freed. St. Clair County Associate Judge Robert Hillebrand threw out last week charges against the suspect, Glenn Howard, 35, of Mascoutah, after ruling that the St. Clair County state’s attorney’s office had failed to bring Howard to trial within 160 days. ‘’I'm mad at the state’s attorney’s office,'’ the father of one of the girls said. ‘Someone in that office should have kept track of the 160 days.’ ‘He got out of it and it’s just not right,’ said the mother of an 8-year-old girl whom Howard was accused of molesting. Howard was charged in July 1988 with four counts of misdemeanor battery for sexual advances he was alleged to have made to four girls. The girls, who were from 5 to 9 years old at the time, lived in the same neighborhood in Mascoutah. In January, the state’s attorney’s office added four counts of misdemeanor criminal sexual abuse against Howard. At that time, he and his attorney, Judy Cates of Belleville, asked for a speedy trial.” (“Sex-Case Suspect Freed; Girls; Parents’ Livid,” St. Louis Post-Dispatch, 5/30/89)

Cates Was Howard’s Lawyer, And Moved To Dismiss The Charges Against Him Despite The Fact That She Had Caused The Trial To Be Delayed So She Could Go On Maternity Leave. “St. Clair County State’s Attorney John Baricevic said Tuesday that charges against a man accused of sexually abusing four girls should be reinstated on appeal. The charges were thrown out last week by Associate Judge Robert Hillebrand because the case had not been tried within 160 days as the law requires if a defendant asks for a speedy trial. But Baricevic said the defense attorney, Judy Cates, had asked for a delay last fall for maternity leave. The dispute, Baricevic said, is when the time started running again. ‘Nothing slipped through the cracks,’ he said. ‘In my opinion, there’s 20 days left to try the case.’ The defendant, Glenn Howard, 35, is accused of misdemeanor battery for purportedly making sexual advances to four girls, ages 5 to 9, who lived in his neighborhood in Mascoutah. Baricevic said that in January, after Cates returned to work, the case was given a trial date in March. There were about 70 days remaining of the 160 allowed under Illinois’ speedy trial rules, he said.” (“Baricevic Defends His Office In Handling Of Sex-Abuse Case,” St. Louis Post-Dispatch, 5/31/89)

* Related…

* Downstate judges face off for 5th District Supreme Court seat

*** UPDATE *** This post brought out some really, really angry commenters. So be it. Here’s another one for your reading pleasure…

DONALD SAX
Cates Represented A Police Officer Who Sued The Belleville News-Democrat For Reporting That He Had Targeted Black Motorists

In 1991, Cates Represented Donald Sax – A Belleville Police Officer Who Had Been Reported To Have Targeted Black Motorists – In A Lawsuit Against The Belleville News-Democrat, Which Had Reported The Allegations Against Sax. “A police officer asked a judge Monday to order the Belleville News-Democrat to provide records that would help him decide whether to sue over a series of articles containing allegations of harassment of black motorists. Circuit Judge Jerome F. Lopinot of St. Clair County said he would decide today on the request by officer Donald Sax that the newspaper provide the records on which it based a story June 4 and subsequent stories about Belleville Police Department policies toward blacks. The first story said Sax wrote 77 percent of his tickets to blacks while on a special unit that a former officer and other unnamed sources told the newspaper was formed to harass blacks in the west end of Belleville. The newspaper said Sax had written the most tickets to blacks of all the officers on the unit. An attorney assisting Sax, Judy Cates, told Lopinot on Monday that a rule passed by the Illinois Supreme Court in 1989 allowed Sax to get the information before filing a suit because he did not know who had compiled the statistics for the News-Democrat. Cates said Sax could use the information to decide whether he would file a suit.” (Charles Bosworth Jr., “Officer Seeks Records Used By Paper In Alleging Harassment Of Blacks,” St. Louis Post-Dispatch, 7/16/91)

Sax Was Allegedly Part Of A Four-Officer Unit That Was Formed With The Express Purpose Of Harassing Black People. “The newspaper reported in June that its analysis of thousands of traffic tickets written in the late 1980s showed a high percentage going to blacks in west Belleville. The stories said that supported allegations by a former officer and 12 unidentified officers that a four-officer unit had been formed by Police Chief Robert Hurst to harass blacks. Hurst has denied that, saying the unit had been formed because of a series of burglaries in the area.” (Charles Bosworth Jr., “Officer Withdraws Petition Seeking Paper’s Records,” St. Louis Post-Dispatch, 7/31/91)

“The First Story Said Sax Wrote 77 Percent Of His Tickets To Blacks While On A Special Unit That A Former Officer And Other Unnamed Sources Told The Newspaper Was Formed To Harass Blacks In The West End Of Belleville.” (Charles Bosworth Jr., “Officer Seeks Records Used By Paper In Alleging Harassment Of Blacks,” St. Louis Post-Dispatch, 7/16/91)

Cates Sought To Force The Belleville News-Democrat To Turn Over Records It Had Used To Verify The Allegations Against Sax, Saying She Believed They Had Been “Altered.” “The stories said Sax had written 77 percent of the 160 tickets the team issued to blacks. Hurst has denied the allegations. He said the unit was formed in response to an outbreak of burglaries in that area. An attorney assisting Sax, Judy Cates, argued before Lopinot on Monday that Sax did not know who compiled the statistics used in the stories nor whom to sue if the figures were wrong. Cates said that before Sax could decide whether to sue, he needed the newspaper’s computations and the information from Tuft. Cates said Sax believed that the figures were wrong. She told the judge, ‘We need the documents we believe very strongly were altered to accentuate’ the newspaper’s allegations about harassment of blacks.” (Charles Bosworth Jr., “Give Data To Officer, Judge Says Belleville Newspaper Balks At Handing Over; Records,” St. Louis Post-Dispatch, 7/17/91)

The Belleville News-Democrat Was Initially Ordered By A St. Clair County Judge To Turn Over The Records Cates And Sax Were Seeking. “The Belleville News-Democrat was ordered by a judge Tuesday to provide its records to a police officer to help him decide whether to sue over a series of articles containing allegations of harassment of black motorists. The decision, by Circuit Judge Jerome F. Lopinot of St. Clair County, also orders a News-Democrat reporter, Carolyn Tuft, to submit to questioning about the stories she wrote. An attorney for the News-Democrat, Robert B. Hoemeke, said Tuesday that the order was unprecedented and went beyond concern over the rights of the press under the First Amendment.” (Charles Bosworth Jr., “Give Data To Officer, Judge Says Belleville Newspaper Balks At Handing Over; Records,” St. Louis Post-Dispatch, 7/17/91)

• Attorneys For The Belleville News-Democrat Said They Would Appeal, Saying The Order Violated The Illinois Reporter’s Shield Law. “Attorneys for the newspaper filed a notice that they would appeal the order issued Tuesday by Circuit Judge Jerome F. Lopinot of St. Clair County on a petition by Officer Donald Sax of Belleville. Lopinot ordered the News-Democrat to provide the records it used as the basis for its articles, and to make available the reporter, Carolyn Tuft, to answer questions under oath about her stories. Lopinot agreed to hear the request for the delay on July 30. The motion by Robert B. Hoemeke, an attorney for the News-Democrat, said Lopinot’s order violated the Illinois Reporter’s Shield Law, which allows questioning of news reporters only after exhausting other means of getting the information.” (“Paper Seeks Delay On Providing Data,” St. Louis Post-Dispatch, 7/18/91)

The Court Order Was Denounced By The St. Louis Post-Dispatch In An Editorial, Calling It A “Serious Threat To Any Newspaper’s Ability And Right To Gather Information Unhindered.” “A police officer in Belleville is so upset with the Belleville News-Democrat about stories that allege he harassed black motorists that he thinks he may want to sue. But he isn’t sure, so he has gone to court seeking access to the newspaper’s files to check its information. A judge in St. Clair County has agreed to give him that access. That decision is wrong and is a serious threat to any newspaper’s ability and right to gather information unhindered.” (Editorial, “Police Harassment,” St. Louis Post-Dispatch, 7/23/91)

Cates Ultimately Withdrew Her Petition, Saying She Would Review The Public Records Which Were The Basis Of The Report. “A police officer withdrew a petition Tuesday that had led to a judge’s order requiring the Belleville News-Democrat to provide its records to the officer. The officer, Donald Sax of Belleville police, had wanted the records to help him decide whether to sue the newspaper over articles about the alleged harassment of black motorists. Judy Cates, an attorney for Sax, said the petition had been withdrawn because the Illinois Reporter’s Shield Law requires that all other means of getting the information used in a story be exhausted before a reporter can be questioned or forced to produce records. She said that had not been done. Even though Circuit Judge Jerome F. Lopinot of St. Clair County ordered the newspaper on July 16 to provide the documents, Cates said Tuesday that she was seeking the dismissal until she had a chance to review the public records the newspaper said were the basis of the stories.” (Charles Bosworth Jr., “Officer Withdraws Petition Seeking Paper’s Records,” St. Louis Post-Dispatch, 7/31/91)

Cates Continued To Defend Sax’s Conduct, Saying The Belleville News-Democrat Had Failed To Report How Many Convictions Resulted From The Tickets Sax Wrote To Black Motorists. “Cates criticized the newspaper for reporting that a high percentage of black motorists were given traffic tickets in west Belleville without including the percentages of those charged who were convicted. ‘That’s a real important consideration,’ Cates said. ‘But we don’t get that information. Obviously, the News-Democrat doesn’t want us to get that information.’” (Charles Bosworth Jr., “Officer Withdraws Petition Seeking Paper’s Records,” St. Louis Post-Dispatch, 7/31/91)