STATE OF ILLINOIS IN THE CIRCUIT COURT OF THE 17™ JUDICIAL COUNTY OF WINNEBAGO PEOPLE OF THE STATE OF ILLINOIS ) PLAINTIFF, ) ) Vs. ) Criminal ) No. 14CF922 RICHARD WANKE ) DEFENDANT ) MOTION TO WITHDRAW AS COUNSEL DUE TO PER SE CONFLICT OF INTEREST NOW COMES the Defendant, RICHARD WANKE, by the Public Defender Karen ‘Sorenson and through his attorney, Frank S. Perri, Assistant Public Defender files this Motion to Withdraw as Counsel Due Per Se Conflict of Interest as enunciated in People v. Taylor 237 Il.2d 356, (IIL. S.Ct. 2010), People v. Hernandez, 231 Ill.2d 134 (Ill. S.Ct. 2008) and People v. ‘Spreitzer, 123 111.24 1(S.Ct. 1988), and in support state as follows: 1. Assistant Public Defender Frank Perri (hereinafter referred to as Counsel) has been assigned to represent Richard Wanke (hereinafter known as Defendant). 2. Richard Wanke has been charged in a thirty count Bill of Indictment for First Degree Murder. 3. The victim is Criminal Defense Attomey Greg Clark (hereinafter known as Victim). 4, That Counsel has known Victim since 1993 up to his death in 2008 both on a professional bases and social basis. 5. That Counsel was first in shock when Counsel first learned of the murder and filled with anger at the realization that Victim was murdered. To date Counsel is still upset to know that a colleague/ mentor has been murdered, 6. Due to the fact that Victim was respectfully older than Counsel and with additional years of criminal defense experience as an attorney than Counsel had, Counsel on dozens of occasions throughout the years sought out Victim's professional insights as an assistant Public defender on criminal defense matters and respectfully viewed Victim as a mentor 1Fo and on occasion would socialize with Victim at social events involving the legal community. 7. It is Counsel’s recollection that when Victim worked as Conflict Counsel in Winnebago County, Counsel had his own cases assigned to the Victim by the Winnebago County Courts. Counsel had to work with Victim to get him acquainted with his assigned conflict case(s), 8. ‘That Counsel knew Victim’s extended family namely Winnebago County Attomey Bart Henbest who is the Victim’s brother-in-law. 9. Counsel has known Mr. Henbest since 1993 up to the present and has felt and expressed sympathy for the Victim and his extended family. 10, That Counsel heard on multiple occasions that it was the belief of some members of the legal community that it was the Defendant who murdered the Victim. 11. That counsel had suspicions about the Defendant's role in the murder of the victim given ' that the Defendant was represented by the Victim on or about the time of the Victim’s ' murder and that the Defendant had motive to kill the Victim. 12, That counsel believes that a per se conflict of interest exists in that Counsel is very ‘concemed that he cannot effectively represent the Defendant and the Counsel is very concerned that he is prejudiced against the Defendant. 13, That Counsel is very concerned that he cannot set aside his bias and prejudice against the Defendant and represent him effectively due to this per se conflict of interest. 14, That Counsel cannot be deemed to be faithful and completely loyal to the defendant as required by People v. Spreitzer 123 Tll.2d 1, $23 NE.2d 30, 35 (Ill. S.Ct. 1998). In addition, Counsel may be “subject to subtle influences which could be viewed as adversely affecting his ability to defend his client in an independent and vigorous mannet” People v. Spreitzer 123 IN.2d 1, $23 NE.2d 30, 35 (Ill. S.Ct. 1998). Counsel is : concemed that the influences in this case are more than subtle and is concemed that these : influences will affect his ability to represent the Defendant in an independent and ; vigorous manner. There are simply too many nof so subtle influences to ignore especially as they relate to the ability to be faithful and loyal toward the Defendant as required by i law for which Counsel does not believe he can be. Counsel is concemed that he will ‘comprise the zealous advocacy of the defendant and second guess himself as it relates to | |trial strategy. 15. That counsel would not be able to uphold the legal standards for effective assistance of counsel as outlined under Strickland v. Washington, 466 U.S. 668, 688 (1984) (hereinafter Strickland) and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed. 657 (1984) (hereinafter Cronic) legal standards advanced by the State of Illinois as they relate to effective assistance of counsel People v. Watson, 2012 Ill.App.2d 091328 (2012). The constitutional guarantee of effective counsel contemplates that, to render the trial a reliable adversarial process, counsel will engage evidentiary rules to shield his or her client from a decision based on unreliable evidence People v. Moore, 279 IllApp.34 152, 159 (1996) and wall appreciate and understand the legal principles applicable to the case People v. Faulkner, 292 Ill. App.3d 391, 394 (1997). Further, “{iJt contemplates assistance ready to provide an adversarial check to a prosecutor's excessive endeavors.” People v. Fletcher, 335 Ill.App.3d 447, 453 (2002). Counsel cannot guarantee effective assistance of counsel as contemplated by the above cases. 16. Under Strickland Counsel believes that actual ineffective assistance will occur in that Counsel cannot effectively represent the Defendant due to the conflict of interest and that ‘Counsel cannot subject the State's case to meaningful adversarial testing. Under ‘Strickland due process and fundamental faimess are required to ensure confidence in the criminal process and Counsel cannot assure the Defendant through Counsel’s representation that the Defendant will receive a faimess in the process he is guaranteed under the Sixth and Fourteenth Amendments of the United States Constitution and Article I, §8, of the Illinois Constitution of 1970. 17, Under Cronic counsel ineffectiveness which represents a constructive denial of the assistance of counse! if the circumstances of the defendant's trial were so unfair that prejudice and ineffective assistance of counsel can be presumed. The Cronic standard applies in three situations: 1) when defendant's counsel fails to subject the prosecution’s case to meaningful adversarial testing or 2) when a defendant is denied counsel during a critical stage of their trial, or 3) that the circumstances of one’s trial made it highly unlikely that any lawyer could be effective, Counsel believes that the trial will be unfair in that the first prong will not be met and that Counsel will not subject the State’s case to ‘meaningful adversarial testing because of his close ties to the Victim. Counsel may inadvertently not subject the State’s case to meaningful adversarial testing because of the conflict of interest that exists.18. That Counsel believes that Defendant would be denied effective counsel, be denied a fair trial due to Counsel not being able to competently represent Defendant and that his due process rights would be violated as a result of the per se conflict of interest. 19. That Counsel has a per se conflict of interest with representing the Defendant. A criminal defendant's Sixth Amendments right to effective assistance of counsel includes the right to conflict-free representation People v. Taylor 237 Ill.2d 356, 930 N.E.2d 959 (Ill. 8. Ct. 2010). Conflict-free representation guaranteed by the Sixth Amendment means assistance by an attomey whose loyalty to his client is not diluted by conflicting interests or inconsistent obligations. People v. Taylor 237 Ill.2d 356, 930 N.E.2d 959 (Ill S. Ct. 2010). 20. Counsel disclosed to Defendant that he has suspicions of the Defendant's innocence for reasons outlined above and cannot guarantee the Defendant zealous advocacy as required by Strickland v. Washington, 466 U.S. 668, 688 (1984) and United States v. Cronic, 466 USS. 648, 104 S.Ct. 2039, 80 L.Ed. 657 (1984) legal standards advanced by the State of Illinois as they relate to effective assistance of counsel People v. Watson, 2012 Ill.App.2d (091328 (2012). The right to counsel encompasses the right to effective counsel; “the essential aim of the amendment is to guarantee an effective advocate for each criminal defendant.” People v. Holmes, 141 Ill.2d 204, 218 (1990); Wheat v. United States, 486 US. 153, 159 (1988) and Counsel does not believe that he will be able to uphold this expectation as outlined under Stickland, Cronic, Holmes, Watson, Wheat et. al. 21. A per se conflict exists when facts about a defense attorney's status engender, by themselves a disabling conflict. When defense attorney has a tie to a person or entity that ‘would benefit from an unfavorable verdict for the defendant, a per se conflict of interest arises. The per se conflict has been construed broadly to mean “association”, “professional connection” “commitment, “some tie” with the victim, a party or the prosecution both previous and current. People v. Taylor 237 Ill.2d 356, 930 N.E.2d 959 (UL S. Ct. 2010), People v. Hernandez, 231 Ill.2d 134, 896 NE.2d 297 (Ill. S.Ct. 2008); People v. Spreitzer 123 Ull.2d 1, 523 NE.2d 30 (Ill. S.Ct. 1998). Counsel believes his relationship with the deceased does create a status under the above case law further indicated by associations, ties, and professional connections with the victim in addition to the emotional ties to his murder, 22. The per se conflict of interest also incorporate the defendant's right to effective counsel regardless of whether the relationship is active or not, People v. Hernandez, 231 Il.2d 134, 896 NE.2d 297 (2008); People v. Spreitzer 123 Ill.2d 1, $23 NE.2d 30 (Ill. S.Ct. 41998), Such representation means assistance by an attorney whose loyalty to his or her client is not diluted by conflicting interests or inconsistent obligations. People v. Mahaffey, 165 Il.2d 445, 456, 651 NE.2d 174 (1995), People v. Spreitzer, 123 Ul.2d 1, 13-14, S25NE.2d 30 (1988), People v. Taylor 237 Ill.2d 356, 930 N-E.2d 959 (IIL. S.Ct. 2010) 23. Three situations exists for a per se conflict of interest. 1) When defense counsel has a prior or contemporaneous association with the vietim, the prosecution or an entity assisting the prosecution, 2) When defense counsel contemporancously represents a prosecution witness and 3) When defense counsel was a former prosecutor who had been personally involved in the prosecution of the defendant, People v. Hernandec, 231 IlL2d 134, 896 NE.2d 297 (Ill. $.Ct. 2008); People v. Spreitzer 123 Ill.2d 1, $23 NE.2d 30 (Il. S.Ct, 1998), People v. Taylor 237 IN.2d 356, 930 N.E.2d 959 (Ill. S.Ct. 2010). 24. In this case the first prong of a per se conflict exists 1) When defense counsel has a prior or contemporaneous association with the victim, the prosecution or an entity assisting the prosecution. Counsel has outlined that both prior and contemporaneous association with the Vietim, Counsel considered the Victim a friend, a professional colleague and mentor. Counsel has worked in the Winnebago County State’s Attomey’s Office while Counsel knew the Vietim, and after Counsel left the Winnebago County State’s Attomey’s Office and sought the legal opinions of the Victim while working in the Winnebago County Public Defender’s Office. Public policy disfavors dual representation because of a possible conflict of interest. Defense counsel should be free from conflicts both in fact and in appearance and that “divided loyalties” are not acceptable and fair to the Defendant that is in need of counsel free from conflicts of interests especially in a case as serious as a homicide case. People v. Hernandez, 231 Ill.2d 134, 896 NE.2d 297 (2008); People v. Spreitzer 123 Il1.2d 1, 523 NE.2d 30 (Ill, $.Ct. 1998), People v. Taylor 237 I1L2d 356, 930 N.B.2d 959 (Ill. $.Ct. 2010). 25. Defense counsel is not required to show actual prejudice when a per se conflict of interest exists nor show that defense counsel's actual performance was in any way affected by the existence of counsel. If a per se conflict does not exist it may still be established that a violation of his right to effective assistance of counsel by showing an actual conflict. To show an actual conflict of interest a defendant must point to some specific defect in the counsel's strategy, tactics, or decision making attributable to the conflict of interest People v. Hernandez, 231 Il1.2d 134, 896 NE.2d 297 (S.Ct. 2008); People v. Spreitzer 123 Il.2d 1, 523 NE.2d 30 (IIL S.Ct. 1998), People v, Taylor 237 Il.2d 356, 930 N.E.2d 959 (Ill. $.Ct. 2010). That Counsel believes that an actual conflict too exists with the 5above facts. 26, That Counsel has met with the Defendant and shared these per se conflict of interests concerns as outlined in said motion and as required in People v. Hernandez, 231 Ill.24 134, 896 NE.2d 297, 308-309 (Ill. S.Ct. 2008); People v. Spreitzer 123 Ill.2d 1, 523 NE.24 30 (Ill. S.Ct. 1998), People v. Taylor 237 Il.2d 356, 930 N.E.2d 959 (IIL S.Ct. 2010). Counsel disclosed to Defendant that he was very concemed about his ability to represent him due to his emotional ties to the Victim, that Counsel cannot guarantee that he can set aside any bias or prejudice that Counsel may harbor against the Defendant, that Counsel is still very disturbed about his murder and that he is not sure that he could represent the Defendant to his fullest ability. Counsel disclosed that it was imperative for the Defendant to be represented by Counsel that is not biased and prejudiced and where there is no conflict of interest in order to ensure effective counsel, due process and a fair trial, 27. Unless a defendant waives his right to conflict-free representation, a per se conflict of interest is grounds for automatic reversal. People v. Taylor 237 Ill.2d 356, 930 N.E.2d 959 (Ill. S. Ct. 2010). 28. Defendant is in agreement that a per se conflict of interest exists between Counsel and Defendant, In the interest of justice guaranteeing Richard Wanke effective counsel that Counsel does not believe he can provide due to the per se conflict of interest, Counsel prays that said motion is granted. Defendant: RICHARD W. His Attomey: Frank S. Perri Assistant Public Defender