FILED STATE OF ILLINOIS pate: FAO IY IN THE CIRCUIT COURT FOR THE 17° JUDICIAL CIRCUZ, oy ez, ‘WINNEBAGO COUNTY Clerk of the Cie By, Court PEOPLE OF THE STATE OF ILLINOIS Wiwnenage County, Case No.: 2014 CF 922 ) ) ) ; RICHARD WANKE ) Defendant } DEFENDANT'S MOTION TO DISMISS THE IND) Defendant, RICHARD WANKE, by and through his attomey, SAMI AZHARI, pursuant to the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution of the United States, and Article I, Section 2, of the Constitution of the State of Illinois, respectfully moves this Court for entry of its order dismissing the indictment in this case based on the State’s presentation of false and misleading information and evidence to the grand jury. 1. Background On February 6, 2008, at approximately 2:30 p.m., the victim. Greg Clark, was shot three times in the back while shoveling his driveway. Defendant, now a 53 year old man, was arrested that night for the offense of murder. Clark was transported to the hospital, and later passed away on February 6, 2008. Due to the victim's death, the State sought a bill of indictment against Wanke for first degree murder. In the grand jury hearing, the State called one witness, Sergeant Kurt Whisenand of the Rockford Police Department. Whisenand testified regarding the statements made by multiple occurrence witnesses, none of whom identified Wanke as the shooter.Tl, The Grand Jury Minutes and the Grand Jury Testimony of Sergeant Kurt Whisenand On April 16. 2014. si years after the murder, Sergeant Kurt Whisenand was called to : testify in the grand jury. Whisenand’s testimony summarized the results of the investigation, including that the Defendant was responsible for shooting the victim. As a part of his testimony, Whisenand testified that a bag of clothing that was found during the investigation was sent to the Illinois State Police Crime Lab, and its contents were tested for possible gun shot residue. (See Page 39 of Grand Jury Transcript attached hereto as Exhibit A). Deputy State’s Auomey Jeff Brun posed the following questions: Brun: First of all, were those items tested for possible gun shot residue? Whisenand: Yes, they were. Brun: Are you familiar with a report from Illinois State Police Crime Lab, December 10, 2008. which indicated they did, in fact. detect particles characteristic of background samples on the clothing in that bag and the clothing including a hat that was included in the bag? Whisenand: Yes, that’s correct. (See Page 39 of Grund Jury Transcript attached hereto as Exhibit A). Brun then took questions from the jurors prior to their deliberations. He was confronted with the following question from a juror: Juror: But there was residue on the clothes that a gun had been used? Brun: There were particles ~ the way the lab report and the testimony was Presented there were particles consistent with gunshot residue. So yes, that’s correct. (See Page 48 of Grand Jury Transcript attached hereto as | Exhibit By The Illinois State Police Crime Lab di in fact prepare a report dated December 10, 2008, which analyzed several pieces of clothing for gun shot residue, including but not limited to, a ‘cap, jeans, and a jacket. (See December 10, 2008 Illinois State Police crime lab attached heretoas Exhibit C). At the conclusion of Sergeant Whisenand’s testimony, the grand jury was left to deliberate. The grand jury then returned a True Bill for first degree murder. Il. The State Influenced and Misled the Grand Jury into Believing Gun Shot Residue Was Found on the Clothing When No Crime Lab Report States Any Gun Shot Residue had been Found. ‘The State erroneously informed the grand jury that there were particles consistent with ‘gun shot residue on the clothing. The State’s tactics resulted in a denial of Defendant's right to due process. The grand jury has wide latitude to inquire into violations of criminal law. United States v. Calandra, 414 U. . 338, 343, 94 S.Ct. 613 (1974). While indictments returned by legally constituted grand juries are presumed to be valid, ithas always been a bedrock principle of due process that the State may not present perjury, or false or misleading evidence to the grand jury in seeking an indictment. United States v. Thomas, 987 F.2d 1298, 1300 (7 Cir. 1992), citing. Giglio v. United States, 405 U.S. 150, 153, 92 $.Ct. 763, 765 (1972). Napue v. Mlinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177 (1959), and United States v. Bontkowski, 865 F.2d 129, 133-34 (7 Cir. 1989); People v. Torres, 245 ILLApp.3d 297, 300, 613 N.E.2d 338 (2™ Dist. 1993); People v. Barron, 190 IlI.App.3d 701, 546 N.E.2d 1091 (5 Dist. 1989). It follows, therefore. that the presentation of false or misleading testimony to the grand jury may warrant dismissal of an indictment. United States v. Williams, 504 USS. 36, 112 S.Ct. 1735 (1992); Bank of Nova Scotia v. United States, 487 U.S.250, 108 S.Ct. 2369 (1988); Barton, supra: People v. Lawson, 67 Ill.2d 449, 456, 367 N.E.2d 1244 (1977); People v. Rogers. 92 {11.2d 283, 442 N.E.2d 240 (1982); United States v. Udziela, 671 F.2d 995 (7 Cit. 1982). Several courts have held that where the grand jury is deliberately or intentionally misled by the prosecution. or where false testimony is presented, a defendant's right to due process isviolated, and the indictment is properly dismissed. See. Torres. 245 Ill. App.3d at 300, Barton, 190 IILApp.3d at 708-09: People v. Hunter. 298 Ill.App.3d 126, 131-32, 698 N.E.2d 230 (2 Dist. 1998). In discussing the December 10. 2008 report, Brun initially asks Whisenand if the clothes were tested for gun shot residue. Whisenand informs Brun that they were. Brun then follows up with a misleading question, essentially implying to the jury that the background samples detected was in fact gun shot residue, which is incorrect. Neither Brun nor Whischand ever indicate which items of clothing contain such residue, nor do they explain to the jury what background samples are, Brun’s question was an improper one. and one that likely misled he jury into believing that gun shot residue was found on the clothes. especially given the timing of his question. It appears from the transcript that Whisenand and the State sought to suggest to the grand jury that background sample was gunshot residue. IV. Conclusion When the misleading testimony is taken together with the State’s erroneous insistence that gun shot residue was found on the clothes. Defendant submits, that his due process rights were violated. Absent the State’s false and misleading information and evidence, Defendant ‘may well not have been indicted for first degree murder. Due to the prosecutorial grand jury misconduct, this Court should exercise its discretion and dismiss the indictment against Defendant with prejudice. See, Hunter, 298 IllApp.3d at 232-33. Defendant submits that, at the very least, this Court should hold an evidentiary hearing on the allegations contained herein.Respectfully Submitted, Richard Wanke By: Sami Azhar, one of his attorneys Sami Azhari ‘Azhari LLC 3601 Algonquin Road Suite 716 Rolling Meadows, Illinois 60008 i Phone: (847) 255-2100 Atomey No: 6294661 ‘Cah LLC\Clcns\Wanke,RichardMotion Dismiss ndiament 5.2.14 doen10 . 12 13 u4 15 16 17 18 19 20 21 22 23 24 appearance of being recently washed? A, That's correct. Q. Also, those items were sent to the Illinois State Police Crime Lab for investigation? A. Yes, they were. Q. First of all, were those items tested for possible gunshot residue? . Yes, they were. Q. Are you familiar with a report from Illinois State Police Crime Lab, December 10, 2008, which indicated they did, in fact, detect particles characteristic of background samples on the clothing in that bag and the clothing including a hat that was included in that bag? A. Yes, that's correct. 0. Further, were those items sent to the Illinois State Crime Lab for DNA analysis? A. Yes, they were. Q. Directing your attention to a Crime Lab report dated June 16, 2008 from one Amanda Soland, S-o-l-a-n-d, forensic scientist. Did she, in fact, identify DNA on the hat, a jacket, and a jacket collar from the property or clothing that was included in that bag?10 1 12 13 a4 15 16 17 18 19 20 21 22 23 24 be excluded. MR. BRUN: | Any other questions? A JUROR: I have a question. Did you find the gun? THE WITNESS: No, we have not. A JUROR: But there was residue on the clothes that a gun had been used? MR. BRUN: There were particles -- the way the lab report and the testimony was presented, there were particles consistent with gunshot residue. So, yes, that's correct. A JUROR: Was he found guilty of his burglary? MR. BRUN: Sir, I would caution that that is not relevant to what is presented here. However, the testimony as presented, the dates that we presented on the court dates were sentencing dates so, yes. A JUROR: I was trying to figure out why it took six years to present this evidence. MR. BRUN: Sir, again, I would ask that you look at the evidence presented. As always, there is ongoing investigations and various theories behind it. A JUROR: This may be irrelevant but at the sentencing would anything a lawyer had said or done at 4808-01(a.9 ILLINOIS STATE POLICE J of Cc Division of Forensic Services 0 Forensic Science Center at Chicago 1941 West Roosevelt Road orm nina nas 0608-1229 33-8000 (Voice) * 1-800) 255-3323 (TDD) i G. Treat ee a ‘December 10, 2008 ee LABORATORY REPORT DET. REGEZ ROCKFORD PD PUBLIC SAFETY BUILDING 420 WEST STATE STREET ROCKFORD, IL 61101 Case #R08-000815 ‘Agency Case # 08-016204 SUPPLEMENTAL REPORT OFFENSE Murder SUSPECT Richard B, Wanke VICTIM — Gregory H. Clark “The following evidence was received by the Forensic Scieace Center at Chicago on February 15, 2008: Exhibit 6A contains particles characteristic of background samples. Exhibit 6B contains particles characteristic of ‘background samples: Exhibit 6C contains particles characteristic of background samples. Exhibit 6D is similar to an adbesive blank. ‘The following evidence was received by the Forensic Science Center at Chicago on October_10, 2008: EXBIBIT. — DESCRIPTION 6A One (1) SEM/GSR sample from the upper lid of cap. eB One (1) SEM/GSR sample from the lower lid of cap. | 6c One (1) SEM/GSR sample from the | outside of cap. © One (1) SEM/GSR room control sample. EXE. (o} 7 (One (1) sealed bag identified as containing a pair of jeans, B One (1) SEM/GSR sample from the inside frout right pocket. oo One (1) SEM/GSR sample from the inside front left pocket. Wank Richard fae FINDINGS POSR samples were taken and examined by scanning electron microscopy. \ Exhibit 7B contains particles characteristic of background samples. Exhibit 7C contains particles characteristic of background samples.: 08- O16 20F * ROCKFORD PD a 06 Laboratory Case #208-000815 2 ‘December 10, 2008 EXWBIT. DESCRIPTION 7D One (1) SEMIGSR sample from the Exhibit 7D contains particles characteristic of inside back right pocket. background samples. B One (1) SEM/GSR sample from the Exhibit 7E contains particles characteristic of F (One (1) SEM/GSR room control Exhibit 7F i similar to an adhesive blank. sample. “The following evidence was received by the Forensic Science Center at Chicago on October 10, 2008: EXMBI ~—DESCRIFTION — FINDINGS . 9 ‘One (1) sealed bag identified as ‘PGSR samples were taken and examined by ‘containing a black denim jacket. scanning electron niicroscopy. “The following evidence was received by the Forensic Science Center at Chicago on February 15, 2008: EXHIBIT, —DESCRIPTION EINDINGS . ‘9A ‘One (1) SEM/GSR sample from the Exhibit 9A contains particles characteristic of right cuff of jacket. ‘background samples. SB ‘One (1) SEM/GSR sample from the Exhibit 9B contains particles characteristic of left cuff of jacket. background samples. 9c ‘One (1) SEM/GSR room control ‘Exhibit 9C is similar to an adhesive blank. sample. “The following evidence was received by the Forensic Science Center at Chicago on October 10, 2008: EXHIBIT. DESCRIPTION EANDINGS 9B ‘One (1) SEM/GSR sample from the ‘Exhibit 9E contains particles characteristic of inside right pocket. background samples. oF ‘One (1) SEM/GSR sample from the Exhibit 9F contains particles characteristic of inside left pocket. ‘background samples. 9 ‘One (1) SEM/GSR room control ‘Exhibit 9G is similar to an adhesive blank. sample. ‘The following evidence was received by the Forensic Science Center at Chicago on October 10, 2008: DESCRIPTION FINDINGS 10 ‘One (1) sealed bag identified as GSR samples were taken. ‘containing clothes recovered from Richard Wanke.* ROCKFORD PD Laboratory Case #RO8-000815 + Exar ‘DESCRIPTION 10, (ne (1) sealed bag identified as 1a pair of black gloves recovered from Richard Wanke. 10A1 One (1) SEM/GSR sample from the right glove. 10A1A One (1) SEM/GSR sample from the inside back of right glove. 10a2 One (1) SEM/GSR sample from the Teft glove. 10A2A. One (1) SEM/GSR sample from the inside back left glove. 103 ‘One (1) SEM/GSR room coatrol sample. 108 ne (1) sealed bag identified as containing a "RVC Tennis" jacket recovered from Richard Wanke. toc One (1) sealed bag identified as containing a pair of tan pants recovered from Richard Wanke. 10D One (1) Sealed bag identified as containing a blue "gateway" shirt recovered from Richard Wanke. 108, (One (1) sealed bag identified as containing a black long sleeve t-shirt recovered from Richard Wanke. 10F One (1) sealed bag identified as containing a dark blue/gray jacket recovered from Richard Wanke. 106 One (1) sealed bag identified as containing a pai of black boots recovered from Richard Wanke. 10H One (1) sealed bag identified as containing a pair of thermal underwear recovered from Richard Wanke. Wart, Rina pcre 08-616 204 3 fb ‘December 10, 2008 EINDINGS ‘Two (2) samples were examined by scanning clectron microscopy. Previously examined, Exhibit 1OAIA contains particles characteristic of background samples. Previously examined. Exhibit 10A2A contains particles characteristic of background samples. Previously examined. Not examined. ‘Not examined. Not examined. ‘Not examined. Not examined. - Not examined. Not examined.* ROCKFORD PD Laboratory Case #R08-000815 + EXHIBIT —DESCRIPTION 101 ‘One (1) sealed bag identified as containing a gray hat recovered from Richard Wanke, ton One (1) SEM/GSR sample from the outside rim of hat. 102 ‘One (1) SEM/GSR sample from the inside rim of bat. 103 ‘One (1) SEM/GSR room contro) ‘sample. 15 One (1) sealed bag identified as 2- DG 204 08 we December 10, 2008 s FINDINGS PGSR samples were taken and examined by ‘scanning electron microscopy. Exhibit 1011 contains particles characteristic of background samples. Exhibit 1012 contains particles characteristic of background samples. ‘Exhibit 1013 is similar to an adhesive blank. PGSR samples were taken and examined by containing a black "Bugle Boys" denim scanning electron microscopy. jacket. ‘The following evidence was received by the Forensic Science Center at Chicago on February 29, 2008: 15A 1sB isc DESCRIFTION ‘One (1) SEM/GSR sample from the right cuff of jacket. One (1) SEM/GSR sample from the left cuff of jacket. ‘One (1) SEM/GSR room control sample. INGS Exhibit 15A contains particles characteristic of background samples. Exhibit 15B contains particles characteristic of ‘background samples. Exhibit 15C is similar to an adhesive blank. ‘The following evidence was received by the Forensic Science Center at Chicago on October 10, 2008: 15E 1SF 1sg ISH DESCRIPTION. One (I) SEM/GSR sample from the interior right inside pocket. ‘One (1) SEM/GSR sample from the {interior left inside pocket. One (1) SEM/GSR room control sample. One (1) SEM/GSR sample from the exterior right inside bottom pocket. woroee NGS Exhibit 15B contains particles characteristic of background samples. Exhibit 1SF contains particles characteristic of background samples. Exhibit 15G is similar to an adhesive blank. Exhibit 1SH contains particles characteristic of ‘background samples.* ROCKFORD PD Laboratory Case #R08-000815 ‘EXHIBIT DESCRIPTION 1ST One (1) SEM/GSR sample from the exterior left inside bottom pocket. DB olbre4 ‘The following evidence was received by the Forensic Science Center at Chicago on October 10, 2008: DESCRIPTION 17 (One (1) sealed bag identified as containing a black wash cloth. 18 (One (1) sealed bag identified as containing a pair of gloves. 18a, One (1) sealed bag identified as containing a right glove. BAL ‘One (1) SEM/GSR sample from the outside back of glove. 18az ‘One (1) SEM/GSR sample from the inside back of glove. 1803, One (1) SEM/GSR room control sample. 18a4 One (1) swabbing of glove. 188 One (1) sealed bag identified as containing a left glove. 1881 ‘One (1) SEM/GSR sample from the outside back of glove. 1882 ‘One (1) SEM/GSR sample from the inside back of glove. 1883 One (1) swabbing of glove. 9 One (1) sealed bag identified as containing swabbings of vehicle. 194 One (1) sealed bag identified as containing a seat swabbing recovered from a vehicle, Wianke, Richard screze 5 EC ‘December 10, 2008 ED Exhibit 151 contains particles characteristic of background samples. EINDINGS ‘Not examined. PGSR samples were taken. PGSR samples were examined by scanning electron microscopy. ‘Exhibit 18A1 contains particles characteristic of background samples. Exhibit 18A2 contains particles characteristic of ' background samples. Exhibit 18A3 is similar to an adhesive blank. ‘Not examined, PGSR samples were examined by scanning electron microscopy. Exhibit 18B1 contains particles characteristic of | background samples, Exhibit 18B2 contains particles characteristic of ‘background samples. ‘Not examined. PGSR samples were taken. PGSR samples were examined by scanning electron microscopy.* ROCKFORD PD Laboratory Case #RO8-000815 & EXHIBIT. — DESCRIPTION 19AL ‘One (1) SEM/GSR sample from the seat swabbing. 192 One (1) SEM/GSR room control sample. 198 ‘One (1) sealed bag identified as. containing a seat belt swabbing recovered from a vehicle. 1981 ‘One (1) SEM/GSR sample from the seat belt swab. Exhibit 1942 is similar to an adhesive blank. PGSR sample was examined by scanning electron microscopy. ‘Exhibit 19B1 contains particles characteristic of background samples. CONCLUSIONS: ‘The results of Exhibits 6A through 6D, 7, 9, 10A, 101, 15, 18 and 19 indicate that the sampled areas may not have contacted a PGSR related item or may not have been in the environment of a discharged firearm. Ifthey were, then the particles were not deposited, were removed by activity, or were not detected by the procedure. lease see this analyst's report dated March 1, 2008. (TION: ‘The above exhibits will be returned to the submitting agency. ce: Rockford Forensic Science Laboratory WINNEBAGO CO SA ‘Sgt Felton-ROCKFORD PD Chicago Case File C08-006708 Wants, Renard aceon] Respectfully submitted, My) Mary Wong Forensic Scientist