ts STATE OF ILLINOIS IN THE CIRCUIT COURT OF THE 17" JUDICIAL CIRCUIT COUNTY OF WINNEBAGO People of the State of Illinois ) ) Plaintiff, ) ) No. 2014-CF-922 vs. ) i FILED RICHARD E. WANKE, ) Bate: 27 ) te: L2G 1) of Defendant. ) c MOTION TO SUPPLEMENT DEFENDANT'S 12/12/14 MOBLON ie & 12/15/14 ARGUMENT Winnebago County, iL = ‘The Defendant, Richard Wanke, pro se hereby moves to supplement the 12/12/14 motion, and 12/15/14 argument which his counsel, public defender Derrick Schmidt presented on his behalf. After delaying three months to prepare for argument, his public defender's motion and 12/15/14 argument are too weak and inadequate to properly represent Defendant's interests. The Defendant is not well-equipped to represent himself knowledgeably on this motion, but his counsel's actions compel Defendant to state the following: 1, From the outset of his appointment to Defendant as counsel on 9/18/14, Defendant made it clear to attomey Schmidt, that Defendant first needed to know whether or not he has a conflict in representing him. Defendant advised attorney Schmidt, that the delays and severe harm he has experienced to date as a result of representation by conflicted counsel leaves him unable to confide any privileged information to or trust any attorney to represent him on the charges in this ease who may be conflicted; especially without his knowledge or waiver. Defendant advised attomey Schmidt that he needed to make declaring his conflicts to the Defendant his first priority in assuming the case. 2. Since 9/18/14, the Defendant directly, and via his then Power-of-Attomey, Diane Chavez have put continuing pressure on attomey Schmidt to declare his conflicts to the Defendant and resolve the issue, They made repeated verbal requests and sent written letters and emails to attorney Schmidt, The Defendant also revised his pro se motion regarding conflict several times. The Defendant's doesn't want to air matters of attorney-client privilege (and he is not comfortable enough in their professional relationship to even be in the position to have imparted any to his counsel), but attaches one letter and one email (Exhibit A) sent to attorney Schmidt as examples to show how he requested disclosure of conflict from counsel from the outset and has continued to communicate to him his expectations of the quality of representation from counsel on this issue. Defendant can produce, if required, at least seven other emails and additional letters sent to attorney Schmidt and Winn PD since his appointment which are similar. 3. Attorney Schmidt has failed to comply to Defendant's request that he declare conflicts to the Defendant and the Court; except on October 23, 2014, when he told Defendant outright, that he will not disclose any of his associations to him, Consequently, the Defendant has been forced to operate to this point under the assumption that his counsel is conflicted which constrains his interactions with counsel. 4, Attorney Schmidt wants to keep Defendant's case because he regards it as a winner, and told him so early on. Defendant has come to presume that this self-interest is the reason why attorney Schmidt refuses to declare and provide any information on his associations to him, because his counsel is conflicted; and often enough in this case finds himself and his office being conflicted and wishes to avoid having to declare those conflicts or be in 1the position of having to lie in order to keep Defendant's case. 5. Defendant asserts that the reason for the substandard motion and argument on his behalf which counsel presented to the Court on 12/15/14, is that attorney Schmidt’s legal performance and representation of the Defendant is already significantly impaired by a myriad of conflicts. Schmidt just doesn’t seem to be able to come out and declare straight out that he is conflicted or request removal from the case as he should. 6, Counsel's 12/12/14 motion either omits mention or downplays most of the reasons how and why he is conflicted with the- Defendant. Yet, even he cannot avoid admitting that conflict is probably on the horizon for him if fg continues to represent the Defendant. Point nine of his motion concerns former Winn PD Kris Carpenter. Attorney Schrgidt has acknowledged that he is a personal friend of attorney Carpenter. He worked with her in the Winn PD’s office and possibly worked cases with her as well. He concedes that if he needs to present her as a witness or even simply interview her, he will be conflicted. He also states she is friends with many other current Winn PD's. Those staff would naturally be inclined to sympathize with her experience if she is critically questioned by him or called as a witness to recount or defend any of her actions in 2008 which harmed the Deferidant. 7. The State may assert that it will not call Carpenter as a witness and that will not resolve the issue. Attorney Carpenter is a valuable witness for the defense in any foreseeable defense strategy; whether at trial or used in another capacity. Discovery makes it more and more apparent the State lacks any direct, independent evidence connecting the Defendant to the Clark murder. No DNA, no gunshot residue, no forensic evidence; nothing except claimed identifications of the Defendant under less than optimal weather conditions by several witnesses ‘whose identifications of the Defendant were not even arrived at independently. 8. Attomey Schmidt mentions that Carpenter's information is also the basis for every search warrant authorization he has seen in the case, Consequently, Carpenter is a valuable witness for any pre-trial motions the defense will consider for dismissal or suppression motions, as well as at trial as an example of the “smoke and mirrors” the State’s evidence in the case consists of. Attorney Schmidt also had to concede in response to the Court’s question as to who the unidentified individual in the Winn PD’s office was who contacted SA Margie O’Conner in 7/2008 regarding snitch Rodney Russell’s information claiming to link the Defendant to the Clark murder; that the likelihood is that it was attorney Carpenter, as she was his PD in 2008. Carpenter's case participation simply cannot be avoided by the defense and raises a future conflict to both attorney Schmidt and the Winn PD’s office as a whole. 9, In People v. Franklin (1979), 75 lll.2d 173, 25 Ill.Dec. 809, 387 N.E.2d 685. our supreme court noted: This court has repeatedly stated that a defendant's fundamental right to effective assistance of counsel entities the person represented to the undivided loyalty of counsel and prohibits a defense attorney from representing conflicting interests or undertaking the discharge of inconsistent obligations. [Citations.] In furtherance of this fundamental right, this court has adopted a perse rule which provides essentially that where defense counsel is involved in an actual or potential conflict of interest, it is unnecessary for the defendant to establish actual lice, as prejudice is presumed by law." (Franklin. 75 Ill 2d at 176,25 III_Dec. 809, 387 N E 2d at 686. The conflict of interest in Franklin involved conflicting professional commitments. Schmidt's 12/12/14 conflict motion describes his and the Winn PD's office’s various conflicting professional commitments. Regarding Kris Carpenter; Schmidt has conflicting professional commitments and the incentive as both a personal friend and employee to avoid embarrassing his friend, and his employer, the Winn PD's office, and himself by any information he may solicit when dealing with Carpenter. He will automatically be inclined to handle her more ‘gently than may be warranted in order to obtain the type of testimony from her otherwise required to protect Defendant's interests in his duty as his professional advocate. Schmidt will face similar sequential and mounting 2* conflicts when he has to decide whether or not to interview, question, or call as witness any of the many members of the local legal and law enforcement communities who are or will be considered witnesses or participants in this case; including his supervisors in the Winn PD. Schmidt has not demonstrated to Defendant that he is capable of speaking truth to power. The stronger and more automatic responses he has shown Defendant are avoidance and omission; such as his motion and argument show. 10. Schmidt told the Court that his professional commitments to the Winn PD’s office and role as it's employee also hamstring his ability to communicate in this case as required to fulfill his professional commitments to the Defendant. Attorney Schmidt states in point eleven of his motion that he first, “cannot be sure who he can talk to in his office regarding this case because he does not know who has individually, actively worked against the Defendant's interests.” Which should mean that, even at this early stage, if he is strictly complying with the limitation, Schmidt isn't and can’t discuss the case with anyone; not even Doll as supervisor, and he can't even have Faukner as his investigator. To maintain his commitment to Defendant, Schmidt must work in isolation on the case right now; which is clearly impossible, or else, at least, immediately request the authorization of an outside investigator. Second, he already knows that he cannot talk to Chief Public Defender, Karen Sorensen, or assistants Frank Perri or Margie Connor about the case because they are already each clearly conflicted with the Defendant. Yet, attomey Schmidt is professionally committed at the same time to secure for the Defendant the resources within the Winn PD required for his defense; even if itis advice, supervision, or some other assistance controlled by one of these individuals. Schmidt's split in professional commitments only conflict him because he is employed by the Winn PD’s office and representing the Defendant at the same time and will continue to do so as long as he remains caught in the same position. 11. Schmidt's final comments to Judge Collins show counsel perceives the divide in his professional commitments and that he is ruled by it but is firmly unwilling to publicly acknowledge the matter for what itis; at times per se conflict, actual conflict, but conflict nonetheless: ‘..Mr. Doll argued that he, himself, had spoke with Ms. Sorensen and the possible issues that could be--you know, at this point, I still see Doll as, you know, my supervisor in this case. I did go to him with the motion. I do feel an obligation at any time my boss's name is bought up on a motion, that he be at least aware of it. Now, does that you know, is that a subtle influence, the fact that I have to do that, that I feel that I am worrying about them also and the office as a whole? You know, it's something I have thought about and spoke with Mr. Wanke about...", (19/12/14 Case Transcript, page 13, Exhibit C)”. 12. Schmidt's entire motion and argument hedges throughout on naming actions as conflict and people such as himself conflicted. Why must Schmidt beg the question of conflict from the Court? Why can he not draw the conclusion and say above, "Doll's argument that he spoke with Ms. Sorensen about the possible issues and the case show that he himself is conflicted, and that, therefore I by way of review of the motion with him am also conflicted? And, that compulsion I have to act in this manner and to worry about these things is the result of the subtle influences in connection with that conflict." “ The circumstances here are such that an attorney cannot properly serve two masters.*** {H}is {defendant's} right to counsel under the Constitution is more than a formality, and to allow him to be represented by an attomey with such conflicting interests as existed here without his knowledgeable consent is litle better than allowing him no lawyer at all.***This situations is too fraught with the dangers of prejudice, prejudice which the cold record might not indicate, that the mere existence of the conflict is sufficient to constitute a violation of {defendant's} rights whether or not it in fact influences the attorney or the outcome of the case.’”Stoval, 40 IL2d at 112-13, quoting United States v. Myers, 253 F. Supp.55,57 (E.D. Pa.1966)(Exhibit D). Stoval and Schmidt's own words identify him as per se conflicted in his professional commitments, 13. Contrary to the State’s assertions, Attomey Schmidt's per se conflicts are current; not in the past, and will continue to churn out additional conflicts to trip the case up. His motion explores just the associations within the 3‘Winn PD's office and the associations counsel is either known or anticipated to have. What happens shortly down the line when the associations with judicial staff, private counsel, law enforcement and a host of other private citizens enters the equation of conflict? Attorney Schmidt’s dithering around with his initial determination of conflict over the past three months has already directly and single-handedly harmed the Defendant in this case by unnecessarily extending this proceeding. Attomey Frank Perri did better with his motion and argument for withdrawal in just several days, but was not half-hearted in his efforts. The State has used this time extension to cure a major defect in it’s case by eliminating the challenge to the conduct of it’s original Grand Jury proceeding and side-stepping a defense motion to dismiss. Defendant cannot be expected to ignore examination of the issue of potential conflicts or not make a record for a potential appeal as additional persons also shortly begin to figure in the case ahead, so more delay is anticipated. The State already perceives that it can work the inherent delay ahead to it’s advantage to wreak additional havoc on Defendant's defense and so has withdrawn it’s original objection to the representation of the Defendant by Winn PD. 14, Attorney Schmidt's motion also misunderstands a matter important to the Defendant. It states that evidence Defendant requested the Public Defender to preserve for his sentencing on 06CF405 was not preserved. Defendant must clarify that Schmidt information to the Court on 12/15/14 is inaccurate. The materials are much more critical than just anything needed at sentencing. Basically, a huge amount of the evidence needed to support Defendant’s defense and post-conviction claims in 06 CF 405, and also to defend himself in this case as well, was seized by authorities in February 2008, upon Defendant's bond revocation in connection with the Clark murder investigation, and the Defendant has been trying unsuccessfully, not just to “preserve” it, but, also, to get it all back every since. Defendant filed five pro se motions for leave to subpoena the materials on May 30, 2014, in 06 CF 405 between appointed counsel (Exhibit E) detailing the evidence sought. Some of these materials may no longer exist due to the passage of time and the possibility of their destruction. Defendant finally submitted the motions (which have still not been considered by that court) after asking and being unable to get any of his appointed counsel, from Public Defender Karen Sorensen during the week of February 21st, 2008, to his last departed conflict counsel, Michael Phillips, in 2014, to even try to retrieve the materials. The subpoena motions state why some of the materials are time-sensitive and may no longer exist, and how Defendant also attempted to retrieve them himself. 15, Defendant has been determined disqualified from representation by the PD in all his prior cases due to. conflicts for decades with the exception of this case. He was appointed conflict counsel in 91 CF 2202 on October 28, 1991 by Judge Coplan; in case 92 CF 1504 by Judge Coplan, in December 21, 1995, and again by Judge Joseph McGraw in March 2008, till it's dismissal in August 2008. Conflict counsel was also assigned to him in 06 CF 405 from case outset in March 2006, by Judge Vidal and resubstituted upon Clark's death in March 2008 by Judge McGraw. He only became acquainted Greg Clark, in the first place because of Clark's representation of him as his assigned conflict counsel, first in 92 CF 1504, and then in 06 CF 405. Defendant is also still represented by conflict counsel in 06 CF 405. 16. Public Defender Supervisor, Karen Sorensen, identified the Winnebago County Public Defender's Office as having a conflict in representing defendant on February 21 st, 2008, in 06CF40S following the death of Gregory Clark. Sorensen argued her conflict based upon personal associations with the victim and her participation in the preparation of Barbara Brown for testimony at Defendant's sentencing. Sorensen neglected to also mention in 2008, what she must have been aware of at the time: that her office, via a member of her staff (Kris Carpenter) was a participant in the Clark murder investigation, and that the role of her office had the potential to become more involved in the investigation, as it later would. Had Sorensen disclosed this information in 2008; and had it been recorded as such then, the Winn. PD’s office would not have been deemed eligible to be assigned to Defendant’s case presently. 17. Attorney Schmidt fails to mention specific actions of the Winn PD’s office which show actual conflict to Defendant. Chief Public Defender Sorenson and Deputy Public Defender Doll supervise the Winn PD with the responsibility to assign Defendants impartial and competent staff. Doll was derelict in his duty by choosing for 4+ first assignment to defendant's case PD Frank Perri, who was mentored by attorney Clark, and so is possibly the ‘most personally and emotionally conflicted PD in the office that Doll could have chosen to represent the defendant. 18, Both Sorensen and Doll were either aware at the outset or subsequently made directly aware by attorney Peri of the strong nature of Perris conflict in representing defendant. Attorney Perri told the court he consulted both as his supervisors, advised each of them of his conflict, and that both supervisors nevertheless refused to allow him to withdraw from representing the defendant. Their decision to keep Perri on the case was the deliberate disregard of Judge Collins choice for the Winn PD to appoint Defendant un-conflicted counsel and an undefensible disregard by the Winn PD’s of it’s responsibility to protect Defendant's interests. 19, Mr. Perri filed a motion to withdraw due to a personal per se conflict on September 18, 2014. When asked specifically why he sought permission from the Court, Perri disclosed that he was forced to file the motion on his own behalf because the Winn PD’s office (supervisors Sorensen and Doll) was unwilling to voluntarily remove him from the case intemnally and replace him with another. He also stated that he did not have permission to submit a motion for the withdrawal of the Public Defender's office as a whole. 20. The Winn PD's office either completely disregarded the defendant's interests at best or else intended harm to the defendant by first assigning Defendant's case to PD Perri, and then additional harm if it seriously intended attorney Perri to proceed on to actually represent the defendant. PD Perri meets all definitions of being conflicted with respect to the Defendant. The Winn PD abrogated it’s supervisory responsibility to the defendant leaving the Court with no recourse except to do the job it was supposed to do when the Court properly removed Mr. Perry from defendant's representation. 21. These factual circumstances should never have occurred. Chief PD Karen Sorensen’s participation and conduct during the incident occurred after the Court found her conflicted from the case on 9/12/14, and demonstrates that, just as Doll advised the Court on 9/12/114, the Winn PD’s office does not have a mechanism for high-profile case management which enables it in operation to separate out office conflicts regarding supervisory roles and actions: “....’'m the only other supervisor, and it’s not a situation where it’s available for us to say, okay, well, then Karen should stay out of it, Dave you handle that end of it. The reason is that this is a matter of some significance, and it was a matter of discussion ever since the death of Mr. Clark. I have had long and involved conversations with Karen Sorensen involving the case, regarding Mr. Wanke, and regarding the other factors that were involved...” 9/12/14 Case Transcript, page 8 Exhibit C). 22, The Court may express its wishes, but the Winn PD operates independent of judicial control, The Winn PD should have instantly perceived the manifestation of its conflict in the incident with PD Perri and quickly moved to withdraw the office as a whole from Defendant’s representation. Instead, the public perception now from what transpired is that a vacuum in supervision within the Winn PD’s office exists such that each public defender remains exposed and compelled to act on their own behalf to protect their own interests in conflict with those of the Defendant. ‘The office of the Winn PD is also per se conflicted for both of the following reasons. 23. It is the general belief that if any client represented by the Winn PD's office requires the services of expert witnesses, public polling, or any other special resources in their defense, that those services can and will be allocated to them by the Winn PD when justified. On the contrary however, the Winn PD like other PD offices (see article, Exhibit F) struggles to provide those special resources to any of it's clients given current budget constraints; even in connection with high-profile cases. Office expenditure information for the Winn PD shows that in 2013 the Winn PD did not allocation any special resources to any client, and in 2014 it hired only one 5