STATE OF ILLINOIS —— COUNTY OF WINNEBAGO peenpoe ‘Winnabege Coury, i, PEOPLE OF THE STATE OF ILLINOIS, ) ) Plaintiff, ) ) Case No, 2014 CF 922 v. ) ) RICHARD WANKE, ) ) Judge Rosemary Collins Defendant. ) Mt ON. JASH SUBPOENA. TESTIFY ‘Subpoena Respondent, MARY WONG, by and through her attorney, LISA MADIGAN, the Ilinois Attorney General, respectfully move this Court to quash a Subpoena (“Subpoena”) for her testify. The following is stated in support of this Motion: BACKGROUND L ‘On or about June 13, 2014, the Defendant’s attorney faxed and mailed Illinois State Police (“ISP”) forensic scientist MARY WONG a Subpoena commanding her to testify in the above referenced case on July 1, 2014, at 9:00 a.m, (See Subpoens, attached hereto as Exhibit A.) 2. Said Subpoena and return on said Subpoena were not filed with the Winnebago ‘County Circuit Clerk’s Office. 3. Defendant attached Mary Wong’s lab report to his Motion to Dismiss the Indictment, (See attached copy of the Motion to Dismiss along with his Exhibit B- Mary ‘Wong's forensic lab report). 4, Among other things, Ms, Wong’s report findings indicate she found particles of ‘gunshot residue on clothing items recovered and worn by the defendant at the time victim, Greg Clark, was shot and killed, 5. _ Upon information and belief, Defendant has subpoenaed Mary Wong to testify in connection with Defendant's Motion to Dismiss the Indictment which is set at 9:00 a.m. on July 1, 2014 before the Honorable Rosemary Collins. 6. Upon information and belief, the purpose of Mary Wong being subpoenaed to testify is to challenge the sufficiency of the evidence considered by the grand jury in their indictment of defendant.| | ARG TS A, Procedural Deficiency of Subpoena 5. _ Local Rule 5.01B. of the Seventeenth Judicial Circuit Court provides in pertinent part that in criminal cases “any subpoenas issued in a criminal case, as well as the returns on those subpoenas, must be filed with the Clerk {Winnebago County Circuit Clerk] and notice ‘given to parties of record.” (See Seventeenth Judicial Circuit Court Local Rulle 5.01B., attached hereto as Exhibit C.) 6. Defendant's Subpoena is procedurally deficient as the Subpoena and the return of the Subpoena was not filed with the Winnebago County Circuit Clerk’s Office as provided for in Local Rule 5.01 B. B, Substantive Deficiencies of Subpoena 7. The grand jury determines whether probable cause exists that an individual has committed a crime, thus warranting a trial, 725 ILCS 5/112-4 (West 1994); People v. Fassler, 153 Ill.24 49, 60 (1992). 8, Pursuant to statute, the grand jury proceedings are conducted in secrecy. See 725 ILCS 5/112-6 (West 1994). 9. Challenges to grand jury proceedings are limited. In general, a defendant may not challenge the validity of an indictment retumed by a legally constituted grand jury. People v. Rodgers, 92 Ul.2d 283, 287 (1982). 10, _ A defendant may not seek to challenge the sufficiency of the evidence considered by a grand jury if some evidence was presented. People v. J.H., 136 Ill.2d 1, 17-18 (1990). 11, _ In reviewing challenges to an indictment, courts will generally limit consideration to the transcript of the grand jury proceedings. Linzy, 78 Ill.2d at 109; People ex rel, Sears v. Romiti, 50 Il1.2d 51, 59 (1971); People v. DiVincenzo, 183 Ill, 2d 239, 254-55 (1998). 12, The second district appellate court in in People v. West, 102 Ill.App.3d 50 (2™! Dist. 1981), reiterated the test established by the United States Supreme Court, in United States y, Nixon, 418 U.S. 683 (1974) when determining whether the issuance of a pre-trial subpoena is required by the Sixth Amendment of the United States Constitution: “... the moving party must show: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure 10 obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general fishing expedition.” Id, at 698.13, The tral judge’s inquiry into the grand jury testimony is limited to a search for “any evidence” connecting defendant to the offense. The judge is not authorized “to inquire into the competency or adequacy of the evidence to support the indictment nor to recognize and act ‘upon any defenses which may exist to the indictment under the evidence presented.” People v Lightnerm 145 Mll.App.34 741 (2° Dist. 1986). 14. Given the Nixon and Lighterm cases, Ms, Wong’s lab report speaks for itself and there is no reason Defendant should be allowed to subpoena Mary Wong in his motion to dismiss the indictment, 15. Therefore, based on the procedural deficiencies of the Subponea not meeting Local Rule 5.01 B the Subpoena and the best evidence of the grand jury transcript this Subpoena should be quashed. WHEREFORE, for the foregoing reasons, the Illinois Attomey General’s Office respectfully requests this Honorable Court enter an Order quashing Defendant's Subpoena for Mary Wong to testify. Respectfully submitted, 5 p (2 , LISA MADIGAN LLOYD FPERLOW ‘Attomey General of Illinois Assistant Attorney General Attorney # 6212070 General Law Bureau 100 W. Randolph, 13 Floor Chicago, Illinois 60601 312-814-5165LED STATE OF ILLINOIS owe. io fe IN THE CIRCUIT COURT OF THE 17™ JUDICIAL CIRC mne of Xi, COUNTY OF WINNEBAGO Ger of the or doe PP vonn PEOPLE OF THE STATE OF ILLINOIS, ) Winnebago Coury, » Plaintiff, ) ) Case No. 2014 CF 922 v. ) ) RICHARD WANKE, ) ) Judge Rosemary Collins Defendant. ) AMENDED MOTION TO QUASH SUBPOE! TESTIFY | Subpoena Respondent, People of the State of Illinois, by its attorneys, Joseph P. | Bruscato, State’s Attorney for Winnebago County, Illinois, and John P. Giliberti, Assistant State's Attorney, respectfully moves this Court to quash a Subpoena (“Subpoena”) for Deputy State’s Attorney James Brun to testify. The following is stated in support of this Amended Motion: BACKGROUND 1. Onorabout June 13, 2014, the Defendant’s attomey faxed and mailed Winnebago County Deputy State’s Attomey (“DSA”) James Brun a Subpoena commanding him to testify in the above referenced case on July 1, 2014, at 9:00 am. (See Subpoena, attached hereto as Exhibit A.) 2 Said Subpoena and return on said Subpoena was not filed with the Winnebago County Circuit Clerk’s Office. 3. _ Upon information and belief, Defendant has subpoenaed DSA Brun to testify in connection with Defendant's Motion to Dismiss the Indictment which is set at 9:00 a.m. on July 1, 2014 before the Honorable Rosemary Collins. 4. _ In Defendant’s Motion to Dismiss the Indictment, the Defendant attaches the pages of the grand jury transcript in the above referenced case, in which he alleges DSA Brun misled the grand jury. (See Defendant's Motion to Dismiss the Indictment, attached as Exhibit B) 5. In the State’s Response to Defendant's Motion to Dismiss the Indictment, the ‘State attaches the complete transcript of the grand jury proceedings. 6. DSA Brun is not a witness to the case and is prosecutor currently assigned to prosecute the above referenced case.ULE 5.01 SUBP' .OCESS — WINNEBAGO COUNTY 7, Local Rule 5.01B. of the Seventeenth Judicial Circuit Court provides in pertinent part that in criminal cases “any subpoenas issued is a criminal case, as well as the returns on those subpoenas, must be filed with the Clerk {Winnebago County Cireuit Clerk] and notice given to parties of record.” (See Seventeenth Judicial Circuit Court Local Rule 5.01B., attached hereto as Exhibit C.) VIEW) S TO AN INDICTMENT. 8. The grand jury determines whether probable cause exists that an individual has committed a crime, thus warranting a trial. 725 ILCS 5/112-4 (West 1994); People v. Fassler, 153 Ill 2d 49, 60 (1992). 9. _ Pursuant to statute, the grand jury proceedings are conducted in secrecy. See 725 ILCS 5/112-6 (West 1994), 10. Challenges to grand jury proceedings are limited. In general, a defendant may not challenge the validity of an indictment returned by a legally constituted grand jury. People v. Rodgers, 92 Ill.2d 283, 287 (1982). 11, The State's Attorney's office plays a substantial role in the grand jury proceedings and serves as advisor to the grand jury. People v. Linzy, 78 Il.2d 106, 110 (1979). 12, Prosecutors inform the grand jury of the proposed charges and the pertinent law. See 725 ILCS 5/112-4 (West 1994). 13, A defendant may not seek to challenge the sufficiency of the evidence considered by a grand jury if some evidence was presented. People v. JH, 136 Ill.24 1, 17-18 (1990) 14. A defendant may, however, challenge an indictment that is procured through prosecutorial misconduct. Fassler, 153 Ill.2d at 58. 15, _ Inreviewing challenges to an indictment, courts will generally limit consideration to the transcript of the grand jury proceedings. Linzy, 78 Ill.2d at 109; People ex rel. Sears v. Romiti, 50 Il.2d 51, 59 (1971); People v. DiVincenzo, 183 Ill. 2d 239, 254-55 (1998). STANDARDS ON QUASHING SUBPOENAS 16. The second district appellate court in in People v. West, 102 Ill App-3d 50 (2"¢ Dist. 1981), reiterated the test established by the United States Supreme Court, in United States v. Nixon, 418 U.S. 683 (1974) when determining whether the issuance of a pre-trial subpoena is required by the Sixth Amendment of the United States Constitution: “... the moving party must show: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of 2due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general fishing expedition.” Id. at 698. ARGUMENT 17. Defendant's Subpoena is procedurally deficient as the Subpoena and the return of the Subpoena was not filed with the Winnebago County Circuit Clerk's Office as provided for in Local Rule 5.01 B. 18. There is no need for the Court to hold an evidentiary hearing on the Defendant's Motion to Dismiss the Indictment as the grand jury transcript is the best evidence of what DSA Brun said to the grand jury. DiVincenzo, 183 Ill. 24 239 at 254-256 (defendant unsuccessfully argued in the alternative that he was entitled to an evidentiary hearing to determine if there was prosecutorial misconduct before a grand jury.) 19. _ In federal court, the defendant bears a “heavy burden” to obtain an evidentiary hearing on a motion to dismiss an indictment based on alleged prosecutorial misconduct. U.S. v. Boender, 691 F.Supp.2d 833, 843 (N.D. Ill. 2010). 20. — The Defendant has not met his burden to show why the testimony of DSA Brun is evidentiary and relevant to determine his Motion to Dismiss the Indictment. 21. The Defendant has not met any of the four criteria in U.S. v, Nixon, 418 U.S. at 698, 22, The trial judge’s inquiry into the grand jury testimony is limited to a search for “any evidence” connecting defendant to the offense. The judge is not authorized “to inquire into the competency or adequacy of the evidence to support the indictment nor to recognize and act upon any defenses which may exist to the indictment under the evidence presented.” People v. Lightnerm 145 Ill.App.3d 741 (2 Dist. 1986). 23, Allowing evidentiary hearings on grand jury proceedings would not only cause great delay but also set a precedent that before a trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. See People ex rel. Sears v. Romiti, 50 Ii, 2d at 55, in reversing a trial court’s ruling to conduct a hearing to receive the testimony of grand jurors concerning charges that related to the demeanor of a prosecutor while examining witnesses before the grand jury and to the quality of his argument or advice to them, quoting Mr. Justice Black in Costello v. United States, 350 U.S. 359, 363 (1956). 24. Moreover, the testimony sought from DSA Brun, who is currently prosecuting the Defendant's case, is privileged as work product which under Illinois Supreme Court Rule of Criminal Procedure 412(j) is not subject to disclosure. 25. Therefore, based on the procedural deficiencies of the Subponea not meeting Local Rule 5.01 B, the best evidence of the grand jury transcript, Defendant not meeting any of 3the criteria in U.S. v. Nixon and the work-product doctrine, the Subpoena should be quashed. WHEREFORE, for all the reasons set forth above, Winnebago County State’s Attorney Joseph P, Bruscato respectfully requests that this Honorable Court enter an Order quashing Defendant’s Subpoena for Deputy Assistant James Brun to testify. Respectfully submitted, ‘Assistant State’s Attomey Prepared By: JOHN P. GILIBERTI Assistant State's Attomey ‘Winnebago County State’s Attomey's Office Courthouse Building, 400 West State Street Rockford, Illinois 61101 Tel: (815) 319-4700PROOF OF SERVICE ‘The Undersigned states that he served the foregoing document, Amended Motion to ‘Quash Subpoena For Trial, upon the within named: Attomey Sami Azharti ‘Azhari LLC 3601 Algonquin Road Suite 716 Rolling Meadows, Illinois 60008 e-mail: SAZHARI@AZHARILLC.COM by electronically mailing (e-mailing) a true and accurate copy of said document to Attorney Sami Azhari at SAZHARI@AZHARILLC.COM at or about the hour of 12:00 o’clock p.m. on the 22nd day of June, 2014. John P. Giliberti John P, Giliberti ‘Assistant State’s Attorney ‘Winnebago County State’s Attomey’s Office Courthouse Building 400 West State Street, Room #804 Rockford, Illinois 61101 Telephone: (815) 319-4799