STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT

COUNTY OF WINNEBAGO

THE PEOPLE OF THE STATE )

OF ILLINOIS, )
)
Plaintiff, )
)
vs. ) Case No. 2014—CF—922
)
RICHARD WANKE, ) Motions in Limine
)
Defendant. )
10

11 REPORT OF PROCEEDINGS at the hearing

12 of the above—entitled cause before the CIRCUIT

13 JUDGE ROSEMARY COLLINS, on Tuesday, the 27th day

14 of September, 2016.

15

16 APPEARANCES:

17 MS. MARILYN HITE ROSS, Deputy State's Attorney,

MR. JAMES BRUN and MS. PAMELA WELLS,
18 Assistant State's Attorneys,
Appeared on behalf of the People;
19
MR. NICK ZIMMERMAN and MR. ROBERT SIMMONS,
20 Assistant Public Defenders,
Appeared on behalf of the defendant.
21

22

23

24

Mary S. Gesmer, Official Court Reporter License #84—003200

 THE DEFENDANT: Your Honor, can I have a

moment with my attorneys?

THE COURT: Yes. Do you want to talk to

them in the back?

THE DEFENDANT: Please.

THE COURT: All right.

(Recess taken and proceedings

continued in open court.)

THE COURT: Back on the record on People

10 v. Richard Wanke.

ll Mr. Wanke, I gave you some additional time

12 to speak to your counsel before we started, are

13 you ready to proceed?

14 THE DEFENDANT: Yes, your Honor. Thank

15 you very much.

16 THE COURT: You're welcome.

17 MS. WELLS: Judge, I have one minor thing

18 I can start with. On August llth the Court had

19 made mention of something you wanted the defense

20 attorneys to address in the future. We have a

21 transcript that I'd like to give to the Court

22 because I don't know if the Court feels that's

23 been addressed or not, it was part of the

24 defendant’s pro se issues, so we wanted to provide

 that to the Court. I gave a copy to the defense

counsel. And you can review that and decide what,

if anything, further you feel needs to be done.

THE COURT: Okay. Thank you.

MS. WELLS: You‘re welcome. I marked the

page. Page 56.

THE COURT: I'll review this.

We're here today still on motions in

limine. We passed discussion on the 27th Motion

10 in Limine and so I can hear arguments. Let me

11 just get my notes out and then we'll start with

12 the Amended 27th Motion in Limine. And we can

13 start with the State.

14 MS. HITE ROSS: Thank you, Judge. Marilyn

15 Hite Ross for the People.

16 Your Honor, as we indicate in our Amended

17 27th Motion in Limine, we are seeking leave to

18 admit statements that were made in open court on

19 several dates where we have submitted the

20 transcript to the Court.

21 And basically, your Honor, I know you have

22 read our motion. But brief argument is that we

23 believe that when the defendant alleged that

24 Mr. Clark provided ineffective assistance of

 counsel, that he put that representation in issue

in a public forum, therefore Mr. Clark had a right

to respond and to defend himself against these

allegations under the Rules of Professional

Conduct, specifically Rule 1.6.

In addition, as the Court is aware

throughout the transcripts and the proceedings, at

one point Mr. Clark is hesitant to respond and the

Court indicates that the defendant has raised the

10 issue and the Court wants a response.

11 Specifically we've attached certain documents that

12 were the subject of those discussions in the

13 transcripts.

14 There were numerous letters of

l5 communication that Mr. Clark indicated he had

16 provided to the defendant and the defendant had

17 failed to respond. Mr. Clark specifically gave

18 the Court dates, presented an affidavit. We have

19 attached what we believe are relevant

20 correspondence between the defendant and

21 Mr. Clark, which we again believe were put in

22 issue by the defendant, therefore there is no

23 attorney-client privilege with respect to those

24 documents.
 Furthermore, we believe that since

Mr. Clark had a right to respond to the

allegations, that the waiver of the attorney—

client privilege with respect to Mr. Clark's

statements as well as to the documents that he

referred to were waived. We believe that they

were intentionally waived because of the

defendant's allegations in open court, that they

were fully addressed, that the statements made by

10 Mr. Clark in response to the defendant's

ll allegations should come in as evidence as well as

12 any of those statements made by the defendant as

13 well as any correspondence related to the

14 allegations made by the defendant that were

15 discussed in open court during those proceedings.

l6 And we have provided the Court with three

17 transcripts that relate to those discussions and

18 we would ask that the Court allow that evidence to

19 be admitted. We believe it is relevant, it goes

20 to the very nature of some of the charges that we

21 had filed, that being motive and intent to commit

22 this crime because the defendant did not want

23 Mr. Clark representing him.

24 On at least two occasions Mr. Clark sought

 leave to withdraw from the case basically as a

result of a breakdown in communications as

indicated in the transcripts that we have provided

to the Court, that motion was denied.

And the tenor of the defendant's comments

in court, your Honor, is also to be noted. Where

at one point the Court tells the defendant, quote,

"to settle down," that certainly gives the

inference that those proceedings were contentious,

10 to the point where the Court felt that the Court

11 needed to say that. But it goes to the heart of

12 the matter regarding this defendant's intent and

13 motive to kill Mr. Clark because he did not want

14 Mr. Clark to represent him in the sentencing

15 hearing and in the proceedings before the Court-

16 even after he was convicted in the O6—CF—405 case,

17 because he again alleged that Mr. Clark did not do

18 what he felt he needed to do.

19 And as indicated in the documents that

2O we've provided in the Amended 27th motion, clearly

21 there were communications from Mr. Clark to the

22 defendant, clearly those communications reflect

23 that the defendant was not responding to

24 Mr. Clark‘s letters, was not answering his phone

 calls and was not providing Mr. Clark with timely

information that the defendant wanted Mr. Clark to

present at the sentencing hearing, specifically

there is a letter that we provided to the Court

that references the witness, I believe the

defendant's sister that he wants to come to the

sentencing hearing.

And if the Court will recall, in the prior

transcript that was one of the allegations for

10 getting the original date continued was because

11 the defendant alleged that he had given Mr. Clark

12 this information and Mr. Clark indicated to the

l3 Court he did not have that information.

14 Subsequent to that, I believe there's a letter

15 dated November 6th that we provided to the Court

16 where Mr. Clark specifically states, you know, if

17 you want this witness, this is the information,

18 then you find a subsequent letter that Mr. Clark

19 sent to that witness following that November 5th

20 court date.

21 So we believe that based upon all of the

22 arguments we've submitted in writing, your Honor,

23 based upon the case law, rules of professional

24 conduct and rules of evidence, that the Court

 should allow our motion. Thank you, Judge.

THE COURT: Thank you, counsel.

MR. SIMMONS: First off, your Honor, in

regard to the 27th Motion in Limine, it's our

stance that this type of evidence is not relevant

to the charges at bar.

The type of evidence the State wants to

present —— and I understand if I'm repeating

myself and I apologize.

10 THE COURT: That's okay.

ll MR. SIMMONS: That Mr. Wanke and Mr. Clark

12 had a contentious relationship that may have aired

13 in court is not relevant to the charges at hand,

14 and is not so unique in an attorney—client

15 relationship especially in criminal defense field

16 that the jury will be able to be assisted by this

17 evidence.

18 Our fear frankly is that the jury is going

19 to be mislead. If they're not familiar with how

20 the relationship between a criminal defense

21 attorney and a defendant works, they're going to

22 hear that Mr. Wanke asked the Court to find

23 Mr. Clark's performance fall below a certain

24 standard, that he was ineffective, that's not

 uncommon after a unsuccessful trial, everyone in

court knows that. Our concern is the jury won't

understand that and they're going to draw some

deeper meaning from it.

Same would apply with the motion to

withdraw, it's not completely unheard of, it may

not as common as an ineffective claim but it's not

unheard of. The jury is not going to know that.

And our concern is they're going to be mislead by

10 this evidence and give a deeper meaning than it

ll actually holds so we don't believe this sort of

12 evidence is relevant.

l3 If the Court determines that the evidence

l4 is relevant specifically with the State's 27th

l5 motion, I think we would concede that the

16 statements Mr. Wanke made, if the Court determines

17 it's relevant, the statements Mr. Wanke made in

18 court would not be covered by attorney-client

19 privilege. He clearly made those in an open

20 forum. So we would not have an objection as far

21 as attorney—client privilege as to those

22 statements on behalf of Mr. Wanke.

23 Any response Mr. Clark makes we object to,

24 clearly they're hearsay. We have a 6th Amendment

 10

right to confront the State's witnesses, we will

not have an opportunity to question this witness,

we think that that right is a fundamental right of

a trial and something Mr. Wanke is entitled to do.

So we don't think that any statements Mr. Clark

makes or made in court in those forums on the

various court dates should be admissible.

As far as the statements —— or not

statements, pardon me, the documents that were

10 attached to the Amended 27th, I mean there is

11 quite voluminous, there are a number of letters of

12 various dates from Mr. Clark to Mr. Wanke, we

l3 would ask the Court to determine, to go through

14 whether or not they're relevant. We think as a

15 whole it's not relevant. And these documents are

16 not specific to any dates or conversations, as a

17 whole we feel it would be cumulative.

l8 We already have evidence that's going to

19 be admitted in the form of the cassette which

20 would demonstrate some dispute as far as evidence

21 to be admitted at trial.

22 The State I believe is already going to be

23 allowed to submit the motion to withdraw, to

24 submit the motion for new trial claim ineffective,

 11

at this point any further documents, especially

this number of documents without anything specific

to these dates is cumulative, it's unnecessary.

If the State's point is that there's a

motive or intent for the murder demonstrated by

Mr. Wanke's displeasure with Mr. Clark, that's

covered by the motion for new trial alleging

ineffective, that's covered by the motion to

withdraw, I suppose could be covered by recordings

10 in the microcassette. And then Mr. Wanke's in

11 court, they don't need all these documents. And

12 in addition to that, they're not all relevant.

13 I think if the Court goes through each

14 document, there are letters -— or excuse me, if I

15 could have one moment?

16 THE COURT: Sure.

17 MR. SIMMONS: Just for example, and I

18 don't —— our packets weren't numbered so I don't

19 know which one this is. But the May 4, 2006

2O notice to reminder of a May 10, 2016 court date, I

21 don't know the relevance of that and the attached

22 envelope. Day Reporting Center to Sheila Zerouli,

23 cc Greg Clark, from Tracy Box, and it covers the

24 Day Reporting Center standing of Mr. Wanke at that

 12

time, I don't know the relevance of that.

There's a letter, and again I apologize,

I'm not familiar with which packet discussing some

of the defense strategies of the trial as far as

Mr. Wanke being evaluated by a doctor, clearly not

relevant to this case.

Were there communications between

Mr. Clark and Mr. Wanke? Certainly. Were there

disagreements? We think that's covered by other

10 evidence, adequately covered by other evidence.

11 There is a Winnebago County Sheriff Notice

12 that they're attempting to serve legal paper to

13 Diane Chavez from December 3, 2007. There's a

14 copy of the factors in mitigation from the

15 Illinois Compiled Statute.

16 So we think that in whole these documents

17 are not relevant, we think that they are

18 cumulative, and we ask the Court to go through

19 each document and determine if it's relevant or

2O have the State point out how it's relevant because

21 we don't think it is.

22 These documents, specifically the letters

23 between Mr. Clark and Mr. Wanke and there's some

24 notes that appears from Mr. Wanke about his

 13

meetings with his attorney that are clearly

covered by attorney—client privilege, we don't

think these are waived, our stance is that's not

waived.

Anything that Mr. Clark, excuse me, that

Mr. Wanke said in court is not covered by

privilege. Mr. Wanke —— or excuse me, Mr. Clark,

if there was litigation of the point of

ineffective assistance of counsel, we do think

10 Mr. Clark would have been allowed to go into those

11 areas, he could've testified to those areas, he

12 could have brought in his communications, but that

13 exception is not for what we're dealing with here.

14 This is the defense of a murder case. The

15 State wants to show that there was a contentious

16 relationship, that's established through other

17 evidence. Mr. Clark, his letters are not

l8 necessary towards the State's case, we don't have

19 an opportunity to cross-examine him about any of

2O these communications.

21 And we —— again we ask the Court just to

22 go through these documents and determine the

23 relevance to each piece of paper the State is

24 asking to admit because we think it is cumulative

 14

and far—off point. Thank you.

If I could have one moment, your Honor?

(Defense attorneys conferred with the

defendant.)

MR. SIMMONS: We have nothing further,

your Honor.

THE COURT: All right. State?

MS. HITE ROSS: Judge, first of all, the

statements of Mr. Clark are not hearsay because

10 they are statements against the defendant's

11 interest. Mr. Clark was his representative,

12 Mr. Clark was put in a position where he had to

13 respond to allegations by his client.

14 In addition, Mr. Clark's statements to the

15 Court could be analogous to a statement under

16 oath. Mr. Clark is an officer of the Court,

17 Mr. Clark is responding at the behest of the Court

l8 to certain allegations. Even when he is reluctant

19 to do so, the Court has asked Mr. Clark to

20 respond, so that could be considered a judicial

21 admission. He is before the Court, obviously the

22 statement he's making to the Court are honest,

23 otherwise he would be committing a fraud upon the

24 Court.
 15

In addition, we do indicate in our motion

in limine, your Honor, the correspondence that is

specifically referenced by Mr. Clark in those

transcripts. And once that privilege is waived,

it's waived if it's intentional, and clearly it

was defendant's intent to waive the privilege

regarding that representation.

So our position is that it does flow to

other documents that we have attached, other

10 letters that indicate Mr. Clark's repeated

11 communication with the defendant and letters that

12 indicate that the defendant was not responding or

13 was not responding in a timely manner to Mr. Clark

14 which are specific statements that Mr. Clark made

15 before the Court. And to say that they're not

16 relevant is not sincere because they go to the

17 heart of some of our charges in the indictment.

18 I mean, the State of Illinois allows us to

19 charge someone with murder and they allow the

20 State to allege that they committed the murder to

21 prevent that individual from participating in any

22 criminal prosecution. That's exactly what we have

23 alleged with respect to this defendant.

24 And so this correspondence and the

 16

relationship or lack thereof of communication

between the defendant and Mr. Clark is relevant to

the issues at hand, and they are relevant because

they would allow a trier of fact to determine

whether that issue is more probable than not, and

therefore this evidence should be granted and the

State should be allowed to put in evidence of

these statements that are indicated in the

transcripts that we gave the Court and the motion

10 in limine. Thank you, Judge.

11 THE COURT: Before you sit down, if you

12 wouldn't mind, how can the statements of Attorney

13 Clark be statements against interest?

14 MS. HITE ROSS: Because Mr. Clark

15 represents the defendant, Judge, which means he

16 has the implied authority to speak. And when the

17 Court is asking him quite frankly what is the

18 issue, he's saying that the defendant is not

19 communicating with him. That is a statement

2O against defendant's interest because it goes to

21 the motive of some of the charges in the

22 indictment.

23 Our theory is that he's intentionally not

24 communicating with Mr. Clark because he does not

 17

want Mr. Clark to continue to represent him. And

Mr. Clark is at the point where he is requesting

the Court to allow him to withdraw not once, but

twice, and that request was denied.

And he quite frankly tells the Court, "I'm

not used to being in this position. I'm used to

being kept in the loop, my client is not telling

me things." Those are certain statements that we

believe are against the defendant's interest with

10 respect to the charges that have been filed in the

ll indictment.

12 THE COURT: But they're not statements

13 made by the defendant.

14 MS. HITE ROSS: That's correct, your

15 Honor.

16 THE COURT: But you think because he's his

17 attorney, that his statements can be charged

18 against the defendant as statements against

19 interest.

20 MS. HITE ROSS: Yes, your Honor. It's

21 analogous to an agency relationship, this is an

22 attorney—client relationship.

23 And again, just so the record is clear,

24 these are statements made after the Court told

 18

Mr. Clark, when Mr. Clark was reluctant because of

the attorney—client privilege, the Court -- and

I'm paraphrasing this, "I don't care about that, I

want to hear what's going on," and Mr. Clark being

an ethical attorney then told the Court the

specifics of what was going on in that

relationship and those are certainly statements

against the defendant's interest.

And at one point the Court says to

10 Mr. Clark, "The delay is not on you, it's on your

11 client," and the Court admonishes the defendant to

12 meet with Mr. Clark, to communicate with him,

13 because the Court does not want the proceedings to

14 continue to be delayed. And again that goes to

15 the motive and the intent under the State's

16 theory, that the defendant never wanted Mr. Clark

17 to participate in this criminal prosecution, which

18 was the sentencing hearing after he was convicted

19 by a jury in 06—CF—405.

20 THE COURT: Okay. I am unaware of any

21 cases that may have held that a statement by a

22 third party or second party, anybody other than

23 the defendant could be considered to be a

24 statement against interest by the defendant. I'm

 19

not saying it's not out there, I'm just not

familiar with that interpretation of that, so if

you can find something for me I would find that

very helpful.

MS. HITE ROSS: Okay. Thank you.

THE COURT: But I have never seen that

hearsay exception interpreted in that fashion.

But like I said, I do not have an exhaustive

recollection of all hearsay exception case law so

10 there may very well be something out there but I'm

11 not familiar with it at all. So that would be

12 helpful to me.

13 MS. HITE ROSS: I will do that, your

14 Honor. Thank you.

15 THE COURT: Defense, any comments

16 regarding the State's argument? I don't want you

17 to go back and forth all day long but in light of

18 the fact that there were new arguments.

19 MR. SIMMONS: Just very briefly, your

20 Honor. Just to the point as to whether it's a

21 statement against interest, we don't believe that

22 applies in this situation.

23 Off the top of our head, maybe a situation

24 against co—conspirators you might have something

 20

like that where third-party statement would work,

but that's not what we have here.

I believe that the rule of evidence

covering this indicates that it's a statement

which was, at the time of its making so far

contrary to the person's interest that, you know,

you can rely on the truth of it. We're talking

about statements made months, some of these

documents a year before Mr. Clark was murdered.

10 So at the time these statements are made, I don't

ll think that they show that they're against anyone‘s

12 interest, they're just statements being made.

13 We do think that anything said by

14 Mr. Clark is hearsay. And again, we reassert that

15 we have a right to confront the witness, in this

l6 case we can't, so we'd ask the Court to bar these

17 statements.

18 THE COURT: Thank you. I believe -- and I

19 am stating this as a question to make sure I'm

20 clear that I have now heard arguments on all of

21 the State's motion in limine; is that everybody's

22 recollection?

23 MR. SIMMONS: Just __ if the Court would

24 allow, we have argued them, I was hoping to just

 21

supplement the argument as to the 29th just very

briefly.

THE COURT: Okay. Let me get to my notes

on the 29th. Okay, I am ready for your comments

on this.

MR. SIMMONS: And this may overlap with

some of the other motions because the subject

matter is somewhat duplicative.

But as far as Mr. Henbest's statements,

10 alleged statements regarding his conversation with

11 Mr. Clark, we just want the Court to be aware, the

12 dispute seemed to be on Mr. Clark's behalf as to

13 whether the evidence Mr. Wanke wanted to present

14 was ethical in regard to his alibi and then

15 certain specific piece of evidence in regard to

16 the alibi. We want to make sure the Court is

17 aware that at that trial in O6—CF-45, the defense

18 did present that alibi and did present the

19 specific piece of evidence that Mr. Henbest notes

2O Clark talked to him about. So if there ever was

21 any ethical considerations, Mr. Clark decided it

22 was okay to go forward and did in fact present the

23 case as Mr. Wanke indicated he wish would be done.

24 THE COURT: I'm going to have you just say

 22

that all over again. I heard you but I'm

processing it.

MR. SIMMONS: Understood.

Mr. Henbest, in the People's 29th motion,

there's statements that he says —— or excuse me,

conversations he says he had with Mr. Clark where

Mr. Clark indicated that he was unsure of his

ethical obligations, whether they would allow him

to present the alibi evidence that Mr. Wanke

10 wanted to present. This included something to do

11 with Wanke's sister, receipt from Cub Foods.

12 In Mr. Henbest's bystander report, he says

13 Greg didn't believe the alibi testimony was

14 credible. But we think it's important for the

15 Court to know that in O6—CF—45, when the defense

16 presented their case they did present that alibi

17 defense, they did present the receipt from Cub

18 Foods.

19 THE COURT: Did the sister testify?

2O MR. SIMMONS: His sister did testify.

21 Ms. Chavez testified. So if there was a dispute,

22 it appears that Mr. Clark and Mr. Wanke came to an

23 understanding and Mr. Clark did present that

24 evidence. So we think that tends to lessen any

 23

relevance to Mr. Henbest's statement at all if the

Court were to determine they were to be

admissible. So we would just like the Court to be

aware of that and consider that in its ruling.

THE COURT: I have not read the transcript

from O6—CF—45 so I am not familiar with what was

presented at that trial. I was not the trial

judge so I did not know that information, so thank

you for giving that to me.

10 MR. SIMMONS: And we're basing that —~ we

11 don't have the transcript, I'm not aware if we do.

12 I was basing that on a witness and jury record

13 that was filed under 06-CF—45 which list the

14 witnesses and then reading the Rule 23 order from

15 that case which indicates what evidence the

16 defense presented.

17 THE COURT: Do you have a copy of that

18 Rule 23 order?

19 MR. SIMMONS: I don't have one on hand, I

2O just read it online. But I can print one and get

21 it to the Court.

22 THE COURT: So you haven‘t read the

23 transcripts either?

24 MR. SIMMONS: From O6—CF?

 24

THE COURT: From 06—CF—45.

MR. SIMMONS: No. I don't believe we have

those in our possession.

THE COURT: So how do you know what the

sister testified to at the trial?

MR. SIMMONS: The defense's case is

outlined in the Rule 23 order.

THE COURT: Is it?

MR. SIMMONS: It's not in certainly 100%

10 detail, but they do outline who testified, what

11 they testified to and other evidence that was

12 presented.

13 THE COURT: Was that case appealed?

14 Obviously it was, so there is a transcript.

15 MS. HITE ROSS: Judge, if I could? I

16 believe that's a pending post—conviction case in

17 front of Judge McGraw and the transcripts that

18 we've been providing the Court we've gotten from

19 the court file. We don't have, you know, the

20 entire trial obviously. But that's where we've

21 been getting them from, the clerk's office,

22 because there was an appeal and I guess everything

23 was scanned.

24 THE COURT: Do you have the transcript?

 25

Have you had a chance to review the transcript

with respect to that particular issue?

MS. HITE ROSS: I have not, Judge. The

only transcripts I reviewed are the ones that I

have tendered to the Court.

THE COURT: And I have read what you have

tendered to the Court.

So State, are you prepared to argue with

response to what the defense just brought up now

10 or do you need time to review that?

ll MS. HITE ROSS: Judge, I would like to

12 review that transcript to see exactly what the

13 defendant's sister testified to at the trial and

14 what was presented.

15 THE COURT: Can you also provide a copy of

16 that Rule 23 order to the State?

17 MR. SIMMONS: Yes, Judge.

18 THE COURT: So they have an opportunity to

19 review that.

20 Now, on the argument on No. 29 the Court

21 did instruct the State that I wish them to

22 communicate with Mr. Henbest about some of the

23 comments that you had indicated you were going to

24 bring in, to see if Mr. Henbest's comments related

 26

to the incident in the tape. At least that's my

recollection of what I wanted you to ask

Mr. Henbest.

MS. HITE ROSS: Yes, Judge, and we were

unable to reach him last week. I just noticed

that he has appeared.

THE COURT: He's left the courtroom now,

but.

MS. HITE ROSS: Yes. He had appeared to

10 see if we needed to speak with him because we were

ll unable to speak with him last week after court due

12 to his schedule.

l3 THE COURT: Maybe the bailiff can step

l4 outside and ask him to wait just so you can have a

15 chance to talk to him.

16 MS. HITE ROSS: Thank you.

17 THE COURT: Because we have to recess this

18 pretty quickly because of the Court's schedule, so

19 you might have time to talk to him now.

2O Okay. And we have not finished all our

21 arguments on the defense motions in limine but I

22 think we'll have to take that up on Thursday when

23 we're back in session because I don't think we'll

24 have time to get through them. I just want to

 27

make sure State has received all of them also.

Defense, if you could state again what you

have filed recently so that I make sure I have

them all. I have the —— go ahead. I'll let you.

MR. ZIMMERMAN: Judge, we have filed I

believe as of today a 7th and 8th Motion in

Limine. We've also filed a Motion To Exclude

Evidence and a Supplemental Answer To State's

Motion For Disclosure. And I believe that's it.

10 THE COURT: Now, I don't think we've ruled

11 on the Defendant's 5th Motion in Limine; is that

12 correct?

13 MR. ZIMMERMAN: 5th and 6th, I believe.

14 THE COURT: 5th, 6th, 7th and 8th.

15 MR. ZIMMERMAN: Correct.

16 THE COURT: I haven't ruled on the motions

17 in limine.

18 MR. ZIMMERMAN: 7 and 8 were just filed

19 today.

2O THE COURT: Right. Okay. So those we

21 will discuss on Thursday.

22 And State, do you have copies of those?

23 There's also with the 5th, an addendum to the

24 Defendant's 5th motion, I want to make sure you

 28

got that.

MS. HITE ROSS: Yes, Judge, we do.

THE COURT: And you have the 7th and 8th

now?

MS. HITE ROSS: Yes, your Honor.

THE COURT: Okay. All right.

THE DEFENDANT: Excuse me, your Honor? I

just have a few things.

I've got —— I had told the Court

10 previously that I was going to file a 5th addendum

ll to my motion for relief. A Shakedown took place,

12 we've talked about that, and this is just

13 documenting that and continuing to ask for the

14 Court to join with Judge Kapala's request for

15 access, so I've got that to file.

16 And then my attorney gave me or showed me

17 a copy of the order that the Court issued on

18 Friday, I was going to ask the Court if I could

19 have this copied and respond to it.

20 THE COURT: Let me see exactly what you're

21 referring to.

22 THE DEFENDANT: Sure.

23 THE COURT: Thank you. All right. Go

24 ahead. I'm not going to let you have that copy

 29

but you can respond to it.

THE DEFENDANT: Okay. Then I will need

time to write down what's on the face of it.

THE COURT: It's pretty simple.

THE DEFENDANT: The issue I have is, all

rules of Winnebago County must be followed.

THE COURT: That's right.

THE DEFENDANT: The Winnebago County Jail.

THE COURT: That's right.

10 THE DEFENDANT: The problem is, I've made

11 multiple requests of the superintendent for the

l2 Inmate Handbook which would hold all the rules and

13 then I've made multiple requests for the email

14 that he sent Mr. Brun which outlines the rules

15 specific to access to my legal work, he refused

16 that. Then I asked for a copy of the order from

17 Judge Kapala that was sent to Mr. Redmond, he came

18 down and basically said I would have to FOIA all

19 those things.

20 So it's not readily apparent to me what

21 rules, with that kind of boilerplate, all

22 inclusive I've—got—to—follow—all—the—rules what

23 those rules are when the administrator who seems

24 to make up the rules as he goes along and keeps

 3O

them close to his chest won't tell me what those

rules are, that they seem to vary and change

according to his whim, okay?

And given that last week, on September

22nd, his order was to come and basically take and

throw away my legal work or interrupt my ability

to file this and other motions, and I've asked,

"Under what rule did you issue those orders?" and

he won't respond to that, it's then very hard

10 without this copy and without those rules to

ll outline, other than what I've just done, my

12 inability to follow unwritten rules.

13 THE COURT: The rules that I am concerned

14 with specifically at this time are you may not

15 hand documents to your counsel and ask them to be

16 transported to people outside of the normal mail

17 deliveries. Your attorneys are not mailmen. They

18 do not transport things for you. They do not

19 transport things in to you. They do not give you

20 things. They're not to give you anything.

21 They're not to give you pens. They‘re not to give

22 you stamps. If they want to give you money for

23 that they can put it on your books. But they are

24 not to actually give you anything, paper clips,

 31

rubber bands, nothing.

And they do not take any documents for you

that are intended for delivery outside of the

normal channels of mail. If you have legal mail

that you need to give them they can take that, but

it is not to be disseminated towards anyone else.

That's what I'm talking about. That's pretty

simple. I think you understand that.

THE DEFENDANT: And I agree with you. But

10 on Friday, none of what you just said was alleged.

11 It wasn't alleged or I did not hear the State or

12 my counsel say that I did that.

13 I heard clearly that my counsel handed

14 something to someone else, but in none of this did

15 I hear that I made any request or I did anything.

l6 And so, that's what I'm calling into issue with

l7 this order is the order seems to be directed

18 towards me, where -—

19 THE COURT: So let me make sure I

20 understand what you're saying. You're saying at

21 no time did you ever give anything to your

22 attorneys to be passed to someone else?

23 THE DEFENDANT: I gave something to my

24 attorney to look at and to review.

 32

THE COURT: You never asked them to pass

that information to Ms. Chavez or to anybody else?

THE DEFENDANT: I asked them to go over

that information.

THE COURT: Did you ask them to give any

information to Ms. Chavez?

THE DEFENDANT: Absolutely not.

THE COURT: And are you authorizing them

to give any information to Ms. Chavez?

10 THE DEFENDANT: I'm —- I've talked to them

ll about reviewing information that may be crucial in

12 this case because she may or may not be a witness.

l3 THE COURT: So you've given them

14 permission to discuss things with Ms. Chavez?

15 THE DEFENDANT: Yes.

16 THE COURT: But you've never given them

l7 documents and said "give this to Ms. Chavez"?

l8 THE DEFENDANT: NO.

19 THE COURT: So the packet of information

20 that specifically occurred in court last Thursday,

21 a packet of information, you're saying you did not

22 hand that to your attorney and said that it could

23 be handed to Ms. Chavez?

24 THE DEFENDANT: Correct.

 33

THE COURT: Okay. I don't think there's

anything else we need to put on the record.

MR. BRUN: Your Honor, just one brief

response regarding some of the allegations by this

defendant. Mr. Redmond has been to court many

times and I do have a letter specifically dated

September 16th of 2016. My biggest concern is the

allegation that various documents have been

destroyed by the jail. This letter continues to

10 indicate Mr. Wanke has always had access to all of

ll the legal documents that were taken. There is one

12 plastic bin that he has in his possession, and all

l3 other documents if requested he will have access

14 to. But again for security purposes, the search

15 of the jail occurred and documents were taken from

16 the defendant but he still has access to that.

17 Also this letter, your Honor, this is a

18 copy I have provided to the Court. I believe this

19 was previously tendered to counsel; if not, I'll

20 make a copy. But this does address the grievance

21 as well as the current policy of the jail by

22 Mr. Redmond.

23 THE DEFENDANT: If I can submit my motion?

24 THE COURT: Yes.

 34

THE DEFENDANT: Basically all the

affidavits attached to this counter what

Mr. Redmond says because there were witnesses to

the Shakedown on September 22nd by inmates who saw

guards destroy documents.

THE COURT: This indicates that if you

need a copy of the inmate handbook we would be

happy to provide another copy to you. So fine.

If you could just ask Superintendent Redmond if

10 that could be accomplished as Mr. Wanke has said

11 he never got the inmate handbook. Any documents

12 given to Mr. Wanke are reviewed by Mr. Wanke,

13 there should be a receipt signed.

14 Mr. Wanke, you're going to have to sign

15 receipts for all documents. And if you refuse to

16 sign a receipt I will not order them to turn those

17 things over to you. If Mr. Wanke wishes to view

18 any of his materials, there has to be receipt

19 signed for the times he's reviewed those materials

20 from his bin.

21 I have read over the letter from

22 Mr. Redmond, it doesn't specifically address the

23 issue that Mr. Wanke has raised with respect to

24 Mr. Wanke's belief that he is receiving different

 35

disciplinary or rule application than anyone else.

So I would ask if you could address that

particular issue with Mr. Redmond if the rules and

policies and procedures are being followed with

the same —— the same rules are being followed with

Mr. Wanke as they do to everyone else, and if

there's different rules for whatever reason if

they could let us know that.

THE DEFENDANT: There's one other issue,

10 your Honor, that I highlight a little bit in the

ll motion that I just submitted.

12 The law library computer since September

13 22nd had been turned off in our tier, that means

14 nobody, not just me but everybody, this other 60

15 some odd inmates do not have law library access.

16 They've given us a variety of reasons why

17 that has occurred and stated that it's institution

l8 wide. But from talking to other prisoners that

19 I've been brought over here with that's not

2O accurate. It seems to be isolated, just small

21 selection of tiers on my end of the pod. And no

22 matter how much we request or no matter how much

23 we aggrieve the situation, the law library

24 computers have not been turned back on.

 36

Now, given what Judge Kapala 1_

THE COURT: I'm going to have to stop you

now as I am running out of time.

THE DEFENDANT: I understand, your Honor.

Thank you.

THE COURT: These documents that you

handed up, these are the originals that you wish

to be filed; is that correct?

THE DEFENDANT: Yes.

10 THE COURT: You don't have a copy for the

ll Court?

12 THE DEFENDANT: That's all I've got.

13 THE COURT: Okay. I just want to clarify

14 that. We're back in court then on Thursday, was

15 it 1:30? Thursday at 1:30. Thank you.

16 (Cause continued to September 29, 2016,

17 at 1:30 p.m.)

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STATE OF ILLINOIS

THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT

COUNTY OF WINNEBAGO

CERTIFICATE

I, Mary S. Gesmer, CSR #084—003200, an

Official Court Reporter for the Circuit Court of

Winnebago County, 17th Judicial Circuit of

10 Illinois, reported in machine shorthand the

11 proceedings had on the hearing in the

12 above—entitled cause and transcribed the same by

13 Computer Aided Transcription, which I hereby

14 certify to be a true and accurate transcript of

15 the proceedings.

16

17 IN WITNESS WHEREOF I have hereunto set my

18 hand seal this 28th day of June , 2017.

19

20
V/PzesV «1. W
21
Official Court Reporter
22 17th Judicial Circuit
State of Illinois
23

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