Archive for the ‘2006 Burglary Case’ Category


The Rockford Police investigation of the death of attorney Greg Clark was not very well done, because it focused on just investigating two people: Richard Wanke and Diane Chavez, and pretty much ignored everyone else. On the other hand, the investigation results themselves are thorough enough to eliminate both Richard and Diane as suspects in this murder.

When the police responded to Clark”s murder they learned that Clark had been shot at twice in the space of several months. The police quickly perceived from each attack, that attorney Greg Clark was not a random murder but a highly skilled one. Attorney Greg Clark was successfully “targeted” for murder under circumstances which required thorough preparation, flexibility, and mobility. His attacker or attackers had to be coordinated and capable of anticipating and reacting to his movements under very unpredictable circumstances.

The first attack on 60 year old Greg Clark happened on Sunday, November 4, 2007, after dusk, outside his house and at 6:30 pm. It was dark and no one could anticipate that a man of Clark’s age would step out of his house at that hour of a Sunday evening. Someone stalked him for awhile to know that he and not his wife took out the trash. Clark however, usually took the trash out on Monday morning and not on a Sunday night. So, whoever stalked attorney Clark caught Clark by chance and was capable of responding quickly to his unpredictable movement on 11/4/07. Who knows how long this entailed waiting outside by his house possibly for hours in a vehicle or on foot and just hoping that he might emerge from it.

The second attempt on 2/6/08, took place during a blizzard and while Clark was snow-blowing his driveway and sidewalk area. Clark was only outside for about 1/2 hour when he was shot. The van with the believed shooter timed it’s arrival so conveniently per witnesses, that it arrived and remained at the murder scene only with sufficient time for the shooter to commit the murder expertly and then quickly leave. One has to ask: The State alleges that Richard Wanke was the shooter, but he was across town at a house in Loves Park until at least 12:50 pm, putting software on a friend’s computer and consulting by Skype with another friend about setting up a webcam on that computer.  The friend saw Richard over Skype and wearing a brown and yellow winter  coat. They spoke on and off over Skype for most of that morning as they worked to install and troubleshoot the computer hardware. Richard left about then to go to his apartment and pick up more software. While at this apartment, Richard took the time to also shovel the front yard of the duplex in which he lived. If Richard Wanke was the shooter in this van, then how did he know so exactly when to travel across town to shoot Clark?

People don’t drive across town in the middle of a heavy snowstorm in order to stalk someone else or to wait outside a residence possibly for hours. No one clears their driveway of snow at any particular time of the day or at any particular frequency. It took Clark only half an hour to clear his three-car driveway of snowing using the relatively new and large-capacity snowblower he owned. Clark might have possibly remained outside for 10 – 15 additional minutes before going back inside his home for hours if not for the remainder of that day. The storm otherwise kept most people home inside their houses. The police check of all phone records showed that Richard Wanke received no suspicious phone calls before Clark’s shooting from anyone who could have been in Clark’s neighborhood that morning of 2/6/08.

Besides, Richard Wanke, knows computers well, and could have easily tracked Clark using some form of tracking software. The police later seized many computers from Richard’s apartment. They found his browsing histories intact on those computers, but no searches to incriminate him and no use of any tracking software.

Shooting Clark successfully during the very limited window of time he opened himself up to being a target either required knowing the moment he came out to begin snow-blowing if one travelled across town to shoot him, or else stationing oneself at hand inside the neighborhood, keeping vigil on his house and movements and then approaching him carefully once he emerged.  The shooter could not hope to stay inconspicuous over time while parked and waiting in any vehicle because of the adverse weather on 2/6/08. Other people and neighbors would have had to navigate around him or them with difficulty in the snow and recall this.

Witnesses did notice and were able to document all the movements of a suspicious dark-blue van relatively well on 2/6/08. It was not inconspicuous even though it was only physically present in the neighborhood a relatively short period of time. The van and shooter did not conduct a vigil over hours of time in the neighborhood, but instead entered and exited it to commit the murder with surgical precision.

At trial, the State, lacking evidence, had to speculate to come up with any alleged connection to paint the picture of Richard Wanke as Clark’s shooter. All the witnesses who claimed to see a suspicious man and a van on 2/6/08, varied on their descriptions of the man and the make, color and year of the van they allegedly saw. At trial, since most said they saw a man dressed in dark clothing, the State took one man’s description of seeing a cuff, and a 7 year old’s description of seeing a gray “hoodie” to combine that into the allegation that Richard Wanke changed the clothing he wore on 2/6/08, and put on a black denim jacket and gray scarf to shoot Clark. That’s a ridiculous assertion to make because no one would have found that combination of clothing adequate to wear in the snow on 2/6/08, or to wear while shooting anyone. Then, the State alleged that Richard Wanke changed back out of this clothing and washed it before he was later picked up by police.

Richard Wanke was only absent a little over an hour from working on his friend’s computer. He did not have time to change clothes, shovel snow and travel to Clark’s and back across town in little more than an hour on 2/6/08. He was back again shortly before 3pm and Skype still showed him wearing his brown and yellow coat, with no gray scarf or dark clothing. Under his coat, he wore khaki color pants, and a navy blue shirt. If he had been Clark’s shooter, someone would have noted his clothing as being colorful rather than all dark. Richard’s attorneys at trial failed to present the witness who Skyped with him on 2/06/08 and saw how he appeared, and who could have related to the jury how Richard did not behave in any manner as the shooter.

Even then, Richard had to be very adept to not error when shooting Clark. The shooting of Clark itself required a presence of mind and at least a fair level of weapons familiarity to execute successfully under the time constraints.  Richard Wanke lacks any firearms history, the history of any violence, stalking or threatening behavior, or such familiarity. It is also doubtful that he could have successfully killed Clark without prior experience.

The police looked at the phone records of both Richard Wanke and Diane Chavez, and they looked at the phone records of their friends and acquaintances and spoke with them. The police examined their financial records as well. The police were unable to find any traces whatsoever of any suspicious contact which Richard Wanke or Diane Chavez had with anyone that could have indicated some type of coordination to carry out both these attacks on Greg Clark or to conduct surveillance on him.

So, even though the Rockford Police investigation was unsuccessful in investigating as broadly as it should have, we can trust that the depth of it’s investigation of Richard Wanke and Diane Chavez was deep and thorough enough that it would have found any complicity in the murder on the part of either or both of them if it had existed. The fact that this Greg Clark murder investigation over 9 years has failed to turn up this information and the absence otherwise of reliable evidence linking either to the Clark murder only goes to prove that neither Richard Wanke nor Diane Chavez had anything to do with the murder.

There were several other suspicious people sighted in Clark’s neighborhood on 2/6/08, going door-to-door or seen elsewhere in the neighborhood. Any one of these could have been stalking Clark or observing him on behalf of a shooter positioned elsewhere. We don’t doubt the eyewitnesses saw a van but it wasn’t Chavez’s purple van. It was a dark-blue van (which were plentiful) and it was not Richard in the van. Whether the van witnesses saw that day was connected to the murder remains an open question. In our minds the likelihood that the shooter was somewhere on foot or was another neighbor is just as probable as that darn van.

Richard Wanke also lacked the mobility required to be Clark’s shooter. The police easily determined that the person or persons responsible for Clark’s murder had to scope them out. When the police received Richard Wanke’s name from the Public Defender’s office the police quickly reacted by detaining Wanke within hours. Yet, even as they did so, they operated at outset knowing that he did not own a vehicle and had not owned one for over a decade. The police had only with the generic description from witnesses of the involvement of an older white male with a grayish hair, a scraggly beard, and eyeglasses. They had no witnesses who initially identified Richard Wanke from photo line-ups. So, while the police operated on the assumption that they had the right suspect and were proceeding against him, they had no verifying proof that they were correct.

When they did the initial research and checked out Richard Wanke, the police encountered a problem: Richard Wanke did not own a vehicle and had not done so for years. Without a vehicle, the police faced a dilemna and question: How did their suspect kill Clark if he lacked the mobility required to stalk him for the length of time it took to successfully kill him?

That is the question that caused the police to drag Diane Chavez into the case. Diane Chavez was the only possible source of mobility for Richard Wanke, if the police could establish that he drove the vehicle she owned which was most similar to the blue van the witnesses saw on 2/6/08. State records showed that Diane Chavez owned a purple 1998 Dodge Caravan with gold wheels. Any discrepancy between the suspect and the witness reports might be regarded with caution under ordinary circumstances, but in a case of this magnitude, the difference between a purple van and uniform reports of a dark blue van seemed minimal given the certainly of belief on the part of the directing investigatory officer that the investigation was off and heading in the right direction. The evidence to show that Diane Chavez was not the woman alleged seen in Clark’s neighborhood the day before this murder and that her van does not match the one witnesses saw or the photo used at trial by the State is on this website.

Rockford Deputy Police Chief Greg Lindmark was assigned to conduct the Clark murder investigation from the outset. He happened to have personally known Richard Wanke from years in the past. His past familiarity with Richard Wanke and information he knew of Wanke’s legal difficulties since were sufficient to convince him that Richard Wanke, killed Greg Clark and that all he had to do was prove it.

Greg Lindmark and Richard Wanke attended Guilford High School together. They did not mix in the same social circles and were not friends. Detective Greg Lindmark was Richard Wanke’s first arresting officer in a 1991 burglary case for which Richard later served three years. Richard Wanke sued Lindmark after due to certain alleged conduct during an interrogation. Although the lawsuit was later dropped, Lindmark kept cropping up at each of Wanke’s subsequent legal issues. So, when the Winnebago County Public Defender’s office dropped Richard Wanke’s name into Lindmark’s investigation early on 2/6/08, as just a possible suspect, Lindmark regarded his involvement in Clark’s murder as a certainty and then directed the investigation in that manner.

This is why the police quickly ultimately arrested and charged Diane Chavez. On 2/6/08, the police had already picked up and revoked Richard Wanke’s bond and had him in custody. Yet they did not have a warrant for him then. None of their witnesses had identified him in any photo line-ups that day as being at the Clark murder. Without establishing some linkage to the Clark murder scene, Lindmark and the Rockford Police would be forced to release Richard Wanke. Lindmark had to justify holding Richard Wanke. The convenient witness who claimed to have seen a petite white woman in her 30’s in a dark-blue van in the driveway of the Clark house the day before the murder and who conveniently identified Diane Chavez as being that woman from a police photo lineup proved to be that sufficient linkage which Lindmark and police required. On the strength of that linkage, police were able to obtain a search warrant for the duplex, arrest Diane Chavez; use a $500k bond to  hold her out of their way, and hopefully Greg Lindmark would then be able to find the proof required to show that Richard Wanke killed Greg Clark.

Only it did not work out that way. The investigation after 9 years of diligence comes up empty on proof and it is time for the public to understand just exactly what happened in this fiasco and to why Richard Wanke became Clark’s murder suspect. We don’t know who killed attorney Greg Clark, but it wasn’t Richard Wanke or Diane Chavez.

Richard Wanke was convicted at trial in March 2008, only because he was not defended by the Winnebago County Public Defender’s office. The Winnebago County PD knew of all the information we have set forth on this website about the Clark murder, how it happened and the proof which exists to show that Richard Wanke and Diane Chavez did not play any roles in Clark’s murder. The Winnebago PD chose not to present any of this evidence at trial; experts to testify on behalf of Richard Wanke, and did not test computer equipment for the exculpatory evidence on them. The question to ask now is, “Why not”?


Let’s review what’s happened at trial:

It’s undisputed that attorney Greg Clark was shot to death on February 6, 2008. At approximately 1:55 PM, he was outside his house on the corner of Oakforest Dr., and Sentinel Rd, in Rockford, using a snowblower to clear snow from sidewalk adjacent to his driveway. Someone came up to him, shot him three times in the back and left. Attorney Clark was on the ground and dead within minutes of being shot.

There was a lot of procedural testimony from first responders and police detectives about what happened after the shooting; who responded to what event, about their job responsibilities, chain-of-custody testimony, what everyone physically did at the murder scene and what evidence and witness reports detectives collected and who they spoke to. HOW DOES MOST OF THAT TESTIMONY MATTER?

IT DOESN’T! The only part of trial testimony that matters as to whether we have the truth of who killed attorney Greg Clark is the reliability of the State’s evidence which they present and allege that it connects Richard Wanke and Diane Chavez to the Greg Clark’s murder scene and then, ONLY BY IMPLICATION, to some involvement in Greg Clark’s murder. So, let’s look at what this evidence consists of:

FIRST: THE FORENSIC EVIDENCE

The State presented most of their prime physical evidence consisting mostly of clothing collected from attorney Greg Clark and suspect Richard Wanke on 2/6 – 2/7/08, phone logs, the 911 tape, an audio tape recording of 5/7/07, meeting between attorney Clark, Richard Wanke, and Diane Chavez, certain oral statements made in court at Richard’s Wanke 2006 burglary case both Clark and Wanke as documented in court transcripts, a photo of Diane Chavez’s ’98 Dodge Caravan, estimates of travel times and routes between Clark’s home and Wanke’s Rockford apartment, part of a gun strap found on the ground at the murder scene, computer address searches, gloves, State driver records, and vehicle search results, the contents of two photo line-ups, and bullet casings .

Forensic experts testified at length about the relevant DNA, fingerprint, gunshot residue, and comparison testing they did on the bullet casings, clothing, gun strap, gloves, and van. The expert testimony is only relevant in showing that the same weapon, a gun, was used in two different attacks on attorney Greg Clark. One occurred on November 7, 2007, and the other on 2/6/08.
The State maintained that although the rest of it’s forensic testing results were negative, that they are also inconclusive That’s trying to put a good spin on it.

Bottom-line

The State found NO incriminating DNA, fingerprint, or gunshot residue on any of the tested items. The only DNA positives it found for Richard Wanke were on items of his own clothing and not those of Greg Clark’s.

SECOND: EYEWITNESS TESTIMONY

There was no eyewitness to attorney Greg Clark’s shooting, so the most important witness testimony concerns the description of any stranger who eyewitnesses saw in the vicinity of the murder scene closest to the time of the murder and the description of any vehicle they drove.

The suspect in the van

Phyllis Clark, attorney Greg Clark’s widow, was the most immediate witness to reach the murder scene. She testified that her husband was outside their house snowblowing for about half an hour before she heard gunshots. She said she went to the window of their house and saw her husband on the ground. She said she saw a man 5’7’’ leave her husband’s side and enter the passenger side of a dark blue van on the street which then headed toward Sentinel Dr.

Various neighbors arriving home in the subdivision reported seeing and driving behind a dark blue van as it entered the subdivision on Sentinel Rd., from the north and headed towards Clark’s house minutes before the shooting. One neighbor passed a dark blue van on the driver’s side when it pulled over to the curb by Clark’s house, and another encountered a dark blue van as it pulled out of the subdivision shortly after the shooting. and turned west onto Rote Rd. Witnesses mostly described the van they saw as being dark blue in color. One said it was blue-green in color. Most said it was a Chrysler product and a Town & Country van. One said it had gold wheels. Each identified the State’s photo of Diane Chavez’s ’98 Dodge Caravan in court as the van they saw on 2/6/08. Several other witnesses described other suspicious and different color and make vehicles they saw in the neighborhood on 2/6/08. No witness saw or recalled the license plate number of the van.

The State photo of Diane Chavez’s ’98 caravan below: the van in this photo only appears to be dark blue because of the type of lighting used by police. There were plenty of dark blue vans in Rockford that looked like this. A few of them are still driving around. No one knows how many dark blue vans there were in total in Rockford in 2008, because the police search of registered vans only searched for 1998 year vans. Nor did they check van registrations from other surrounding cities. And, if you look closely at the hood of van in this picture, you can partly detect the van’s real color.

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The actual color of Diane Chavez’s ’98 van: What difference does a subtle change of color make? EVERYTHING…

If the witnesses all saw a dark-blue van with gold rims on 2/6/08; it wasn’t Diane’s van. It was instead, the normal dark-blue color van which Chrysler has offered as a color for more years. Some of those regular dark-blue older Chrysler Town & Country and Caravan vans are still seen in Rockford today. In 2008, Ford also had a dark-blue Windstar van which can be still be mistaken for either Chrysler or Dodge vans.

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p1020319The photos above are not Diane’s van. We can’t access her van because the police still have it, but these are the normal light photos of a van which is the same model and year as Diane’s: a 1998 Chrysler Caravan. It is a PURPLE, not a BLUE van! And if the eyewitnesses had seen Diane’s van up close and accurately, they would have described purple, not dark-blue. Chrysler offered the paint color Amethyst (Purple) on it’s Dodge Caravans and Chrysler Town & Country vans for several years through 2000. The color is still in use by other car makers today.

The allegations against Diane Chavez.

On this Home page of our website is the above tab, “About Diane Chavez”. We direct you to click on it and review the fallacious evidence the State uses to allege that Diane Chavez was present at Clark’s house on February 5, 2008, the day before the murder and during her lunch hour. The State’s implication is that Diane Chavez somehow assisted Richard Wanke in killing attorney Clark. The State is wrong and that its “evidence” against her is both false and manipulated and makes one question the accuracy of it’s case against Richard Wanke.

Back to the Man

Except for Clark’s wife, the eyewitnesses all saw the man in the van only as he sat behind the wheel of it and drove the van. They uniformly described the driver of the van as an older, white male. Their best estimate was that he was in his 40’s. The police detectives later testified that they were sent looking for a suspect described to them as having “grayish” hair and a “scruffy” beard. At trial, most witnesses seemed to qualify their mention of gray hair to being brownish and pulled back in a pigtail. A couple mentioned eyeglasses and one mentioned large eyeglasses worn by the man. Most said the man seemed to be wearing dark clothing, and one witness was adamant he recognized by the sleeve he saw that the driver wore a black demin jacket like one of the State’s exhibits. Every witness identified Richard in court as being the man they saw driving the van.

There was an unexplained discrepancy in the eyewitness testimony concerning who was in the van. The testimony of Clark’s wife, who saw a man enter a van on the passenger side before it left, and a then 7 year old child who testified that she saw a white man standing by the passenger side of a van by Clark before the shooting. If every witness saw the same dark blue van, then there was possibly more than one person in that van. One witness testified that they followed a van which pulled over to the curb by Clark’s house, which would be the right side curb of Oakforest Dr. At least two other witnesses said they followed a van as it entered the subdivision heading towards Clark’s house. Clark’s wife and the child witness saw the van parked facing the opposite direction: on Oakforest Dr., but pointed towards Sentinel Drive.

Every eyewitness testified that police showed them each six photos of different suspects on 2/6/08, and each witness in turn failed to identify Richard Wanke’s photograph on the day of the murder as the photo of the man they saw driving the van. Mrs. Clark too failed on 2/6/08, to pick Richard Wanke’s photo out as being the man she saw that day leaving the body of her husband. Each of them only days later called by the police to report that Richard Wanke, was the man they saw, after they saw the following several articles and photos published in the Rockford-Register Star on February 9, & 10, 2008.

What did all the eyewitnesses see and read in the Rockford Register-Star before they identified Richard Wanke as the suspect?

The articles the Rockford Register Star published on February 9, and February 10, which named Richard Wanke, and Diane Chavez as suspects in the Clark murder investigation even though Richard Wanke had not yet been identified by eyewitnesses as a man in the blue van.

The first article, “Double drama in court” which appeared in print on February 9, 2008, is a front-page triple article in one which continues on the next two pages inside. It shows a photo of Richard Wanke with dark hair and a beard. It identifies both Richard Wanke, and Diane Chavez, as police suspects in the Greg Clark murder investigation by saying that both a judge and attorney linked them to it in court. A chronology of Richard Wanke’s 2006 burglary case is at the top of the second page along with an article about the shooting aftermath at the bottom of the page. That second page is almost a full page devoted to information about the murder.

The article “Jailed duo helped each other” appeared the next day on February 10, 2008. Each of these Rockford Register-Star identifications and articles clearly influenced each of the eyewitnesses in this case. On our blog under this Home page tab “Unreliabiltiy of Eyewitness Testimony” is information about how easily and unconsciously eyewitness recollections are influenced by many factors and are often erroneous no matter how certain witnesses feel and testify about what they saw. You should review this information.

Bottom Line:

February 6, 2008, was one of the heaviest snowfalls in Winnebago County. At times it was almost a blizzard outside. Snow was heavy on the ground at the time of the shooting and snow was falling. Most of the eyewitnesses in this case were arriving home because of the weather. They were focused on driving in the snow and keeping their windshields clear of it. They were not that focused on the vehicles around them or the drivers of those vehicles. If they had been and if they each saw the van and the man driving it as clearly and completely as they claim, they would recall at least part, if not all of a license plate, the make and color of the van correctly, or would have agreed on the physical description of the driver, what he was wearing, and whether there was one person or two in the van.The eyewitness testimony in this whole case is unreliable.

THIRD: MOTIVE

The State played an audio micro cassette tape to the jury which allegedly contains the audio of a 25 minute meeting between Attorney Greg Clark, Richard Wanke, and Diane Chavez on 5/7/2008. It may actually be an earlier March 2007 meeting. Much of the tape is inaudible and difficult to distinguish. The Rockford Register-Star printed a small portion of the conversation on it:

“…Wanke wanted Clark to use photos of a minivan owned by Chavez in the burglary case. Clark questioned the significance of someone keying Chavez’s van or using photos of windshield wipers.

“I don’t know. That’s not my job,” said a man investigators identified as Wanke.
“Whose job is it? Whose job is it to determine materiality?” a man believed to be Clark responds. “Is it my job? What percentage is my job and what percentage is your job?…”
RRSTAR article about the audio tape
The State wants us to believe that Richard Wanke and Greg Clark had such an “tumultuous” relationship; that it was antagonistic enough to cause Richard Wanke to kill his attorney. The State claims that statements made by both such as the above and the text of court transcripts from Richard’s 2006, burglary trial for the theft of a laptop computer prove that Richard’s “state of mind’ motivated him to kill attorney Clark. The State exaggerates what hostility took place between attorney Clark and Richard Wanke and wrongly blames Wanke for all of it.
This audio tape exchange, shows Clark not cooperating with Richard Wanke when reviewing evidence that Wanke feels may be used at trial. Clark puts Wankd down when he tries to point out that the light-blue van had obvious physical damage that a State witness failed to note on the van he saw at the burglary scene and which he described to police as being silver in color. Keying, wipers, etc can be relevant when a witness claims it was your van he saw up close but then somehow misses seeing what he should have. Wanke didn’t know if what he had was useful for trial. He was consulting Clark, and Clark treated him poorly and was obviously antagonistic. The full length of the tape contains similar content but no obscenities are exchanged and there is a reconciliation of sorts at the end of it. The tape is not the “smoking gun” the State wants us to believe it is.
The court transcripts of Richard’s burglary case show it was attorney Clark, not Wanke who first complained to the court on March 7, 2007, that the other was not communicating with him. Even then, both Clark on page three says there was no hostility between them and Richard agreed on page six saying, that they were very courteous with each other, and it was just a difference of opinion.
The March 14, 2007 transcript


Wanke merely spoke up in his own defense. Attorney Clark pushed the court to admonish his client. If the court transcripts indicate resentment by either, it wasn’t Richard Wanke, but Clark who later on May 7, 2007, on page 13, told the court that he wasn’t used to being left out of the loop by a client and that he didn’t like it. Page 24 of May 7, 2007, Clark was upset enough with Wanke that he stood back when the judge pushed Richard Wanke to trial.
The May 7, 2007 transcript


Richard Wanke didn’t know at the time what was going on. He didn’t know that Clark had everyone meet the Friday before without him on May 4, 2007. He didn’t know that Clark had confessed that he advised Wanke wrongly about the length of his potential sentence and was requesting a continuance for that reason.

The May 4, 2007 transcript


May 4, 2007, and May 7, 2007, are the only two times in the nearly three year course of Richard’s burglary case where there is  emotion in the court record the State is now trying to use, and it was attorney Clark who was upset, and who reacted poorly, not Richard Wanke. Richard Wanke was out on bond in 2/06/08; something few defendants who lose jury trials are allowed. This was due to the court’s recognition of all the years in which he had complied with all court rules and was civil.
Bottom Line:

Defendants and attorneys regularly disagree about trial strategy and the relevance of evidence. Both sides hash out their arguments in court and in court filings. No revelation about that. Defendants are often held in contempt of court when they speak out of turn or disrespect someone. That did not happen here. There were no public arguments between Greg Clark and Richard Wanke. They were very civil to each other inside and out of court no matter what tension existed. Clark had represented Richard Wanke for six years (not one year as the State maintains) amicably before on another case, and his mistakes created the pretrial tension between them in Wanke’s burglary case. Had anyone of the court; the judge, the attorneys, the bailiff’s etc., seen threats or true anger exchanged between Clark and Richard, the Court would have immediately stepped in to intervene. Attorney Clark would have been removed from Wanke’s case. Richard Wanke would have been held in contempt of court or even criminally charged with misconduct. Violence of any sort is not tolerated in courts and the State has no witnesses who can show that any disagreements between Clark and Wanke exceeded the usual tension generally present in criminal defense. Richard was not a legal novice. He knew well that Clark’s death would not dismiss his case or improve his lot. At best, it would just cause a new attorney unfamiliar with him to do a worse job of advocating for him at sentencing. At worse, he could anticipate receiving the worst sentence possible as a murder suspect.

SUMMATION

The lack of forensic evidence against Richard Wanke, the unreliability and inaccuracy of the eyewitness testimony against him, and the State’s attempt to make a mountain out of a molehill regarding Richard Wanke’s alleged motive to kill Greg Clark does not prove that Richard Wanke killed attorney Greg Clark. Far from it. Stay tuned, and in a couple of days, we will explain to you how the State’s evidence and the murder investigation instead proves that Richard Wanke did not kill Greg Clark! And, we will show the bias on the part of Rockford Police Deputy Chief, Greg Lindmark, who headed this investigation that made Richard Wanke the suspect.

 


By Georgette Braun Staff writer
Posted Mar. 1, 2016 at 8:31 PM Updated at 8:30 AM ROCKFORD —

Public defender Nick Zimmerman asked to withdraw as attorney for Richard E. Wanke Jr., who is charged with murder in the 2008 death of attorney Gregory H. Clark, but Judge Rosemary Collins said today he couldn’t. Collins said Zimmerman’s assertion that there could be a conflict of interest if he were to call a colleague to testify wasn’t at issue. That’s because the colleague’s involvement with Wanke revolved around a separate burglary case against him, Collins said. “There is no conflict,” she said.

Zimmerman is the fourth lawyer for Wanke in the case. Wanke has contended at previous hearings that Winnebago County public defenders could not adequately represent him because of conflicts of interest. Zimmerman continued to defend Wanke in the Winnebago County courtroom today, where he sought to have certain evidence suppressed in the case that will go to trial on May 2.

Clark was fatally shot Feb. 6, 2008, while clearing snow from a sidewalk outside his Rockford home in the 1700 block of Oakforest Drive. Police said a gunman jumped out of a vehicle and shot Clark in the back.

Clark had defended Wanke on a 2006 burglary charge involving a computer, and Wanke was upset with the outcome. That’s what Rockford Police Department officers said Bart Henbest, Clark’s son-in-law and business partner, told them at the time.

Wanke was serving prison time at Stateville Correctional Center and was weeks away from being released when he was charged in 2014 with killing Clark. He has previously said he had nothing to do with Clark’s death.

In Collins’ courtroom, Zimmerman said that Rockford police in 2008 “arrested my client at gunpoint, without a warrant or probable cause.” And he asked that items Wanke had on him when he was detained not be admitted as evidence at trial. Those items included business cards, a driver’s license, keys, a cellphone and a flash drive. The significance of those items in the case was unclear.

Wanke, wearing a lime green Winnebago County Jail jumpsuit, ankle shackles, a ponytail and an audio headset to aid hearing, often leaned closer to Zimmerman and whispered to him as Zimmerman was about to address the court.

Marilyn Hite Ross, chief of the criminal bureau for the Winnebago County state’s attorney office, said there was probable cause for police to detain Wanke. “Probable cause exists when they have articulative facts that led them to believe that a crime had been committed and this defendant committed that crime.”

Sgt. David Lee of the Rockford Police Department testified today that he and other officers were sent to a duplex in the 1100 block of Grant Street to do surveillance within a few hours after Clark was shot. That’s where they saw Wanke shoveling snow. He matched the description witnesses gave of a suspect at the shooting scene: a white male in his 40s or 50s, with glasses and long, straggly hair. A blue minivan with gold rims was parked near Wanke.

Source: Richard Wanke, accused of killing Rockford lawyer Gregory Clark, seeks to suppress evidence – News – Rockford Register Star – Rockford, IL

…AND WHAT WE HAVE TO SAY ABOUT THIS HEARING & ARTICLE:

First off, background about what an IL “Suppression” hearing is and what it is supposed to accomplish

A motion to suppress evidence is an objection over evidence generally presented to court before trial begins. The motion challenges evidence on constitutional grounds. Generally a motion to suppress is based on:
Fourth Amendment protections against unreasonable search and seizure
Fifth Amendment limitations of self-incrimination
Fifth and Fourteenth Amendment safeguards for due process

Generally, the purpose of a suppression hearing is to examine whether or not the police had sufficient probable cause to either arrest, search, or seize persons or property at a specific time.

The US Supreme Court has left probable cause open to interpretation by US courts with such guidance as, …”Probable cause exists where the facts and circumstances within the officers’ knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” (Brinegar v. U.S.)

A look at the probable cause in a criminal case may be warranted based on the circumstances of the case. In Richard Wanke’s instance, there are indications that the police in February 2008, may have had little more than suspicion that Wanke was involved in Greg Clark’s murder; that is, no forensic evidence or only circumstantial linkages. Richard Wanke was not arrested in 2008, but his bond was revoked and he was jailed. The State is trying to justify the factual basis on why he was imprisoned based on what the police knew at the time they acted against him. If the actions taken in 2008 were not based on sufficient probable cause of his involvement in the murder, then whatever was collected by police in 2008 may not be usable today by the State. Bottom-line, in 2008, the police needed to be able to have reasonably connected Richard Wanke to the murder.

Richard’s case is almost a double situation of probable cause because he was charged with the murder in April 2014, after it went cold in 2010. Cold cases are usually re-opened and charged after the police discover new evidence that links a suspect to the crime. This does not appear to have happened in Richard’s case, so if sufficient probable cause is not found in the actions of 2008, then there may be further issues of legitimacy in his 2014 charges.

Now, will Judge Collins find the police had “probable cause” against Richard Wanke in 2008? She will issue her decision next Monday on March 7, 2016. But, yeah; we anticipate that she will find that the police did have probable cause to act against Richard, and that she will deny defense’s motion to suppress any evidence.

We anticipate this decision based on how she handled and disposed the first motion defense submitted just before the suppression hearing began.

The RRSTAR article above is a garbled account and explanation of what actually took place in the courtroom on March 1, 2016. The RRSTAR reporters have only the limited opportunity while reporting to learn how to interpret courtroom actions and their significance.

Georgette Braun writes: “… Collins said Zimmerman’s assertion that there could be a conflict of interest if he were to call a colleague to testify wasn’t at issue. That’s because the colleague’s involvement with Wanke revolved around a separate burglary case against him, Collins said. “There is no conflict,” she said…”

Well, this is not quite what happened. Derrick Schmidt, one of Richard’s prior Public Defender’s warned Judge Collins during argument over his past motion to withdraw the Public Defender’s office from representing Richard that the issue of conflict-of-interest regarding the Winnebago County’s Public Defender’s office was going to rear it’s ugly head repeatedly through Richard’s case if Judge Collins did not remove the office from the case.

Yesterday, Nick Zimmerman, Richard’s current Public Defender said that he and Robert Simmons, (his co-counsel) were reviewing case materials early Monday morning when they came upon an issue with the way in which Richard’s bond was revoked on February 6, 2008. Basically, Zimmerman maintained that Richard’s bond was illegally revoked because the police and the State agent at the time failed to follow proper procedures when they revoked his bond.

Generally bond is revoked in court. The State presents facts to the judge about why the bond should be revoked; the defense has the opportunity to challenge the reasons, the judge decides if the revocation is merited and then signs an order which is officially recorded in the record by the Circuit Clerks’ office.

None of that happened in Richard’s situation in 2008. On February 6, 2008, a police officer knocked on Judge Truitt’s door at home about 11pm at night; told Judge Truitt god knows what about Richard and the Clark murder; got the judge to sign the revocation order and then the order ended up in the court record much later. Problem is, again, no one knows what information was presented to Judge Truitt to persuade him that Richard was such a danger that his liberty should be revoked, and no one was there on Richard’s behalf to challenge the information presented. It was all done improperly and ex-parte. Plus, at 11pm, the police had already picked up Richard and he was already in their custody, so they had jumped the gun on picking him up.

You see, the police had a choice on February 6, 2008, if they believed that Richard was a danger and needed to be in custody. The police could have gone to a judge earlier that afternoon and obtained an arrest warrant for Richard and then picked him up and arrested him. This is what they do for most people they arrest.  Instead, the police apparently felt that Richard had no legal rights because he was already out on bond, so they could just go and pick him up between 5 – 6 pm.

In February 2008, however, the police did not charge Richard Wanke with the murder of Greg Clark. Instead, they waited till April 2014 to do that. Meantime, in 2008, they held Richard in jail under questionable authority for about 4 months before he was sentenced in his laptop burglary case and sent off to IDOC.

So, Nick Zimmerman maintained to Judge Collins, on March 1, 2016, that the whole issue of how Richard Wanke was seized by the police in 2008, has to be examined because a bond revocation and not an arrest was used to justify holding him and then seizing evidence against him at the time, and he ended up not being charged with anything at the time.

It is a fair issue to consider because without protections, the police can then pick up and detain indefinitely people out on bond without charging them with anything.

Zimmerman’s problem however is that the State agent who acted against Richard on February 6, 2008, is now a public defender of some repute who many people in the Public Defender’s office consult with on a regular basis, including himself. Zimmerman notified Judge Collins that, in order to examine the issue of the bond revocation on Richard’s behalf, he and Simmons had a conflict-of-interest in that they would be divided between their allegiance to Richard and their allegiance to the public defenders office when cross-examining Margie O’Conner; who might also hedge in answering truthfully simply because she was being questioned by colleagues.

Judge Collins, in the morning first heard arguments on both sides; from the defense that the bond revocation was illegal because procedures were not properly followed, and from the State, who claimed that it was legal and justified holding Richard Wanke indefinitely. Collins then adjurned the case upon 1:30 pm for her decision on the issue.

During the noon break, Collins used her time to review first the electronic docket on Richard’s laptop burglary case 06-CF-405. Then she pulled the casefile and reviewed the court transcript for 2/15/08, where a motion by Attorney Brown to reinstate Richard’s bond was heard by Truitt.

Brown complained at that hearing that the State (Margie O’Conner) presented some information as to why Richard’s bond was revoked, but that it was conclusionary information and not the underlying factual basis: for example, that Richard fit the shooter’s description, but the description itself was not presented. Brown complained then that the State was not providing sufficient information for him to be able to sufficiently represent Richard. Also, the procedural manner in which the bond was revoked was not discussed then before Judge Truitt.

Collins also reviewed the 6/11/08 court transcript where attorney Glenn Jazciew refiled the motion for bond and argued that it was due reconsideration since it had been four months since the first motion was argued and Richard’s situation still had not changed in that he still had not been charged. Judge McGraw refused to allow the issue to be reheard at that time.

So, Collins basically, marched back into court yesterday afternoon and said “the bond revocation issue was raised and litigated in 06 CF 405 and we are not going to revisit it. And, because, we don’t need to revisit it, the PD does not need to call Margie O’Conner as witness, so we don’t have a conflict-of-interest situation here. So, lets go on and do the suppression hearing now.

Georgette Braun makes it sound as if Collins found that the issue Zimmerman raised only pertained to Richard’s prior laptop burglary case. It does not, and that is not what Collins said. Collins simply found a way to avoid having to deal with the entire issue and refused to allow it to be considered on March 1, 2016. That it was raised to be considered in an entirely different manner than in 2008, with new facts available to the defense who now knows what it did not know in 2008, that is the flimsy basis of the evidence the police had against Richard in 2008, and how they did not follow procedure is irrelevant to Judge Collins. On March 1, 2016, she is happy to ignore all improprieties that happened in 2008; just to ensure that Richard still remains representing in this murder case by the Public Defender’s office.

So, we hardly find Judge Collins action on March 1, 2016, to be an impartial consideration and ruling on an important issue raised by the defense. She basically heard both sides then went and scouted out support to just toss the issue away. This is hardly the sort of action one hopes for in a judge who is considering the outcome of the remainder of your life.

Judge Collins’s actions and rulings so far in Richard’s case may just be a total waste of all our time and public money.  By continuing to be adamant regarding keeping the public defender’s office on Richard’s case, Judge Collins is setting this case up for the Illinois Appellate Court to just toss the case back to the County several years from now when it ends up reviewing the case. The trouble is that not only does it waste all our time and money, but it means Richard Wanke may be subjected to several years of additional unjustified incarceration while he goes through the process of trial all over again.

How does this appeal to your sense of humanity?

 

 


Taken from the Appellate Brief filed January 20, 2010, in appeal of Richard Wanke’s 2006 burglary conviction:

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING MR. WANKE TO THE MAXIMUM EXTENDED TERM SENTENCE WHERE THE NATURE AND CIRCUMSTANCES OF THE OFFENSE DID NOT CALL OUT FOR SUCH A LENGTHY SENTENCE AND WHERE THE COURT RELIED ON SENTENCING FACTORS THAT WERE NOT SUPPORTED BY THE EVIDENCE OFFERED AT SENTENCING.

Richard Wanke was found guilty by a jury of having committed a burglary. (R1032; C99) The sentencing range for the Class 2 offense is three to seven years. 730 ILCS 5/5-8-l(a)(5) (2006). Because of a conviction entered on a Class 2 burglary on May 29,1997, (the prior conviction was the subject of the appeal in People v.Wanke, 303 111. App. 3d 772 (2d Dist. 1999). In People v. Wanke, 311 111. App. 3d 801 (2d Dist. 2000), this Court noted that the conviction in the former case was entered on May 29, 1997. As noted previously, this Court is also asked to also take judicial notice of the pleadings in the former appeal, referencing Appeal No. 2-97-0581). Mr. Wanke was not eligible for probation and was eligible for an extended term sentence. 730 ILCS 5/5-5-3(c)(2)(F) (2006); 730 ILCS 5/5-5-3.2(b)(1) (2006). Consequently, the sentence possibilities facing Mr. Wanke ranged from the three years previously mentioned up to a 14-year extended term sentence. 730 ILCS 5/5-8-2(a)(4) (2006).

The sentence imposed on Mr. Wanke – the maximum extended term of 14-years – is over four times greater than the minimum prison sentence. The sentence is excessive and overly harsh since the defendant did not injure anyone, never contemplated injuring anyone, and the laptop alleged to have been taken was abandoned in front of its owner immediately following its taking and its owner picked it up, undamaged, in the same short span of time. Further, the sentence imposed was the result of an abuse of discretion where the lower court relied upon improper aggravating factors as well as the judge’s own opinions that were directly contrary to what the evidence showed. Accordingly, this Court should either reduce Mr. Wanke’s sentence or remand the instant cause for resentencing.

Standard of Review

The standard of review for a sentencing issue such as this is whether the trial court’s sentencing determination constituted an abuse of discretion. People v. Rucker, 260 111. App. 3d 659, 664 (2nd Dist. 1994). A reviewing court’s analysis of the trial court’s exercise of discretion must be based on the particular facts and circumstances of the case. People v. Fern, 189 111. 2d 48, 62 (1999).

Argument:

When imposing a sentence, a trial court must balance the retributive and rehabilitative purposes of punishment, accounting for both the seriousness of the offense and the objective of restoring the offender to useful citizenship. 111. Const., Art. I, § 11; 730 ILCS 5/1-1-2 (2006). A sentence must be appropriate and just, and take into consideration the defendant’s background and the relevant circumstances of the offense. People v. Robinson, 221 111. App. 3d 1045, 1052 (1st Dist. 1991); People v. Treadway, 138 111. App. 3d 899, 904-905 (2d Dist. 1985); People v. Kosanovich, 69 111. App. 3d 748, 751 (1st Dist. 1979).

Although a trial court’s sentencing determination is entitled to substantial deference, the “mere fact that the trial court has a superior opportunity to make a determination concerning final disposition and punishment of a defendant does not imply that a particular sentence imposed is always just and equitable.” People v. O’Neal, 125 111. 2d 291, 298 (1988). That is, a sentencing court’s discretion is not unfettered. 125 111. 2d at 297. Rather, a reviewing court has the authority to reduce excessive sentences. Supreme Court Rule 615(b)(4); People u. Perruquet, 68 111. 2d 149, 154 (1977). Moreover, an abuse of discretion may be found even when the sentence is within statutory limitations if that sentence is at odds with the purpose and spirit of the law. People v. Maldonado, 240 111. App. 3d 470, 485 (1st Dist. 1992); People v. Center, 198 111. App. 3d 1025, 1032 (1st Dist. 1990).

In this case, the trial court failed to properly consider Mr. Wanke’s background and the circumstances of the offense. The resulting sentence, therefore, was both excessive and unjust. In particular, there was no physical harm involved in this offense, nor did Mr. Wanke’s prior criminal conduct include any offenses of violence. 730 ILCS 5/5-5-3.1(a)(l) (2006).

Courts should also consider whether the defendant contemplated that his conduct would cause or threaten serious physical harm to another. 730 ILCS 5/5-5-3.1(a)(2) (2006). There was absolutely no indication that this offense would, or could, have involved any type of violence or harm to anyone. In fact, prior to imposing the sentence, the question arose, in the context of whether a victim impact statement should be considered, as to whether this offense was one of violence. (R1476-1482) The court found that no force or threat of force was involved in the commission of the burglary “even though it is a forcible felony.” (R1481) Contrarily, the court later found that, while the absence of any contemplation of harm was a mitigating factor, “the specific facts of this case and the conduct of this offense and the conduct immediately after the commission of the offense posed a threat of physical harm.” (R1519)

The manner in which this offense was committed was that the defendant allegedly entered Professor Robert McCauley’s office while the professor was not there, took the professor’s laptop, and left the office, walking out of the Clark Arts Building. The professor took it upon himself to try to get the laptop back by grabbing onto the defendant and holding on to him as the two walked outside. (R649-653) Not to suggest that the professor should be blamed for trying to protect his property, but the fact is that the defendant neither contemplated any harm nor created the possibility of harm. This is particularly so considering the defendant “gently” placed the laptop on the ground and walked quickly away once they were outside. (R653) Clearly, there was no threat of physical harm to either the professor, or the laptop, contemplated or caused by the defendant. This factor, then, relied upon by the court in imposing the sentence, was improper.

Sentences must be based on the particular facts of each crime. People v. Nevitt, 228 111. App. 3d 888, 891 (1st Dist. 2003).   As noted, the evidence supporting this conviction shows that the offense was, in proportion to other offenses, a non-aggravated event. For whatever reason, the defendant allegedly took the laptop when no one was present, continued to hold the laptop as the professor attempted to grab at it, but carefully returned the laptop by gently placing it on the ground. The professor said the defendant was silent during the offense, (R663), so there were no words that would cause additional and undue fear for the professor. The professor said he was “shaken a bit,” and his 3:00 class did not start on time as a result,(R660), but it seems he was able to go on and conduct his life pretty much as usual.

And, as the court found, the offense was completed when the defendant left the professor’s office and at the time the professor attempted to “recapture his property.” (R1481) The burglary itself, then, was simply a taking of property from an open and unoccupied office. A 14-year maximum extended term sentence, based on the circumstances of this offense and the absence of any contemplation or possibility of harm during the commission of the offense, is wholly excessive and unjustified.

What makes this sentence even more difficult to justify are the additional reasons, both stated and inferred, that underlie it. It is true that the defendant has a couple of prior convictions for burglaries, dating back to 1991. However, as defense counsel argued, (R1507), there was no criminal conduct by the defendant from 1992 (R1282, 1341, 1362, 1396, 1406-1408, 1409, 1424, 1434-1436), until the alleged commission of this burglary in 2006 – a period of 14 years of law-abiding life.   The stipulated testimony from defense witnesses supports that the defendant had rehabilitated himself to a great degree during that 14 year period. (Supplemental Brown Envelope labeled “Sentencing Exhibits”) Surely, consideration of that lengthy period of successful and peaceful citizenship, coupled with the statements of the stipulated witnesses, would have mitigated against an equally lengthy sentence.

However, the court found otherwise. In imposing the sentence, the court accused the defendant of holding a “measure of conceit” toward law enforcement personnel. The court went on to say, ignoring the evidence of the lengthy period of law-abiding life, that,

I suppose there is some reason for you to feel that
way inasmuch as you have had a largely successful
career as a burglar in the time which has past (sic)
between this offense and the other offense for which
you were convicted and the other criminal conduct
that  we  heard  about in  the  first  part  of the
sentencing hearing.
* * * *
Your attorney points out that the time lapse between
the first conviction and this conviction, and actually,
I see a different side of that coin, and that is that
although the first offense was committed sometime
ago, that you continued along the lifestyle or pattern
of criminal behavior… that you continued to maintain
the same criminal thinking patterns and take things
from people for money, for profit, rather than work,
rather than use your skills and abilities to be a
productive member of society.

(R1521-1522
)

As referenced above, there was no evidence presented at the sentencing hearing that the defendant engaged in any criminal behavior of any type from the time of the previous burglaries in 1991 and 1992, to this alleged offense in 2006. There is nothing to support the court’s conclusion that the defendant “continued along the lifestyle… of criminal behavior.” There was no evidence to support the court’s other conclusion that the defendant’s rehabilitative potential was “extremely low” or that “[his] criminal thinking patterns as exhibited by your conduct is (sic) deeply ingrained.” (R1523) The court’s opinions, unsupported as they were by the evidence presented, were clearly erroneous and constitute an abuse of discretion in imposing the lengthy 14-year maximum extended term sentence.

In fact, the evidence at trial and in the stipulated statements of defense sentencing witnesses showed that the defendant helped with childcare for various people, helped maintain properties owned by Diane Chavez in exchange for his rent, and did odd jobs of many types. (R848, 850, 874-875, 879-880; Supplemental Brown Envelope labeled “Sentencing Exhibits,” Deft. Ex. 1-4) The defendant’s employment may not have netted him a large salary, but it obviously was a successful life in that he helped others and maintained his own food, clothing, and shelter. By all appearances – living a law-abiding life for quite a lengthy period of time, by earning the praise and respect of others, by enjoying the affection of his nieces and nephews as well as other children, and by helping others through odd jobs and maintaining properties – the defendant was a successful, competent member of society who had been, to quite a great extent, rehabilitated since the previous run of offenses 14 years earlier. The court was simply wrong in finding, then, that the defendant was incapable ofrehabilitation. (R1522)

The defendant suggests that the actual reason why the maximum 14-year extended term sentence was imposed was due to the underlying current of suspicion created by the death of attorney Greg Clark. The defendant acknowledges the sentencing court’s comments that:

It’s appropriate to begin by stating that the sentence
imposed in this case is for this offense. I want it to be
clear that the court is not punishing Mr. Wanke  for
allegations that are uncharged and unproven. The
sentence is being imposed for this offense and solely
for this offense.
(R1516
)

The court noted a second and third time that it was considering the “facts of this case” and “the nature and circumstances of this offense.” (R1517) To paraphrase Shakespeare, it appears the court protested too much.   See Hamlet, Act III, Scene 2.

Following the jury’s finding of guilt in this case, the prosecution made a motion to revoke bond (the defendant had been on bond since March 13, 2006 (Cl9)). The trial court denied the motion and the defendant remained out on bond following the finding of guilt. (R1036) A couple of months after the denial of the motion for new trial and the defendant’s own motion concerning ineffective assistance of counsel, (R1043-1060), attorney Greg Clark was the victim of a homicide. (R1075) Judge Truitt, based on information he was made aware of from the investigation into Clark’s death, ordered the defendant’s bond be revoked on February 6, 2008. (R1078-1079,1093) Motions to reconsider that revocation, and to reinstate the no-bond status, were repeatedly denied by both Judge Truitt and Judge McGraw, notwithstanding no charges were brought against the defendant in relation to Clark’s death. (On information and belief, no charges have yet been brought against Richard Wanke, or anyone else, in the death of Greg Clark.) (R1095-1098, 1107, 1180, 1216,1249-1252) The defendant remained in jail pending his sentencing hearing on August 6 and August 7, undoubtedly appearing before the court in jail garb, with the stigma it carries with it subhminally suggesting guilt of much more serious conduct than the offense at issue in this case.

Richard Wanke, therefore, asks that this Honorable Court vacate the sentence imposed and either reduce the sentence under this Court’s powers under Supreme Court Rule 615(b)(4), or remand this matter for a new sentencing hearing. The sentencing court here considered numerous factors that were not only unsupported by the evidence presented at the sentencing hearing, but formed opinions that were clearly contrary to the evidence that was admitted. The defendant further asks that, if the matter is remanded for a new sentencing hearing, that, because of the nature of the comments made by Judge McGraw, the hearing proceed before a different judge.

The Appellate Brief filed January 20, 2010, in appeal of Richard Wanke’s 2006 burglary conviction and excessive sentencing can be viewed in it’s entirety at https://richardwanke.com/richards-appellate-brief/


Excerpts below regarding the Attorney/Client relationship are from Website of Hinshaw & Culbertson LLP (law firm)

“One of the basic concepts of the practice of law is that the client is entitled to be represented by counsel of his or her choice. It follows that a client may terminate his attorney at will, and with or without cause. Herbster v. North American Co., 150 Ill.App.3d 21, 501 N.E.2d 343 (1986). This rule is deeply rooted in the personal nature of the attorney-client relationship and in the need to avoid friction and distrust between the lawyer and client. The client’s right to terminate also includes the right to substitute other counsel. See, e.g., Savich v. Savich, 12 Ill.2d 454, 147 N.E.2d 85 (1957)…

…The right to choose counsel is not without limitation, however, particularly in the field of litigation. The client’s latitude in selecting, discharging or substituting counsel is not “so absolute that its exercise may not be denied where it will unduly prejudice the other party or interfere with the administration of justice.” People v. Franklin, 415 Ill. 514, 516-17, 114 N.E.2d 661, 663 (1953). Thus, once a trial has commenced, substitution or withdrawal may be denied in the absence of some “valid reason.” See, e.g., Marriage of Milovich, 105 Ill.App.3d 596, 434 N.E.2d 881 (1982)…

…interference with the relationship between an attorney and his client may be actionable, even if the relationship is terrainable at will. See, e.g., Herbster; LaRocco, supra…An attorney’s right to withdraw from the attorney-client relationship is somewhat restricted by the lawyer’s special position…an attorney representing a client before a tribunal must obtain permission from the tribunal to withdraw. ”

http://www.hinshawlaw.com/breaking-away–avoiding-malpractice-when-the-attorney-client-relationship-ends-05-01-2000/

Below is the first of two main arguments submitted January 20, 2010, by the Illinois State Appellate Defender’s Office in support of Richard Wanke’s appeal of his 2006 burglary conviction and 14 year extended term sentence.

______________________________________________________

ARGUMENT I (from the Appellate Brief)

BECAUSE THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING GREG CLARK’S  PRE-TRIAL MOTIONS TO WITHDRAW AS TRIAL COUNSEL, THE DEFENDANT WAS ULTIMATELY DENIED A FAIR TRIAL REQUIRING THAT THE CONVICTION BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.

Standard of review
The standard of review of the decision to allow an attorney to withdraw is abuse of discretion. People v. Franklin, 415 111. 514, 516 (1953); Safety-Kleen Corp. v. Canadian Universal Ins. Co., 258 111. App. 3d 298, 303 (2nd Dist. 1994); In re Rose Ann L., 307 111. App. 3d 907, 912 (1st Dist. 1999); see also In re J.D. and M.G, 332 111. App. 3d 395, 405 (1st Dist. 2002).

On March 14, 2007, Clark filed a motion to withdraw as counsel. In the motion, he claimed a lack of cooperation and communication as the bases for the motion.  At the hearing on the motion, Clark said that while the relationship with the defendant was not hostile, communication had broken down to the point there was none. (R165-166) The defendant denied knowing what Clark was talking about; he said that Clark’s claim that he tried to call the defendant many times was “inaccurate,” and that he had not received a copy of Clark’s motion. When the court asked the defendant about the breakdown in communication, Mr. Wanke replied that it was “hard to say” – the two were cordial and polite, but they did not see eye to eye. (R167-169) Clark reiterated that the basis of the motion was “non-communication.” (R170) The court denied the motion, but noted that Mr. Wanke was on notice to cooperate with counsel and respond to communication – if not, it was at his own peril. (R173)

Later in the same proceeding, the defendant told the court he wanted Clark to re-open the motion to suppress and argue that the photographs in the line-up had been “cherry-picked.” The court told Wanke that Clark conducted a full and fair hearing with the correct witnesses, and it was not for the defendant to second-guess counsel. (R173-174) Clark then asked the court to admonish the defendant that if any defenses were not disclosed to the prosecution, the court would bar them at trial; the court did so and again put Wanke on notice that he needed to cooperate with counsel. (R176)

Under Supreme Court Rule 13, an attorney who has filed an appearance on behalf of an individual may withdraw as counsel unless the court, reviewing a written motion to withdraw, finds the withdrawal will delay the trial or “would otherwise be inequitable.” Supreme Court Rule 13(c)(2) and (3). Under the Illinois Rules of Professional Conduct, there are some circumstances that require an attorney to withdraw as counsel, while the Rules permit withdrawal under other circumstances.

Specifically, Rule 1.16 provides, in pertinent part:
(a)    A lawyer representing a client before a tribunal shall withdraw from employment (with permission of the tribunal if such permission is required), and a lawyer representing a client in other matters shall withdraw from employment, if:
the lawyer knows or reasonably should know that the client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise  having steps taken, merely for the purpose of harassing or maliciously injuring any person;
the lawyer knows or reasonably should know that such continued employment will result in violation of these Rules;
the lawyer’s mental or physical condition renders it unreasonably difficult for the lawyer to carry out the employment effectively; or  the lawyer is discharged by the client.
(b)    Except as required in Rule 1.16(a), a lawyer shall not request permission to withdraw in matters pending before a tribunal, and shall not withdraw in
other matters, unless such request or such withdrawal is because:
the client: insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law;
seeks to pursue an illegal course of conduct;
(c) insists that the lawyer pursue a course of conduct that is illegal or that is prohibited by these Rules;
(d) by other conduct renders it unreasonably difficult for the lawyer to carry out the employment effectively;

* * * *
(4) the lawyer reasonably believes that a tribunal will, in a proceeding pending before the tribunal, find the existence of other good cause for withdrawal.

Rules of Professional Conduct, 1.16.

An indigent defendant is constitutionally entitled to competent assistance
of counsel.  U.S. Const., amends. VI, XIV; 111. Const. 1970, art. 1, § 8; Gideon u.
Wainwright, 372 U.S. 335 (1963); see also People v. Lynn, 102 111. 2d 267, 273
(1984). That long-standing and obvious rule being said, there are limits to that
right.   This Court pointed out in a previous appeal by Mr. Wanke that, “A
criminal defendant has no right to choose his appointed counsel or insist on
representation by a particular public defender.” People v. Wanke, 3.03 111. App.3d
772, 782 (2d Dist. 1999); see also People v. DeRossett, 262 111. App.3d 541, 544
(4th Dist. 1994) (“an indigent defendant does not have the right to court-appointed counsel of his choice [citation], nor does a defendant have the right to select a particular assistant public defender to represent him”).

While these cases stand for the proposition that an indigent defendant may not be able to choose his appointed counsel, the counsel appointed to represent such an indigent defendant must still satisfy the Rules of Professional Conduct and seek to withdraw should any of the situations enumerated in Rule 1.16 arise. However, unless counsel and his client are “embroiled in an ‘irreconcilable conflict’ that is ‘so great that it resulted in a total lack of communication preventing an adequate defense,’ there is no abuse of discretion in denying a motion for new counsel.” U.S. v. Morris, 734 F.2d 669, 673 (7th Cir. 1983), citing U.S. v. Mills, 597 F. 2d 693, 700 (9th Cir. 1979), and U.S. v. Calabro, 467 F.2d 973, 986 (2d Cir.1972).

Here, the total lack of communication is precisely what the problem was, as alleged by Clark in his motion to withdraw and in his statements at the proceeding on March 14. Clark admitted there was no hostility between Wanke and him, but there had developed a complete breakdown in communication. (R166, 170)

This was not a situation as in Lucas v. State of South Carolina, 572 S.E.2d 274 (S.C. 2002), where counsel filed a motion to withdraw in the midst of a serious and complex murder trial, alleging his concern that perjured testimony would be presented. That Court found that the attorney did what was required of him under the South Carolina Rules of Professional Conduct, and that the trial court considered appropriate factors in denying the motion to withdraw. Those factors include: a balancing of the need for the orderly administration of justice with the fact that an irreconcilable conflict exists between counsel and the accused; the timing of the motion; the inconvenience to the witnesses; the period of time elapsed between the date of the alleged offense and the trial; and the possibility that any new counsel will be confronted with the same conflict. 572 S.E.2d at 277. Compare also Ellis v. Texas, 99 S.W.3d 783 (Tex. App. 2003) (defendant and counsel disagreed on strategy, defendant’s father threatened future law practice, defendant repeatedly accused counsel of ineffectiveness; court found any other attorney would face the same personality conflicts as did counsel, and denied counsel’s motion to withdraw).

Here, Clark described an “intolerable” situation in which he had no communication with his client. The motion to withdraw, filed well-before the date set for trial, before witnesses would have been subpoenaed, and with plenty of time for newly appointed counsel to come up to speed for trial, should have been granted. The events subsequent to that denial underscore the error in the trial court’s denial of the motion.

For instance, in the course of a status hearing on April 19, 2007, concerning plea negotiations, Clark told the court an oral offer had been made on March 28 and conveyed to the defendant. He again alluded to the failure in communication with Wanke when there was no communication from Wanke until Clark received a voicemail at some point asking that the offer be in writing, which Clark obtained on April 17. (R189-190) On May 4, Clark, in the absence of the defendant, told the court of his error in information given to the defendant during the plea negotiations (concerning the applicability of the extended term sentencing and the ineligibility for probation), his suggestion that the defendant reconsider the plea offer, and then the defendant’s lack of communication afterward, including his failure to come to the proceeding that day as instructed by Clark. (R198-204)

On May 7, Clark again described the complete lack of cooperation and failure to provide possibly relevant exhibits for an alibi defense the defendant wanted to raise. Clark renewed his motion to withdraw, detailing what he said was a lack of cooperation on the defendant’s part, and alleging what he believed was the defendant’s “ulterior motive” in behaving in such a manner. (R209-221, 224-225) The court denied the motion again, finding that “every bit is on” the defendant. (R221) The court also denied the defendant the opportunity to file a pro se motion at that same proceeding, noting, in a statement seemingly contrary to its denial of counsel’s motion to withdraw, that Wanke’s attempt to file the pro se motion was “indicative of the lack of communication” between Wanke and Clark. (R234-235)

The contentious nature of the relationship continued after the trial ended. The defendant had Clark include an allegation in the motion for new trial, claiming Clark provided ineffective assistance of counsel.    (C103-104) The defendant argued that claim on November 5, 2007, and included an accusation that Clark had withheld evidence from the court and prosecutor. (R1046-1054, 1055-1056) Clark briefly responded, saying he felt bound by the attorney-client relationship, but said the defendant’s claims were “intolerable,” and that when he asked the defendant for a list of complaints about the representation nothing was communicated back. (R1054-1055) The defendant’s claims were denied as was the motion for new trial. (E1058, 1060)

Under the circumstances of this case, Clark’s motion to withdraw, filed well before trial and with ample time for another attorney to come up to speed on the case, should have been granted. Clark’s description of the lack of cooperation or communication showed an attorney-client relationship that was beyond repair; the post-trial claims by the defendant support that conclusion. This was not, as in Ellis v. Texas, merely a personality conflict. Compare also People v. Coleman, 203 111. App. 3d 83, 99 (1st Dist. 1990) (no authority permits Court to equate “personality conflict” with conflict of interest). This was a situation in which the animosity between client and counsel was palpable from the record both before trial and after. Surely, when the relationship between attorney and client breaks down to the point where there is, as Clark told the court, absolutely no communication, preparing to properly and effectively represent a client becomes impossible. On the other side of that coin, if a client distrusts his attorney to the point that he feels compelled to stop communication and file motions of his own, it can no longer be considered a reasonable, effectiveattorney-client relationship. In short, Clark’s motions to withdraw prior to trial should have been granted.

The defendant, therefore, asks that this Court find that, because of the denial of the motions to withdraw, the defendant was ultimately deprived effective representation (as evidenced by the incorrect information affecting the decision to plead guilty or not), reverse the conviction, and remand this matter for a new trial.

Richard Wanke’s Appellate Brief and the attached Motion to Supplement the Record can be viewed in their entirety at https://richardwanke.com/richards-appellate-brief/


Thanks to Jerry Paulson for writing to the editor of The Rock River Times

rockrivertimes.com/2009/09/02/to-the-editor-6/

Thanks To The Rock River Times For Publishing it