10-13-16 Transcript Case 922

STATE OF ILLINOIS
IN THE CIRCUIT COURT FOR THE 17TH JUDICIAL CIRCUIT

WINNEBAGO COUNTY
THE PEOPLE OF THE STATE
VvVVVVVv
OF ILLINOIS,
vs. NO. 20l4-CF—922
RICHARD WANKE, STATUS
Defendant. C O P V
REPORT OF PROCEEDINGS at the hearing in the
10 above—entitled matter before the Honorable Rosemary
ll Collins, Judge of said Court, heard on Thursday, the 13th
12 of October, 2016.
l3 APPEARANCES:
l4 MS. MARILYN HITE ROSS,

Winnebago County State's Attorney,
l5 Chief of the Criminal Bureau,
appeared on behalf of the People;
l6
MR. JAMES BRUN,
17 Winnebago County Deputy State‘s Attorney,
Criminal Bureau,
18 appeared on behalf of the People;
19 MS. PAMELA WELLS,

Winnebago County Assistant Deputy State's Attorney,
20 appeared on behalf of the People;
21 MR. NICK ZIMMERMAN,

Winnebago County First Public Defender,
22 appeared on behalf of the Defendant;
23 MR. ROBERT SIMMONS,

Winnebago County Assistant Public Defender,
24 appeared on behalf of the Defendant.
Brittyn Higdon, CSR, RPR

Official Court Reporter
CSR License #084—004810
THE CLERK: Number 6, People vs. Richard Wanke.
THE COURT: Good afternoon, Mr. Wanke.
THE DEFENDANT: Say it again, your Honor.
THE COURT: Good afternoon. Good afternoon. Let's
try it again. Can you hear me now?
THE DEFENDANT: NO.
THE COURT: I feel like that TV commercial. Nothing
yet?
THE DEFENDANT: Yeah. Okay.
10 THE COURT: It's all turned on, so
11 THE DEFENDANT: That microphone —— which microphone
12 do you speak into?
13 THE COURT: That one, this one here.
14 THE DEFENDANT: That one's not working.
15 THE COURT: It should be. Can you hear me?
16 THE DEFENDANT: I can hear you through ambient
17 noise, probably through those microphones that are on the
18 podium or something, but I can‘t hear you directly.
19 THE COURT: We'll see that if helps. Does that
20 help?
21 THE DEFENDANT: Yes.
22 THE COURT: All right.

23 THE DEFENDANT: Thank you.
24 THE COURT: I have two microphones now. All right.

So, Mr. Wanke, prior to your being brought into
the courtroom, we had a scheduling conference where we
have to talk about issues relating to the trial itself
that aren't substantive issues and so we talk about them
outside of your presence and we did do that today. So we
are ready to get started at this time.
I also want to tell the attorneys I have
received a return on subpoena that was issued from WTVO.
WTVO is always —— I think their regular course of
10 procedure is to call the administrative office or to
11 e—mail the administrative office and ask if they can send
12 it instead of delivering it in person. That's what they
13 did. They sent the scripts over. They also attached an
14 eumail that say they're attaching the scripts of the
15 stories that they did.
16 They indicate in this e—mail, "We weren't
17 archiving video on to DVDs at the time of these stories
18 ran, so the video is not readily available." So they do
19 not have the videos readily available and they also sent
20 a copy of this to Katie Zimmerman who's in the State's
21 Attorney's Office, I believe, because they're used to
22 communicating with her over cases that are involving
23 publicity and issues regarding that.
24 Mr. Jakeway did give this to me this morning. I

CSR License #084-004810
told him that they should not be communicating with Katie
Zimmerman in respect to an attorney on subpoena and they
indicated they would follow that in the future. So this
will be turned over to the State to be turned over to the
defense.
MR. ZIMMERMAN: Your Honor?
THE COURT: Yes.
MR. ZIMMERMAN: I also had a subpoena duces tecum
returnable for today. I presume since you didn't mention
10 it that you don't have any other ——
ll THE COURT: Who's it from?
12 MR. ZIMMERMAN: It's from the sheriff's department.
13 Deputy Juanez.
14 THE COURT: I've got nothing.
15 MR. ZIMMERMAN: The note I have, the return of
16 service indicates that he was just served Tuesday. So
17 I'll contact him and see if maybe he didn't have time to
18 prepare a response.
19 THE COURT: I'll have Jamie double check too. He'll
20 do that now and double check.
21 While he‘s doing that, we do have a spectator in
22 the courtroom. Sir, would you please state your name.
23 MR. WORBOYS: My name is Charles Worboys.
24 THE COURT: I'm sorry. I didn't hear your last
Srittyn Higdon, CSR, RPR

. rial Court Reporter
name, Charles.
MR. WORBOYS: My last name's Worboys, W-o-r—b—o—y—s.
THE COURT: W—o—r—b—o—y—s.
MR. WORBOYS: Correct.
THE COURT: All right. Thank you, sir. Are you
listed as a witness in this case?
MR. WORBOYS: I am not.
THE COURT: Okay. We have a rule here that no
witnesses are allowed to be present. That's to prevent
10 witnesses from finding out some things before their
ll testimony that might influence their testimony. That
12 also includes communicating with the witness. So you may
13 not communicate with potential witnesses to tell them
14 what is said here in open court or what you think the
15 testimony's going to be. Are you willing to follow that
16 order?
17 MR. WORBOYS: Yes, I am.
18 THE COURT: If it's a problem for you, I understand,
19 but then we just ask that you remain outside. So —— but
20 if you're willing to follow that order, then I'm fine
21 with you staying here.
22 In particular, I know you've been here in the
23 past with an individual named Diane Chavez. So you will
24 not be able to communicate with Ms. Chavez to tell her
Erittyn Higdon, CSR, RPR

what's happening in court regarding testimony. Are you
willing to abide by that?
MR. WORBOYS: Yes, I am.
THE COURT: All right. Thank you, sir.
All right. We're here then for argument on
the —— well, the defense has filed a brief in response to
the State's amended 27th, 33rd and 34th motion in limine.
Defense was going —— or the State was going to file a
written motion in limine, amended motion in limine 8, I
10 believe it was. So, but you need some additional time to
ll do that?
12 MS. HITE ROSS: Judge, I'm getting mixed stories
13 from my staff and the staff that filed it is off this
14 week, but I'm told that it was filed last week. It's not
15 showing up scanned.
16 THE COURT: Just check it next week.
17 MS. HITE ROSS: So we w ill check it, Judge.
18 THE COURT: It's —-
19 MS. HITE ROSS: It's --
20 THE COURT: We have time. We can check it. I just
21 wanted to, for housekeeping, just wanted to see if you
22 had it and we could do it today, but
23 MS. HITE ROSS: Yes. Because I prepared it the same
24 day, I believe, or even the following day when it was

Official Co urt Reporter
addressed orally and we each signed it and we were told
that it was filed and a copy was to be sent to the
defense. They've said they've not gotten a copy. I was
looking this morning on staff desks to see if it might
still be there and I haven't been able to locate it
still.
THE COURT: Yeah. It still hasn't been received by
the clerk's office either. So we'll track it down or
you'll track it down ——
10 MS. HITE ROSS: Yes, Judge.
ll THE COURT: -— next week. That'll be fine.
12 So I will also notify then the defense and the
l3 State at this time that we have not received a return on
14 your subpoena. My bailiff did just go and check and
15 nothing's been received. So find out about that.
16 I know we have court dates next week, don't we?
17 Do we have any dates next week?
18 MS. HITE ROSS: The 20th. We have the 20th, your
19 Honor, at 1:30.
20 MR. ZIMMERMAN: Next Wednesday.
21 THE COURT: All right. Yeah. The 20th at 1:30.
22 Great.
23 MR. ZIMMERMAN: I'm sorry. Next Thursday.
24 THE COURT: Thursday. Perfect.

CSR License ﬁ084~004810
And, if possible, the 21st in the afternoon. I
had that for some reason strangely open. Why is that?
THE BAILIFF: There's no trial now.
THE COURT: Oh, that's right. I have more free time
next week because my trial put out, so I do have more
time. So we'll look at that as we go through this.
All right. Defense, would you like to speak in
support of your brief which, frankly, was very well done
and I appreciated the footnotes and all.
10 MR. SIMMONS: Just briefly, your Honor, because I
11 think we have laid out everything we wanted to in the
12 brief. What we think is important for the Court and its
13 analysis of the State's motion, we felt that a lot of the
14 statements from the various court dates were being lumped
15 together and, frankly, we don't think they should have
16 been. So we tried to separate out by each court date and
l7 what actually occurred on each court date.
l8 And I think it's important to note that on the
19 March 14th, 2007, court date as well as the May 7th,
20 2007, court date that the State has asked to have
21 statements from, I think the nature of the transcripts,
22 what transpired in court both those days is Attorney
23 Clark is on the first court date on his own asking to
24 withdraw and stating the basis for his motion to withdraw
Hrittyn Higdon, CSR, RPR

of 2 L :ial Cour: Rep-Crier
which we acknowledge are communication issues on his
behalf.
We don't think on that court date Mr. Wanke made
any claims of ineffective assistance of counsel. He
didn't on his own, therefore, open any sort of doors to
waiving the privilege. He did answer questions from the
Court and we're not sure Mr. Wanke was in a position not
to answer direct questions from the Court once asked, but
we don't think that he waived any privilege on those days
10 and we do think it's important to note that it was
ll Attorney Clark who brought the issues up.
l2 Second, on the May 7th date we think the same
13 thing occurred. Attorney Clark joined in the State's
14 motion to continue which evolved into Attorney Clark
15 renewing orally his motion to withdraw for the same
16 reasons, that being the lack of communication.
17 Some of this we've heard through other
18 statements of other witnesses that Attorney Clark thought
19 there was a problem with defendant Wanke's defense of
20 that case or proposed alibi defense. He clearly had some
21 problems, based on what the State has put forth through
22 Mr. Henbest, that he had some concerns about how ethical
23 the defense would be to present and he's asked to
24 withdraw.

10
What he characterizes as communication issues,
we think, rather was his, he was not comfortable with the
defense because on the May 7th date he had answered ready
for trial. He had disclosed the defense, but then comes
to court and explains that he doesn't, that he's had zero
communication about case strategy, trial strategy. And
that just isn't —— can't be accurate. He filed an alibi
defense. He had filed evidence in support of that or,
excuse me, disclosed evidence in support of that alibi
10 defense. He disclosed witnesses.
11 So he had had some conversations about trial
12 strategy. We think he may not have been comfortable with
13 it. He may not, maybe he didn't think it was a good
14 defense. Frankly, we don't know. But what he
15 represented to the Court we don't think is demonstrated
16 or supported by what took place prior to trial in that
17 case and the fact that he did eventually put forward that
18 defense.
19 So the times Mr. Clark is, or Attorney Clark is
20 discussing the lack of communication we're not sure that
21 that's even accurately supported by what took place.
22 We'd ask the Court to consider that because he did, the
23 defense, he did want that was put forward or, excuse me,
24 explained by defendant Wanke to his attorney was the one

11
that was put forward and it appears based on the filings
in that case, that Attorney Clark was aware of it and
took steps to present that defense.
And then November 7th we acknowledge is
different. On that date Mr. Wanke clearly alleges
ineffective assistance of counsel. It's included in the
post—trial motion. And then we think that that court
date is similar to all the subsequent filings to the
higher courts.
10 Our stance on that is that when a client alleges
11 ineffective assistance of counsel, they're actually
12 trying to uphold one of their constitutional rights and
13 that any waiver of that attorney/client privilege is
l4 limited to the purpose of litigating that claim. It's
l5 not a waiver for all time and it's not a waiver for any
l6 other purpose which it could be used; and we think that
17 cases we have cited to support that.
18 So regardless of what Mr. Wanke said in court on
19 the 7th or any of his filings to subsequent courts, we
20 don't think that the waiver would be so broad as to be
21 allowed to be used against him at a later proceeding.
22 And that definitely applies to all the things Mr. Wanke
23 said or filed himself.
24 As far as what the appellate attorney filed on

CSR License ##084~[)O4820
12
his behalf, I think it was Ms. Silvern (phonetic), we
would just proffer that we communicated with Ms. Silvern.
And it's the appellate court practice or appellate
defender's practice, I guess, is that they choose which
issues they put forward and the client really doesn't
have input as to what they're going to put forward into
their briefs and what they're going to try to put forth
before the appellate court.
So we don't think that has a lot of relevance in
10 this —— what Ms. Silvern chose to appeal from Mr. Wanke's
11 trial court case because his personal input was not taken
12 into consideration. She could only choose from the
13 issues that were preserved at the trial court. However,
14 what she put forth in her own brief, we don't think, if
15 she was called to testify, she'd say Mr. Wanke had any
16 input on whatsoever.
17 The rest of our arguments as summarized in the
18 brief, I think, make a clear record as to our stance and
19 where we feel each of the issues should fall. Thank you.
20 If I could have one moment.
21 THE COURT: Mm-hmm.
22 (Discussion held off the record.)
23 MR. SIMMONS: Thank you, Judge.
24 THE COURT: All right. State?
Brittyn Higdon, CSH, RPR

13
MS. HITE ROSS: Well, Judge, first of all, we
believe that we delineated and segregated the various
statements sufficiently which is why we attached the
transcripts for the Court so that the Court could see all
of those statements in their appropriate context.
Also when defendant says —— I'll address the
appellate counsel issue. First of all, you have an
agency relationship which means specifically that
appellate court counsel acts as an extension of the
10 defendant and on behalf of the defendant and represents
11 defendant. So to argue that the defendant has no input
12 in what appellate counsel does, I don't think is true,
13 Judge.
14 I think appellate counsel is going to file the
15 appropriate response on appeal, but they have to have i
16 their client's input. They're not going to just do it [
17 without any input from their client. In fact, when you
18 look at the nature of the basic appeals even before a 1
19 trial court counsel has to file a 604(d) certificate. So
20 there's certain procedures as appellate counsel that they
21 would follow and one of those would be communicating with
22 their client who they are representing.
23 But more importantly, what appellate counsel ——
24 everything that appellate counsel refers to in their

14
brief, they're referring to what is in the trial court
record. And the theme throughout the trial court record
is that the defendant was alleging that Mr. Clark was
ineffective. And even though as counsel says Mr. Clark
presented a defense, presented evidence the defendant
wanted him to do, what is relevant here is the
defendant's thought processes.
Even though the Court found that Mr. Clark
should not be allowed to withdraw, that doesn't take away
10 from the fact that the defendant thought Mr. Clark was
ll ineffective. And it's very clear, as we've outlined in
12 our motions in limines, that when the defendant puts this
13 back in issue that that is an intentional waiver, and he
14 did put it in issue and the case law is clear that we've
15 given the Court.
16 Once that's put in issue, any communications
17 that bear on that direct issue also come into play and
18 the privilege is no longer there. And an attorney has a
19 right to respond and defend themself when they're accused
20 of inappropriate conduct or ineffective assistance of
21 counsel.
22 And in counsel's brief, he cites cases that
23 deals with motions to suppress statements, how the State
24 can't use the defendant's testimony. That is not a

CSR License 83084—004810
15
situation that we have here and I will point out that it
is absolutely distinguishable. What we have here is a
claim raised specifically by the defendant on his own
without any law enforcement involvement whatsoever that
he was dissatisfied with the services of his counsel.
And even in one of the transcripts you have
Judge Prochaska making an obvious observation which also
does not come into play with respect to the privilege
because observations in open court of a defendant and his
10 interaction with his attorney are not covered by a
ll privilege. But Judge Prochaska obviously made an
12 observation to the point where he comments and basically
13 tells the defendant to settle down.
14 In addition, we do know that Mr. Clark had
15 concerns about the evidence that the defendant wanted him
16 to present at trial because he spoke to Mr. Henbest about
17 it which he's allowed to under the rules of professional
18 conduct and he also references on the cassette tape, you
19 know. He talks about certain things he doesn't believe,
20 and I'm paraphrasing, to be credible.
21 So he did have some concerns even though in the
22 end he did put forward a defense for the defendant. He
23 obviously had concerns about it. Perhaps after
24 discussing that with Mr. Henbest he felt better about it.
Hriftyn Hidden, CSR, RPR

.,i_- quurt Reporter
16
But he did have enough concern that he discussed it with
his partner as to whether or not he would be able to
comply with his ethical responsibilities and present
evidence that the defendant wanted him to present.
And so what we're looking at here, Judge, is
what was in the defendant's mind. The defendant's mind
and his state of mind has been throughout that
relationship with Mr. Clark is that he never felt
Mr. Clark had represented him appropriately. He filed
10 his own affidavits with the U.S. Supreme Court and
11 Illinois Supreme Court alleging that. These are
12 statements that he decided to make on his own. These are
13 allegations that he made, again, without any involvement
14 from law enforcement. So I think some of those cases in
15 the footnotes that defense counsel cites do not apply in
16 this particular case.
17 And, again, as we point out in our motions,
18 documentations that were sent by Mr. Clark or
19 communications from Mr. Clark to the defendant were the
2O subject of the issue in court when Mr. Clark was asking
21 that he be allowed to withdraw. And we've attached those
22 communications that were recovered from the defendant's
23 home in a bag we believe belonged to the defendant
24 pursuant to a search warrant.

17
There are more than one letter referring to "You
haven't responded to my prior communications." So even
though counsel argues that there was communication,
obviously Mr. Clark's position is that there was not
enough or sufficient communication as he indicated to the
Court when the Court inquired as to what the issue was.
And these statements should come in. We've
outlined our basis and our reasons and I won't go over
those. I know the Court has read those, but we would ask
10 that our motions be granted.
ll THE COURT: Okay. Anything else from the defense?
12 MR. SIMMONS: Yes, very briefly, your Honor.
13 Just, I guess so it's clear what we're —— why
14 we're asking for what we are asking for, when any client
15 in this context raises an ineffective claim, they're
16 challenging, they're stating that their right, their
17 constitutional right to effective representation of
18 counsel has not been awarded them.
19 And whenever a client challenges a
20 constitutional right, they're not forfeiting their right
21 to remain silent in doing so. And the case law on that
22 is clear and that's why the case I cited to is about a
23 motion to suppress. In that case the client's saying my
24 4th Amendment right was violated.

CSR License #084~004810
18
What the Court's have said is when you assert
yOur 4th Amendment right, you're not giving up your 5th
Amendment right. So if a client, defendant testifies at
a hearing in 4th Amendment issues, the State is precluded
from using that testimony in their case in chief.
Now, if a client testifies contrary to what, at
trial contrary to what he did at the hearing, sure,
that's available for impeachment, but it cannot be used
in the case in chief.
10 Similarly here Mr. Wanke attempted to assert his
11 6th Amendment right to effective representation of
12 counsel. His statements cannot be used against him later J
13 in any proceeding because —— and case law's clear, the
14 waiver of attorney/client privilege is only as broad as
15 is required to litigate the claim of effective
l6 representation of counsel or ineffective claim, excuse
17 me.
18 So if the trial court had called on Attorney
19 Clark to testify, had a full—blown hearing, yes, Attorney
20 Clark could have testified at that hearing about the
21 topics that defendant Wanke complained about.
22 In this case, I think it's clear, he held a
23 Krankel hearing where he didn't feel he needed, the trial
24 court did not feel he needed to hear from Attorney Clark

19
further based on his observations and the reasons Mr.
Wanke listed for his ineffective claim. So the issue
from our stance is done at that point and the
attorney/client privilege was not waived beyond that.
And so we don't think that Mr. Wanke's words
through his filings, through what he said in court that
day can be used against him. We think the case law on
that issue is pretty clear. Thank you.
THE COURT: All right. Did you submit the addendum
10 with the cases that you cited?
ll MR. SIMMONS: I did not, your Honor. I have them.
12 I can make copies today. Frankly, it was a lot to read
13 and so I didn't submit them unless the Court wanted them.
14 THE COURT: Yeah. Why don't you.
15 MR. SIMMONS: I will.
16 THE COURT: Okay. Alrighty. Anything else we need i
17 to do today? I think we're done with the arguments then
18 on the motions.
19 Okay. All right. So I think we're going to be
20 okay with just keeping it set for next Thursday at 1:30,
21 frankly. I think we're going to be able to finish this
22 up and keep your Friday, October let open in case we
23 need, and if I need to, I'll set it so you can say I have
24 something else set in case we need it, but I don't know

CSR License ﬁOB4-004810
20
that we will.
MR. BRUN: And, Judge, just on that note for the
Court's knowledge, I will be out of state on Friday
the let. I'm not sure if we'll need that date at all,
but I will be unavailable.
THE COURT: I don't know if that's available to the
other attorneys anyway.
MR. BRUN: Friday the 21st I will be out of state.
THE COURT: I don't know that we'll need it, but I'm
10 worried about us running out of time. As you know, I
11 don't have time right before the trial. So that's what
l2 I'm concerned about.
l3 All right. Depositions tomorrow. Back in court
14 on Thursday, October 20th. And we'll see where we are at
15 that time.
16 MR. SIMMONS: Your Honor, I just have one final
17 question. Mr. Wanke had wanted a copy of the brief. I
18 just wanted to clarify whether it was okay or not that I
19 gave him a copy obviously without staples or anything in
20 it based on the prior rulings.
21 THE COURT: State, do you have any comment?
22 MS. HITE ROSS: Judge, I don't have a problem with
23 counsels tendering a copy.
24 THE COURT: All right.

21
MS. HITE ROSS: It's filed.
THE COURT: You can give him a c0py of the brief.
MR. SIMMONS: I'll hand a copy to the corrections
officer so they can ——
THE COURT: Thank you.' All right.
Anything else?
MR. ZIMMERMAN: Just one second, Judge.
THE COURT: Mm—hmm.
(Discussion held off the record.)
10 MR. ZIMMERMAN: Judge, we're going to depose
11 Attorney Zerouali tomorrow as though all of her testimony
12 is relevant. Obviously I'll make an objection at the
13 time to preserve that, but
14 THE COURT: The transcript of her testimony should
15 be done immediately. Just so you know it's because
16 that's, you know, that will be what we'll likely use. I
17 know you're videotaping it too and we may be able to use
18 parts of it, but there's going to be some parts I'm sure
19 that the Court's maybe going to grant an objection to.
20 And so have the transcript ready right away.
21 MS. HITE ROSS: Yes, your Honor.
22 THE COURT: I unfortunately have cases set so I
23 probably won't be able to go over there, but you never
24 know. My cases could all disappear and then I can be

22
part of the proceedings. So if I can I will.
MS. HITE ROSS: Thank you, Judge.
MR. ZIMMERMAN: Judge, one other matter that's
somewhat related to, I think, the arguments today. When
the State and the defense swapped a list of witnesses,
the State had included Judge Prochaska as a witness on
that list. I know that previously the Court had ruled
that Judge Truitt wasn't going to be called.
And so anyway, I just wanted to make the Court
10 aware of that. At this point I don't think it's anything
11 we need to address now, but at some point, depending upon
12 the Court's ruling, we're going to be asking, I guess,
13 for an offer of proof if the State does intend to call
14 Judge Prochaska.
15 THE COURT: Okay. All right. Thank you.
16 (End of proceedings.)
17
18
19
20
21
22
23
24

CSR License 80811—004810
23
STATE OF ILLINOIS
THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
COUNTY OF WINNEBAGO
C E R T I F I C A T E
I, Brittyn G. Higdon, CSR #084—004810,
an Official Court Reporter for the Circuit Court of
Winnebago County, 17th Judicial Circuit of Illinois,
10 reported in machine shorthand the proceedings had on the
11 hearing in the above-entitled cause and transcribed the
12 same by Computer Aided Transcription, which I hereby
13 certify to be a true and accurate transcript of the
14 proceedings.
15
16 IN WITNESS HEREOF I have hereunto set
17 my hand seal this 26th day of June, 2017.
18
19
20
/’ Officiai’Court Reporter
21 17th Judicial Circuit
State of Illinois
22
23
24


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10-13-16 Transcript Case 922

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STATE OF ILLINOIS

IN THE CIRCUIT COURT FOR THE 17TH JUDICIAL CIRCUIT

THE PEOPLE OF THE STATE

vs. NO. 20l4-CF—922

RICHARD WANKE, STATUS

REPORT OF PROCEEDINGS at the hearing in the

10 above—entitled matter before the Honorable Rosemary

ll Collins, Judge of said Court, heard on Thursday, the 13th

l4 MS. MARILYN HITE ROSS,

19 MS. PAMELA WELLS,

21 MR. NICK ZIMMERMAN,

23 MR. ROBERT SIMMONS,

Brittyn Higdon, CSR, RPR

THE COURT: Good afternoon, Mr. Wanke.

THE DEFENDANT: Say it again, your Honor.

THE COURT: Good afternoon. Good afternoon. Let's

try it again. Can you hear me now?

THE DEFENDANT: NO.

THE COURT: I feel like that TV commercial. Nothing

THE DEFENDANT: Yeah. Okay.

10 THE COURT: It's all turned on, so

11 THE DEFENDANT: That microphone —— which microphone

12 do you speak into?

13 THE COURT: That one, this one here.

14 THE DEFENDANT: That one's not working.

15 THE COURT: It should be. Can you hear me?

16 THE DEFENDANT: I can hear you through ambient

17 noise, probably through those microphones that are on the

18 podium or something, but I can‘t hear you directly.

19 THE COURT: We'll see that if helps. Does that

21 THE DEFENDANT: Yes.

22 THE COURT: All right.

24 THE COURT: I have two microphones now. All right.

Brittyn Higdon, CSR, RPR

the courtroom, we had a scheduling conference where we

have to talk about issues relating to the trial itself

that aren't substantive issues and so we talk about them

outside of your presence and we did do that today. So we

are ready to get started at this time.

I also want to tell the attorneys I have

received a return on subpoena that was issued from WTVO.

WTVO is always —— I think their regular course of

10 procedure is to call the administrative office or to

11 e—mail the administrative office and ask if they can send

12 it instead of delivering it in person. That's what they

13 did. They sent the scripts over. They also attached an

14 eumail that say they're attaching the scripts of the

15 stories that they did.

16 They indicate in this e—mail, "We weren't

17 archiving video on to DVDs at the time of these stories

18 ran, so the video is not readily available." So they do

20 a copy of this to Katie Zimmerman who's in the State's

21 Attorney's Office, I believe, because they're used to

22 communicating with her over cases that are involving

23 publicity and issues regarding that.

24 Mr. Jakeway did give this to me this morning. I

Brittyn Higdon, CSR, RPR

Zimmerman in respect to an attorney on subpoena and they

indicated they would follow that in the future. So this

will be turned over to the State to be turned over to the

MR. ZIMMERMAN: Your Honor?

THE COURT: Yes.

MR. ZIMMERMAN: I also had a subpoena duces tecum

returnable for today. I presume since you didn't mention