Tag Archives: court of appeals

Down…But Far From Out…

Greetings and Happy New Year! One of my goals in 2017 is to remain optimistic that this will be an exceptional and unprecedented year for ongoing efforts regarding our five innocent Wisconsin men; Keith Kutska, Dale Basten, Michael Hirn, Reynold Moore, and Michael Johnson.

There is much to be hopeful about despite a recent setback in our mission to request a new trial for one of those five, Keith Kutska. On December 28, 2016, we received word that Keith was denied justice as the Wisconsin Court of Appeals affirmed his conviction, barring him once again, the right to present new evidence in a new trial.

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During trial in 1995. Photo Courtesy of the Green Bay Press Gazette

Green Bay’s WLUK Fox 11 coverage included the following excerpt from that court’s decision:

“Kutska requests a new trial in the interest of justice. Because he failed to establish ineffective assistance of counsel or newly discovered evidence, that motion is procedurally barred. In addition, he has not established that the real controversy was not fully tried or that, because of trial error, it is probable that justice miscarried and a new trial would produce a different result.”

Here is the link to the entire Court of Appeals decision.

I’ll remind my readers that none of these men were granted separate trials to begin with, which in my opinion is a denial of a basic constitutional right. But let’s examine what I understand to be “the real controversy” in this earnest attempt to achieve justice; the idea that Tom Monfils’ death could have been a suicide. Those of us who support the innocence of all six men believe there’s plenty of evidence to show that suicide is a plausible explanation of what happened to him. We may never fully understand the scope of the circumstances leading up to his death but the science, the witness testimony, and the human interaction that occurred at the mill on that day in 1992, support this theory.

I believe the dominant reason for the resistance by the courts to allow progress in this case is pride. Simply put, they don’t want to admit that they’ve prosecuted, convicted, and incarcerated the men wrongfully. But the heart of the controversy among the general public seems to rest on misguided opinions and an inability to accept the suicide theory because of the taboo in our culture on the subject. Many are simply uncomfortable and even offended by the idea that someone would take their own life. In regard to the Monfils case, I often hear comments by those in support of the murder theory that no one in their right mind would commit suicide in the manner that Monfils died. But that idea falls flat because no one contemplating suicide is ever in a right frame of mind. At the given time, the victim will use whatever means is available or familiar to them, as it was here.

Based on these statements included in the court’s decision, the resistance to even have a conversation about suicide when it is staring them in the face is troubling. And knowing that the subject was never brought up during the 28-day trial is baffling.

According to the court, “(Tom) Monfils’ family’s opinions (as stated by the brother, Cal Monfils, during his testimony at the evidentiary hearing in 2015) regarding his possible suicide consisted of hearsay and speculation.” And, “In light of Young’s (the medical examiner) conclusions, trial counsel’s decision to forego presenting a suicide defense constituted a reasonable trial strategy, particularly given the questionable admissibility of the non-expert evidence (given at the evidentiary hearing) supporting the suicide theory.”

Having spoken with people who’ve dealt with suicide within their own families, the shame and profound guilt of those left behind is evident. They wonder why they were not aware and if there was something they could have or should have done to prevent this tragedy. The subject is painful, disturbing, and often avoided no matter the probability of its likelihood. But these influences should not blind any of us untouched by its effects to the possibility of suicide.

Statistical analysis favors our argument: According to the American Foundation For Suicide Prevention, “Suicide is the tenth leading cause of death in the United States” and is highest in middle-aged white men. “Each year, 44,193 Americans die by suicide.” In Wisconsin, it’s the 4th leading cause of death for ages 35-54. (Monfils was 35 when his life ended.) “Over four times as many people die by suicide in Wisconsin annually than by homicide.”

At this moment, we’re disappointed about the latest ruling but we are far from over and out and we will continue to exert a relentless stance in our quest to succeed. We have no illusions about the uphill battle we still face but if we can help it, we will never allow this injustice to persevere. We will take the plunge back into indeterminate waters as our mission expands to new levels of awareness and farther up the judicial ladder in 2017.

A petition to the Wisconsin Supreme Court is our next step. If this request fails, the legal team will pursue relief in the federal courts where the sixth man, exoneree Michael Piaskowski, obtained justice in 2001.

Until then, here’s a recap of upcoming events that I hope will greatly support these efforts. Two documentaries that will heighten awareness of this case are on the horizon and will be completed in 2017.

Beyond Human Nature is an examination of the human element and the interaction of the individuals involved on either side in the Monfils case.  Father and son team, Michael and Dave Neelsen of StoryFirst Media, based in Madison, Wisconsin are producing this project. Completion and distribution dates and venues are still unknown.

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Banner courtesy of ‘StoryFirst Media’

The Innocent Convicts examines how wrongful convictions occur. Seven cases, including the Monfils case, are reviewed in this project. Mark Saxenmeyer of The Reproters Inc, based in Minneapolis, Minnesota is the producer. Because of our involvement in the Monfils case, I and my friend and colleague, John Johnson, were interviewed for this project which will air on numerous PBS stations across the country in 2017. Specific completion and distribution dates are still unknown.

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Banner courtesy of ‘The Reporters Inc’

My tool of awareness is the book I’ve sought to complete in the past four years. This factual depiction of events from my perspective expands on the 2009 publication of The Monfils Conspiracy. Mine is a testament to the courage and perseverance of many I’ve met along the way who’ve experienced the ill-effects of a wrongful conviction. Because of my specific interest and involvement in the Monfils case, I impress upon my audience the urgency of taking action on behalf of the unfortunate victims aside from the men themselves; their families and close friends, people who led lives similar to ours before this tragedy befell them. I urge all to give credence to their long-standing predicament as well as to the devastation exacted on innocents everywhere.

In November of 2016, I submitted my transcript of this troubling story to a self-publishing company in Minneapolis called, Mill City Press. After finalizing an evaluation of the transcript, I received an astonishing overview. My story was regarded by them as having been “written well” and executed “professionally and tactfully” from a “facts only” perspective. Although an actual publishing date is uncertain, I am hopeful that the book will be available sometime during the first half of 2017.

I will post updates and specifics on all of these projects as they materialize.

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Early Spring sunrise on Laddie Lake, Blaine, MN (USA)

There are many uncertain variables at this stage but what an adventuresome and progress filled year this will be!

Guarded Optimism…

Despite growing proof that wrongful convictions occur, many people have difficulty believing that the justice system gets it wrong at all. Statements like, “If a person is arrested or charged, they must have done it or been involved somehow,” or “Certainly if they confessed they are guilty because why would someone confess if they are innocent,” surface regularly. One statement I heard recently questioned why a prosecutor would refuse to acknowledge that a mistake was made if the facts clearly prove it? And lastly, “How can you ever be absolutely sure a person is truly innocent?”

brown_county_courthouse_1Brown County Courthouse, Green Bay, Wisconsin

It isn’t until you dig in and do a bit of research. Then the lightbulb goes on and you start to understand that confusion comes from plain ignorance or how we would like to view our legal system. The danger lies in resisting acknowledgment that there is a problem despite the proof. In all wrongful conviction cases new details surface that would have resulted in a different conclusion had that proof been disclosed initially. I’m talking about facts that were previously unknown, later found to be incorrect or (and this one is alarming) were purposely concealed. It is very hard to open our eyes and hearts to the possibility that things are not always as they seem, but it is imperative that we do so for our own good as well as the good of humanity. Accepting that a problem exists is the only path to solving this problem. I advocate for the victims of wrongful convictions because of insight from trusted colleagues who are cognizant of this issue and who largely form their opinions based on the facts and their personal experiences with clients who’ve experienced a wronful conviction firsthand. Sure, we all have opinions and biases but they must be formed through facts. Equally as important, we must not prejudge a situation before we have all of the necessary information.

courtroom-for-keiths-hearing-7-22-15Evidentiary hearing at the Brown County Courthouse, Green Bay, Wisconsin. Photo courtesy of the Green Bay Press Gazette

Lately, I’ve promoted my beliefs (yes, biased ones) in regard to the specific Monfils wrongful conviction case  from Green Bay, WI. In my opinion, this case was pursued improperly from the beginning. Here are solid facts to support those claims in a 90-page post evidentiary hearing brief, filed on Sept. 2, 2015 by Keith’s defense team following the recent evidentiary hearing on July of 2015. They certainly lead me to believe that a grave injustice has occurred and needs to be rectified.

On September 22, 2015 the State of Wisconsin filed its 35-page response:

The State insists on denying Mr. Kutska a new trial. They call the defendants brief, “…yet another entertaining story, alternatively based on hearsay and conjecture, not supported by the evidence deduced at the hearing, that seeks to detail an entirely speculative theory as to how the crime victim, Tom Monfils, died.” This statement is especially interesting because it mimics the Federal Court’s statement in the exoneration of Michael Piaskowski in 2001, “…that much about the case against Piaskowski “is conjecture camouflaged as evidence.”- 7th U.S. Circuit Court of Appeals (WI)

The State argues that, “Kutska’s claims either repackage his post-conviction and appellate arguments or raise issues that should have been addressed at the time, and therefore are barred by this doctrine of issue preclusion as well as §974.06(4), Wis. Stats.” 

One of the State’s arguements is that too much time has passed. They pose a limit on how many motions can be filed and how much time should be allowed to bring forth new evidence. It’s important for the State to avoid, “…use of unlimited prosecutorial and court resources that should not be wasted in response to serial post-conviction motions addressing issues that either have been decided, or inexplicably were not raised many years earlier.”,  while giving no consideration to the lives of those directly harmed.

For those unfamiliar with this case, the State relied on the testimony of four key witnesses:

Dr. Young – a Forensic Pathologist who incorrectly ruled the death a homicide. (Cause of death on the autopsy report should have read “undetermined”)

Three other witnesses;

Brian Kellner – Confessed to lying and testifying falsely after being coerced by the lead detective who threatened to have his child custody and job terminated.

David Weiner – While on the witness stand, he was serving time in prison for shooting his brother to death.

James Gilliam – A jailhouse snitch.

These witnesses were used to connect all six co-defendants and the results were devastating.

This final 45-page response from our defense team was filed on October 1, 2015. It is mind blowing, articulate and gets to the true heart of this troubling matter.

The following characterizes the crux of the case as it appears in this final document:

“On a retrial, a jury would learn the following:

A. Dr. Young lacked any training or ability to know what she assumed she knew regarding the consistency of the vat liquid, the buoyancy and movements of Tom Monfils’ body in the liquid, and the timing and causes of his injuries. 

B. Credible independent forensic pathology testimony explains why Dr. Young could not reliably and  accurately determine that:

          (i)Tom Monfils had suffered all of his pre-mortem injuries as result of a beating

          (ii) His death was a homicide and not a suicide 

C. Brian Kellner confessed on separate occasions to Steve Stein, Gary Thyes, and John Lundquist    that he had signed a false police statement and/or perjured himself at trial. 

D. Verna Kellner Irish confessed to Jody Liegeois that she and Brian Kellner had perjured                    themselves at trial regarding the alleged bar reenactment because of pressure from a police             investigator. 

E. Ron Salnik and Char Salnik, the Fox Den Bar owners, denied before and at trial that any “role-       playing reenactment” had ever occurred at the bar, notwithstanding Winkler’s threats of contempt     and to report them for alleged poker violations if they refused to affirm that the reenactment had       happened. 

F. Ardie Kutska, who was present at the Fox Den Bar at all times on the night in question, has likewise denied that any such “role-playing reenactment” ever occurred and that the Brian Kellner and Verna Kellner Irish testimony was patently false. 

G. Jon Mineau, Pete Delvoe, Don Boulanger, Dennis Servais-the four mill workers whom Brian Kellner testified Kutska had told him were witnesses to the alleged bubbler confrontation/beating–each denied ever seeing any such incident. 

H. Before and at trial, Brian Kellner and Verna Kellner Irish attempted to disavow significant portions of their police statements and later sought to disavow critical aspects of their trial testimony. 

I. In his 1997 post-conviction testimony, Brian Kellner confessed to perjuring himself at trial. 

J. Amanda Kellner Williams and Earl Kellner, Brian Kellner’s children, have attested to the threats, pressure, and mind-games to which Sgt. Winkler subjected them and their father to secure false testimony from him. 

K. Winkler’s denials that he threatened or coerced anyone, including Brian Kellner and Verna Kellner Irish, to affirm Winkler’s bubbler-beating/homicide theory are refuted by Steve Stein, Gary Thyes, Jody Liegeois, Ardie Kutska, Amanda Kellner Williams, Earl Kellner, Ron Salnik, Char Salnik, Jon Mineau, Dennis Servais, Don Boulanger, Pete Delvoe, numerous other mill workers, John Lundquist, and the testimony of each of the defendants. 

L. No blood evidence of the type that Dr. Young assured the jury would have resulted from Monfils’ beating was ever located, despite law enforcement’s ability and concerted efforts to find it. 

M. There is no eyewitness testimony corroborating the alleged beating and no blood or other trace evidence confirming any such attack, despite its allegedly occurring in view of four mill workers and, perhaps, more. 

N. Monfils was obsessed with death and drowning, including suicide by drowning with a heavy weight or chain tied to a body, had spoken about how much weight needed to be tied to a body to keep it submerged, and knew how to tie the rope knots tied to him and the weight. His death identically mirrored those suicide drownings about which he had spoken so often. 

O. Monfils was under enormous and continuing stress after he reported Kutska to the police, as his repeated and desperate phone calls to the police and District Attorney’s Office seeking to preclude any disclosure of the 911 call tape confirmed. He knew what would befall him in the mill, his family, and the wider community if he was exposed as the anonymous caller. Indeed, after his wife learned that he had been exposed as the 911 caller, she acknowledged that he was capable of harming himself.” 

Time will tell whether or not the courts will admit a travesty has occurred. In retrospect I am troubled that the new evidence is being challenged. But it is. So while we wait for a ruling hopefully later this month I choose to stay optimistic…but guarded.