Tag Archives: evidentiary hearing

Brown County’s Last Comedic Stance…

In an earlier post, I mentioned that a ruling had been reached in the July 2015 evidentiary hearing for Keith Kutska. I also noted that on January 13, 2015, our lead attorney, Steve Kaplan, was contacted by a reporter from the Green Bay Press Gazette, looking for a comment on the ruling. At that time, Kaplan was unaware of the ruling because he had not been informed. The reporter kindly sent him a copy of the official document. Then came the second blow; a denial of further action in the matter. There was not going to be a new trial for Keith Kutska.


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My initial reaction was one of disbelief toward the blatant disrespect of Brown County. My second reaction bore mixed feelings as the reality of the situation set in. After thinking about it, this ruling was expected all along and the opposition was reacting with the same insolence they had displayed throughout the entire process. They were never going to acknowledge defeat. There was never going to be a new trial. Because that would suggest mistakes had been made and there was nothing to be gained by admitting to such incompetency.

However, this denial is not a bad thing for our men. Because of the way the hearing had been conducted, it was clear, even back then, it was never going to end favorably for Keith. In my opinion there seemed to be a tag team dynamic going on between the prosecutor and the judge during the entire ordeal. It was quite revealing to me and most unfortunate for Keith and his family. What was shameful was seeing the current prosecutor and the former Assistant DA involved in the original trial (a father and son team) both sitting at the same table during this hearing.

But in all reality, this ruling is encouraging.. It’ll take the case out of this biased town, away from this ridiculous progression of judicial recourse. It’s now headed for the Wisconsin Court of Appeals. I believe that justice lies somewhere in the broader judicial spectrum. Proof of this lies in the first and only exoneration to date in this case which was granted to Michael Piaskowski in 2001 when his case landed in a federal court. A federal judge aptly cited the trial evidence as unsound and labeled it as “conjecture camouflaged as evidence.” It was a big stain on the prosecution’s pristine record.

Michael Piaskowski exonerated in 2001

Michael Piaskowski exonerated in 2001

Photo courtesy of the Green Bay Press Gazette


This document, in my opinion, epitomizes a wide gap between what’s right and what’s wrong with our entire legal process. I’ve been known to say that if these circumstances were not so tragic, they’d almost be laughable. After injesting the hypocrisy in this document, I rest my case.

Here is the complete 29-page document of the ruling from Brown County:


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.