Category Archives: Monfils Case Docs

A series that will delve into the details of an active and official court document.

A Note of Thanks…

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Blaine High School. Photo courtesy of BHS FB page

Hello Blaine High!

I’m posting a brief note to recognize and thank the amazing students we met in the three Criminal Justice classes at Blaine High School this past month.

In our mission to highlight wrongful convictions we are proud to educate young adults like you because you represent the future. You will lead this country and based on your prior experiences and knowledge, you will be the ones making the hard and important decisions for us all. Johnny and I appreciated your questions, your willingness to listen, and your patience as we navigated together through a disheartening topic–discussing your impressions of the Monfils case, aspects and flaws of eye-witness identification, cross-racial identification, and forensic science. We were especially touched by and will always remember the personal stories some of you shared as well.

Most of all, we are honored to have met you and we hope the information we presented will be useful as you build your futures. We invite you to stay connected and follow along as the legal process continues. Please feel free to reach out to us through this site with additional questions and comments.

We’d be remiss if we didn’t also thank teachers, David Bestul and Lance Pettis for inviting us. Awesome teachers like you enhance the education of your students by providing an array of topics from multiple viewpoints.

Best wishes to all and may justice carry you through the toughest of times.

Sincerely,

Joan and Johnny

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In-class presentation. Photo courtesy of Michelle Richardson.

 

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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Logo design on T-shirts

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:

 

Weighing in on a Preponderance of Evidence…

People commend my persistence to aid in the relief of five innocent Wisconsin men convicted of murder in 1995. Many others seem bewildered at my desire to do so. But for me, what began as a simple humanitarian effort has turned into a battle between good and evil. I’ve been known to say that if the details of this Monfils case weren’t so tragic, they’d almost be laughable. I’ve witnessed the lives of the innocent dangling on one side of an unbalanced judicial scale as if they are somehow less important, while those on the opposing side expect us to believe in theories that require a creative imagination. My spirit grows weary from the constant rhetoric surrounding the case. And my anger soars as I ponder the reality that this is not about guilt, innocence, or justice, but about career advancement and narcissist pride on behalf of the authorities. With those elements in place, there is no true justice. It’s more about closing a case and ignoring facts-a prevailing factor of all wrongful convictions.

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Dale Basten (74 yrs old)*

A thorough examination of this case reveals both the facts and the outcome of six guilty verdicts, are erroneous at best. I’d sure like to believe had I been sitting on the sidelines as a juror in 1995 when they were told the series of events leading up to the death were incomplete and riddled with “holes” and “gaps” that could not be rectified, that I’d have immediately jumped out of my seat and headed for the door yelling at the top of my lungs,”Be sure to call me when those holes and gaps are filled!” Wouldn’t that have been sensational? But would it have made an ounce of difference? Since when is it my place to question the powers that be? And how preposterous of me to challenge those who’d like to think they’re smarter than me? But what is most unfortunate is that not enough of us demand answers for things we find preposterous.

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Reynold Moore (70 yrs old)*

There is much to absorb with the 3-day evidentiary hearing behind us. As we embark on an excruciating long waiting period, hoping the court’s ruling will be swift, I avoid contemplating the possibility that our efforts could fail, despite the evidence that was presented. Each passing day represents a harsh reminder of what my friends; Keith Kutska, Reynold Moore, Michael Johnson, Dale Basten and Michael Hirn have endured every single day for 20+ years. And there’s the nagging question regarding the exoneration of Michael Piaskowski in 2001-the only exoneration in this case so far. How is it that six men were tried together but only one of them has been freed?

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Michael Johnson (68 yrs old)*

I cannot help but contemplate other thought-provoking questions. When will this nightmare end? What will be the prevailing factor? And when those prison doors do open, will there be adequate monetary compensation?

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Keith Kutska (64 yrs old)*

In the meantime I ask that you take time to read this 90-page document filed on September 2, 2015, with its vast amount of new evidence. It supports the belief that this was not murder but a likelihood that the victim, Tom Monfils, took his own life.

In the past six years amid all the twists and turns on an unrelenting road to freedom, I’ve given up trying to make sense of the madness. And I’ve yet to get through a single one of these documents without the usual indignation…

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Michael Hirn (51 yrs old) 

*All images courtesy of Artist Jared Manninen

Hearsay! Hearsay! The Court is Now in Session! Pt. 2

On July 22, 2015 I attended the 3rd and final day of testimony in the evidentiary hearing for Keith Kutska-one of six men convicted in the 1992 death of paper mill worker, Tom Monfils.

courtroom-for-keiths-hearing-7-22-15Brown County Courthouse during evidentiary hearing

Testimony on this day was especially perplexing. The bulk of it was spent questioning the former lead detective who worked on the Monfils case, Randy Winkler.

Here’s the summary:

 Evidentiary hearing for Keith Kutska July 22, 2015

Day three:

9:23 a.m. – Eleventh witness:

Attorney Bruce Bachhuber – Practiced business litigation and family law. He was legal counsel for Sue Monfils, wife of Tom Monfils, in a wrongful death lawsuit against all six of the defendants, and later in a separate civil suit against the Green Bay Police Department regarding the release of the audio tape to Keith Kutska prior to Tom Monfils’ disappearance.

Bachhuber had been subpoenaed prior to this hearing by defense counsel to produce Sue Monfils’ medical and marriage counseling records. John Lundquist showed the court and Bachhuber a copy of that subpoena. Bachhuber verified receiving the document. He was asked if he brought any of the stated documents with him, and he said he had not. When asked why, he argued they were protected by attorney/client privilege and that he wasn’twilling to waive it. Discussion ensued about the relevance of the requested documents in regards to the Monfils case and why they should or should not be provided. Bachhuber added other documents listed on the subpoena were no longer in his possession. He stated he had searched for them, but couldn’t locate them. The judge interjected by saying some of the requested documents hadn’t been admitted as exhibits at the wrongful death case trial and weren’t within the scope of what he’d ordered Bachhuber’s firm to produce at the hearing. The documents that Bachhuber did bring were of no relevance to the motion. Bachhuber was dismissed.

9:40 a.m. – Twelfth witness:

Jody Liegeois – Restaurant hostess in Abrams, Wisconsin, 1995–99.

Liegeois said she knew Verna Irish, formerly Verna Kellner, from the restaurant where she was employed because Irish worked at the adjacent gas station and had dined there often. She never met Brian Kellner, but knew he was Irish’s ex-husband. She said Keith Kutska was a friend of Liegeois’ dad, and that Liegeois had met Keith at the family’s home. She followed the trial and was aware of the Irish and Kellner testimony. She had a conversation with Irish about Irish’s testimony. Irish had said she was upset because she and Brian Kellner had been forced to lie about the so-called “bar reenactment” in which Kutska had allegedly showed them how Monfils was beaten at the bubbler.

The DA objected to Liegeois’ answer. It was overruled.

Liegeois said Irish told her that the investigator in the case forced hers and Brian Kellner’s testimony about the reenactment, and that both she and Brian had lied.

The DA objected to the statement about Kellner’s testimony. Steve made offer of proof. The statement was allowed.

Liegeois again stated her knowledge that Kellner’s testimony was forced by Winkler, but she didn’t report it back then because she felt the case was a “done deal.” She contacted Steve Kaplan after hearing news reports regarding the first two days of the evidentiary hearing, and the information stating that Irish and Kellner had lied during the trial. She did so because of what she felt she knew.

The DA pressed that Liegeois knew this twenty years ago, but was only coming forth with it now. She answered yes.

9:50 a.m. – Thirteenth witness:

Gary Thyes – Employed as a barber in Green Bay, 1992–95.

Thyes knew Brian Kellner, and cut his hair for a number of years. He knew of Monfils’ death and of the ongoing investigation. He said he had to kick detectives out of his shop when they brought in statements for him to sign about comments supposedly made by some of his regular customers who worked at the mill. “They made up stories . . . they made up what they wanted me to sign,” Thyes said. Thyes refused to sign any of the statements. He had conversations with Kellner about detectives threatening to take Kellner’s kids away. Kellner also told Thyes he had signed a police statement he later felt bad about signing. They had talked about how Kellner eventually signed the statement when threatened to have his kids taken away. Kellner said he was very upset right after he signed it, and had contacted an attorney about it.

The DA asked if Thyes had ever contacted a defense lawyer. He said he had not and that he didn’t start following the recent developments until he read Kellner’s obituary (in 2014). Furthermore, he didn’t contact Steve Kaplan until he read about the recent hearings. He also said he didn’t know Kellner had testified twice about the reenactment. He said he told Steve Kaplan he could pass a lie detector test in regards to what he knew about Kellner. The DA asked Thyes when his conversation took place with Kellner about signing the statement. He said Kellner had come into the shop shortly after (he signed it) and told him.

10:05 a.m. – Fourteenth witness:

Randy Winkler – Former Green Bay police officer, and detective sergeant. In January of 1994 he became the lead detective for the Monfils case.

Winkler was subpoenaed for this hearing to produce information about his disability settlement with the police department, along with other documents. He was shown a copy of the subpoena, and verified having received it. He was asked if he brought documents specified on the subpoena to the hearing. He said he hadn’t When asked why, he stated attorney/client privilege, as well as doctor/patient privilege.

Winkler learned the body was found two days after Monfils went missing, and that it had a rope and weight attached. He stated he wasn’t part of the initial police team sent to the mill to investigate, but went the following morning. He was looking for trace evidence—blood, hair, tissue, etc. When Steve asked Winkler about looking for evidence of an act of violence at the mill including near the bubbler, he implied Winkler had found none. But Winkler stated this was incorrect. When Steve asked Winkler to clarify his answer and disclose what evidence he was referring to, Winkler stated matter-of-factly that a body had been found. Steve rephrased his prior comment this time excluding the body as the kind of evidence he was alluding to, and reiterated that there was no evidence found anywhere in the mill. Winkler said this was correct. Winkler didn’t recall if luminol was used with black light to search for blood. Winkler believed there was a connection between the 911 call and Monfils’ death.

The autopsy was discussed. Winkler didn’t recall the names of the police officers present. He was asked if he was aware that Dr. Young didn’t believe the death was a suicide. An objection by the prosecution was sustained.

There were repeated objections regarding detail sheets and other documented exhibits Steve produced and showed to Winkler. These were part of the initial investigation, but signed by other officers. The prosecution argued Winkler couldn’t speak for those other officers and the defense should call them (officers) to the stand. Steve contended Winkler was the lead detective of a major case and should be well versed in the contents of these documents. Steve pressed that Dr. Young had influenced Winkler’s opinion that there had been a beating and that this theory guided his investigation, even though there was no eyewitness or physical evidence to support it. None of these exhibits were admitted. They were placed in the record under an “offer of proof.” Steve asked Winkler if the bubbler theory was developed before talking with Brian Kellner. He said yes.

Steve stated the police could never match a blunt object to an injury on Tom’s head. Winkler said this was correct. Steve presented a list of nine suspects generated in December of 1992. Winkler verified the list, and that six of the men on it were later charged. The name David Weiner was on the list and Steve stated Weiner was never charged. Winkler said that was correct. Exhibit was admitted.

Steve stated David Weiner was interviewed on numerous occasions. Winkler said yes. Winkler also said he believed Weiner took a leave of absence from the mill. Asked if Winkler testified that Weiner was an important witness, he said he did not recall. Discussion ensued about Dale Basten and Mike Johnson carrying something heavy. An objection by the DA was overruled.

Steve talked about Tom Monfils’ height and weight and the distance from where Monfils was allegedly beaten and the vat. Steve asked if Winkler believed Weiner saw Basten and Johnson carrying the body to the vat. Winkler said yes. Steve discussed the logistics of carrying Monfils’ body and expressed the added difficulty of having a rope and heavy weight attached.

When asked if Winkler was interested in who tied the knots, Winkler said “yes.” Steve suggested if Monfils had tied the knots, it would lead them to believe he committed suicide. Winkler said “no.” He also stated he assumed a beating had taken place. Steve pressed that Winkler never found anyone who said he saw a beating, and Winkler said this was correct. No eyewitnesses? No. Winkler stated he presumed there were witnesses, and that the mill workers were lying or covering up for fellow mill workers. Winkler stated the knots were sent to the crime lab. When asked if Winkler was told the knots should be sent to the coast guard, he said he didn’t know. Steve produced an exhibit; a detail sheet from December of 1992 that stated that the knots should be checked by the coast guard or the navy. When Steve asked Winkler if the knots were checked by either branch of service, Winkler said he didn’t know and that he never took steps to have them checked. Winkler says he obtained knots that Basten had tied, but didn’t remember if they were the same as on the body and said he didn’t compare them. Winkler didn’t find out if Monfils could have tied the knots, and Winkler stated he didn’t know the type of knot on the rope and weight.

Winkler stated he knew Monfils had a skull fracture, but that it had to come from something other than the vat impeller blade. Steve produced autopsy photos of Monfils’ skull and of the blade edge impressions. Winkler didn’t recall them. He also didn’t recall that a dentist made a cast of the skull. He didn’t recall the width of the wound in the skull or the width of the impeller blade. Winkler said no object was found to match the skull fracture wound. Steve asked if anyone educated Dr. Young on the shape of the blades, and Winkler said he didn’t recall. Steve pressed if any expert had determined what matched the blade, and Winkler said he didn’t recall. Steve expressed his lack of understanding of Winkler’s inability to remember many of the details of the case, despite recent conversations with reporters and filmmakers about the case.

Detail sheets were discussed. Steve asked Winkler if detail sheets needed to be accurate. Winkler said yes. Winkler stated he determined what went into them and that no one else confirmed their contents. Winkler stated they were critical pieces of information used by the police and prosecutors in criminal cases. Winkler typed up witness interviews on his own typewriter. When asked if Winkler recalled visiting Steve Stein at Stein’s home, he said no. Winkler was asked if he conducted surveillance. He replied yes. Were reports written up? Winkler couldn’t say. When asked if he had access to tape recorders, he said yes. Were they (tape recorders) ever used in interviews? Winkler said no, by choice. Steve asked if Winkler conducted about two hundred interviews during the Monfils investigation, and Winkler said it was closer to five hundred. Winkler was asked if he did reports for each interview, and Winkler said no. He stated it wasn’t always necessary. Steve asked Winkler to describe when they weren’t necessary, and Winkler said it was when the content didn’t pertain to the case or if the person didn’t have any information. Steve asked if any interrogations got heated, and Winkler said no. Steve asked whether anyone who stated he (Winkler) did get angry was lying. Winkler said yes. Steve asked if there was a reward for any arrests and convictions, and Winkler said yes. When asked if it was $75,000, Winkler stated he didn’t know. Steve asked if Winkler would tell people there was a reward and he said yes, but added no one said they saw anything.

The Reid Method of Interrogation was discussed. This technique is an accusatory process in which the investigator tells the suspect there is no doubt as to his or her guilt. It is done as a monologue presented by the investigator rather than a question-and-answer format. Winkler stated he was trained in this method. Steve asked how many hours were usually spent to question a witness. Winkler said two to four. Steve asked if it allowed you to lie to the subject, and Winkler said yes. Could you coerce a witness into giving false statements? Winkler said no, but added if witnesses didn’t tell him what he wanted, he would do more of an interrogation. Steve asked if the method allowed you to threaten subjects by saying they would lose their jobs or have their kids taken away if they didn’t tell you something? Winkler said no. Steve asked if Winkler had interrogated Dale Basten for twelve hours, and Winkler said yes.

Winkler said he was authorized by Oconto County to conduct the investigation. When asked if Verna Irish and Brian Kellner lived there, he said he didn’t recall but it was possible. Winkler said he didn’t recall if they (Verna and Brian) had children, but he was aware they were going through a divorce. When asked if he was aware that child custody was an issue, he said he didn’t. Winkler said he met with Brian Kellner to get information on many suspects and when asked if he documented every interview with Kellner, he said yes. When asked if Winkler was aware that someone claiming to be from child welfare visited the Kellner children, he said he had no knowledge of that. When asked if Winkler remembered Kellner asking him to leave his kids out of it, Winkler said he did not.

Steve presented a nine-page detail sheet regarding a 2.75-hour interview from 1994 between Winkler and Brian Kellner. Winkler asked to read the entire document. Afterward, Steve asked if Winkler noticed in the detail sheet that the Fox Den reenactment incident was not referenced. Winkler said yes. Steve presented an exhibit of the statement Kellner signed, and Winkler verified he had prepared it. Steve noted minor changes made with Kellner’s initials; three on one page, one on another, but no substantive changes were made on the document. When asked if Kellner resisted signing the final statement, Winkler said he did not.

Steve asked Winkler if people at the mill told him about Monfils’ obsessions with death and drowning, and Winkler denied ever hearing this. Steve asked if Winkler ever heard Susan Monfils say it was possible that her husband committed suicide, and he said he did not. When asked if he ever obtained Monfils’ medical records, he said he did not know. Winkler said Monfils’ death was ruled a homicide, and that was how it was investigated. Winkler also stated even if Monfils had tied knots, this wouldn’t have determined it was a suicide.

Steve asked Winkler if the DA ever made comments to him about a deal for Weiner after Weiner’s arrest, and Winkler said no. Steve asked if Winkler recalled Weiner stating he wouldn’t cooperate in the Monfils case without a deal, and Winkler said he did not. When Steve showed Winkler a news article containing that statement, Winkler said he still didn’t recall. Winkler said he didn’t recall visiting Weiner at Oshkosh Correctional to obtain writing samples. Steve then produced a letter from Weiner’s lawyer referencing the visit and Winkler’s own detail sheet documenting it. When Steve asked Winkler if he hadn’t told Weiner during the visit that Weiner’s cooperation could improve his position if he cooperated, Winkler said he hadn’t. Discussion ensued about a series of letters from an attorney representing Weiner regarding a deal, including a possible reduced sentence for his testimony. Winkler denied any knowledge of them or that Weiner’s lawyers contacted the DA’s office before the Monfils trial. In fact, Winkler denied having any knowledge of Weiner’s case even though he was still working at the police department.

Steve asked about a psychological disability claim Winkler had filed with the department. The DA objected. Steve argued it went to credibility of a lead detective in a homicide case. It was decided five specific documents in question would be entered under seal, and that both sides would have a chance to argue for or against their relevance at a later time.

The DA asked Winkler about his work history. Winkler stated he was employed by the department in 1975. He rose to the rank of detective sergeant and worked on the Monfils case for three years. Winkler stated it was stressful being subjected to the conditions at the mill, and that he was under constant scrutiny by the men there. He said he received a death threat, and he also said people claimed Monfils got what he had coming. There was a great deal of speculation within the community, and suicide was brought up often. The DA asked if Winkler ever promised to give Weiner a deal for his testimony, and he said he had no authority to make deals.

Steve established Winkler had an office at the mill, that the mill made it clear that job retention was based on the workers’ willingness to “cooperate with police,” and that the office was available to perform interviews. Winkler also clarified that he and other officers brought witnesses to the police station to talk.

In conclusion: Judge Bayorgeon commended Steve on his “diligent” and “amazing” job during this entire hearing, before he admonished him for insinuating a “public servant” (the then- DA Zakowski) lied about a Weiner deal. Bayorgeon stated he had examined all the documentation and could not find anything to suggest a deal was made or that the DA lied about it. He indicated those were serious allegations to be making. He added that specific letters presented at this hearing in regards to such a deal could not support the claim of a deal. He also said it was a twenty-eight-day trial with eighty-one witnesses, and the jury was instructed to consider all witness testimony.

Judge Bayorgeon gave each side time to argue the merits of the sealed documents in writing and to submit briefs on the merits of the motion for post-conviction relief.

On Wednesday, January 13, 2016, the motion for a new trial was denied. Immediately following, a similar appeal was filed in the Wisconsin Court of Appeals. On Wednesday, December 28, 2016 that motion was also denied. The next step was a petition to the Wisconsin Supreme Court. That motion is currently pending.

Posted are two related news stories.

Green Bay Press Gazette

KMSP Fox 9 in Minneapolis

Precarious Concerns….

This segment should have been the third installment in my series to examine the contents of a recent 152-page motion filed in an extremely egregious wrongful conviction case from Green Bay, Wisconsin, that landed six innocent men in prison for life in 1995. However, it was suggested to me that the timing could do more harm than good in the scheme of things.

As a blogger, I am all about the latest information and I understand that as a truth crusader I must help lead the way in disseminating truths often dismissed, denied, ignored or banished altogether. However, I’m a messenger with a high degree of integrity. I will fight to stay humble in my convictions and I will not, under any circumstances, sacrifice my ideals or cross a line merely to be the first to share something that could cause irreparable damage.

The fact that this motion is currently working its way through the legal system is a consideration I take very seriously but in my ignorance of the lawful implications, there were consequences I failed to consider. In my absence of possessing a legal mind, I overlooked the fact that in an already heightened atmosphere of resentment by those opposing new information concerning this case, my writings can be viewed as antagonistic. Unfortunately, the topic for this week’s installment would have been especially precarious.

I am hoping that this series can be reinstated soon. In the meantime, I will continue to carry on and share my knowledge of wrongful convictions.

For those who have not yet had access, I am again posting the direct link to the 152-page motion filed in the Wisconsin wrongful conviction case on October 31st, 2014 by the Minneapolis law firm of Fredrikson & Byron, PA.

 

Was it Murder…Pt 2

This segment examines the ineptitude and legal challenges of the defense attorneys in a joint trial setting.

Ineffective Assistance of counsel…

“The expert report of pre-eminent Wisconsin criminal lawyer, Stephen Glynn, Esq., explains why Kutska’s defense counsel failed to provide the diligent, thorough, and skillful representation that was required in this case and how that failure prejudiced Kutska’s defense and claim of innocence. In particular:

  1. Kutska’s defense counsel was obligated to (a) consult with and retain an independent forensic pathologist to challenge and disprove, if possible, Dr. Young’s homicide testimony and also to (b) investigate the strong possibility that Monfils had committed suicide. The need to investigate the question of suicide was apparent in light of Monfils’ mental and emotional history, the stresses in his life, his experiences in the Coast Guard, his pre-occupation with death and drowning, and his failed marriage. Instead, defense counsel made the uninformed and catastrophically prejudiced concession of an element of the charge–that Monfils had been beaten and murdered as Dr. Young and the prosecution contended. As Mr. Glynn states, those concessions and failures lacked any strategic justification.
  2. Had defense counsel investigated the medical examiner’s findings and conclusions and whether Monfils had taken his own life, they would have shown the jury why the prosecutor’s homicide theory was not merely doubtful, but flatly wrong, thereby undermining the credibility of certain key witnesses. Defense counsel’s concessions and failures led the jury to assume instead that the prosecution’s case was based on solidly reliable scientific, medical and other evidence, including the false testimony of the prosecution’s two most critical fact witnesses—Brian Kellner and David Weiner.
  3. Defense counsel had ample means, including through the use of formal discovery in the companion civil wrongful death litigation, to obtain the evidence with which to develop a powerful suicide defense. Indeed, suicide was then, and still remains, the only theory that is fully consistent with both the evidence that existed and the evidence that did not exist.
  4. Defense counsel’s concessions and failures limited Kutska’s defense to the sole contention that someone else had beaten Monfils and disposed of his body in the vat. The overriding problem with that defense, however, was that Kutska’s counsel lacked sufficient evidence pointing to anyone who might have done so in the closed environment of the mill. Moreover, Kutska was the person in the mill that day with a proven reason to be upset with Monfils and who had been with and near Monfils in the minutes leading up to Monfils’ disappearance. Kutska was, therefore, the prime focus of the homicide investigation. Defense counsel for the other defendants likewise could not point a convincing finger at anyone (other than one or more of the co-defendants, including Kutska). As counsel for one co-defendant candidly admitted in his closing argument, “[w]e have no theories about this case.” Similarly, in post-conviction proceedings, Kutska’s counsel never (a) attacked Dr. Young’s homicide testimony or the prosecution’s contention that Monfils had been beaten and then deposited into the vat where he died and never (b) investigated or presented the evidence pointing toward Monfils’ suicide.
  5. Kutska’s counsel was further deficient at trial and in post-conviction by failing to show that (1) Sgt. Randy Winkler’s coercive tactics had corrupted the investigation and the trial with perjured statements and testimony from certain key witnesses; (2) Winkler perjured himself and engaged in other acts of dishonesty; (3) other key prosecution witnesses, including David Weiner, James Gilliam, and James Charleston, also perjured themselves; (4) Weiner had an arrangement or understanding with the prosecution for his testimony that both he and the prosecution denied; and (5) the prosecution’s arguments were illogical, conflicting and made up.

Corroborated Facts:  On November 21, 1992, the body of Tom Monfils was found. Approximately two and a half years later, on April 12, 1995, six men were arrested for his alleged murder and on September 26, 1995, a joint trial involving these six men began. Then on October 28, 1995, all six of these men were found guilty of murder.

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Keith Kutska listens during the Monfils trial in 1995. Photo courtesy of the Green Bay Press Gazette.   

The trial was conducted as a joint effort with all co-defendants lined up in a row next to their attorneys. The book suggests that, with separate trials, the six men would not have been convicted of murdering Monfils because trying all of the men together automatically destroyed each man’s ability to create an independent defense. The idea that this joint strategy might confuse the jury was an unavoidable consequence. Despite the judge’s directive to the jury that not all testimony pertained to all of the defendants, evidence against one of the men was automatically applied to all of them. This idea was unmistakably evident in a letter from a juror to Mike Piaskowski years after he was exonerated. “It was too much to process and too easy just to make the same judgment for all of the defendants.”  Coupled with the complexity of information laid out during the 28-day trial, three of the six men were named Michael.

The defense attorneys recognized the unfair burden of a joint trial and they filed several pretrial motions demanding separate trials. Tax-dollar savings and consideration of the emotional state of the victim’s family won in the end and the trial judge denied all of these motions.

There was an order in which each attorney was allowed to question each of the eighty-one witnesses. This system could not be altered during the entire trial. Attorney number one was always given the first opportunity to ask his question. If attorney number five, for instance, was not satisfied with the answer and raised it again when his turn came up, the judge would dismiss it as “asked and answered” and the attorney was told to move on to his next question.

Unfortunately, all of the defense attorneys agreed at the onset of this joint trial to disregard the suicide theory…period! All else aside, this was the most crucial mistake they could have made because, in fact, it was their only defense. That mistake cemented the convictions of all six men.

Was it Murder? The Essence of a Wrongful Conviction Case…

Welcome! This week I’m putting forth a new series which examines a recent 152-page motion ❶ in regard to a 1992 murder case that questions the legitimacy of the convictions of six mill workers, Keith Kutska, Rey Moore, Dale Basten, Michael Hirn, Michael Johnson and Michael Piaskowski. This motion was filed in a Brown County Courtroom in Green Bay, WI on October 31, 2013 on behalf of Keith Kutska. All six men were given life sentences in 1995 for the murder of co-worker, Tom Monfils. Despite the fact that all of them were tried jointly, only one of the six, Michael Piaskowski, has since been exonerated in 2001 while the others remain in prison for a crime that I believe never happened.

Before my involvement, I knew nothing about this case. I didn’t know any of the people affected by it. In fact, I don’t have a legal background. And I had no knowledge about wrongful convictions prior to 2009. I simply read a book ❷ that was published in 2009, given to me by one of its authors. People ask me how I am able to advocate so passionately about something that has never affected me personally. It is because I can relate to these people on an emotional level because of my upbringing and I was at a juncture in my life where I could get involved. But mostly it was because of a sense of civic duty and a belief that it was the right thing to do.

I’m often asked, “Why was one of the men released and not the others?” This has is the $64,000 question. But with the vast amount of time and prohibitive costs involved in the appeals process it is no wonder. Plus, the number of men involved in this case and having to appeal separately, even though they were tried together, many years of litigation are inescapable. I strongly believe the this singlr case is indicative of how flawed and unfair our overall judicial system is.

My aim in bringing attention to this specific case is to educate people about wrongful convictions. While pursuing legal help for these men I’ve been gifted with a rare insight into an unseen tragedy that has caused alarming devastation to countless innocent lives. This case represents an extreme example of the grim realities and lends an overview of the aftermath. I cannot stress enough the importance of how we as a society must be more aware of the mistakes that plague our judicial system and eliminate the apathy that is widespread.

Because this case is currently in litigation, details I’m able to share will be limited to only that which is disclosed in the motion and in the book. But I will add my personal insight when applicable. Content I’ve highlighted is courtesy of the Minneapolis law firm of Fredrikson & Byron, PA. It’s the result of a twenty-one month reinvestigation. I’ve posted it verbatim and in italics.

With that said, let’s get started. This segment covers a brief introduction as written in the beginning pages of the motion.  Be advised; it contains disturbing details.

Incident at the mill…

“At approximately 7:42 a.m. on November 21, 1992, Tom Monfils – despondent, shamed and angry – left his work area at the James River Paper Mill and walked toward the entrance of a nearby airlock passageway. As he neared the airlock, he picked up a 49-lb weight and proceeded through the airlock. He then entered a storage area where his jump rope was hanging on a railing. With both the rope and weight in hand, Monfils walked to a large vat containing approximately 20,000 gallons of liquid. There, he climbed the steps to the top of the vat, tied one end of the rope around his neck and the other end to the weight, and entered the vat where he suffered traumatic injuries and died from drowning in the liquid. The next evening, workers found Monfils’ body in the vat with the rope and weight tied to him.

After a 2 1/2 year investigation, Kutska, and five other mill workers, were convicted of first-degree intentional homicide and sentenced to life in prison for Monfils’ death. The prosecution’s theory was that after Kutska had learned that Monfils had reported him to the police for stealing a piece of electrical cord from the mill, Kutska fomented “an angry mob” of his “union brothers” that viciously beat Monfils at a water bubbler at approximately 7:45 a.m. and then disposed of his body in the vat at approximately 7:50 a.m. on November 21, 1992. That theory embraced the conclusions of the medical examiner, Dr. Helen Young, who concluded that Monfils had been beaten and then placed in the vat where he died.

Dr. Young’s homicide determination was, however, erroneous and rested on a series of provably false assumptions, as well as her ignorance regarding the engineering design and operating factors impacting the movement of Monfils’ body in the vat. As forensic pathologist, Dr. Mary Ann Sens, states in her report, Dr. Young also lacked any scientific or medical basis for reliably and accurately determining that Monfils’ death was the result of a homicide and not a suicide. Indeed, there is ample and compelling evidence that Monfils had taken his own life.”

                                           P1040653

Water fountain “Bubbler” (center) Photo courtesy of ‘The Monfils Conspiracy’ book.

Corroborated Facts: The bubbler was a public area in a highly visible location within the mill. During the trial, it was determined that this is where the six men beat up Tom Monfils. But no blood or trace evidence was ever found in the immediate or outlying areas within the mill. In fact, no physical evidence was ever produced at trial to suggest a beating had taken place. Numerous mill workers were threatened throughout the investigation with the loss of their jobs if they did not admit to witnessing a beating at the bubbler that morning. Only one person succumbed to pressure and eventually gave a statement in support of the prosecution’s theory of a beating, though this person did not actually witness any beating. This person later recanted his statement.

During the investigation, the six men who were charged were promised partial or total immunity in return for their admission to being a bystander during a confrontation at the bubbler. All of them refused and said that they saw nothing. To this day, they maintain that there was no beating. To this day they profess their innocence.

References:

Link to more information about the Monfils case

152 page motion

❷  Purchase The Monfils Conspiracy