Kutska's appeal denied

Keith Kutska, in a 2013 photo from the Wis. Dept. of Corrections.

A judge has rejected Keith Kutska's bid for a new trial on his conviction for the 1992 murder of Tom Monfils.

The 29-page decision by retired Judge James Bayorgeon - who also presided over the trial - was filed Wednesday morning.

Kutska, along with Michael Hirn, Michael Johnson, Michael Piaskowski, Dale Basten and Rey Moore, were convicted of killing Monfils at a Green Bay paper mill. All are serving life prison terms except for Piaskowski, whose conviction was overturned by a federal judge.

At a three-day hearing last summer, Kutska's attorneys argued for a new trial on the basis that the theory Monfils committed suicide was not properly argued at the original trial. The lawyers were also critical of police investigatory techniques.

In the ruling, Judge Bayorgeon says:

The decision by appelate counsel James Connell not to seek an independent forensic review is not grounds for a new trial on the basis of ineffective assistance of counsel. "It is pure speculation by Kutska that Attorney Connell had contacted an independent forensic pathologist, at that time, that individual would have disagreed with Dr. Young as Dr. Sens now does with the benefit of 20 years of scientific advances. Accordingly, the court cannot conclude that Kutksa has demonstrated the reasonable probability of a different result if Attorney Connell had consulted with an independent forensic pathologist," he wrote.

For the claim that there is new evidence in the case, Bayorgeon examined several aspects of the claim.

The judge says Brian Kellner's recantation of a supposed demonstration of the murder at a bar is not basis for a new trial. "The Court remains unconvinced at Kutska's broad and generalizing statement that the evidence he seeks to introduce was not available at the time nor that he was unaware of its existence. Based on the testimony presented at the post-conviction hearing, Kellner had already recanted his statement to witnesses before Kutska even proceeded to trial," Bayorgeon wrote.

In terms of the argument Monfils was suicidal, the judge says the information is not new.

"It is well documented in the case file that several individuals told investigators from the outset that they believed Monfils committed suicide. Therefore, even if the new information is that some of Monfils' family members may have considered suicide a possibility in this case is new, the value is limited because it is cumulative to evidence which was available to Kutska prior to trial," Bayorgeon wrote.

The judge rejected evidence that Monfils was skilled at tying knots, saying "this evidence would not establish that Monfils tied the knot in the rope, but merely that he would have been one of an undetermined number of people who would have known how. The court cannot conclude that this fact alone would have caused a jury to doubt Kutska's guilt in light of the other evidence presented at trial."

Bayorgeon also rejected the notion that a prosecution deal with witness David Weiner exists, or constitutes new evidence.

And, Bayorgeon rejects Kutska's argument his trial counsel's strategy was deficient.

Finally, the judge rejects the broad appeal by Kutska for a new trial in the interests of justice.

"As previously discussed, the court places limited weight on the unsigned Kellner affidavit and hearsay and evidence from various witnesses that Kellner recanted his earlier testimony. Furthermore, (Police investigator Randy) Winkler's credibility was a major focus of the trial and first post-conviction motion. The jury convicted Kutska despite extensive attacks on Winkler's credibility as a witness at trial, and the Court of Appeals upheld the conviction despite issues related to Winkler which were raised in the post-conviction motion. Similarly, a potential deal with Wiener was explored and rejected by both the trial court and the Court of Appeals during Kutska's direct appeal process. Accordingly, the Court does not believe this is a case where the interest of justice requires a different result," Bayorgeon wrote.

Now-Judge John Zakowski, who prosecuted the case, declined to comment.

Steven Kaplan, who represented Kutska in this motion, said he would not comment about the ruling, which can be appealed to the state Court of Appeals.

Bruce Bachhuber, who represented the widow, Susan, said "there was little or no newly discovered evidence, so the judge's ruling makes perfect sense."

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