By Andy Nelesen
anelesen@greenbaypressgazette.com

A Supreme Court appeal by a former Green Bay police officer convicted of killing his estranged wife and setting fire to her body was rejected by the state’s high court on Friday.

However, in an unprecedented move, the justices held off on upholding John Maloney’s 1999 murder conviction and opened the door to take another look at the case “in the interest of justice.”

“I think that’s the next best thing that I could have heard other than they overturned the conviction and they’re ordering an immediate release,” Maloney said Friday in a phone interview from Dodge Correctional Institution.

“I think this decision, what they want to do is include a lot of information that wasn’t allowed in the appellate process,” he said. “I still reiterate with you that the only portion the court was able to consider was what was in the trial record, which wasn’t a whole lot.”

Maloney, 48, is serving a life sentence in the death of his wife, Sandy. In his appeal to the Supreme Court, he asked that his conviction be overturned for several reasons, including that his legal counsel was ineffective.

In its 22-page decision, the court rejected arguments that Maloney’s trial lawyers, Gerald and Bridget Boyle, failed to keep damaging evidence out of court and improperly questioned the lead investigator and damaged Maloney’s case.

But in the same document, the justices asked Maloney’s lawyer and state Justice Department lawyers to file briefs on whether the Supreme Court has “the authority to remand the case to the circuit court for consideration of a motion for post-conviction relief based upon the interest of justice.”

And if it is found the court has that authority, should they act on it, the justices asked.

Maloney’s family was cautiously optimistic about the ruling.

“It’s better than what it could have been, but not what we were hoping for,” said Ginny Maloney, John’s sister.

“Obviously we’re somewhat disappointed. But certainly this opens the door to more opportunity than we’ve had in the past.”

John Maloney was considerably more upbeat about the ruling.

“There is a very bright light in the tunnel and I’m moving toward it,” he said. “This really is great news. This is the first time there has been something positive from the state.”

The justices’ ruling shocked legal experts.

“I’ve never seen anything like that,” said John Pray, a clinical associate professor at the University of Wisconsin Law School who specializes in appellate law.

“I make of it that they have some concerns about this case that weren’t necessarily written in the lines of the opinion, but are sort of implied … that they have concerns about whether Mr. Maloney is either innocent or had a fair trial,” Pray said.

The request now opens the door for a litany of ethical, legal and evidentiary issues circulating around this case. Those issues could include:

• The recent conviction of lead prosecutor Joe Paulus for bribery. He was sentenced to 58 months in federal prison for taking money to fix drunken driving tickets about the time the Maloney case was under way.

• Evidence found in the basement of Maloney’s home that his supporters believe shows Sandy tried to kill herself and suggests her death was an accident.

• Whether Paulus doctored a key piece of evidence, the videotape made in Las Vegas on which Maloney admits to being at Sandy’s house the night she died.

In rendering their decision, the justices considered a transcript of a “48 Hours Investigates” newsmagazine profile of the Maloney case, which researched those issues and others. The transcripts were provided by the state and Maloney’s lawyer did not object.

“As I read it, it didn’t open it up to just this one little tiny thing,” Pray said. “I think in the interest of justice is a pretty broad thing.

“(The lawyers) will still have to stick with the record. They can’t just come in with stuff that’s not part of the appellate record, but I think they can come in with a pretty broad palette here.

“I suspect the defense will come in with everything they can,” Pray said. “I think the kitchen sink is coming in.”

Janine Geske, a professor at Marquette University Law School in Milwaukee and former state Supreme Court justice, called the high court’s move “highly unusual.”

“I’ve never seen a case like this before,” Geske said. “What it’s going to do is say ‘Is there enough here in this case for the trial court to look at it.’ Appellate courts are never the fact finders. That is the job of the trial court.”

Geske said if the Supreme Court decides to send the case back to circuit court for review, it could unfold in several ways: The judge could do nothing; the judge could re-open the case and hold evidentiary hearings; he could order a new trial or dismiss the case on its merits.

An outright dismissal would probably require proof of serious prosecutorial misconduct, she said.

But there are several large hurdles before the case even gets to that point.

“The first hurdle is the Supreme Court deciding if they can do this or not,” Geske said.

Daniel O’Brien, the Justice Department lawyer who argued the case to the Supreme Court, said he expects to file briefs addressing the two issues the court asked for. He declined further comment.

Lola Cator, Sandy’s mother, said she is willing to wait out whatever the court decides.

“It’s kind of heartbreaking that this whole thing isn’t over with,” Cator said. “But in the interest of justice, I see that they probably have to do this. I was hoping and praying this would be over. The one good thing is that I know that John is in prison. He isn’t going anywhere for eight or nine months. We’ll just have to wait and see.”

The Maloneys will be waiting as well. They will take small victories when they can get them.

“We knew it wouldn’t be an easy road,” Ginny Maloney said. “It certainly hasn’t been, but no one is giving up by a long shot.”

The justices’ decision Friday bucked — if even in a small way — a trend of denials the family has endured.

“They could have closed their eyes and taken the easy way out and denied it like (Brown County Circuit Court Judge Peter) Naze did and like the (state) appeals court did,” Ginny Maloney said.

“Of all the people involved, (the justices) are the ones who can bring back integrity to this case. Justice for John and peace for Sandy would be wonderful.”