By Jessica La Plante
News-Chronicle

A former Green Bay police officer and father of three sons, Maloney was convicted of first-degree attempted homicide, arson and mutilation of a corpse in the 1998 death of his wife, Sandra Maloney.

A Thursday court decision issued by Brown County Circuit Court Judge Peter Naze brought both relief and grief to the parties whose lives and reputations hinged on the outcome of a habeas corpus petition filed in March 20.

In the petition, Milwaukee attorney Lewis Wasserman said Maloney should get a new trial because of errors his former defense team allegedly made during the 1999 trial. The document said Maloney's former father-daughter defense team of Gerald Boyle and Bridget Boyle-Saxton deprived Maloney of his Sixth Amendment right to effective counsel.

For the Boyles, the Thursday decision put to rest any lingering doubts about the their competence as high-profile Milwaukee defense lawyers. Gerald Boyle said the claims of incompetence were unfounded, desperate attempt by Maloney supporters to win the ex-cop a new trial.

"Good lawyers don't question what other lawyers do in the courtroom unless they've got a legitimate ax to grind," Boyle said, calling Wasserman's petition doomed from the start.

Instead of scrutinizing the conduct of Maloney's original defense team, Boyle said Wasserman should have concentrated his efforts on appealing Maloney's case in federal court. Although Maloney had an opportunity to file a federal appeal after the Wisconsin Supreme Court declined to hear his case in 2000, the time for appeals has since expired, Boyle said.

"There were some serious federal questions about the conduct of the (investigators) in this case," he said. "Now the federal time limit has passed. I feel sorry that (Maloney) didn't get his day in court."

Wasserman said he felt the judge's decision overlooked new evidence brought to light by a May 21 hearing, in which Wasserman questioned the Boyles about the legal strategies used at the trial. He said Naze, who was the presiding judge during Maloney's trial, "relied on the very same facts that he had before him in 1999."

Wasserman called the decision "an unreasonable interpretation of Maloney's constitutional rights," and said he intends to take the decision to the state Court of Appeals.

In the petition, Wasserman alleges the Boyles failed to suppress incriminating evidence which he said was obtained through prosecutorial misconduct. He said prosecutors violated a "no contact" rule that governs attorney-client relations. Wasserman said former special prosecutor Joseph Paulus knew Maloney was represented by a defense attorney, but nonetheless recruited Maloney's ex-girlfriend to interrogate the defendant as an undercover agent.

In his decision, Naze called Wasserman's claim of prosecutorial misconduct a stretch of both applicable case law and the facts. Naze found that the special prosecutor played a passive role in the investigation, and was not involved in decision-making. Furthermore, Naze said the no contact rule doesn't apply to law enforcement's use of undercover agents in criminal investigations.

Truth in Justice Note: 

Click HERE for actual investigative reports with examples of how "passive" the prosecutor was. (MS Word format)

"The use of an informant by a prosecutor to obtain information from a represented party is an appropriate investigative technique," Naze wrote.

Truth in Justice Note:

Click HERE for actual investigative reports detailing how Tracy Hellenbrand was coerced by state agents into becoming an informant, and how one of those agents invented key testimony for Hellenbrand. (MS Word format)

Naze rejected the claim that the Boyles allowed the state's lead investigator, Kim Skorlinski, to discredit Maloney during the 1999 trial by asking Skorlinski careless questions on cross-examination.

In the petition, Wasserman said the Boyles invited the investigator to discredit their client by first praising the investigator, and then asking Skorlinski for his opinion of Maloney's honesty.

"It is apparent from the closing argument Attorney Boyle was attempting to portray the investigative team as overly zealous and close-minded," Naze said. "It is a common and widely accepted defense tactic to criticize the investigation, while not risking alienation of the jury by making the attack personal."

Disagreeing with Naze's assessment, Wasserman said giving the state's witness a clear shot at Maloney's credibility was not reasonable strategy.

"Of course it was a legitimate strategy to try to discredit a state's witness," Wasserman said. "But what (Naze) totally ignored was that it was at expense of the defendant's credibility."

Although Wasserman is gearing up to file an appeal, he said the legal hurdles Maloney must clear from here only get higher.

To win an appeal, "I'll have to show the factual findings were erroneous," Wasserman said. "The only thing I can ask (the court of appeals) to do is to simply take a close look at whether or not the facts as found by Naze are accurate under the appropriate legal standards."

Maloney's family said they're tired of having hopes dashed. John Maloney's older sister, Ginny Maloney, said "We're very devastated (by the decision) to say the least. Anyone that looks at this case can clearly see that no crime was committed in the first place. All we were looking for is a chance to prove that by getting a new trial."

Both Ginny Maloney and John Maloney's three sons maintain that the 1998 death was a suicide mistakenly prosecuted as a murder. A Web site designed by 18-year-old Matt Maloney contains excerpts of police documents which he said supports the theory that his mother tried to strangle herself in February 1998 before an unextinguished cigarette set her home on fire.

Ginny Maloney said her brother continues to suffer because criminal justice workers - police, prosecutors and judges included - are too proud to admit they erred by sending an innocent man to prison.

"The whole problem is nobody wants to admit that they've made mistakes," Ginny Maloney said. She said there's a good reason why the courts keep denying her brother a second chance at a trial: "I'm absolutely convinced they're too afraid of what they would find ... (that) there is an innocent man sitting in prison for a crime that was never committed."