Attorneys for defendant in Monfils' death say evidence requires new trial
By Gina Barton of the Journal Sentinel
Nov. 1, 2014
Here is what the jury heard, from both the prosecution and the defense:
Someone murdered Tom Monfils at the James River Paper Mill in Green Bay on Nov. 21, 1992. The killer — or killers — beat him, tied a 49-pound weight to his neck with a jump rope and dumped him, incapacitated, into a 20,000-gallon vat of churning pulp.
The only open question during the 1995 trial was this: Who did it?
Prosecutors blamed "an angry mob" of co-workers, led by Keith Kutska. Monfils had called the police on Kutska for taking an electrical cord from the plant without permission. Kutska got a copy of the 911 call, then he and the others confronted Monfils near a drinking fountain, and things got out of hand. They beat him, the prosecution argued at trial, and when they realized he was near death, they disposed of him in the vat.
Defense attorneys conceded that Monfils had been murdered. Their assertion was simply this: Kutska and his co-workers didn't kill Monfils. It must have been someone else.
Although there were admitted gaps in the prosecution's case — including no evidence of a beating near the water fountain and no eyewitnesses — the jury convicted Kutska and five others of killing Monfils. All of them were sentenced to life in prison.
Now, almost 22 years after Monfils' death, a Minnesota lawyer is asking a judge to let a new set of jurors hear a new set of facts. Attorney Steven Z. Kaplan filed a motion Friday seeking to overturn Kutska's conviction, asserting that justice demands it.
While some of the arguments in the motion have been put forward in previous appeals and even at trial, Kaplan and his partner John Lundquist, with assistance from Madison attorney John Bradley and the Minnesota Innocence Project, have uncovered documentation never before brought into court that they say bolsters their claims.
According to the motion, here is what the jury didn't hear:
Different judges at both the state and federal level have since declined to overturn the convictions of the other men. At this point, Kutska's odds of prevailing are long.
"We have no illusions about the resistance that we are about to confront. But this case merits our best efforts," said Kaplan, of the Minneapolis firm Fredrikson & Byron, who is working on the case for free.
The medical examiner who worked on Monfils' case has since died. The primary witness against Kutska recanted his testimony in an interview with one of Kaplan's colleagues, the attorney says. But about a month later, as the lawyer drove to his home to have him sign a sworn statement, the witness, who had cancer, suffered medical complications and died.
"It's been hard," said Kutska's son, Clayton Kutska, 42. "I've hoped, ever since the jury came out of deliberations, that somehow, somebody would say, 'This isn't right, and somebody's got to fix this.' But the police and prosecutors haven't done that."
While Monfils' brother and dozens of stalwart supporters believe Kutska and the others are innocent, the dead man's wife, the detective who investigated the case and the district attorney who prosecuted it — now a judge — still believe the six men are guilty.
Bruce Bachhuber, longtime attorney for Monfils' widow, said it was "ridiculous" to contend Monfils had committed suicide.
"Think about how outrageous these theories are. He gets caught at work on this tape and this was enough to have him abandon his wife and his two little children to tie a 49-pound weight around his neck and dive into a pulp vat within 15 minutes of this confrontation?" Bachhuber said. "There's absolutely no indication of him having that kind of a mental state."
Winkler, now retired from the Police Department, laughed at the suicide theory. He denied the allegations that he badgered witnesses to lie, saying Kutska's attorneys were trying to use him as a distraction instead of accepting what really happened.
"I definitely believe the jury was correct with their verdict on all six defendants," Winkler told the Milwaukee Journal Sentinel. "We put up all the evidence that was available, and that's what convicted them, not a theory and not trying to put words in any witness' mouth."
The 1995 trial
Some of the facts presented at the 1995 trial are not in dispute:
The saga began when Monfils saw Kutska cut a 16-foot piece of electrical cord from a spool in a recycling bin at the paper mill. Before taking it home, Kutska was supposed to get permission from his bosses. But he didn't.
Monfils anonymously called the police, who in turn called the security director at the plant. As Kutska was leaving work that day, a guard asked for permission to search his bag. When Kutska refused, he was suspended for five days without pay.
It took more than a week, but Kutska got a copy of the 911 tape from the Green Bay Police Department — despite numerous desperate calls from Monfils begging them not to release it. If the tape got out, Monfils said, he was afraid of what Kutska and the others would do.
Kutska immediately recognized Monfils' voice on the recording. When Kutska went back to work, he played the tape for Monfils and their co-workers.
His plan, Kutska has always contended, was to file a union grievance against Monfils and try to have him fired.
Less than an hour later, Monfils disappeared. After more than 40 hours of searching, his body was found at the bottom of the vat.
Last year, Kaplan was inspired to revisit the case after reading the 2009 book "The Monfils Conspiracy," in which Piaskowski's former brother-in-law and a co-author argue that all six men are innocent.
Since then, Kaplan and his colleagues have uncovered numerous pieces of information that convinced them Kutska should be set free.
The first, they say, is the possibility that Monfils committed suicide.
At the time of Monfils' death, police didn't entertain that prospect for very long. That's because Helen Young, the medical examiner on the case, concluded that Monfils suffered a brutal beating before he died.
Many of his injuries, which included a fractured skull as well as bruising to the neck, chest and abdomen, could not have occurred after death and could not have been caused by anything inside the vat, Young concluded.
Neither Kutska's trial attorney, his previous appeals attorneys or the attorneys for his co-defendants hired an outside expert to challenge that contention.
"Defense counsel made the uninformed and catastrophically prejudicial concession of an essential element of the charge — that Monfils had been beaten and murdered as Dr. Young and the prosecution contended," Kutska's motion says.
Earlier this year, a group of experts in the pathology department at the University of North Dakota's medical school, who reviewed the case at the request of Kutska's attorneys, contradicted Young's findings. Monfils' death was either homicide or suicide, they said, but there was no way to be sure which.
Monfils' injuries, they contend, could have resulted from his body being smashed against the walls of the vat or sucked toward the spinning propeller-like blades at the bottom of it. His unconscious body could have been thrown into the vat. Or he could have lowered himself in, securing the weight to his neck to be sure he drowned in the liquid pulp.
"We do not feel that ANY injury can be conclusively labeled as occurring before entry into the vat," they wrote. "...Thus, the manner of death is undetermined since both manners — suicide and homicide — could have occurred based on the information provided."
Young died in 2007.
Monfils had previously been treated for depression, two of his former co-workers at the paper mill told Kutska's lawyers. Suicide is a possibility his brother, Cal Monfils, finds more and more likely as time goes by, according to a sworn affidavit he gave Kutska's attorneys in September.
"In the end, when Kutska showed up at work with the tape, you can only imagine how Tom felt," Cal Monfils wrote. "I don't believe Tom had a supportive wife to turn to and he had to feel very betrayed by the Green Bay Police Department for giving out the tape, and now everyone at the mill knowing he made the call."
The knots used to attach the weight to the jump rope resembled those Monfils learned to tie during a stint as a diver in the U.S. Coast Guard, according to Cal Monfils. And although nobody believed her at the time, Susan Monfils told relatives she suspected he had committed suicide, according to the affidavit.
Susan Monfils could not be reached. At the time of her husband's death, their daughter was 11 and their son was 9.
In 1997, she won a $2 million judgment against the City of Green Bay after a jury determined police were negligent in providing Kutska with the 911 tape. In the civil case, she testified that before she and Tom left for work on the morning of his disappearance, they made plans to go to the movies that night.
"And he gave me a kiss goodbye," she said. "He always kissed me on the neck before he left in the morning. And I told him I loved him and he left for work."
The motion filed Friday argues Young's conclusion that Monfils' death was unequivocally a homicide led Winkler, who was in charge of the investigation, to do everything he could to prove that theory, rather than following the facts wherever they led.
Former prosecutor John P. Zakowski, now a Brown County circuit judge, did not return a telephone call Friday. In response to a previous appeal filed by two of Kutska's co-defendants, Zakowski said the issues regarding Winkler's investigative techniques were raised at trial and considered by the jury.
"A significant amount of mud was thrown at Winkler from the onset of trial," Zakowski wrote in 1997.
Winkler said Friday he did not coerce statements, but rather became aggressive in his questioning if he felt potential witnesses were lying or holding back.
Although several people were around at the time and place police believe a beating occurred, no one said they saw a fight, the detective testified at Kutska's trial. There was no physical evidence, such as blood, in the area.
The strongest evidence against Kutska, Winkler testified, came two years after Monfils' death, from one of Kutska's friends at the mill, Brian Kellner.
As Kellner and Kutska were working on a truck together, Kutska dropped a tool, which hit Kellner on the head, according to a written statement Kellner signed after questioning by Winkler in November 1994. Kutska laughed and made a joke about a "Monfils lump," the statement says.
"That was before the autopsy was released," Winkler said Friday.
As it turned out, Monfils had a huge bump on his head in the same spot, Winkler said. But the skin was not broken, the detective said, which explained the absence of blood.
Another key portion of Kellner's statement described a drunken re-enactment of Monfils' murder by Kutska and a bartender at the Fox Den tavern, reportedly witnessed by Kellner.
However, before Kellner signed the affidavit, "Winkler had interrogated him for about eight hours and threatened him with 'loss of my job, losing my children and being put in jail,'" according to Kutska's appeal.
As the 1995 trial approached, Kellner contradicted the police statement, telling Kutska's attorney that Kutska had not acted out a scene, but only tossed out different theories of what might have happened to Monfils. The same was true of the conversation while working on the truck, Kellner said.
Also in the run-up to the trial, Kellner told the prosecution he was not comfortable with portions of the statement Winkler wrote up.
Kellner's wife at the time, Verna Irish, backed part of the story, saying she remembered some sort of role-playing, but was fuzzy on the details because she had been drinking.
Irish told a defense investigator that Winkler fed her the names in her statement and threatened her with arrest if she did not confirm his theory that Kutska was the leader of a murderous mob.
At trial, she testified that she did not know what was in the statement.
Both the bartender and her husband testified they had neither seen nor participated in any re-enactment.
Days before Kellner was set to take the witness stand, he got a call saying his children had been picked up from school by child welfare officials investigating allegations of abuse. Winkler, the detective, brought the children home around 4 p.m., saying he had picked them up from child protective services.
"Kellner knew that was a lie," the new appeal says. "Nonetheless, the incident made Winkler's threats believable to him."
At a post-conviction motion hearing in 1997, Kellner testified the incident led him to believe he had no choice but to testify falsely.
"(Winkler said) if I was going to sit there and tell lies to him, that he would take steps to either have me locked up or take away my children, or get ahold of the mill and I would lose my job," Kellner testified.
Earlier this year, just days before his death, Kellner told one of Kutska's lawyers "that the Fox Den Bar role-playing demonstration had never occurred, was entirely made up, and that Kutska had never discussed Monfils' death at all that evening," the motion says.
Kellner died before he could sign an affidavit swearing to the recantation.
In 1996, Winkler filed for worker's compensation, claiming his work on the Monfils case caused him to suffer from anxiety, depression and post-traumatic stress disorder.
When city officials disputed the claim, Winkler harassed the woman handling it and made threats against her, according to a draft statement of department disciplinary charges filed against Winkler in 1997.
James Lewis, then Green Bay's chief of police, characterized those actions and others — including insubordination, untruthfulness and abuse of authority — as "serious acts of misconduct," according to the draft statement.
As the police chief tried to fire Winkler, prosecutors in the Monfils case continued to hold him up as an honest, diligent detective during appeals, according to the motion filed by Kutska's attorneys.
"Despite his history of unethical, dishonest, abusive and outlandish conduct, the prosecution called Winkler to testify at a February 1997 post-conviction hearing to have him deny that he had ever coerced or threatened Kellner," the motion says.
Later in 1997, Winkler reached an agreement with the city that allowed him to retire on duty disability, a safety net designed for police officers who suffer physical or psychological injuries on the job. As a result, he received annual payments of $60,000, tax-free. Under the agreement, the department stopped pursuing discipline against him.
Winkler told the Journal Sentinel the settlement prohibited him from going into detail about the disability claim, saying only he was facing extreme pressure not to cooperate in Susan Monfils' civil case.
Winkler also said his psychological problems did not arise until after Kutska's trial.
Initially, Kellner denied that Kutska had told him anything. But then the detective tricked him, saying he had a recording of the night at the bar. According to Winkler, Kellner's face fell, and that's when Kellner described the re-enactment.
"I used all the different techniques I knew at the time," Winkler told the Journal Sentinel. "Sometimes I was nice, sometimes I would call them on their bluffs or on their lies, and sometimes that would come across as being a bully, but I was doing a homicide investigation. I wasn't asking them casually about the weather. I was questioning them about a homicide."
Because no one would testify to seeing Monfils beaten or thrown into the vat, and because there was no blood or other evidence near the water fountain where the alleged beating took place, prosecutors turned to mill worker David Wiener.
In March 1993, during the preliminary investigation into Monfils' death, Wiener said he was in the break room with Kutska around the time Monfils disappeared. Kutska was in an "excellent" mood, Wiener said, and spent about 10 minutes showing Wiener entries in an employment manual that could be used as a basis for union sanctions against Monfils.
Wiener later said he had been mistaken about the time of that conversation, thus failing to provide Kutska with an alibi.
Two months later, hearing a name while drunk at a wedding reception triggered a "repressed memory," Wiener told police, and he recalled seeing two of Kutska's co-defendants walking through the plant, stooped over and facing each other as if they were carrying something.
"Because the 'heavy or cumbersome' object was presumably Monfils' body, Wiener's statement helpfully provided law enforcement with its first (and only) 'eyewitness' to any alleged act remotely consistent with homicide," according to the appeal filed Friday.
Within months of telling the police about his repressed memory, Wiener, who had a history of anxiety that required medication, called his mother to say if he saw his brother at his house, he would shoot him, the appeal says.
His brother came over and kicked in the door. Wiener fatally shot him and was charged with first-degree reckless homicide. A jury convicted him of a lesser homicide charge.
Wiener told a newspaper reporter at the time he would not cooperate in the Monfils trial unless he got a deal in his own case. Later, as a prosecution witness at the Monfils trial, Wiener said he had not received any special consideration in exchange for his testimony.
If he actually did have a deal with the prosecution and the jury didn't know about it, that in itself is a basis for overturning the convictions of Kutska and his co-defendants, the appeal argues.
Court records show Wiener's sentence was reduced after Kutska's trial.
In 1994, Wiener was sentenced to 10 years in his brother's death. In May 1996, the sentence was reduced to eight years. The prosecution did not object.
In an order granting the reduction, the judge wrote: "It is in the public's interest to reward cooperation with authorities so that others who possess valuable evidence are encouraged to come forward."
In September 1996, Wiener was paroled after serving three years.
"The facts speak for themselves regarding the deal, arrangement, or wink-and-nod understanding — call it whatever one may — for Wiener's testimony," the appeal says.
Zakowski's 1997 brief points out that although prosecutors did not oppose Wiener's motion for a shorter sentence, they also did not file documents supporting it.
That's because, before the criminal trial against Kutska and the other five men, Wiener already had testified about his repressed memory during a deposition in a civil case. If he had refused to cooperate at the trial, prosecutors simply could have read his deposition testimony to the jury, according to Zakowski's brief.
"The point is this: No deal was made with David Wiener because there was no incentive or need for the state to make any deal with David Wiener," Zakowski wrote.
Prosecutors also had the benefit of the defendants' own testimony — which Bachhuber, the attorney for Monfils' wife, said was clearly suspect.
"They all put themselves at Kutska's paper machine at the same time, but claimed they didn't see each other. It just became ridiculous," he said. "It was so transparent it was ridiculous, and that's what the jury clearly could see."
Department of Corrections officials refused to allow the Journal Sentinel to interview Kutska, based on "the welfare of the victim, victim's family or the community," according to a spokeswoman.
Kutska and his family are holding onto the new hope they found when Kaplan, the Minnesota lawyer, and his colleagues agreed to take the case, said Kutska's daughter-in-law, Brenda Kutska.
"That's very heart-lifting that they're looking into this, and somebody else sees that this is wrong — just like we do — but they know what to do to make it right," she said.
Click HERE to read the 7th Circuit Court of Appeals decision exonerating defendant Michael Piaskowski.
About Gina Barton
Gina Barton covers criminal justice. In 2013, she won a George Polk award for her investigation into the death of Derek Williams in Milwaukee police custody.
twitter: @writerbarton email: firstname.lastname@example.org telephone: 414-224-2125
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