Judge James Bayorgeon

Keith Kutska Argues for a New Trial (Green Bay Press-Gazette: April 15, 2015)

Keith Kutska has been granted an evidentiary hearing to determine whether or not he will receive an entirely new trial for which he was convicted of conspiring to murder Tom Monfils. Here is a Green Bay Press Gazette article about the update.


Just days after getting bad news from the parole board, Keith Kutska, one of six men convicted in 1995 of a paper mill murder, will get a chance to argue for a new trial.

Kuska, 64, claims he should get a new trial because the possibility that the victim, Tom Monfils, could have committed suicide wasn’t sufficiently argued at the trial.

Monfils’ body was found in 1992 in a paper vat at the former James River Mill. He had a 50-pound weight tied around his neck.

Kutska’s new lawyers, who are working with the Minnesota Innocence Project, claim they have information that Monfils’ widow initially told family members she thought Monfils had committed suicide. That information was never shared with the defendants, their lawyers or the jury, the new lawyers claim.

They also claim Monfils was depressed about a troubled marriage and from realizing he was on the outs with Kutska and other co-workers for reporting that Kutska had stolen electrical wire from the mill.

They also claim lawyers at the time of the trial mistakenly accepted a pathologist’s assertion that bruises on Monfils’ body were indisputable proof he was injured before he went into the vat. Such bruises can be developed posthumously, the new lawyers claim.

Retired Judge James Bayorgeon, who heard the case in 1995, has agreed to an evidentiary hearing at which the lawyers can present and develop their arguments.

Arguments Heard in New Fight Over Monfils Conviction (Green Bay Press-Gazette: July 1, 2015)

Arguments heard in new fight over Monfils conviction

Defense lawyers for a key defendant in the Thomas Monfils murder case were denied access Wednesday to Monfils’ and his wife’s mental health and marriage counseling records.

However, reserve Circuit Court Judge James Bayorgeon ruled Wednesday the defense should have access to other non-privileged, non-confidential evidence, including lead detective Randy Winkler’s mental health and disability records.

Keith Kutska, 64, who is serving a life term in Columbia Correctional Institution in Portage, convinced Bayorgeon earlier this year to consider whether his conviction was unfair because of evidence that wasn’t presented at his 1995 trial in Brown County Court.

Wednesday’s hearing was a precursor to a three-day evidentiary hearing at which Bayorgeon will consider whether Kutska should have a new trial. Kutska wasn’t present during Wednesday’s hearing, but is expected to be present next week.

Kutska and five others were convicted of conspiring to murder Monfils in 1992 at the former James River Paper Mill in Green Bay. Monfils was found dead in a paper pulp vat after reportedly being missing from his work station in the mill. A 50-pound weight was tied to his neck.

Also convicted were Michael Hirn, 55, Dale Basten, 74, Michael Johnson, 67, Rey Moore, 68, and Michael Piaskowski, 66, although Piaskowski was released from prison in 2001 when a federal appeals judge ruled there was insufficient evidence against him.

Prosecutors argued Kutska stole a piece of electrical wire from the mill, then became angry when he learned Monfils reported the theft. Kutska allegedly incited the others to rough up Monfils, and the group conspired to dump him unconscious into the pulp vat, according to the prosecution’s case.

Kutska now argues there’s evidence to show Monfils may have committed suicide and evidence supporting that theory wasn’t properly presented and evaluated at the trial. Bayorgeon presided over that trial.

Records subpoenaed by his defense team, led by Minneapolis lawyer Steven Kaplan, include:

  • Mental health and marriage counseling records for Tom and Susan Monfils that are in possession of Susan Monfils’ lawyer, Bruce Bachhuber, who represented her in a wrongful death suit in federal court against the six defendants.
  • All of Bachhuber’s records pertaining to the murder case.
  • Mental health and disability records of retired Green Bay detective Randy Winkler. In the year after the trial, Winkler, who says he suffered from post-traumatic stress from the three-year investigation, became embroiled in a labor dispute with the police department and eventually left on disability.

On Wednesday, Bachhuber, who now also represents Winkler, argued that the Monfils’ and Winkler’s personal records are confidential, that much of what Kaplan is seeking is protected by attorney-client privilege and that winnowing through 22 boxes of 22-year-old files is an onerous task.

“It’s a fishing expedition,” Bachhuber said. “They’re trying to get everything they can out of my files in hopes of finding something relevant.”

Kaplan, who was not present in the courtroom but participated in the hearing by conference call, argued that many of the records he sought had been presented publicly in trial, court hearings or administrative hearings so they weren’t confidential or privileged.

Kutska has been serving a life term “for a crime he didn’t commit and that we contend as not a crime at all,” Kaplan said. Four others also are serving life sentences, and that outweighs the task that winnowing through 22 boxes of evidence would present to Bachhuber, Kaplan said.

Bayorgeon ruled that the Monfils’ psychological and marriage counseling records would remain confidential. In Winkler’s case, only records that were made public in administrative hearings or worker’s compensation hearings would need to be presented in evidence, Bayorgeon said, adding he didn’t believe such records would be especially relevant or useful.

Defense is alleging Winkler bullied some key witnesses into saying things that weren’t true, but Bayorgeon said, “If he coerced anybody, he either did or didn’t, whatever his mental condition.”

Bayorgeon ordered Bachhuber to make available anything his files contain that actually made it into court in Susan Monfils’ federal court case. Anything that wasn’t presented in court doesn’t need to be turned over, under his ruling.

Wednesday’s hearing was held a week early because Winkler will not be available to appear in court next week. He is expected to testify in a separate hearing later this month. Bachhuber must turn over the files in time for that hearing.

Bayorgeon is expected to decide after that hearing if Kutska will have a new trial.