Green Bay Press Gazette
Posted May 22, 2003

Boyles grilled on Maloney defense

By Andy Nelesen

John Maloney’s bid for a new trial took another step Wednesday when his former lawyers were called to the stand to testify about decisions they made in the former Green Bay police officer’s 1999 trial.

Milwaukee attorney Lew Wasserman drafted a 26-page writ of habeas corpus seeking a new trial for Maloney, who was convicted of killing his wife Sandy and setting her body on fire to cover the crime. Sandy Maloney’s charred body was found inside of the Huth Street home she and John Maloney once shared. The couple was in the process of getting divorced.
John Maloney at habeas hearing
John Maloney looks back at family members during a hearing in Brown County Circuit Court. Evan Siegle/Press-Gazette

Maloney writ

John Maloney’s writ of habeas corpus claims his lawyers were ineffective when:

• They didn’t raise claims of prosecutor misconduct for sending Tracy Hellenbrand to question Maloney knowing he had hired a lawyer.

• They failed to challenge the admission of the Las Vegas video on grounds that it was made in violation of electronic surveillance laws in Wisconsin and Nevada.

• They failed to get information learned from the videos removed from the criminal complaint.

• They didn’t challenge four jurors who said they knew people who worked for or with the police department, fire department or medical examiners office. The petition claims they were subjectively biased.

• They did not object to testimony offered by a state investigator about things Hellenbrand and Maloney talked about.

• Boyle asked a state investigator if he had doubts about whether Maloney committed the crime. The agent replied, “I did not believe his denials,” a statement the petition said unfairly attacked Maloney’s credibility.

Attorneys Gerald and Bridget Boyle, the father-daughter legal team that represented Maloney at trial, testified Wednesday about what they knew while preparing their case. At the heart of the issue was a damning videotape made in a Las Vegas hotel room by Tracy Hellenbrand, Maloney’s girlfriend. On the tape, Maloney admitted to being at the Huth Street home the night prosecutors believe Sandy Maloney was killed.

Wasserman’s petition asserts that the Boyles were ineffective in their efforts to keep the video out of the trial. The petition asserts the Boyles knew that prosecutors knew Maloney had hired a lawyer and still arranged for Hellenbrand to talk to him about his wife’s death. Ethical rules generally prohibit prosecutors from questioning suspects once they have hired a lawyer. Whether that rule applied before formal charges were issued remains open to interpretation.

But Wasserman believes that the Boyles had enough information — through discovery — to craft a motion that would have given the trial judge enough grounds to throw out the Las Vegas videotape.

“The problem is that was never presented to the court at trial,” Wasserman said.

Before and during the trial, the Boyles raised the issue that Hellenbrand — an Internal Revenue Service investigator — was operating as a law enforcement officer and should have been compelled to give Maloney his Miranda rights. That motion was denied by the Brown County Circuit Court Judge Peter Naze, and the tape was allowed as evidence.

“I haven’t had any doubts since I became involved in this case, that Mr. Maloney … could have benefited from a little more introspection by counsel in terms of the applicable law and what facts should have been brought before Judge Naze pre-trial, and I am still confident that’s the case,” Wasserman said.
Gerald Boyle said his thought was to focus on Hellenbrand’s actions and what he deemed “outrageous conduct by law enforcement.” He referred to Hellenbrand’s efforts in the Las Vegas hotel room to use sex as a way to get Maloney to talk about his wife’s death.

“He wasn’t going out there to chat with her; he was going out there to have sex with her and to try to continue his relationship with her,” Boyle testified Wednesday.

Both Boyles testified they had trouble remembering why they made specific decisions in Maloney’s trial because much of that information was four years old.

“Judge Naze is going to have to make his decision really without a lot of input from Mr. Maloney’s trial counsel as to really why they did what they did,” Wasserman said. “I was hoping that we were going to get more, but we can live with what we heard. We’ll work with what we heard.”

Maloney’s lawyers now have until June 12 to file briefs in the matter. Naze said he expects to issue a written opinion within 60 days.

A writ of habeas corpus was the same legal maneuver that gained the freedom of Mike Piaskowski in 2001. Piaskowski was one of six men convicted of killing Tom Monfils in a Green Bay paper mill in 1992.
The courtroom Wednesday was packed with family and friends of both Maloneys — John and Sandy. The couple’s three children, who left the court wailing the day their father was convicted, sat in the front row of the gallery behind Maloney.

Maloney’s sister, Ginny, sat behind the children.

On the other side of the aisle, Sandy’s mother, Lola Cator, and sister, Wendy Conard, sat with family and friends. In that same row sat former Green Bay Packers tight end Mark Chmura, who now works in the Boyles’ law office.

John Maloney took the stand during the nearly three-hour-long hearing. Most of his words matched an affidavit filed with the writ of habeas corpus. Maloney did not testify in his own defense during trial.
Maloney testified Wednesday that Hellenbrand helped him choose Boyle as his lawyer and that he also contacted Green Bay lawyer Tom Parins to represent him in a departmental internal investigation that also stemmed from Sandy Maloney’s death.

Maloney said he was aware that the Boyles were trying to keep the Las Vegas tape out of the trial, but he did not know the specific strategy they were using in the motions to suppress evidence.
The Boyles withdrew as Maloney’s lawyers after he lost his appeal at the state level. The state Supreme Court declined to take up Maloney’s case and let a September 2000 appeals court ruling stand denying Maloney a new trial.

Gerald Boyle said he did the best he could to keep the Las Vegas tapes out of court.
“I couldn’t keep the tapes out,” Boyle said. “He was shooting his mouth off in Vegas. I told him not to talk to anybody.

Boyle said he took Wasserman’s attacks as personal and an attempt to embarrass him and his daughter.

“I would have taken a bullet for Maloney,” Boyle said after the hearing. “But now I have serious questions about whether he is telling me the truth or not.

“Now he’s saying we didn’t do our jobs … bulls - - - we didn’t do our jobs.”

Follow Up Report

Posted June 14, 2003

Ex-cop says lawyers botched defense during murder trial

Legal team’s failure to get videotape thrown out at issue

By Andy Nelesen
Gannett Wisconsin Newspapers

GREEN BAY — Lawyers for convicted killer and former police officer John Maloney argue his trial attorneys didn’t do enough homework to challenge the state’s best evidence at trial.

In a brief filed by lawyer Lew Wasserman, Maloney argues that Gerald and Bridget Boyle did not do enough to determine whether prosecutors were unethical when they used Maloney’s girlfriend to prove his involvement in the death of his wife, Sandy Maloney, in her Huth Street home in February 1998.

A jury convicted Maloney of first-degree intentional homicide in February 1999, based heavily on a video tape made of Maloney talking with his girlfriend, Tracy Hellenbrand, in a Las Vegas hotel room. Investigators garnered her cooperation and videotaped Maloney admitting he was at the Huth Street house the night Sandy died.

Prosecutors contend Maloney hit his wife in the head with a blunt object, then strangled her while she was face down on her couch. He then started a fire in the home to cover the murder, police said.

Wasserman said the Boyles, a father-daughter legal team — didn’t do enough to get the Las Vegas tape thrown out — either by challenging the laws about secret recordings or by challenging prosecutors’ ethical involvement.

Ethics rules prohibit prosecutors from talking to a suspect once they have hired a lawyer. In the Maloney case, prosecutors said they were unaware that investigators had garnered Hellenbrand’s cooperation until after the fact. The Boyles said they were satisfied with the prosecutors’ assertions that they didn’t know, and so the Boyles didn’t challenge the admissibility of the videotape.

“Attorneys have an obligation to explore all readily available sources of evidence that might benefit their client,” Wasserman wrote in his brief. “While the little details of each attorney’s efforts are unique, both failed to conduct any significant pre-trial inquiry into Wisconsin authorities governing the conduct of prosecutors, and the statutory regulations concerning surreptitious taping.”


From: Lew Wasserman
Sent: Saturday, June 14, 2003 11:08 AM
Subject: some corrections...

The Brief filed this week was not the first.  The first Petition was filed on March 30, 2003.  On May 14, Biskupic filed a response.  The hearing was held on May 21, 2003, and the brief filed this week addresses the testimony brought out at the hearing.  Biskupic's response will be followed by one final brief (because Maloney has the burden of proof). 

What I attempted to point out in this week's filing was that despite Paulus's statements to Boyle that he was not aware of or in the chain of command of the Hellenbrand operation, the discovery documents provided to the Boyles (prior to the motions being filed) clearly indicate that the Hellenbrand operation was authorized by Paulus.  Boyle's assertion that Paulus was not 'directing' the operation is just word play.  It may be that Agent Skorlinski had the primary direct operational contact with Hellenbrand, but the entire operation was authorized by Paulus with the consent and help of Hellenbrand's attorney, Kohn, and Assistant US Attorney Steve Biskupic. 

Therefore, Paulus intentionally violated the no-contact rule, and then apparently lied to Boyle about the nature and extent of his involvement.  Why Boyle relied on Paulus's statements and not on the reports clearly indicating Paulus's authorization of the Hellenbrand operation remains unclear, but doesn't change the basic claim that the no-contact rule was ignored.

John Maloney
Truth in Justice