Kenosha DA Mike Graveley motioned the court for a mistrial today on day two of the Zachariah Anderson murder trial before the jurors heard one word of testimony.
Graveley gave a long opening statement Tuesday morning outlining for the jury just what the State will show in terms of evidence.
Defense attorney Nicole Muller started to give the defense’s opening statement before lunch today when she alluded to a possible third party that could have murdered Rosalio Gutierrez, Jr. In Wisconsin, if a defendant wants to blame a third party for a crime, it is a big hurdle to clear. The defense must prove a motive of the third party, even though a motive isn’t required to convict someone. This is pursuant to a 1984 Wisconsin Court of Appeal decision called State v. Denny.
The defense can get around a “Denny” motion by not specifically blaming a third party, but instead attacking a law enforcement agency’s shoddy investigation by pointing out that no third parties were investigated. That is what Attorney Muller said she did Tuesday.
Judge Schroeder didn’t immediately rule on the motion for a mistrial, but released the jury until Thursday. Tomorrow he will have the attorneys only come into court at 1:00 p.m. to argue further. The Judge will then make a ruling on the motion for a mistrial and what evidence can come in regarding third parties.
Kenosha criminal defense attorney Michael D. Cicchini wrote a law review article on this topic that extensively details this complex legal issue.