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.

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Graveley gave a long opening statement Tuesday morning outlining for the jury just what the State will show in terms of evidence.

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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.

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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.

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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.

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Kenosha criminal defense attorney Michael D. Cicchini wrote a law review article on this topic that extensively details this complex legal issue.

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