Attorneys for Kurczewski seek to withdraw from eye drop poisoning case | Waukesha Co. News
WAUKESHA — Attorneys for a woman convicted of poisoning a friend with eye drops are seeking to withdraw from representing her, throwing a sentencing hearing set for Thursday into question.
Jessy Kurczewski, 39, was convicted last month of first-degree intentional homicide, theft of property under $10,000 and theft of property between $10,000 and $100,000 after the Oct. 3, 2018, death of Lynn Hernan of Pewaukee, after Kurczewski reportedly spent thousands of dollars of Hernan’s in the months before and immediately after Hernan’s death. A medical examiner’s report found Hernan had a fatal dose of tetrahydrozoline in her system, a main ingredient in eye drops, and said the death was caused by poisoning.
Jessy Kurczewski
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Kurczewski is to be sentenced Thursday, but whether the sentencing goes forward as planned will depend on the outcome of a motion hearing where her attorneys will discuss their requests to withdraw from the case.
In recent letters to Judge Jennifer Dorow, defense attorney Donna Kuchler and Pablo Galaviz Jr. both asked to withdraw from the case. Their requests followed a filing by Assistant District attorney Randy Sitzberger on Nov. 30, who supplied a letter the state believes was written by Kurczewski to a friend, asking that friend and providing instructions on how to create fraudulent documents, including leaving a space for a recreated notary stamp, and a fraudulent cassette recording. Sitzberger said the instructions regarding the fraudulent letters were written on the back of Kurczewski’s own notes from her trial. The recipient received the papers at her home and “was disturbed by what Ms. Kurczewski was asking of her, and ultimately the recipient decided to turn them over to law enforcement,” Sitzberger said.
According to the documents, which Kurczewski said her lawyer took from a jail visit, Kurczewski repeats her claims of innocence. She asks the recipient to take the request “to (her) grave,” asking that she recreate notarized documents and a cassette tape purporting to be a recording of Hernan — items Kurczewski said she buried in a bag at Whitnall Park with part of a gun and Visine bottles but later dug up — and providing instructions on how to make the documents.
After those documents were filed on Nov. 30, the same day, Kuchler filed a motion to withdraw, citing Supreme Court Rules governing how attorneys can terminate representation of their clients. She cited a clause in the rules that say a lawyer may withdraw from a case if there is no adverse impact on a client or the client engages in actions that the lawyer believes to be criminal or fraudulent, or a fundamental disagreement in strategy exists, among other reasons.
Kuchler said in a follow-up letter, “I believe I am dutybound to withdraw from this case. … My own interests of protecting my law license of 27 years are at issue here. If the Court proceeds with the sentencing hearing, I will remain silent.”
On Monday, Galaviz also filed a motion to withdraw as counsel. “Given the (filing by Sitzberger) and with the Defendant’s knowledge, this matter was discussed with the Wisconsin State Bar of Ethics, who opined that withdrawing as counsel was in the best interest of all parties,” he wrote in his motion.
Kuchler in her follow-up letter urged Dorow to reschedule the sentencing hearing given the attorneys’ requested withdrawal. Messages left for Kuchler and Galaviz late Tuesday were not returned.
In reply to the attorneys’ motions to withdraw, Sitzberger urged Dorow not to grant them. He said Kurczewski wrote “this was one of my attorneys ideas” in the letter to the friend, and that appeared to be a “driving force” behind their motions to withdraw. But, he noted, although the state will argue the materials were written by Kurczewski, it is important to remember Kurczewski, in numerous recorded phone calls, has repeatedly denied writing them or having any idea what they were and who authored them. How the recipient received the papers also is not known.
Sitzberger argued that Kuchler pointed to a Supreme Court Rule where a judge “may” permit an attorney to withdraw but another clause in the rules says an attorney “shall” continue to represent a client when ordered to do so by a tribunal. He added Galaviz pointed to a part of the rule saying his motion must be granted if the court finds continued representation violates rules of professional conduct or other laws — but does not indicate exactly which rule or law would be violated if he were to stay on the case.
Sitzberger pointed to the delay that likely would result if the attorneys were released from the case — a delay of several months to get transcripts from weeks of trial, as well as hours and hours of time needed for any new attorney to review the trial and the evidence from it. He also argued the victims of the case have a right to see it concluded expeditiously and the personal representative of Hernan’s estate also may incur additional legal expenses by a delay now that that case remains reopened.
“In short there is no conflict of interest presented by the sentencing materials filed by the State on November 30, 2023 that requires the Court to allow the attorneys to terminate their representation. The State will argue that Ms. Kurczewski authored them, it is Ms. Kurczewski’s position that she did not do so,” Sitzberger wrote. “The attorneys need not defend themselves against any unfounded allusions to wrongdoing in order to continue representing Ms. Kurczewski nor do they need to implicate her in something she claims not to have done. They can put forth her position or remain silent as to these documents and allow Ms. Kurczewski to address them in her sentencing remarks should she choose to take that opportunity.”
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