Unwinnable

To the media from around the world and the crime buffs packed into the gallery, the shackled man sitting before the judge—a convicted murderer sentenced to death—is clearly doomed; the clock is simply ticking down to his execution. But his lawyer, a dressed-to-the-nines dynamo, knows better. And when she convinces the real murderer to confess on the witness stand, the courtroom erupts. Amid a chorus of gasps, the man’s chains are undone and clank to the floor, and he and his lawyer walk straight out the front door of the courthouse to the light of day. To freedom.

It’s not a movie. The person delivered from death’s doorstep was Joseph Burrows of downstate Illinois in a 1994 post-conviction evidentiary hearing. And his lawyer was Kathleen Zellner.

The Law Offices of Kathleen T. Zellner & Associates, in Downers Grove, handles cases on both the civil and criminal sides, including civil rights violations, medical malpractice, prisoner abuse, criminal appeals, post-conviction and habeas actions. Since founding the firm in 1991, she has amassed approximately $110 million in total verdicts and settlements. Zellner shrugs off the dollar signs.

“I don’t really think about the money too much,” says Zellner, 60, who takes on many cases pro bono. “I just want to keep going. The money has allowed me to fund some of these cases that I wouldn’t have been able to do otherwise.”

From the time he met her in Missouri in 1976, when she was an undergrad in English and history and he was working on his Ph.D. in econometrics, Robert Zellner sensed something special.

“She was very feminine, but she also had a toughness about her,” he says. “She had an edge. And she was a very good listener. We talked for about three hours, and she was listening carefully to everything I said. She was sort of sizing me up, evaluating me.” As he got to know her better, his original observations became more refined: “You could debate her about something and she’d stay right with you. And if you caught her on a point and won an argument, she was very adept at slipping away and coming up with a new argument.”

As a result, after they got married and he took a job in Chicago, it was he who suggested she look into law school.

Good call. Zellner is a unique package—part psychologist, part sleuth, part storyteller, part stickler for details, and part psychic.

“You have to have an eye for detail to organize a case, but you can’t get lost in the weeds,” she says. “I’m extremely interested in motivation, like the psychology behind the cases. What motivated the wrongdoer, whether it was intentional or negligence? But you have to create overarching themes that are pretty basic. Everything is ultimately geared toward explaining the facts to the jury. You have to understand what’s of interest to people and what’s going to bore them to the point where you lose them.”

During his 17-plus years as a Cook County circuit court judge, Thomas Hogan presided over hundreds of cases—including Zellner’s Catherine Skol v. Dr. Scott Pierce. He’s seen virtually every elite lawyer in Chicago, and he says Zellner is among the most sophisticated at interacting with a jury.

“Kathleen has a very unique talent for being able to look at the case like the jurors coming into the room would look at the case,” says Hogan, who retired from the bench in 2014. “Then she tailors her arguments to the people who are sitting there; it’s kind of a refinement of her approach. She’s able to make a real connection with the jurors because she doesn’t try to impress them with her intellect. She doesn’t need to do that. She understands that.”

In 1999, Zellner won a verdict of $13 million (later reduced to $6.5 million) for brothers Joe and Frank Martino in Estate of Maryann Martino v. Illinois Masonic Medical Center, a record amount of money for a medical malpractice suicide case. The case centered on the Martinos’ sister Maryann, who committed suicide after being denied admission to Illinois Masonic Medical Center for psychiatric treatment. Other law firms had passed on the case, but Zellner saw something they hadn’t.

“A lot of it was having that [sixth] sense about these things,” Zellner says. The initial theory was: a suicidal woman going to a hospital, not being recognized as suicidal, and then committing suicide. Zellner changed it, she says, “to her not being suicidal and trying to get help by going there, where the treatment of her was so disgraceful that it made her suicidal. So the hospital essentially participated directly in what led to her death. My deposition of the [emergency room] doctor was one of the shortest I’ve ever taken because she had no feeling or remorse about what she’d done. It was clear to me that she thought the deceased was just someone without insurance and she was trying to get her out of the emergency room.”

The Martinos were particularly moved by Zellner’s closing argument.

“Kathleen made a poster of the discharge paper showing that Maryann had no insurance and put it right in front of the jury,” says Frank Martino. “She was so emotional in describing Maryann’s final moments. It was quite upsetting to watch. She described how Maryann went into the garage and stepped onto the car, and how she had brought out a family portrait and placed it on a shelf next to where she stepped off the car and hung herself. Her passion was amazing. I don’t think there was a dry eye in the courtroom.”

From Ryan Ferguson (released in 2013 after being convicted in the murder of a Columbia, Missouri, sports editor and spending nearly a decade in prison) to Kevin Fox (freed in 2005 after being incarcerated for eight months following the murder of his 3-year-old daughter), Zellner has overturned 19 wrongful convictions since starting her firm, including Darryl Fulton’s on Nov. 17, 2017. She has been equally effective on the civil side. During one 362-day period starting in 1999, she won five multimillion-dollar verdicts. The stretch was a blur of work—“I can hardly remember it,” she says—but it vaulted her to national prominence.

When choosing a criminal case, Zellner’s strategy appears simple: “We pick the people who are innocent.” The trick, however, is figuring that out, which goes back to her intuition as well as her eye for detail.

“We get thousands of letters,” she says. “We’re looking for certain criteria when we sort through them. The letters from people who are innocent are usually really short. They don’t have a lot of technical [jargon], and the people want forensic testing done. Someone who’s guilty isn’t going to want that. We’ll also look at whether there was ever a hung jury, an indication of a weak case.”

Other times the facts of a case just don’t add up. They didn’t with Burrows. For one, the forensics indicated that bullets had been fired into the ceiling at the murder scene.

“It was an older gentleman who was killed—he was, like, 88,” Zellner says. “Shots were fired into the ceiling, which meant there had been a struggle, but the deceased probably weighed 120 and my client was a great big 200-pound, six-foot guy. That was the key to the whole case. It was clear to me that a woman had committed the murder.”

Zellner immediately homed in on Gayle Potter, who had admitted to being at the crime scene but made a deal to have her sentence reduced to 30 years by identifying Burrows as the shooter. “She was tied in with some drug dealers,” Zellner says. “She needed money, and she knew the [victim] kept cash. Basically, she went to his house to rob him.”

When the robbery went bad and turned into murder, she blamed it on Burrows, who hadn’t even been there. Says Zellner, “She lived in some proximity to him and didn’t like him, so she kind of randomly pinned it on him. She acted like she had been present but hadn’t done anything and hadn’t known Burrows was going to shoot him.”

To prove her theory, Zellner began visiting Potter in prison.

“She was very intelligent and cunning, and because she had been at the crime scene, she was good at fabricating her story,” Zellner says. “She spun a whole tale. She had no feeling about Burrows; she didn’t care that she had put him on death row. I couldn’t figure out what would motivate her to have some conscience.”

Zellner kept probing.

“I had long conversations with her,” she says. “Burrows was fairly close to being executed, and I finally found out what it was. Burrows had three children who were young. It weighed on her that they were growing up without a father. That was my hook. She had a daughter of her own, so that was her soft spot. I told her I had figured out the crime, and she agreed with me and said, ‘Yeah, that was pretty much the way it happened.’”

And Burrows, like so many of Zellner’s clients, finally walked free.

That list of psychologist, sleuth, storyteller, stickler for details, psychic? Add rebel.

“She’s not intimidated by anybody,” says Robert Zellner. “In particular, she doesn’t have much respect for authority. She has a willingness to challenge and be skeptical of authority. And she has a real compassion for the underdog. Most of the people in prison are dangerous, violent criminals who belong there—she knows that. She’s not starry-eyed about criminals. But she’s not starry-eyed about people in authority, either.”

That’s partially why she became Mario Casciaro’s lawyer after he was convicted in 2013 of killing 17-year-old Brian Carrick, who had last been seen in a Johnsburg grocery store in 2002 and whose body was never found.

“This boy went missing, and they wanted to pin it on someone,” Zellner says, referring to Casciaro, who was then a teenager working at the grocery store. “I’ve found in some of my cases that if you have a young male from a middle-class, upper-class family who isn’t intimidated by the police and stands up for himself, they don’t like that. I think they thought Mario was arrogant, or wasn’t sufficiently deferential.”

The conviction followed two trials; but as with Burrows, Zellner knew the facts weren’t adding up.

“I went back to the crime scene and got a blood-spatter expert,” she says. “I wound up explaining to the appellate panel that the murder hadn’t even occurred in the same room where the prosecution had put it in. The prosecution was trying to say the murder had occurred in the freezer at this grocery store, and it hadn’t. It had occurred out in the hallway. It was Rob Render [who died of a heroin overdose in 2012 and also had been a store employee] who committed the murder. Render’s DNA was mixed in with the victim’s DNA on the door handle [in the hallway].”

In 2015 the conviction was reversed outright by the appellate panel instead of being sent back into the system for a retrial—a rarity in such cases.

“She restored my faith in the justice system,” Casciaro says of Zellner, who is currently handling the civil litigation regarding his case. “She did her oral argument in the 2nd District Appellate Court, and she disassembled the state’s case one piece at a time. It was like a house of cards that just collapsed.”

In other words, it was a day in the life of Kathleen Zellner.

Unmaking a Murderer

Kathleen Zellner is accustomed to high-profile cases, but representing Steven Avery has been extreme even for her.

Avery, of Manitowoc, Wisconsin, was convicted in 2007 of killing freelance photographer Teresa Halbach. The case entered the national conversation when Netflix released a 10-part documentary about Avery’s saga in 2015 titled Making a Murderer.

Zellner took on the case in January 2016 because, she says, “he’s totally innocent.” Since then, there’s been a whirlwind of blowback that irks her because it has kept witnesses from cooperating with her investigators.

“I do think there’s certain venom with the Avery case and with the [accompanying] social media that I haven’t experienced before,” she says. “Whenever cases reach a level of being high-profile, you get a lot of pushback from the other side. And because this went to the level of being a documentary, it has made that even stronger. The people who are against Avery are really against him. But [the pushback] motivates me. It doesn’t intimidate me.”

In late October 2017, after filing an expansive motion in court regarding Avery’s nephew, Bobby Dassey, she posted the following tweet: “To all the ‘well wishers’ who hoped we were gone from SA’s case: 54 pg. motion filed today with 20 new exhibits.”

The tweet was par for the course for Zellner.

“That [filing] set off like a bombshell,” she says. “I think the case against Avery is going to fall apart.”