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DA seeks to deny new trial for killer

Lack of supporting facts should end a convicted killer's quest for a new trial, according to an argument filed Tuesday by Douglas County District Attorney Dan Blank.

Jason Richard Borelli, 34, was found guilty of first-degree intentional homicide for murdering Leah Gustafson in her Superior apartment on Jan. 7, 2006. He was sentenced to life in prison with no hope of parole.

His case resurfaced last month when Borelli filed a petition for a new trial, alleging ineffective counsel by his attorney, First Assistant State Public Defender J. Patrick O'Neill.

The petition, which is almost standard practice among convicted killers, was filed by Wauwatosa attorney James Rebholz.

As Gustafson's friends and family lobbied for a law in her name Tuesday, Blank filed his brief in response to the petition.

He wrote that Rebholz' argument is based on conclusions drawn with no supporting facts. As such, the petition should be denied without a hearing.

Rebholz cannot speculate whether O'Neill's performance resulted in prejudice, Blank argued. "He must 'affirmatively prove prejudice.'"

The Wauwatosa attorney argued in his brief that O'Neill did not support the not guilty by reason of insanity defense, although a psychiatrist testified at the trial.

In particular, O'Neill failed to consider the "overwhelmingly defeating impact of Borelli's flight and cover-up immediately after the crime ..."

O'Neill asked the jury to consider a charge of second-degree intentional homicide if they couldn't unanimously agree on the first-degree intentional homicide charge.

Yet, Rebholz argued, there was no factual basis given for that charge.

He argued that O'Neill should instead have argued for a first-degree reckless homicide charge based on Borelli's statements, alcohol and cocaine use that night and his lack of memory.

Blank contended O'Neill made a strategic decision consistent with testimony given at the trial. And, he added, Rebholz provided no expert opinions to show that it was a deficient or prejudicial strategy.

Rebholz also accused O'Neill of failing to seek a change of venue. The jury pool was "impermissibly tainted" by publicity about the case and Leah's Law, Rebholz stated.

Blank renewed his argument that Rebholz reached a conclusion without offering supporting evidence. Nothing in the brief mentions the nature, number or dates of pretrial publicity, he said.

Further, Rebholz argued that showing graphic autopsy photos swayed the jury's ability to remain impartial.

Blank said O'Neill moved for a mistrial after one juror left the courtroom during the viewing of autopsy photos, but it was denied by Judge Michael Lucci.

Blank concluded that no specific material facts were presented to warrant a new trial, merely allegations. H

e also pointed to the trial record, which "is overwhelmingly full of incriminating physical evidence, the defendant's incriminating testimony, and credible psychiatric opinion that shows that the defendant is not entitled to relief."