United States District Court, E.D. Wisconsin
REPORT AND RECOMMENDATION
WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE
Facts and Procedural History
morning of May 19, 2009, Holly Kleczka arrived at the home of
her friend, Kimberly Rose, in the rural town of Gillette,
Wisconsin. She knocked but received no answer. The friends
had spoken within the hour and Rose had told Kleczka she
would leave the door unlocked; if she did not answer, Kleczka
should just come in. Kleczka entered through the unlocked
door, sat her two children on the couch, and turned the
television on for them before continuing through the home,
calling for her friend. Kleczka pushed open the partially
closed door to Rose's bedroom and there found Rose,
sitting on the floor against the wall, covered in blood,
ran from the home, locked her children in her car, and called
911. Paramedics arrived, followed shortly thereafter by a
police officer. After seeing Rose, the police officer told
the paramedics to leave the home with him. It was only when
other law enforcement officers arrived that they checked to
see if anyone else was in the home. In doing so, they entered
another bedroom and found a man lying on a mattress and
covered with a blanket, seemingly asleep. The man did not
respond to the officers' commands, and only after an
officer removed the blanket did the officers recognize a hole
in his back. Leonard Marsh, Rose's brother, was also
dead. Rose had been shot once and Marsh three times, all with
a 20-gauge shotgun.
learned that Rose had talked to her mother from 10:12 to
10:19 AM that morning. When Rose's mom called back at
10:47 AM, there was no answer. Kleczka found Rose shortly
thereafter. Because there were no signs of forced entry and
it did not appear anything was missing from the home,
investigators suspected that they were murdered by someone
who knew at least one of them.
into Rose's ex-boyfriend revealed he was over two hours
away at the time of the murders. And Marsh's boyfriend,
with whom Marsh had recently gotten into a fight, was also
over two hours away. The investigation then turned to Daniel
Schmidt, with whom Rose had been having an affair.
wife, Stephanie, had recently found out about the affair. In
an argument about the affair on May 15, four days before the
murders, Schmidt told his wife, “I'd like to shoot
her, then myself.” (ECF No. 10-13 at 199.) Although
Schmidt and Stephanie agreed to continue with their marriage
despite the affair, Stephanie felt Rose was making it
difficult. For example, Rose told Stephanie upsetting details
of the affair, including that she and Schmidt had had sex in
the Schmidts' home and in Stephanie's car. On hearing
that they had had sex in her car, on May 17, 2009, Stephanie
drove to the farm where Schmidt worked and angrily confronted
him, taking off her wedding ring and throwing it at him.
May 17, 2009, Rose sent Stephanie a text message with words
to the effect of “pay back is a bitch, ” attached
to which was a photograph. Stephanie was unable to view the
photograph on her phone but understood it was an image of
Schmidt and Rose. Upon learning that Rose kept a journal that
included details of her affair with Schmidt, Stephanie
demanded to see it. Stephanie arranged to get the journal
from Rose on May 21. No. such journal was found in Rose's
home after her death.
had also loaned Schmidt $1, 000 for a motorcycle. The loan
created tension between Schmidt and Stephanie because it
required Schmidt to continue to have contact with Rose.
Moreover, Stephanie had just lost her job, straining the
Schmidts' ability to repay the loan. In light of the
Schmidts' financial circumstances, Rose had agreed to
accept an installment payment in the form of marijuana, which
Schmidt grew in his garage. But Rose was dissatisfied with
the quality and quantity of the marijuana and was demanding
to be fully compensated.
night before the murders, on May 18, 2009, Rose's
11-year-old son awoke at about 11:00 PM. He saw a man and a
woman sitting on the couch in his home, arguing with his
mother about money and marijuana. Although he was familiar
with Schmidt and Stephanie, he could not see the faces of
these visitors. Rose's son went back to his room and
looked outside. He saw a green and silver pickup truck in the
driveway, which is consistent with the truck that Schmidt
drove. However, Rose's son's recollection of this
night varied over time. For example, at a preliminary hearing
he testified that he could not see the color of the truck.
Stephanie denied that she went to Rose's home that night.
this same time-roughly 11:00 PM on May 18, 2009-Marsh called
a friend, asking her to pick him up from Rose's house.
Marsh was very upset and crying. Marsh told his friend that a
man and woman whom he did not like were at his house, and he
wanted to leave. His friend could hear a woman telling Rose
to “shut up” and heard some discussion about
money. Marsh told his friend their names, but she could not
recall them other than that the man's name was short and
the woman's name was long. A few hours later, around 1:00
AM on the morning of May 19, Rose called Marsh's twin
brother, asking him to pick up Marsh because she and Marsh
were fighting. He refused, saying it was too late and too far
of a drive.
19, Schmidt got home from work as he usually did between 9:15
and 9:30 AM, and soon told Stephanie he was going to pick up
their daughter from preschool. This struck Stephanie as odd
because it was only 9:30 and their daughter did not need to
be picked up until 11:00 AM. Nonetheless, Schmidt left,
alone, and returned home at about 10:30 or 10:35, telling his
wife he went for a drive to clear his mind.
Uncharacteristically, when he returned he parked the car in
the garage. A neighbor of the Schmidts testified he saw
Schmidt arrive home at 10:37 and park in the garage. Schmidt
then left again at about 10:40 or 10:45, this time taking his
pickup truck and the couple's young son to get their
daughter from preschool. The drive from Schmidt's home to
Rose's home would be about 21 minutes each way if the
driver drove the speed limit and came to a complete stop at
all stop signs.
Schmidt told Stephanie that on his drive he went to a friend
in a nearby town. He told her the route he took, and
Stephanie went to businesses along the route to see if any
surveillance camera might have captured images of his car.
After a business reported to her that it reviewed its
security footage but did not see the car, Schmidt told
Stephanie that maybe he took a different route to his
friend's house. He told investigators that he started to
drive to a friend's house but realized he did not have
enough time to make it back in time to get his daughter from
preschool, and so turned around and went home.
had owned a 20-gauge shotgun. When questioned by law
enforcement, he lied and said he had sold the gun years ago.
Schmidt actually gave his 20-gauge shotgun to a friend ...