It's really not one of the great legal rivalries of our time. It's certainly not Bobby Kennedy versus Jimmy Hoffa. Heck, it's not even Marcia Clark versus O.J. Simpson. It will however be interesting to see what happens next in the continuing battle between Dane County District Attorney Brian Blanchard and former Assembly Speaker Scott Jensen.
Last week, a unanimous Wisconsin Court of Appeals reversed Jensen's conviction on three felony counts of misconduct in public office. The Court of Appeals found that the jury instructions the trial judge gave ( at the request of the prosecution ) had failed to require the State to prove all the elements of the offense. In fact, given the rulings at trial, the instructions to the jury were really nothing more than a directed verdict of guilty.
At the outset, it is important to note that ( contrary to the suggestions of some ) Jensen's conviction was not reversed "on a technicality". A "technicality" is tossing the conviction of a pervert because the location he was trying to lure a nine-year old girl to was not sufficiently "secluded". Not requiring the State to prove that Jensen acted "with intent to obtain a dishonest advantage" - a key element of the offense - is a major failure by the trial court.
So where do we go from here?
First, I would be shocked if the Wisconsin Department of Justice seeks to appeal the case to the Wisconsin Supreme Court. In my opinion, the issue really isn't close. At the close of the trial, I was sincerely baffled by the decision of the trial judge to instruct the jury as he did. I felt that the lack of legal basis for the instruction was clear then - and is clear now.
I also seriously doubt that the Supreme Court would accept the case at this point even should the State appeal. Additionally, were the Court did take the case, there is absolutely no reason to think that the justices ( politics notwithstanding ) would reach a conclusion different than that of the appellate court. Put simply, this isn't a close call legally.
Assuming no appeal, the real question then will be whether the Dane County DA's Office decides to commit tens of thousands of additional taxpayer dollars to retry Jensen. Taking ego out of the equation, this is really a much more interesting question!
It is by no means a sure thing that in a retrial the prosecution will be able to prove that Jensen acted with criminal intent. As evidence of this, consider that If the prosecution was certain that they could have proved criminal intent at the original trial, they wouldn't have pushed so hard for the jury instruction that got the case reversed. Only an idiot (and whatever Brian Blanchard may or may not be, he's not an idiot) would have risked such clearly reversible error unless he felt that he needed the jury instructed in the fashion that it was in order to secure a conviction.
In a retrial, Jensen will have a lot greater latitude in presenting his defense. Actually, he'll have his first real opportunity to present his defense. The prosecution was clearly worried about this the first time and successfully convinced the trial judge to shut him down. It's hard to see how Jensen's case has gotten weaker over time.
A lot of this is really beside the point though. The initial charges in this case go back to 2002. Jensen's trial was in 2006. Under the most aggressive schedule, it's hard to imagine a retrial occurring before the summer of 2008. That's six years (and a bunch of taxpayer money) and counting.
In a sane world, given the tortured history of this case and what's happened over the past 6 years, I really think a strong case could be made for everybody simply dropping the matter here and now.
Keep in mind that Jensen did not appeal his misdemeanor conviction for Intentional Misuse of Public Position for Private Gain in violation of Section 19.45(2) of the Wisconsin Statutes. As such, regardless of what happens with the felony charges, he still can be required to serve up to 12 months in jail should Judge Ebert choose. Since his sentence on the felony charges was 15 months in prison, one has to seriously wonder whether it's worth the State continuing to pursue this matter for essentially a few extra months of potential incarceration.
It's true that for Jensen's future (including his ability to earn a living), there is a big difference between being convicted of a misdemeanor versus a felony. At the same time, he's out of office and - as a practical matter - will most likely never hold elective office again (felony conviction or not). The caucus system which invited this abuse by members of both political parties has been reformed. Accordingly, viewed in this light, it's hard to see what a retrial would really gain.
Former Majority leader Steve Foti was ordered to serve 60 days on his misdemeanor conviction. Former Assistant Majority Leader Bonnie Ladwig served 30 days of home confinement on her misdemeanor conviction. Both were fined and ordered to pay restitution. In the grand scheme of things, quitting with a misdemeanor conviction for Jensen (together with his removal from office and an order of restitution) wouldn't be the most unfair thing in the world either.
I don't know what will happen here. Given all that Brian Blanchard has invested in this case, he'll probably commit a bunch of taxpayer dollars towards the retrial of Jenson. From a purely political perspective, throwing good money after bad is probably the easiest thing to do. It's not necessarily the right thing though.
The world has moved on. Perhaps it's time for Blanchard and Jensen to do the same!
Maybe this time, everybody really should simply quit while they are ahead, declare victory and move on.
0 COMMENTS
ADD A COMMENT