Friday, May 21, 2010

The Fairytale Of A New Jensen Trial

Not that it matters, but I found myself standing pretty much alone in condemning the Wisconsin Supreme Court's decision to allow the Scott Jensen case to move to his home county. Jensen's attorneys, of course, were of the opinion that the matter was very well decided by the high court. The prosecutor who handled Jensen's first trial was circumspect, but then he would have been rid of the whole business in any case as he's soon to become an appeals court judge. Others, from newspaper editorialists to good government advocates, are resting assured that a new trial in Waukesha County will turn out exactly the same as the first one in Dane County.

Not to worry, they say. Jensen essentially admitted to stealing from the taxpayers and hinged his defense on the claim that everyone else in the Legislature was doing it too. Nothing has changed about the facts in the case. The new prosecutor will have all the evidence and all the transcripts of Jensen's testimony and that of the numerous witnesses. Surely jurors from Waukesha will judge those facts no differently than their counterparts from Dane County.

There's a big problem with this package of assumptions, and it has nothing to do with any possible differences between the jury pools in Waukesha and Dane counties. The problem is assuming there will be a new trial. The chance of that happening is waaaay far south of slim.

Think about it. If you are Scott Jensen, do you want a new trial? Hell no. You were convicted once, and do you really want to roll the dice with your everybody-was-doing-it defense one more time? Come on, if you are Scott Jensen you have two goals and only two goals. To avoid another felony conviction and to avoid time behind bars.

Now think about it some more. The Waukesha County district attorney already has said publicly that this case will overwhelm his office and even comically remarked that he's not even sure his office has the space to house all the boxes of documents contained in the court file. You don't have to read between those lines much to see that he wants no part of going to trial.

This is a plea deal waiting to happen. The only question is whether the new prosecutor will hold out for a felony conviction and meaningful punishment. You can bet Jensen will be angling to plead down to a misdemeanor and nothing more than, oh say, a few weeks of home confinement and maybe a fine.

Scott Jensen and his stable of attorneys have gamed the legal system brilliantly. They took a shot at acquittal and lost. After being convicted and sentenced to 15 months in prison, Jensen had his legal team scour the trial record in search of a technicality and they found one in the form of a jury instruction that was deemed faulty by an appeals court that overturned the former speaker's conviction.

Now after more than seven and a half years of legal maneuvering, Jensen is headed back to his home turf, where he will encounter a prosecutor who by his own admission will need months to come up to speed on this soap opera and who has made no secret of the fact that he'd rather not have any additions to his already-too-heavy caseload. Jensen has to like his bargaining position.

The state Supreme Court treated Scott Jensen in a way that no citizen of Wisconsin who is not a well-connected politician could hope to be treated. And in so doing, the court has put him in the driver's seat.


Anonymous said...

Mr. McCabe,

Your view of Jenson is clear, but that does not make the Supreme Court's decision wrong. If you want to blame anyone, blame the legislature that passed the new statute. The law the unanimous court interpreted was clear. Regardless of the results for Jenson, the court got it right.

But this post shows you're not really interested in good judging anyway. You want Jenson to go to jail, and even seem to want the Wisconsin Supreme Court to ignore the law to put him there. It is results-oriented commentary like this that contributes to a poor understanding of the law and the courts in our state.

Mike McCabe said...

I'd be inclined to agree with you if the law you refer to had been in place when Jensen was criminally charged in 2002 or when he was convicted in 2006. But the Legislature didn't pass that law until 2007. A lot of offenders would like to be able to have laws changed after they broke the old ones and have the new laws apply.

It's not just the end result of this court ruling or the countless other court rulings on appeals filed in this case that I find offensive. The whole process of how this case has been handled has been offensive. Ordinary citizens are not treated in remotely the same way in our criminal justice system as someone like Scott Jensen.