Jensen Loses Selective Prosecution Argument
Dane County Judge Steven Ebert today threw out the selective prosecution charge leveled by state Rep. Scott Jensen's and Sherry Schultz's attorneys against prosecutor Brian Blanchard.
Stephen Meyer, representing Jensen, charged in a filing earlier this week that Blanchard went after his client while ignoring similar crimes conducted by Democrats in the Assembly. He cited statements made by former Assembly Democratic aides during a John Doe investigation, in which they admitted to doing campaign work on state time, as proof that their misconduct was overlooked.
He compared Blanchard's actions to a case involving a night club where female strippers were prosecuted while male patrons were not, even though both were breaking the law. "From the state's viewpoint, the Republicans are the female strippers, and the Democrats are the male patrons," Meyer said.
Jensen, the former Republican Assembly Speaker, is charged with three felonies for misconduct in office as part of the so-called "caucus scandal." Schultz, a former GOP legislative aide, is facing one felony for misconduct in office.
Ebert said prosecutors have discretion as to what cases to pursue, and "the exercise of discretion requires a degree of selectivity."
"I can't draw any inference that these defendants were prosecuted simply because they were Republicans or because they were Republican staff," he said.
Ebert also denied a new defense motion for change of venue, despite defense complaints about media coverage. Ebert said media coverage has been "factual in nature."
The prosecution was ordered to pare down its witness list and submit a new one by Feb. 8.
Ebert also tentatively granted the defense's motion to allow former Jensen aide Robert Garvin to testify via teleconference. Garvin, now a member of the Public Service Commission, is serving in Iraq.
Overall, the 90-minute hearing was low-key. State Supreme Court Justice David Prosser, whose testimony about his time as a Assembly speaker could be used by the defense, attended the hearing but refused to speak with the press. Jensen sat attentively jotting notes next to Schultz about five feet behind Meyer and Schultz's attorney Stephen Morgan. At one point, though, Meyer got a little heated when he was arguing against the prosecution's motion to limit defense arguments about others in the Legislature engaging in the same activity of which Jensen stands accused. He called the argument "a wolf in sheep's clothing."
"Legislative leaders have duties that they don't have a clue about," said Meyer, standing and raising his voice while pointing his finger at Blanchard and his co-prosecutor, Assistant Attorney General Roy Korte. "They've never sat in the Legislature."
Blanchard asked whether some documents could remain sealed, saying it would prevent the type of press that Meyer was concerned with. But Meyer objected. "Too much has been sealed," argued Meyer.
"You're not asking for more pre-trial press, are you?" asked Ebert.
"What difference does it make?" Meyer said.
Ebert also said he was curious to know how filings were ending up in the media before they arrived at his office.
"It's been an experience I've had throughout this case, your honor," answered Meyer.
"I guess they (the press) are zealous," replied Ebert.
Jury selection for the trial begins on Feb. 21. Ebert has set aside three weeks for the trial, but advised the counselors before adjourning, "If you don't think you're going to need that three weeks, the sooner I know about it the better."