Monday, June 19, 2006

Ebert Critical of Jensen While Keeping Him Out of Prison

Former state Rep. Scott Jensen will not go to prison on July 15, as Dane County Judge Steven Ebert had ordered. Instead, the former Republican assembly speaker will be free on $10,000 bond as he and his attorneys appeal his conviction on three felony counts and one misdemeanor. Ebert also upheld as a condition of bail that Jensen not contact or visit the state Capitol.

While Ebert granted the defense motion, he took the opportunity to berate Jensen in court. "This was a breach of the public trust that does demand punishment and closure," he said.

Ebert did acknowledge, however, that Jensen could spend several months in confinement before the court of appeals gets the case, and he didn't feel the state would be harmed if Jensen were allowed to remain free while the process unravels.

"Mr. Jensen, I believe firmly you abused, you violated the public trust that was given to you," Ebert said. "I am however going to grant to the defendant that which I believe he denied to so many other people in this state, including the entire population of this state, and that was a fair opportunity for a level playing field."

Ebert added that Jensen was entitled to due process, a legal term which is hard to define, he said. "I believe the immutable core of due process is fair play. While I think this is a foreign concept to this defendant, I make this the foundation for justice in this courtroom," Ebert said.

Attorney Ryan Stoll did the talking for Jensen's legal team today, arguing that Jensen would be done "irreparable injury" if made to begin serving his 15-month prison sentence in July, because he could serve his entire term before the appeal process can run its course. There are appellate issues that could require a new trial, Stoll said, specifically singling out issues arising from the jury instructions.

"If in fact there was an error in this unprecedented instruction, if in fact there was an error in the trial necessitating a retrial of Mr. Jensen, if he is not granted bond pending appeal, he will be separated from his young family, he will serve his sentence and will be left with an irreparable injustice to him and his family that can never be replaced," Stoll said.

Stoll comes from the Chicago firm of Skadden, Arps, Slate, Meagher & Flom. Other members of the Jensen legal team in court today were Bob Friebert of Friebert, Finerty & St John in Milwaukee, and his original trial attorney Stephen Meyer of Madison.

Dane County DA Brian Blanchard said in order for the defendant to be claim irreparable harm, he must prove that there is a likelihood of reversal on appeal. "They are simply not able to identify a strong appellate argument, one that would give this court pause in terms of the balance the counsel talks about," Blanchard said.

Ebert said he was not concerned that Jensen will fail to appear in court, or that he will commit any serious crimes while free. But, he said, he was concerned with continued delays. "The entire history of this case seems to be one that involves a significant delay," he said.

Ebert said the jury instructions were proper. "If I believed the jury instructions were incorrect, then obviously I would not have given them" he said. But, he admitted, he cannot predict how the appeals court will see them.

"I've learned over several years not to predict what the court of appeals is going to do," he said, even though he believes Jensen was "convicted based on overwhelming evidence that proved his guilt."

Ebert said he was granting the motion out of a "humanitarian impulse" to keep Jensen's family intact until he exhausts his appeal, and added that it is "ironic that had I imposed a longer period of actual incarceration your argument of irreparable harm would fly out the window."

Following the hearing, Jensen walked to the elevator with his attorneys without making a comment to the press.

The case will now be handled primarily by appellate attorneys with the state Department of Justice, said Blanchard, who has spent years pursuing the case.

"We took our position and I think the judge gave both sides a fair hearing," Blanchard said of the ruling.

Blanchard didn't know what kind of timeline the case is now be on. "It's up to the courts at each stage, the court of appeals and the Supreme Court should they choose to take it. They are not themselves constrained by clocks," he said.

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