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Due Process – Right to Present Defense – Misconduct in Public Office, § 946.12(3) – Intent to Obtain Dishonest Advantage – Testimony of Long-Standing Legislative Practice

State v. Scott R. Jensen, 2007 WI App 256; prior history: State v. Scott R. Jensen2004 WI App 89,affirmed2005 WI 31
For Jensen: Robert H. Friebert, Matthew W. O’Neill

Issue/Holding:

¶36      We agree with the State that the testimony of Jensen’s defense witnesses as to the practices of both Democrats and Republicans in the legislature of using state resources for campaign purposes is not relevant to show whether Jensen intended to obtain a dishonest advantage by doing the same. Whether or not Jensen’s opponents were known by others to use state resources for campaign purposes is not relevant as to whether Jensen intended to obtain a dishonest advantage by doing so. That is, the question is not whether others were actually engaged in use of state resources for campaign purposes or whether Jensen had a legitimate belief that they were doing so. The question is, when Jensen used state resources for campaign purposes, what was his intent? The beliefs of others are not relevant to this inquiry.

¶37      However, Jensen’s beliefs are relevant to this inquiry. The State’s arguments to the contrary rest on its assertion that Jensen’s intent to obtain a dishonest advantage was not at issue, based on Jensen I. We have explained that we disagree with this reading of Jensen I. We see no other reason why Jensen should not have been given the opportunity to explain his reasoning in acting as he did, to rebut the State’s accusation that he acted with the intent to obtain a dishonest advantage. Thus, while we conclude that the testimony of Jensen’s defense witnesses was properly excluded as irrelevant, we do not reach the same conclusion as to Jensen’s own testimony on the same issue.

The result was characterized in some quarters as being based on a mere “technicality.” (See, e.g., discussion here; to be sure, Marquette Law Prof Rick Esenberg at the linked site, doesn’t himself take view.) Technicality? That you’ve got the right to defend against a specific-intent crime by ensuring factual resolution of your denial of intent? At Case Summaries, we like to term that sort of thing, your constitutionally guaranteed right to present a defense. It’s been a while since we’ve come across a case where the defendant wasn’t allowed to put intent in issue, but here’s an older one,Brown v. Israel, 449 F. Supp. 1029, 1030 (D. Wis. 1978):

In an effort to disprove the charge of first degree murder, the petitioner attempted to testify that he lacked the specific intent to kill … The petitioner argues that the judge’s exclusion of the proffered testimony concerning his intent at the time of the offense violated his right to present a defense …. The respondent concedes that the trial court’s rulings were erroneous under both state law and the United States Constitution …

In other words, the essence of Jensen is that a defendant can defend against a specific-intent crime by … denying specific intent. It does not seem more complicated than that, the State’s argument apparently being that “intent to obtain a dishonest advantage was not at issue,” ¶37. It does make prosecution of specific-intent crime immeasurably easier if you do away with specific intent.

 

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