Monday, March 13, 2006

What was wrong about Blanchard and the Jensen case

Christofferson is gone, so a Committee on Public Safety (I'm kidding!) has been brought in to blog communally at the Xoff Files, so far largely on l'affaire Jensen.

One of the bloggers is my compadre on Backstory, Jim Rowen. I commend Jim's offerings. He will generally be wrong, but will be wrong with a certain panache. Jim thinks that Republicans should throw Jensen under the bus. He "acknowledges" that conservatism is based on personal responsibility (does he now think that's a good thing?)and thinks we should all say that Jensen got what he deserved. Jim writes:

Intertwined is (was?) respect for the law. Hasn't it been Democrats who have had to fend off criticism from the right about being "soft on crime?"

Arguing that Jensen was selectively prosecuted forgets that Democratic leaders caught up in the scandal were also charged and convicted - - Democrats who made bad choices and accepted their responsibility by entering guilty pleas.

I can't help but notice the implied assertion that people ought to plead guilty. I thought liberals were all about due process and the right to be heard. In an earlier post, Jim wonders why Jensen didn't plead guilty.

Here's an answer.

He didn't think he had committed a crime.

And this is where respect for the law really comes in. Remember that the felony charges here were not for violation of a statute that says you can't campaign on state time or with state resources. They alleged violation of a statute that says you cannot act in a manner inconsistent with the duty of your office to obtain a dishonest advantage.

There are a few issues here. One is whether it is, in fact, inconsistent with the duties of one's office to do what Jensen was alleged to have done. Generally speaking, we do not want people convicted of crimes unless the law is sufficiently clear to put people on notice that a given type of behavior is, in fact, criminal. Both Jensen and Chvala attempted to have the charges under this statute (sec. 946.12(3)) thrown out on due process grounds, largely because the application of 946.12(3)to the alleged activities does not provide this type of notice and clear delineation of what is criminal (as opposed to unethical or in violation of the legislature's internal rules or administrative regulations).

The trial court and court of appeals rejected this argument, but when it got up to the Supreme Court, those Justices participating in the decision split on the issue. In other words, half of the justices on Wisconsin's highest court who addressed the question thought the charges against Jensen (and the comparable charges against Chvala) should have been thrown out prior to trial. Because the Court was split, the lower court decisions stand, although it is possible that the Court will revisit the question on appeal.

It is this problem that informs our outrage over the trial judge's failure to allow evidence of identical behavior by just about every single Democrat. If campaigning on state time or using legislative staff for politics was inconsistent with a legislator's duties of office, there apparently were no legislators (or very few) who actually saw it that way. The jury might have benefited from knowing that.

And even if you think (as the trial judge must have) that the "duties of office" issue was one of law and not for the jury to decide, it is hard to see how they could have known whether the Republicans were obtaining a "dishonest advantage" without knowing what the Dems were doing.

Even if you take a very narrow view of what constitutes a dishonest advantage (i.e., not paying for something that you otherwise would have to pay for), there is a real problem here of selective prosecution that is far more problematic than the simplistic analogy of not ticketing all speeders obscures.

Blanchard's decision to charge Republicans and let Dems go is not like the relatively random ticketing of some speeders and not others. The proper analogy would be 1) allowing people to speed right past patrol cars for years and then 2) suddenly ticketing only those with Bush bumper stickers.

To say that a few Dems went down doesn't solve the problem. Politically motivated prosecution does not become ok if we make sure to include a few from each side. Jensen was a political star. One can imagine the Dems being willing to sacrifice Chvala (who had become an embarrassment) and Burke to take him out.

I am not saying that happened, but Blanchard's decision to hang Jensen and let others go raises the question. When it comes to going after politicians, you can't pick and choose without raising questions about the basis for your choices.

Blanchard's lack of evenhandedness has harmed the public perception of the fairness of our system of justice. If he wanted to advance his career by coming home with a big political pelt, he should have been prepared to follow the facts wherever they took him and charge everyone who violated the law.

It his failure to do so that has undermined respect for the law.


Jim Rowen said...

Panache? Well, merci!

Rick Esenberg said...


I knew it would be important to you for your compliment to be French.