Wisconsin Laws & Criminal Code BLOG

Let's get this right: Republican Representative Scott Jensen admits he had state workers do campaign work on state time, brazenly proclaims his innocence because "everyone else did it, " and then a Democratic appeals and the judge throws out his conviction?

In my native New Jersey, with its own special relationship with political corruption, most folks would figure Jensen paid off the appeal judge. But here in the Midwest, where we live honestly, we know this is not the case.

So, why was his conviction thrown out, despite the jury's clear verdict?

Frankly, the Scott Jensen story would puzzle politicians and citizens of other areas greatly. "He was convicted of influence-peddling but never got a dime? Whaddya mean?"

I'm accustomed to news stories about pols going to jail for lining their pockets. Heck, no self-respecting Hudson County, New Jersey, mayor would dare retire without either a place in the islands or a cellmate.

In New Jersey, the difference between a pickpocket and a politician is simple: A pickpocket takes checks, a politician accepts only cash. But here in Wisconsin, long the home of clean government and fan-owned NFL teams, to understand the "why" -- as well as the crucial legal importance of "why" -- we must first understand the crime charged.

What was the crime here? It had two basic parts. The first was that Jensen flexed his leadership to have state payrollers campaign on state time. This much Jensen admitted. And for most of us, right off the bat, that alone would seem "dishonest" enough to be a crime.

Some of us view all politicians as crooks. That sentiment has been around forever, no doubt. But being viewed a crook is not the same as actually committing a crime.

Most of us figure politicians less trustworthy than lawyers or snake oil salesmen. With internet-fed, YouTube-enhanced politics, we question the sanity of anyone running for office. Perhaps we either assume their ethics are "malleable" enough to do so, or we fear that if they truly are honest, they will be devoured. "Honest politician" is today's "jumbo shrimp."

But there has to be more or there is no crime. It may have seemed wrong, smelled like an ethics violation, but a jury could only convict if it also answered a second question.

When Jensen did so, did he intend to gain a "dishonest advantage" over the Dems? This is where the appeals court overruled the trial judge and vacated the verdict, and here is why.

In our criminal system, the jury cannot be required to find a person guilty, no matter how strong the evidence. We ask juries to answer specific questions; until they do, they cannot convict.

Here, the appeals court held that the state's jury instruction did not simply allow but required the jury to find Jensen intended to get a "dishonest advantage" by having state employees campaign at work. Consider this example of the same principle.

If you left the mall only to discover you were still wearing a necklace you tried on, then went back in and returned it, you would not expect to be charged with theft. Why not?

A jury would have to conclude that when you walked out with the necklace, you intended to keep it. So, if you were charged, you would demand a trial, because you never intended to keep it.

Yet, what if the judge at trial said you could not tell the jury you did not intend to keep it? What if the trial judge then told the jury that if you left the store wearing it, they were required to find you intended to steal it. "Foul!" you would cry.

Jensen faced the same problem. He was not allowed to explain whether he intended to gain such an advantage when he put state workers to work on campaigns. And he was not allowed to explain that (he thought) the Dems were doing the same thing.

Finally, the judge told the jury that if he used state workers as follows, then they were required to find that Jensen gained a dishonest advantage over the Dems.

You would be able to ask the jury (not the judge or the state) to decide if you intended to keep the necklace. The appeals court simply said that Jensen was entitled to the same answer from the jury.

Without the jury deciding these two issues, we could never be sure these verdicts were accurate. Our system relies heavily on accurate verdicts, but we can only be sure of accuracy if the jury, not the state or a judge, decides all the basic facts that constitute the crime.

In practice since 1981, Van Wagner is a criminal law defense attorney for the Van Wagner & Wood law firm in Madison. He is a former state prosecutor in New Jersey and federal prosecutor in Wisconsin.