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Court of Appeals Decisions Remanded Cases To Circuit Court For New Trial
MADISON -- The Department of Justice will not appeal the recent decisions from the Wisconsin Court of Appeals reversing the misconduct in public office convictions of former Assembly Speaker Scott Jensen and former Legislative Aide Sherry Schultz. The decisions, dated November 8, 2007, remanded the cases to Dane County Circuit Court for a new trial.
Wisconsin Attorney General J.B. Van Hollen released the following statement:
One of the important roles the Department of Justice performs is to represent the State before the appellate courts in all felony criminal appeals. As part of that function, I decide whether to ask the Supreme Court to review, in its discretion, felony convictions obtained in the trial court and reversed by the court of appeals.
Scott Jensen, former Assembly Speaker, and Sherry Schultz, former legislative staffer, had their convictions for felony misconduct in public office reversed by the court of appeals and remanded the cases for a new trial. In both cases, the court of appeals' decision rested on what it concluded to be a legally erroneous jury instruction. Department of Justice lawyers thoroughly reviewed the court of appeals' opinion and underlying substantive law to determine whether it is in the State's interest to appeal to the Wisconsin Supreme Court or to allow the case to return to the trial court. As with any other case, our analysis considers a number of factors, among them: whether we believe the Wisconsin Supreme Court is likely to take the case; whether we believe the Wisconsin Supreme Court is likely to reverse the court of appeals decision and reinstate the convictions; whether there are any foreseeable risks to these or future cases posed by an unfavorable decision from the State's high court, and similar questions. In sum, our analysis considers the expected costs of an appeal, both direct and indirect, against the expected benefits.
Based on recommendations of staff and my own independent analysis of the law and the decisions, I have concluded that it is not in the State's interest to appeal these cases to the Wisconsin Supreme Court. The cases will now return to the trial court, where Dane County District Attorney Brian Blanchard is the lead prosecutor. District Attorney Blanchard has been consulted during the department's review of this matter and has a full appreciation for the basis for our decision.
Dane County District Attorney Brian Blanchard stated: "One important consideration is what route will allow for the speediest final resolution of this case. Given the new court of appeals decision, I concur with the Attorney General's decision, and I expect to be asking the trial court to schedule a retrial at the earliest opportunity."
Jensen's and Schultz's convictions for misconduct in public office have been reversed. As such, they are now presumed innocent. The State bears the burden of establishing its charges at trial, beyond a reasonable doubt.