Scott Jensen to get new trial

Listen to this article

Former state Assembly Speaker Scott R. Jensen and legislative aide Sherry L. Schultz were awarded new trials by the Wisconsin Court of Appeals on Nov. 8, because the court concluded that the jury was improperly instructed on the elements of the charge — misconduct in public office.

In 2002, the state charged that Jensen hired state employees to solicit campaign funds, recruit, and otherwise assist political candidates, and to work on his own campaigns, and that Schultz participated in campaign fundraising on time compensated by the state.

Both were found guilty by a Dane County jury. However, in a decision by Judge Paul B. Higginbotham, the court of appeals reversed.

At the trial, the jury was instructed that, “The use of state resources to promote a candidate in a political campaign or to raise money for a candidate provides to that candidate a dishonest advantage.”

In Schultz’ case, the jury was also instructed that, “Political activity includes any of the following: Campaign fundraising, the preparation and maintenance of campaign finance reports, and candidate recruitment.”

Jensen and Schultz argued, and the court of appeals agreed, that these instructions operated as a “mandatory conclusive presumption,” that improperly directed the jury to presume dishonest intent.

Reversing Jensen’s conviction, the court wrote, “this instruction directs the jury that it must find that Jensen exercised his discretionary authority with the purpose to obtain a dishonest advantage (the elemental fact) if the State proves that Jensen used state resources for political campaign purposes (the predicate fact).”

The court concluded that the instruction thus relieved the state of is burden to prove that Jensen had the intent to obtain a dishonest advantage, and reversed the conviction.

The court also concluded that the trial court erred in excluding portions of Jensen’s testimony.

The cases are State V. Jensen, 2006AP002095-CR and State v. Schultz, 2006AP002121-CR.