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Attorneys view insanity defense as likely in Sebena case in Wauwatosa

Legal experts say victim's role as police officer role has little legal significance

Jan. 29, 2013

Criminal defense attorneys said Benjamin Sebena's not guilty plea at his arraignment last week was fairly standard procedure at this early stage of the judicial process.

Sebena, a decorated Iraq war veteran, confessed to killing his wife, Wauwatosa Police Officer Jennifer Sebena, as she left a break room at Fire Station No. 1 in the village in the early hours of Dec. 24. She was shot twice in the back of the head, and, with her own service weapon, several times in the face.

Benjamin Sebena's plea was entered on his behalf Thursday by his attorney, Michael Steinle.

Veteran defense attorney Stephen Glynn said a not guilty plea was "very typical, because if he enters any other plea, like for example a plea of guilty, or no contest, then the case will finish, and there won't be any opportunity for him to present mitigation except at sentencing, and he'll want to do more than that, I'm sure."

Speculation over plea

Glynn said he fully expected Steinle to present an insanity defense.

"Because that's a plea that often requires some psychiatric testing before it gets entered, it is not at all uncommon for that to be entered a little bit later in the case," he said.

A not guilty plea can be changed later, noted attorney Julius Kim.

A defense based on mental disease or defect is not an easy case to make, Kim said.

The defense has to first establish that the defendant has such a condition, as diagnosed by an expert.

In addition, the doctor or expert has to determine that because of the defendant's condition, he or she either lacks substantial ability to appreciate the wrongfulness of his or her conduct, or lacks the capacity to conform the conduct to the requirements of the law, Kim said.

And, of course this would have to prevail against experts presented by the prosecutor.

"In a situation like this, (an insanity defense is) certainly something that any competent attorney would be looking at, especially given the fact that there's some … information out there that this particular defendant may have suffered mental illness or disorder."

In a video made before the killing, Benjamin Sebena discusses the trauma of his wartime experiences.

Defense attorney Victor Plantinga said the fact that Benjamin Sebena reportedly tried to cover his actions may show that he knew what he is accused of was wrong. Also, the fact that the victim was an officer will weigh in, leaving Sebena "very little wiggle room."

Attorney Jeffrey Jensen represented Ted Oswald, who, with his father, James, was convicted of a number of felonies, including first degree intentional homicide in the fatal shooting of a police officer in 1995. Oswald, represented by Jensen, was tried a second time using a mental disease or defect argument.

"That's where I think we lost out," Jensen said. "It wasn't a question of his mental disease or defect, it was the fact that he and his father made efforts to conceal their crime, made efforts to have a getaway vehicle, and things like that, which is inconsistent with the idea of not appreciating the wrongfulness of your conduct."

A case of domestic violence

Glynn views the shooting largely as a case of domestic violence and said the fact that Jennifer Sebena was an on-duty police officer has little legal significance.

"I don't see her role as a police officer as having anything to do with the case."

Attorney John Schiro agreed that the dual nature of the case is not that significant.

"I don't actually think that probably complicates it," he said. "It can be complicating in a case when a police officer is killed on duty, in the line of duty."

Among other things, it is much harder to find impartial jury in a case like that, he said.

The Sebena case is "more along the lines of a domestic violence homicide, if that's what happened," Schiro said.

Schiro said it wouldn't change the complexion of the case if she had been killed off duty and at home.

Kim said that while he views the Sebena case as primarily one of domestic violence, "any time the victim of a case involves someone I would call high profile, like a police officer, or military personnel, or some other person that may be noted, like a politician … that makes it a little more difficult for the defense, because those type of people might be more sympathetic, and that may make a jury more inclined to make a decision based upon their emotion."

The punishment for a conviction of first degree intentional homicide is a mandatory life prison sentence.

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