MADISON, Wis. - The Wisconsin Supreme Court election is just more than a week away, and third-party ads are filling the airwaves.
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A recent ad by Wisconsin Manufacturers and Commerce wants the viewer to think that one candidate doesn't sympathize with victims of crime. In this installment of "Reality Check," WISC-TV shows some of the ad's claims need another look.
The ad starts with photos of newspaper headlines and a photo of a man named Mark Jensen.
"We count on judges to use practical common sense to keep violent criminals behind bars, but faced with an unspeakable crime, Justice Louis Butler almost jeopardized the prosecution of a murderer because he saw a technicality," the ad says.
WISC-TV finds this statement misleading. Mark Jensen was charged in 2002 with the killing of his wife, Julie Jensen, in 1998. She was found dead, poisoned by antifreeze. She wrote a letter before her death and told a neighbor to give it to police if she died. The letter said she believed her husband was trying to poison her and to look at him as the first suspect.
Before the case went to trial, Mark Jensen's attorneys tried to get that letter and other statements Julie Jensen made to neighbors and friends thrown out. They considered it "hearsay," and the law gives a defendant the right to confront his or her accusers per the "confrontation clause." That issue is a major constitutional question and not a technicality. The district attorney appealed, and the issue made it to the state Supreme Court.
The ad goes on to say, "When prosecutors needed to show critical evidence, Butler dissented, going against six other justices. Thankfully, he didn't get his way."
WISC-TV finds this statement needs clarification. In its decision, the Supreme Court decided lower courts should adopt a new legal test when looking at evidence like the letter. It said if prosecutors could prove the defendant caused the witness not to be in court, they lose their right to cross-examine. That means if a judge believed Mark Jensen killed his wife, the letter and statements were in.
Butler both agreed and disagreed with this decision. He agreed this legal test should apply, but with another prong to the test. Based on what he thought was the historical interpretation of the test, he thought prosecutors should prove not only did Mark Jensen kill his wife, but did so to keep her from testifying against him. Butler said that he believed the majority made new law by creating an exception to the confrontation clause for criminals accused of homicide.
To be clear, both Butler and the court majority agreed to leave the decision on allowing the letter to a lower court. The difference is, Butler wanted a stricter test which could be harder for prosecutors to prove.
"Jurors said it was the most important piece of evidence they saw," the ad said, sourcing an Associated Press article.
WISC-TV finds this claim to be true. A Kenosha County judge accepted Julie Jensen's letter as a "dying declaration" and allowed it at trial. A jury found Mark Jensen guilty and sentenced him to life in prison. Many jurors were quoted as saying the letter was key to their decision.
The ad finishes by saying, "Call Louis Butler, tell him to stand up for victims, not technicalities."
One campaign watchdog group called this final statement "disturbing." The Wisconsin Judicial Campaign Integrity Committee said it encourages viewers to lobby judges as politicians, and went so far as to say that this particular ad "attacks Wisconsin's tradition of fair and impartial courts."
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