The Jensen Defense

     Rumors, none of which has ever been substantiated, persist that Scarver was part of a conspiracy involving prison personnel, or perhaps even higher government officials, to execute Dahmer and Anderson.   The rumors are based on the fact that Scarver (who had nothing to lose because he was already serving a life sentence) was paired on a work detail with both Dahmer and Anderson.   Scarver was then able to arm himself and to beat Dahmer and Anderson to death without any intervention by correctional officers.    In fact, Scarver left Anderson and Dahmer for dead and walked back to his cell.    Scarver later pleaded guilty to two counts of first degree intentional homicide.

    On April 28, 1995 the madness of James Oswald prompted what is perhaps the most dramatic news video ever shot in Wisconsin.    In the late winter and early spring of that years the Oswalds were responsible for a string of bank robberies in southeast Wisconsin.  On the morning of April 28, 1995, though, while fleeing in a car from the scene of a bank robbery in Waukesha County, the two were stopped by a Pewaukee police sergeant, James Lutz.   The Oswalds, who had actually practiced the tactic, employed a "stop and shoot" maneuver in which, once their car had come to a rest,  each jumped out of the vehicle and immediately began firing into the squad car.   James Oswald was wielding a high-powered assault rifle.  Sergeant Lutz was killed almost instantly.   A second Pewaukee police officer, though, arrived on the scene seconds later and managed to shoot out a tire on the Oswald vehicle.   After driving a short distance the Oswalds were forced to flee on foot across a large vehicle.  They eventually arrived at the home of Judy Opat who was home alone at the time.  After breaking through a glass patio door the Oswalds took Opat hostage.   By that time, though, police had surrounded the Opat property- and so had a news photographer.     James Oswald ordered Opat to drive them out of the situation in her van.   With the episode being caught on video camera, Opat drove the van, with James Oswald in the passenger's seat and Ted Oswald in this rear, toward the end of her long driveway.  As she turned into the street massive gunfire erupted between law enforcement and the heavily-armed Oswalds.   Opat then opened the door and rolled onto the street and managed to avoid the hail of bullets as she escaped.   Ted Oswald then got into the driver's seat, rammed several squad cars that were blocking the escape, and then sped away.   A Waukesha County Sheriff's Deputy, though, was stationed behind her squad car along the escape route.  As the van approached she fired shots into the windshield of the van causing Ted to veer to the right and crash full-speed into a large tree.   The news video of the shootout and capture was shown thousands of times in the local and national media.

    The Oswalds were charged with numerous counts including bank robbery, first degree intentional homicide, and kidnapping.   In separate trials both were convicted in 1995.    
    Both Oswalds appealed.  In his appeal Ted Oswald argued, among other issues, that he was denied a fair jury because during the jury selection process a jury panel member told the court that, contrary to the judge's explicit instructions, the panel members had been discussing the case in the jury room and had concluded that the trial was a waste of time and that Ted Oswald should just be hung immediately.   At the urging of Waukesha County District Attorney, Paul Bucher, the court denied Oswald's request to question the panel members about the conversations that were occurring in the jury room.   Several of the jurors involved ended up serving on the jury that convicted Oswald.  The Wisconsin Court of Appeals affirmed Oswald's convictions and the Wisconsin Supreme Court denied a petition to review.

    However, Oswald filed a petition for habeas corpus in the United States District Court and, in 2003, Judge Lynn Adelman, granted the petition and ordered a new trial on the grounds that Oswald had, in fact, been denied his constitutional right to a fair jury.   In late 2004 the United States Court of Appeals (7th Cir.) affirmed Adelman's order.   Therefore, a new trial for Oswald was scheduled beginning on May 2, 2005.     This time Oswald, through his attorney,  entered a pleas of not guilty and not guilty by reason of mental disease or defect.   Defense psychologist Diane Lytton filed a report with the court offering the opinion that Ted suffered from deep-seated delusions and a "shared psychosis" imposed on him by his father and that these mental conditions prevented Oswald from appreciating the wrongfulness of his conduct.   Court-appointed psychologists did not agree, though, that despite his mental illness that Oswald could not conform his conduct to the law.    After the jury was chosen Oswald told the court that he wished to plead guilty to the offense but to have a trial on the issue of his mental responsibility.   With one dissenting juror the jury found that Oswald did not suffered from a mental disease or defect so significant that he could not conform his conduct to law.    
    Consequently, on June 6, 2005 Oswald was once again sentenced to life in prison plus additional sentences exceed five hundred and fifty years.

1.  Jeffrey Dahmer

    On July 22, 1991 Dahmer was arrested when Traci Edwards ran out of Dahmer's apartment with a handcuff hanging from his hand.   The world-wide media coverage of the Dahmer case was so intense that the details need not be repeated here.  The legal importance of the Dahmer case, of course, was to illustrate the difficulty of succeeding on a plea of not guilty by reason of mental disease or defect.  Dahmer was plainly insane under almost any definition of the word- except the legal definition.    In order to be found not guilty by reason of mental disease or defect the defendant must prove by clear, satisfactory, and convincing evidence that he suffered from some serious mental disease or defect that caused him to be unable to appreciate the wrongfulness of his behavior (or, in some cases, unable to form the requisite intent to commit the crime).  Dahmer, like most criminals, took great care to conceal his activities- very persuasive evidence that he knew that what he was doing was wrong.   Prior to the Dahmer case there was a mistaken perception among lay persons, probably fueled in large part by the John Hinckley case (the man who shot President Reagan)  that one could commit a heinous crime and then easily escape responsibility by claiming to be "crazy."  Nearly every person in our prisons could fairly be diagnosed with some form of mental illness.   Almost none of them could succeed with a claim of not guilty by reason of mental disease or defect.

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