BLIND JUSTICE: JENSEN CAN'T SEE ACCUSERS

By Michael Horne
The new $44 million Dane County Courthouse is taking its maiden voyage as the trial of Rep. Scott Jensen sails along. Wednesday, Jensen's lawyer, Stephen Meyer, asked for a mistrial since the courtroom's design does not permit Jensen to see his accusers eye-to-eye.
Judge Steven Ebert denied the motion, flatly saying that confrontation "is broader than the ability to look somebody in the eye." This puts the Dane County circuit court judge on a collision course with Justice Antonin Scalia of the United States Supreme Court, which has ruled quite differently.
How broad is the right to face-to-face confrontation with a hostile witness in a court trial? Well, it is embodied in the Sixth Amendment to the United States Constitution, which says that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."
This is not possible in the Jensen case, due to design flaws in the courthouse, which place the defendant, Jensen, out of the sight of those testifying. Milwaukeeworld has verified this with individuals who have been observers of the trial proceedings.
Even Dane County District Attorney Brian Blanchard admitted in court that "witnesses may lean a little bit [to see Jensen], but when they lean a little bit they would see him."
However, acrobatics in the courtroom was probably not what the framers of the Bill of Rights had in mind, and for centuries courtrooms have been built to allow face-to-face confrontation.
This is not merely a matter of interior design, but an established principle of the constitution, as we have seen.
The right was most recently affirmed by the United States Supreme Court, with Justice Antonin Scalia writing the opinion of the court that face-to-face confrontation "is not a preference 'reflected' by the Confrontation Clause [but rather] a constitutional right unqualifiedly guaranteed."
The right derives from "the irreducible literal meaning of the clause," which traces "to the beginnings of Western legal culture," according to Scalia in Crawford v. Washington, 02-9410 US 2004
This small detail was overlooked somewhere along the line as the courthouse facility was designed and constructed..
What appeared at first to be a sightline problem similar to occupying an obstructed seat in a stadium or theater, may indeed portend a constitutional issue beyond the scope (and apparently, the understanding), of the Dane County judiciary.
The gravity of the design flaw was pointed out by Waukesha County Judge Mac Davis, who is aware of the right to face-to-face contact with one's accusers, and who brought the matter to the attention of Jensen's attorney. It occured to Davis that something was wrong, as he testified, and he brought it to the attention of the Jensen team.
Jensen's supporters spent the evening Tuesday calling attorneys familiar with the provisions of the sixth amendment. The attorneys, who are not involved in the case, immediately referred to Scalia's opinion on the literal interpretation of face-to-face contact. Scalia's ruling, for example, prohibits the practice of separating a juvenile sexual assault victim in court from the accused by a sheet or other screening device. It also has implications in closed-circuit trials in which the accuser would be physically separated from the accused while the proceedings were televised.
Most famously, the issue appeared in last year's sexual assault trial of Michael Jackson. His accuser was obliged to deliver his testimony in Jackson's line-of-sight, rather than remotely.
Dane County Executive Kathleen Falk, a former state intervenor who is running for Attorney General directed questions to Chief Judge Michael Nowakowski, who referred questions to court administrator Gail Richardson, who was not immediately available for comment. [We'll post her response when she returns the calls.]
The architect for the project is Parker Durrant International Architects, a firm currently engaged in designing the world's tallest building, they say, and which has several web pages devoted to its courthouse work across the country.
Milwaukeeworld sent an e-mail to Kathe Stanton, the director of Media Relations for the architecture firm for her comments.
We've also called Kelli Thompson of the state Public Defender's office to see if the unconstitutional courtroom has caused problems for indigent criminal defendants.