Benjamin Sebena Returns to Court Friday

Benjamin Sebena will appear in court Friday for the fourth time since his arrest in the shooting death of his wife, Jennifer Sebena, who was on duty as a Wauwatosa police officer when she was killed during the early morning hours of Christmas Eve.

While the hearing is billed only as “further proceedings,” there are some possibilities and some likelihoods.

The only remark made about this hearing by presiding Judge David Borowski at Sebena’s last appearance, his arraignment on Jan. 24, was that he would “expect to set a trial date.”

That, presumably will happen — if nothing else does happen first.

But Sebena’s defense, led by attorney Michael Steinle, could do a number of things, among them, changing their plea.

On Jan. 24, Sebena pleaded not guilty of the crime of first-degree intentional homicide. Experts on criminal defense expect that to change based on a diagnosis that the former Marine, who served in Iraq and was badly wounded there, has a pronounced case of post-traumatic stress disorder, or PTSD.

If he and his lawyers are to re-enter a plea of not guilty by reason of mental disease or defect because of PTSD, Friday would be a logical time to do so – before a trial date would be set.

That would set in motion certain necessary steps in court proceedings that could keep a trial date on the horizon.

Change of plea would change procedures

To begin with, Sebena would have to be judged competent to stand trial at all.

A trial would ultimately judge whether Sebena was guilty of the crime itself and, presuming he was, then determine in a second trial proceeding whether he was capable of knowing right from wrong when he acted.

But if Sebena’s defense is to argue that he was at least temporarily unable to conform his actions to the standards of what a reasonable person would think or do, it and the state must first establish that he is capable of aiding in his own defense.

See Patch's complete coverage of the shooting of officer Jennifer Sebena

According to former Wisconsin Supreme Court Justice Janine Geske, as reported earlier in a Wauwatosa Patch analysis of Sebena’s defense, the prosecution and defense would each propose, and the judge would appoint, experts to present evidence on Sebena’s competency to stand trial.

The court could also appoint its own independent expert to weigh the two sides, Geske said.

If Sebena were to be judged incompetent to stand trial, he would be committed to a secure mental institution, where he would be treated and periodically re-evaluated, and possibly discharged to stand trial at a later date.

Defense may not be ready to alter stance

By no means, though, is Steinle obliged to enter a new plea for Sebena of Friday. That can be done at any time up to and including during trial.

Entering a new plea on Friday would avoid upsetting progress toward trial, but it could well be that the defense simply isn’t ready yet.

Sebena’s medical records before he entered military service, during his service and after his wounding, and since then to date, would all come into consideration, along with mental and medical evaluations of his current condition.

So far, no official or authoritative evaluation of Sebena's mental or physical health has been released, and both his and Jennifer Sebena's family have been silent.

The only clues to his state before Jennifer was killed was a statement from her to fellow Wauwatosa Officer Tracy Burbach, to whom she related that Benjamin had PTSD marked by frequent episodes in which he relived his combat experiences.

In one such episode, Jennifer told Burbach, Benjamin had pointed a gun at her head, and she had to "talk him down." Jennifer also said that Benjamin had taken up her third-shift hours, that his psychotic episodes were worse at night, and that she was worried he would harm himself.

Since Jennifer's death, Benjamin Sebena has appeared in court three times – at intake on Dec. 27, just three days after the crime; at his preliminary hearing Jan. 3, which he waived, leading to a finding of probable cause; and at the Jan. 24 arraignment, when he was bound over for trial.

In each case, Sebena has been brought into court strapped in a wheelchair and wearing a protective vest over a hospital gown. He spoke only at the preliminary hearing, where he was required to answer that he understood and agreed to the proceedings

To each of five questions, he answered, "Yes, sir."