Ben Sebena's Insanity Defense Shot Down By His Own Doctor's Report

Benjamin Sebena's lawyer said Friday that he would "pursue other strategies" than an insanity defense after the doctor who examined Sebena for the defense found his condition did not support an insanity plea in the murder of his wife, Jennifer Sebena.

Without saying that Ben Sebena would withdraw or change his plea, that statement suggests that defense attorney Michael Steinle no longer believes that an insanity case can be won.

Any defense at trial for Sebena on a charge of first-degree intentional homicide took another blow in the same hearing Friday when Judge David Borowski also denied a defense motion to suppress evidence drawn from interviews Sebena had with Wauwatosa police on Christmas Eve, the day Jen Sebena was shot and killed.

With both findings, a jury at trial would hear that psychiatrists for both sides agree Ben Sebena was not insane at the time of his wife's death – and that he confessed in detail to killing her.

Jennifer Sebena, a Wauwatosa police officer, was found dead with five gunshot wounds to the head outside Tosa Fire Station No. 1 on Dec. 24. Benjamin Sebena would confess to having stalked her for several nights and shot her from ambush.

When Borowski read the terse conclusion of the defense-retained psychiatrist, Kenneth Robbins of the University of Wisconsin School of Medicine, Steinle said, "We will pursue strategies other than an NGI (not guilty by reason of insanity) defense."

Steinle did not elaborate and would not comment after the hearing.

Steinle asked Borowski to note for the record that both the court-appointed psychiatrist and Robbins found that Sebena had very significant mental health issues "but did not rise to the level" of not guilty by reason of insanity.

Borowski did so note and said both doctors had confirmed Sebena suffers from post-traumatic stress disorder as well as from traumatic brain injury from his combat service and wounding as a Marine in Iraq.

The full medical reports from both psychiatrists will remain sealed until a trial, which is still scheduled to begin July 8.

In denying the defense's motion to suppress evidence drawn from Sebena's statements to police before his arrest on the afternoon of Dec. 24 – most particularly his consent to a search of his home – Judge Borowski said that police acted properly and did not effectively take him into custody.

Sebena appeared at the police station voluntarily, Borowski said, was not restrained, and the nature of the questioning was not accusatory.

"The question here is whether Mr. Sebena was 'in custody,'" Borowski said.

"Was the defendant restrained?" Borowski asked rhetorically. "Was he being interrogated?

"It did not strike me as an interrogation. He was not being questioned as a suspect.

"Ultimately, the defense has not made the showing of the need to suppress those statements."

Had Borowski found any reason to grant the motion, he could also have suppressed any other evidence discovered as a result of Sebena's statements that morning.

Sebena did not confess until after two more days of questioning while under arrest, but the evidence that led to his arrest – a box of cartridges matching a shell casing of a rare type found at the murder scene – came from his initial consent to search his house.

Had that been suppressed, so too could have been the later discovery at his home of the two guns used in the killing and of his confession on the evening of Dec. 26. Having been drawn from the first search while Sebena was not under arrest, that evidence could be considered "the fruit of the poisonous tree" – evidence found only through other evidence improperly collected.

But Borowski made it clear that even if he had found anything improper in Sebena's initial questioning on the morning of Dec. 24, he would not have been likely to suppress the most damning evidence.

"The consent given was valid. Even if there had been some misconduct by the Wauwatosa police – and I don't believe there was," Borowski said, " – enough time had passed before his confession" that Sebena's confession would not have been tainted.