To the legal layperson, the case of the murder of Wauwatosa Police Officer Jennifer Sebena may appear to be open and shut.
Jennifer’s husband, Benjamin Sebena, admitted to investigators in statements that he had stalked her for days, had lain in wait for her on Christmas Eve morning, and shot her five times in the head.
The two guns presumed used to kill her – one of them her service weapon, the other a rare type that matches a shell casing found at the scene – were found hidden in the Sebenas’ basement ceiling.
His plea of not guilty last week tells us only that there will be a trial.
Based on his admission alone, but also with a seeming preponderance of physical evidence against him, what defense could Ben Sebena possibly make that would keep him from being convicted and sent to prison for life?
The almost absolute certainty that Sebena’s plea will be changed from not guilty, to not guilty by reason of mental disease or defect, and the reasons for it.
Sebena was a Marine who said he was in the worst fighting Iraq had to offer, in the uprising in Ramadi where some 50 Marines were killed. He later was grievously wounded in a mortar attack that, he said, blew a buddy to pieces a few paces away.
Sebena could reasonably claim he suffers from both mental disease and defect.
Legal and criminal experts say that the Benjamin Sebena trial will undoubtedly be long and extremely complicated and may turn out much differently than the general public expects.
According to one national expert on just this sort of crime, the case is likely to draw national attention and ultimately have national legal repercussions.
An expert on Wisconsin criminal justice agreed with every word of that, and explained in detail why.
A unique case to a longtime observer
Larry Barton is the president of American College in Bryn Mawr, PA, and a leading expert on workplace violence. He frequently testifies as an expert in criminal cases, he teaches at the FBI Academy in Quantico, VA, and advises the FBI and other law enforcement agencies.
He has studied thousands of homicide cases. He has never seen one quite like this.
“To begin with,” Barton said, “very few returning veterans from Iraq and Afghanistan have been violent or homicidal. Suicidal, yes; homicidal, no.
“The suicide rate has been three to four times higher than among Vietnam vets, but the homicide rate has been extremely low, lower than in the general population.”
That makes Sebena stand out as a rarity among vets, but not among the thousands of regular citizens who take the lives the people closest to them in domestic homicides.
But Barton felt certain that Sebena’s lawyers would use post-tramatic stress disorder and brain damage in his defense.
“And this PTSD defense,” Barton said, “could have national implications no matter what the outcome. It will speak to how we look at veterans and how the law regards PTSD, and it will be studied closely by many for a long time.”
A very different version of events
Ben Sebena’s family and friends have remained silent in public about his mental condition, and his medical records are not available. But someone very close to him did speak of it.
According to public records, Jennifer Sebena on Dec. 6 told her fellow officer Tracy Burbach what she had been going through with Ben.
The criminal complaint filed by the Milwaukee County District Attorney’s office prior to Ben Sebena’s charging says that “Jennifer Sebena told her fellow Police Office Burbach that she had been the victim of domestic violence by her husband Benjamin Sebena and that he had put a gun to her head.”
But another and much more detailed version of the account is contained in a subpoena seeking Ben Sebena’s phone records.
In that account, Burbach tells a detective that Jen “told her about problems she has been having with her husband Benjamin Sebena. Sebena related that her husband was a Marine and had served two tours of duty in Iraq and Afghanistan and suffered a traumatic brain injury during his service. Benjamin also suffers from Post Traumatic Stress Disorder.”
Jen Sebena “told Burbach that her husband suffers episodes of flashbacks and thinks he is back in Afghanistan or Iraq,” the report goes on. “One incident that Sebena related to Burbach involved her husband pointing a handgun at her head during one of his flashbacks. (Jennifer) Sebena was able to talk her husband down and retrieved the gun from him without further incident.”
The report also says that “Sebena told Burbach that her husband’s episodes or flashbacks occur more frequently at night than during the day. Sebena related that since she was working late shift she was concerned about her husband harming himself and never knew what state he would be in when she came home from work in the morning.”
Fitting part of the PTSD profile – but not all of it
To Barton, that means that Sebena exhibits one of the criteria that have been used in successful insanity defenses, including for PTSD: a history of episodic, psychotic events and evidence of complete mental departure from reality in time and space at the time of the crime.
“It can’t be a one-off, or at least that would be very rare and extremely difficult to present,” Barton said. “But when there is a history of chronic psychosis, it’s another thing.
“That alone, though, is usually not enough to hold much water with a jury. In the moment, the defendant would have to be A-to-Z episodic — in this case, back on the battlefield. The appearance of planning, execution and escape would seem to preclude that.”
Homicide cases that have resulted in verdicts of not guilty by reason of mental disease or defect have usually demanded those conditions, Barton said. Psychologists refer to a “total miasma” that leaves a subject utterly unable to tell right from wrong at the time of the commission of a crime.
However, Barton said, every case is different and each new case is being examined in the light of new knowledge about PTSD.
“If this were a more typical case of domestic homicide,” he said, “possibly still involving some degree of psychosis, we would call him a ‘grievance collector.’ For whatever reason, the perpetrator feels deep grievances and betrayal.
“This case is especially noteworthy because he knew she had a gun. He would have himself been at some risk. Was that simply to deflect suspicion as part of a plan to evade detection? Or did he feel in harm’s way?”
“Is there is something in this that suggests he did feel justified?”
Finding competency and conformity
Such a defense — that is, self-defense, because of psychotic fears — is always difficult to prove, but it is by no means unheard of.
Janine Geske, a former circuit judge and former justice of the Wisconsin Supreme Court, and now a distguished professor of law at Marquette University specializing in criminal law, has seen or studied as many such cases as anyone in the state and has decided more than a few.
Geske, like Barton, expects Sebena’s plea to be amended to not guilty, mental disease or defect, and says a plea can be changed at any time going forward.
“For him to be tried, he would then have to first be found competent to proceed, whether he can even be tried,” Geske said. “The procedure would be a hearing on competency. The court appoints experts, usually one for the defense and one for the prosecution, and the court can appoint a third, an independent expert.
“That hearing would determine whether he can aid in his own defense — is he able to conform his behavior?”
Assuming he is, Sebena would be given another opportunity to maintain his innocence or admit that he is guilty of but not responsible for the crime.
With a not guilty plea by reason of mental disease or defect, what would follow would be “a bifurcated trial in front of the same jury,” Geske said. “The first would be to establish guilt, and the second, insanity.”
“He has the right to be tried on his innocence or guilt in committing the crime, and he doesn’t have to testify in that first trial.”
Frequently, in insanity defenses, defenses plead guilty to the commission of the crime and move on to the insanity phase, Geske said. But not always.
“Sometimes, the defense wants to go to trial for strategic reasons, to get certain evidence in front of the judge and jury early and often.”
Admissible evidence or an incompetent statement?
Geske said that the chief evidence against Sebena —his confession to the crime and the significant physical evidence — does not constitute a fait accompli for the prosecution, and far from it. The key word, again, is competency.
Sebena apparently did not ask for a lawyer to be present during his statement to police, but there is no reason to believe that his confession was wrongly obtained by police through any failure to inform him of his rights or through any coercion.
Never mind that. “He may not have been competent to give his statement,” Geske said. “It wouldn’t surprise me to see a motion to suppress his statements to police because he was not competent to give them.”
In other words, if a person is accused of being deranged enough to stalk for days and kill his wife, can his mental faculties have recovered in the few hours and days immediately after to the extent that he was competent to relate what he did before, during and after?
Suppose a judge did grant a motion to suppress Sebena’s statement — and that is just a possibility, by no means a foregone conclusion, Geske said. There is still all that evidence, especially the guns and ammunition found at his home.
“That,” Geske said, “could be ‘the fruit of the poisonous tree.’ If they went and got a search warrant based on his statement, which we’ll suppose is now suppressed — then that is suppressed as well.”
How will a jury see it – if a jury hears it?
If motions to suppress, assuming they are made, are not allowed, and a jury hears what Sebena said he did, regardless of his state of mind when he said it, what will its members think?
“If there is planning, and an attempt to cover it up, juries feel that is conforming his behavior,” Geske said, referring to the legal standard of “what a reasonable person would think.”
“The state never stipulates to not guilty by insanity,” she said. “They let the jury decide. And remember, Jeffrey Dahmer was found to be responsible for his actions.
“Juries don’t like to find (insanity). They are told that he would go to a mental institution and possibly be released when he is judged to be safe.”
“The problem is the planning,” Geske said. “With PTSD, a trigger could be a loud sound, a car backfires, and suddenly you’re back in combat.
“But the planning, the going home, trying to cover it up….”
And for that reason, it’s possible that Sebena’s defense wouldn’t want a jury, Geske said.
“They could waive the jury,” she said. “Sometimes they will decide they have a better chance with a judge. A judge may give him the opportunity for parole. I would say it’s possible he could get parole after 20 years, depending on the judge.”
PTSD succeeds and fails as a defense
In 2009, two murder cases were tried, one in Pennsylvania and one in Oregon. Both defendants used PTSD defenses, claiming insanity.
In the Pennsylvania case, Nicholas Horner, a decorated combat veteran, shot and killed a teenage boy working at a Subway sandwich shop and an older man who was going out to pick up his mail in 2009.
Horner's defense claimed PTSD from his service in Iraq had so changed him that when he flashed back that day, he was not in his right mind and did not know right from wrong. There was plenty of testimony from family and friends that this was true — he was a different man.
But at trial, the jury heard that Horner had gotten drunk — many PTSD sufferers "self-medicate" with alcohol — and had then killed the teenage boy during a robbery of the sandwich shop, in which Horner stole $130 from the till.
Horner then slew the older gentleman to take his car keys so he could get away.
The jury found Horner guilty of two counts of first-degree intentional homicide, believing that his behavior in carrying out an armed robbery and a car-jacking had nothing to do with a flashback to any combat zone. Instead, it spoke of planned, executed criminal intent with the mentally conforming behavior of making an escape.
In Oregon, Jessie Bratcher, also an Iraq War veteran, got into a shoving match with a man he believed had raped his girlfriend. Then he pulled a semi-automatic pistol and pumped six hollow-point bullets into the man, killing him.
Bratcher, facing 25 years in prison, claimed he had suddenly felt like he was back in the war zone. There was testimony from family and friends that he had acted strangely since his return — his sister said she had seen him in the back yard, gardening, with an AK-47 strapped to his back.
Bratcher was found not guilty by reason of insanity, was committed to a mental institution, and was expected to be released in 2012, just three years after the murder he admitted. Patch could find no record showing that he has or hasn't been released at this time.
No determination was ever made at trial as to whether Bratcher's victim had in fact committed a rape. Bratcher's girlfriend had told him the victim had raped her and that he, Bratcher, might not be the father of their child.
Former Supreme Court Justice Geske said she tried a PTSD homicide case years ago in which the defense waived a jury and asked her to make the decision.
“He was brutally raped in prison,” Geske said. “He was mentally scarred by it. Later, after he was out, a man came on to him. He snapped. It was in a moment. He lost it and thought he was being raped again, and he killed."
“I found him not guilty by reason of insanity.”
Col. Carl Castro, director of the Military Operational Medicine Research Program, has been funding studies into post-traumatic stress disorder, known as PTSD, over the past five years, and he said the results are beginning to come in.
"I really think the next eight to nine months are going to be the most exciting as the data comes on line and we can start saying, okay, this is really working, we really know what we're doing here, let's do this," Castro said in a June Defense News interview.