MILWAUKEE — An Iraq War veteran accused of fatally shooting his wife, a Milwaukee-area police officer, didn't need to be read his Miranda rights immediately because he didn't become a suspect until later in the police investigation, a Milwaukee County judge ruled Friday.
The decision means Benjamin G. Sebena's statements to police will be allowed as evidence at his trial, which starts next month. Sebena, 30, is charged with first-degree intentional homicide in the death of Jennifer Sebena, a Wauwatosa officer who would have turned 31 on Friday.
Sebena has pleaded not guilty by reason of mental disease or defect, but that plea is in jeopardy now. A court-appointed psychiatrist had examined Sebena and reported that there wasn't sufficient evidence to support a plea. Sebena was granted the opportunity to seek a second opinion, which was revealed in court Friday.
Judge David Borowski said the second doctor reached the same conclusions as the first: that the former Marine suffers from significant mental health issues such as post-traumatic stress disorder. But both doctors said the issues don't rise to the level of supporting an insanity plea.
Defense attorney Michael Steinle said he had no objections to the overall conclusions of the second report. He told the judge he would be pursuing strategies other than an insanity plea.
After the hearing, Steinle declined to elaborate about what his new strategy might be, repeatedly telling reporters, "I have no comment."
Sebena was silent throughout the hearing except to tell the judge he understood the ramifications of the second doctor's report. As in his other court appearances, Sebena was brought into the courtroom in a wheelchair and wearing a blue padded suicide-prevention vest.
Sebena has acknowledged ambushing his wife on Dec. 24 in Wauwatosa while she conducted a pre-dawn patrol alone, according to the criminal complaint. He told investigators he was a jealous husband and had been stalking her.
Other Wauwatosa police officers first suspected something was wrong that morning when Jennifer Sebena failed to respond to radio calls. They found her body near a fire department where officers often take their breaks.
A police sergeant called Ben Sebena and told him to come to the station because his wife had been in an incident, but Sebena didn't ask for details, the complaint said. Later, when he was told his wife had been killed, he still didn't ask what happened to her.
Steinle hoped to have Sebena's earliest comments to police thrown out. Police began questioning him about 6 or 6:30 a.m. on the day his wife's body was found, but Borowski said Sebena wasn't read his Miranda rights until at least 1 p.m.
The judge read from a 58-page transcript of the questioning and noted that it didn't read as a typical interrogation. The conversation touched on Jennifer Sebena's shopping habits and the type of car she drove. At one point Ben Sebena offered to try to find his wife's Facebook password if that might help in the investigation, Borowski said.
"I agree with the state that the questioning in this case was not accusatory," Borowski said.
Sebena wasn't cuffed as he was being interviewed in an unlocked room. Officers granted him one or two breaks to use the bathroom and smoke a cigarette, Borowski said. Officers stayed near him during the breaks, but the judge said that was an understandable safety precaution.
"I can't believe that any police department would let anyone, no matter what their status is, just wander around by themselves," especially a distraught person whose wife had just been killed, Borowski said.
Sebena, who is being held on $1 million bond, served two tours in Iraq with the U.S. Marine Corps. He was honorably discharged in 2005 after suffering severe arm and leg injuries in a mortar attack.
His trial is set to begin July 8.