STATE'S TOP COURT SAYS LOCAL MAN CAN BE RETRIED

RACINE - Racine County prosecutors are free to re-try a Burlington man on
charges of bail jumping, after the

Wisconsin Supreme Court ruled Wednesday that a second trial would not be
double jeopardy. The ruling overturns an earlier appeals court ruling.

Wyatt Daniel Henning, 21, of Kansasville, was originally charged with two
counts of possession of drugs with intent to deliver - marijuana and LSD -
and three counts of bail jumping. A jury in 2001 found him innocent of the
drug dealing charges, but convicted him for the bail jumping charges. The
jury appeared to have based its verdict on a belief that Henning was guilty
of drug possession, a lesser included offense, although they didn't return
a verdict on it.

The problem, the Second District Court of Appeals had ruled, was that
jurors had not been instructed on lesser included charges and Henning's
guilt on bail jumping charges depended entirely on his guilt of either drug
dealing charge. The appeals court reversed the convictions, and said
to re-try Henning for bail jumping would amount to double jeopardy -
putting him on trial twice for the same crime.

Double jeopardy is prohibited by the U.S. Constitution.

Prosecutors appealed that decision to the state Supreme Court.

Henning's case started in January 2001 when a Burlington police officer
arrested him on outstanding warrants. During the arrest, the officer saw
Henning put a packet of marijuana in a car he had been sitting in.

At the time of his arrest, Henning was out of jail on bail pending felony
charges against him. A condition of his bail was that he not be arrested.

At his trial, lawyers agreed that if Henning were convicted of the drug
charges, he would automatically be guilty of bail jumping. Lawyers also
agreed on an all-or-nothing approach - that Henning would either be
convicted of possession with intent to deliver and bail jumping, or found
innocent of all charges.

But when jurors asked if they could consider the lesser charge of drug
possession, Judge Stephen Simanek said yes. Seven minutes later, the jury
acquitted Henning of drug dealing but convicted him for bail jumping.

Henning appealed. He has been free on bond pending the outcome of all the
appeals.

Three justices disagreed with the Supreme Court's ruling. In a dissent
opinion, Justice N. Patrick Crooks wrote that prosecutors had been unable
to prove the more serious drug dealing charges at trial and allowing them a
second chance to prove the lesser charge of drug possession equals double
jeopardy. Prosecutors made a strategic choice in the first trial to link
the outcomes of bail jumping to the drug dealing charges, lost, and should
have to live with it.

"The gamble the state made ... proved unsuccessful," Crooks wrote.

Assistant District Attorney Sharon Riek, who prosecuted Henning in 2001,
said whether or not Henning is re-tried depends on whether or not Henning
is willing to plead guilty or no contest to avoid one.

"If he wants a trial, the state will re-try the case," Riek said.