The state Supreme Court is considering what standard is sufficient to determine that a defendant acted with “utter disregard for life.”The justices will consider that definition as it applies to a first-degree reckless injury charge in a shaken-baby case. The father of a 2-month-old appealed his conviction of the charge under Sec. 940.23(1) of the state statues for shaking and permanently injuring his son.During oral arguments March 17, Assistant Public Defender James L. Fullin Jr. told the Supreme Court that it had an opportunity to distinguish reckless injury from aggravated reckless injury.Fullin said, “This case offers the court an opportunity to clarify a long-standing problem in criminal law, that problem is, ‘What is utter disregard for life?’ We know it’s more than criminal recklessness, because it’s the element that distinguishes it from recklessness and elevates it to first degree.”The elevated charge requires a greater level of understanding from the defendant, he said.“I urge this court to clarify by defining utter disregard for life as indifference with substantial probability that one’s conduct will cause death,” the public defender explained.Assistant Attorney General Gregory M. Posner Weber noted that Fullin had argued for a subjective standard. Instead, Posner Weber urged the court to consider an objective standard.“The state is asking this court to hold that the ‘utter disregard’ element of Sec. 940.23(1) does not require the state to prove that the defendant actually subjectively realized and disregarded a substantial risk of causing death,” he told the court. “We are asking you to hold that the state is required to meet an objective standard. That the state must prove that the conduct of the defendant and the surrounding circumstances as generally considered by mankind are sufficient to show utter disregard for human life.”Fullin said, his client, Stephen L. Jensen, did not realize the consequences of his actions.In November 1996, Jensen agreed to watch his son, who was 10 weeks old. The baby lived with its mother, but Jensen had spent time with the boy on several occasions. According to the record, the mother warned Jensen of the baby’s fragile neck and showed him how to hold the baby’s head.During the night, the baby began crying inconsolably. Jensen testified that he was unable to stop his child from crying. Eventually, he lost control and shook the baby 10 to 15 times. The baby suddenly stopped crying and began having difficulties breathing.Jensen dialed 911 and called for help, stating that he had fallen with the baby. When confronted later, he admitted to shaking the child. The injuries resulted in brain damage and blindness.Jensen was convicted of first-degree reckless injury. He took the case to the Court of Appeals and lost. The appellate court looked at the first-degree reckless injury standard set forth in State vs. Edmunds, No. 98-2171-CR (Wis. Ct. App. June 24, 1999), and upheld the conviction. The Supreme Court granted his petition for review.Given the totality of circumstances in this case, Posner Weber said, Jensen met the standard for a showing of utter disregard for human life. He noted that the Edmunds decision provided “a reasonable standard for what the court should do.”The support for that totality comes from the Supreme Court decision in State vs. Weso, 60 Wis. 2nd 404 (1973), he said.Fullin contended that the Weso decision created an ambiguous standard that support either the prosecution’s or the defense’s position. Both attorneys cited the decision in support of their positions. Fullin maintained that Weso required a “conscious indifference to an extreme risk.”“I think the obviousness of the danger is the most important factor in my case,” Fullin said. “If it’s very, very clear that the conduct is going to cause an elevated risk of death, then you can convict of this. But in my case, the circumstances show that it was not so clear.”Fullin contended that Jensen did not realize the serious nature of his actions. At one point, he noted that Jensen did not have the same understanding of the consequences of his actions as the doctor testifying in the case.Posner Weber said that level of understanding was not necessary. It was sufficient that the child’s mother had warned Jensen about the baby’s fragile neck, he said.The case is State vs. Stephen L. Jensen, Case No. 98-3175-CR, Wisconsin Supreme Court.