WisBar News: In homicide case, appeals court addresses doctrine of forfeiture by wrongdoing after Giles:

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  • In homicide case, appeals court addresses doctrine of forfeiture by wrongdoing after Giles

    A Wisconsin appeals court recently rejected defendant Mark Jensen's claim that certain evidence was improperly admitted for trial. Jensen was convicted in 2008 of first-degree intentional homicide after a jury found that he poisoned his wife, Julie Jensen, 10 years earlier.

    Joe Forward

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    In homicide case, appeals court 
addresses doctrine of forfeiture by wrongdoing after 
Giles Jan. 10, 2011 – A Wisconsin appeals court recently rejected defendant Mark Jensen's claim that certain evidence was improperly admitted for trial. Jensen was convicted in 2008 of first-degree intentional homicide after a jury found that he poisoned his wife, Julie Jensen, 10 years earlier.

    The state had presented evidence from a neighbor, an officer, a detective, Julie’s doctor and her son’s teacher that Julie believed Jensen was trying to poison her.

    Julie gave her neighbor a handwritten letter to that effect before she died and told the neighbor to give the note to police if anything happened to her. An officer testified that Julie contacted him and left two voicemails concerned that Jensen was trying to kill her.

    Jensen challenged the admissibility of the letter and certain oral statements that Julie made concerning her fear that Jensen was trying to poison her. Jensen based his argument on the constitutional right of a defendant to confront the witnesses against him.

    Since Julie made the statements, the Sixth Amendment’s Confrontation Clause barred any statement considered “testimonial,” Jensen argued. Ultimately, the circuit court concluded that Julie’s letter and the voicemails were testimonial and therefore inadmissible.

    The circuit court also rejected the state’s argument that the statements were admissible based on the doctrine of forfeiture by wrongdoing.

    On appeal, the parties bypassed the appeals court, and the Wisconsin Supreme Court concluded – in State v. Jensen, 2007 WI 26, 299 Wis. 2d 267, 727 N.W.2d 518 – that if the state could prove by a preponderance of the evidence that Jensen caused Julie’s absence, the forfeiture by wrongdoing doctrine would apply to Jensen’s confrontation rights.

    On remand, the circuit court found that Jensen caused Julie’s absence from trial and thus Jensen forfeited his right to challenge the admissibility of the the testimonial statements against him, namely the letter and the voicemails to the police officer. After a 30-day trial, Jensen was convicted on the charge of first-degree intentional homicide.

    Giles v. California 

    About four months after his conviction, the U.S. Supreme Court decided Giles v. California, 128 S. Ct. 2678 (2008), and clarified the forfeiture by wrongdoing doctrine.

    The U.S. Supreme Court applied a narrower interpretation of the doctrine than the one announced by the Wisconsin Supreme Court in Jensen.

    The Giles court held that a defendant forfeits his or her right to confront a witness, where the witness makes testimonial statements, only when acting with intent to prevent the witness from testifying. Under Jensen, intent was not a factor.

    The appeals court explained that a statement is “testimonial” if “a reasonable person in the position of the declarant would objectively foresee that his or her statement might be used in the investigation or prosecution of a crime.”

    Thus, Jensen appealed, arguing that the testimonial statements – the letter and the voicemails to police – were inadmissible under Giles because the state could not prove that Jensen’s actions were intended to prevent Julie from testifying.

    The state argued that under Giles, a defendant forfeits the right to confrontation if the state can establish by a preponderance of the evidence that the “defendant sought to prevent the victim from testifying in any court proceeding” and it had proof that Jensen intended to prevent Julie from testifying at a family court proceeding.

    In State v. Jensen, 2009AP898-CR (Dec. 29, 2010), the District II appeals court refused to accept the state’s broad interpretation of Giles, instead holding that any error in admitting testimonial evidence was harmless error.

    “[E]ven assuming the testimonial evidence of Julie’s letter and Julie’s statements to [the officer] were inadmissible under the rules of evidence and the Sixth Amendment Confrontation Clause, we deem any error in admission harmless,” wrote Judge Daniel Anderson. “The sine qua non is that the testimonial statements provided nothing significant beyond the properly admitted nontestimonial statements.”

    The appeals court also ruled that “other acts” evidence offered by the state to show motive was not improperly admitted into evidence because it showed Jensen’s bitterness over a short-lived affair that Julie had in 1991.

    By Joe Forward, Legal Writer, State Bar of Wisconsin




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