March 24, 2021 – Mark Jensen’s wife, Julie, made several statements before she died from poisoning in 1998, directing police to investigate Mark if something happened to her. Jensen has argued, since then, that those statements were inadmissible at trial.
Julie wrote a letter before she died, pointing to Jensen as her killer. The neighbor was to deliver the letter to police if something happened to her.
She also left a voicemails with a police officer, two weeks before she died, noting Jensen should be a prime suspect if she were found dead. The state charged Jensen, in 1998, with first-degree murder after Julie was poisoned to death.
Jensen was ultimately convicted. The Wisconsin Supreme Court, before the first trial 14 years ago, ruled that Julie’s statements were inadmissible. But on remand, the trial court ruled the statements were admissible under the forfeiture-by-wrongdoing doctrine.
Since then, Jensen has fought through state and federal appeals to get a new trial without Julie’s statements as evidence, and he succeeded in this latest ruling.
In State v. Jensen, 2021 WI 27 (March 18, 2021), the Wisconsin Supreme Court settled the issue by ruling that its previous decision established the “law of the case” and Julie’s statements were inadmissible under the Sixth Amendment’s Confrontation Clause.
Before the first trial, the Wisconsin Supreme Court (Jensen I) ruled Julie’s letter and voicemails were “testimonial hearsay” and thus inadmissible under the Confrontation Clause because Jensen would have no opportunity to cross-examine Julie.
At that time, the state supreme court followed U.S. Supreme Court precedent, which held that out-of-court statements are inadmissible if their primary purpose is to “establish or prove past events potentially relevant to later criminal proceedings.”
The case was remanded to determine if the statements were admissible under the forfeiture-by-wrongdoing doctrine, which can apply if the defendant causes the witness’s unavailability. In those cases, the defendant forfeits the right to confront the witness.
The circuit court ruled that the state proved by a preponderance of the evidence that Jensen caused Julie’s unavailability and thus Julie’s statements were admitted at trial, which led to Jensen’s murder conviction. Jensen appealed the conviction.
The appeal pending, the U.S. Supreme Court ruled – in Giles v. California, 554 U.S. 353 (2008) – that the forfeiture-by-wrongdoing doctrine only applies when the defendant’s wrongdoing is specifically intended to prevent the witness from testifying.
On Jensen’s appeal, the appeals court applied the Giles decision to rule that Jensen did not forfeit his right to confront Julie in court, but also ruled the circuit court’s error on this point was harmless because of the other evidence supporting the jury’s verdict.
Jensen filed a federal habeas appeal. The federal district court, in 2013, concluded that it was not harmless error to admit Julie’s testimonial statements and vacated Jensen’s conviction. The state immediately charged Jensen in new criminal proceedings.
Jenson filed a motion to bar Julie’s statements based on the Wisconsin Supreme Court’s earlier ruling in Jensen I, where it held – based on U.S. Supreme Court precedent – that Julie’s statements were inadmissible because their primary purpose was to “establish or prove past events potentially relevant to later criminal proceedings.”
The state argued the circuit court was not bound by Jensen I because of subsequent rulings by the U.S. Supreme Court. The circuit court agreed, and ruled that Julie’s statements were not testimonial (and thus admissible) at the second trial.
Based on that ruling, the state moved the court to reinstate Jensen’s original conviction and life sentence without a trial, since the same evidence (including Julie’s statements) would be presented at the second trial as was presented in the first trial.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
The circuit court granted the motion and Jensen appealed. The appeals court reversed, concluding the circuit court did not have authority to modify or overrule Jensen I, the previous decision from the Wisconsin Supreme Court.
In making that decision, the appeals court relied on Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997). The appeals court remanded the case for a new trial without Julie’s statements. The state filed a petition for a review by the Wisconsin Supreme Court.
In State v. Jensen, 2021 WI 27 (March 18, 2021), the supreme court agreed that the circuit court was bound by the decision in Jensen I, but for different reasons.
“Although we agree with the court of appeals' ultimate conclusion that the circuit court is bound by Jensen I, we hold that the court of the appeals erred in relying on Cook to reach that decision,” wrote Justice Rebecca Dallet in a majority opinion.
The supreme court concluded Jensen I established the “law of the case,” and the circuit court was thus bound by Jensen I’s decision that Julie’s statements were inadmissible.
Law of the Case
The law of the case is a “’longstanding rule’ that requires courts to adhere to an appellate court's ruling on a legal issue ‘in all subsequent proceedings in the trial court or on later appeal,’” Justice Dallet explained in the majority opinion. “The rule ensures stability for litigants and reinforces the finality of a court's decisions.”
Circuit courts may depart from the law of the case if a “’controlling authority has since made a contrary decision of the law’ on the same issue.”
The majority concluded that Jensen I established the law of the case on the issue of whether Julie’s statements were admissible, concluding they were not. No decision in the federal habeas action, a separate civil action, established the law of the case.
“We next analyze whether the current law regarding the admissibility of testimonial hearsay is contrary to that relied upon in Jensen I,” wrote Dallet.
On this point, the majority sided with Jensen in concluding that U.S. Supreme Court decisions subsequent to Jensen I did not alter the Confrontation Clause analysis that the Jensen I decision relied upon to determine Julie’s statements were inadmissible.
“At the time we decided Jensen I, the Confrontation Clause barred the admission at trial of an unavailable witness's hearsay statement that the defendant had no prior meaningful opportunity to cross-examine and that was made for the primary purpose of creating prosecutorial evidence,” Justice Dallet wrote. “Bryant and Clark represent developments in applying the primary purpose test, but neither is contrary to it.”
The court examined the U.S. Supreme Court decisions to conclude that “[s]ubsequent developments in the law on testimonial hearsay are not contrary to Jensen I” and “the circuit court was not permitted to deviate from our holding in Jensen I.”
Thus, the majority affirmed the appeals court decision (on different grounds), meaning the case can proceed to a new trial and Julie’s statements are not admissible.
No justices dissented but Justice Jill Karofsky filed a concurring opinion, joined by Justice Annette Ziegler, to highlight a specific point on which she disagreed.
The concurring justices agreed that Jensen I established the law of the case and Julie’s statements were considered testimonial hearsay that were not admissible.
But they disagreed that the Jensen I court “objectively evaluat[ed] the relevant 'circumstances' under which she made [her statements],” concluding the Jensen I court “completely failed to consider the context in which Julie made her statements.”
“Although the law of the case prohibits this court from reconsidering the determinations reached by the Jensen I court, had the Jensen I court actually ‘objectively evaluat[ed] the relevant circumstances’ surrounding Julie's statements, it would have recognized the atmosphere of domestic abuse that suffused the factual background and the relationship at the center of this case and possibly reached a different conclusion,” Justice Karofsky wrote.