Thursday, February 11, 2010

Mark Jensen Appeal - The State's Response


UPDATE: 2/19/2010
The defense has filed a Reply Brief to the State's Response Brief that was addressed in the entry below. I don't have time to go through it right now but wanted to get it posted.

Mark Jensen 50, is a Kenosha WI man who was convicted on February 21, 2008 for the 1998 poisoning death of his wife Julie Jensen, 40. He was sentenced to life in prison with no chance for parole and now calls the Dodge Correctional Institution in Waupun, WI home.

Of course Jensen is appealling his conviction. The appeal which was opened in April of 2009 is slowly making it's way through the Wisconsin Court of Appeals. Christopher W. Rose is the attorney who has been representing Mark Jensen/ Defendant/Appellant. Marguerite M. Moeller has been taking care of the filings for the State/Plaintiff/Respondent. To see the case history of the appeal click here. As of this writing the case is "In briefing".

Here is a little background on this case and some of the issues from the trial that are being raised on appeal:

A few weeks before her death, Julie Jensen had given a neighbor a letter pointing an accusing finger at her husband should anything happen to her. She also made foreboding comments to police and to her son's teacher, saying she suspected that her husband was trying to kill her. The letter, read aloud in court, said in part: "I pray I'm wrong + nothing happens ... but I am suspicious of Mark's suspicious behaviors + fear for my early demise," the letter says. " Click here to read the letter.

Legal wrangling over the letter and Julie Jensen's statements delayed the trial for years.Using such evidence in court has for years been blocked by strict hearsay rules giving criminal defendants the right to confront their accusers. In March 2004, the U.S. Supreme Court overturned a 1980 case, Crawford vs. Washington, that laid out complex rules for when statements can be used without the opportunity for cross-examination. The court said the case complicated a part of the Constitution (sixth amendment) that guarantees a criminal defendant the right to confront his accusers.

Kenosha County Judge Bruce Schroeder then ruled the letter and voice mails to police were inadmissible, but testimony of the neighbor and teacher could be allowed. Prosecutors appealed and the case went to the state Supreme Court, which said such previously inadmissible testimony could be used if a judge determined the defendants' actions prevented the witnesses from testifying. The Wisconsin Supreme Court based its decision on the "doctrine of forfeiture by wrongdoing." Essentially, it said that Mark Jensen forfeited his Constitutional right to face his accuser, because his alleged actions (murdering his wife) made it impossible for her to appear in court. Judge Schroeder decided it was reasonable to believe that Mark Jensen's actions prevented his wife from testifying.

In June of 2008 there was another Supreme Court ruling, Giles vs. California, that may enable Mark Jensen to have his conviction thrown out.The Supreme Court ruled that defendants must be able to cross-examine the person who is accusing them of a crime even in cases where the defendant killed that person. That means the letter Julie wrote to police, in which she said Mark was trying to kill her, and her statements to friends about the same thing, could not be used as evidence in court.

The Appellants Brief was filed with the Wisconsin State Court Of Appeals on 6/30/09. The Appellants Brief wasn't published, but on 2/01/10 the state filed their 79 page Brief of Respondent with the court and it was . It addresses the issues the Appellants raised and references some of the arguments made by the Appellant in their brief. I recommend that you follow my link to the Respondent's Brief for in depth explanation of the state's responses.

The issues raised by the defendant are presented in black italic.
The state's responses are presented in capital letters and a summary of the arguments to support their responses are in regular script, the page number to the in depth argument is included. In responding, the state addressed more than one issue in some of their responses so I arranged them accordingly here.

1. Were Julie Jensen's letter to the police and her oral statements to Officer Kosman admissible under the doctrine of forfeiture by wrongdoing adopted by the United States Supreme Court in Giles v. California because one of Mark Jensen's reasons for killing Julie was to prevent her from invoking the judicial system by initiating divorce and child custody proceedings against him, thereby satisfying the intent element of Giles? The trial court did not address this question because when it found that Jensen by killing his wife had forfeited
the right to confront her, the court did so under the version of forfeiture by wrongdoing ("FBW") the Wisconsin Supreme Court had adopted in Jensen's pretrial appeal,
and that version lacks an intent element.
2. Alternatively, should this court remand to the trial court to determine this issue? This question was not raised below. (lower court)
A. Post-Giles, proof that one reason Jensen killed Julie was to prevent her from testifying in a family court action is sufficient for forfeiture. .............6
1. Cases applying Fed. R. Evid. 804(b)(6) support this position. .......7
2. Jensen's narrow view of forfeiture conflicts with the view of the entire Giles Court........11
B. The record shows that one reason Jensen killed Julie was to prevent her testimony in a divorce/child custody action......................................................12
C. Alternatively, this court should remand for a determination on the
intent element of forfeiture. ...................16
3. Assuming this court answers the first two questions "no," was the admission of Julie Jensen's letter to police and her testimonial statements to Officer Kosman harmless error? This question was not raised below.
HARMLESS BEYOND A REASONABLE DOUBT. .............................17
A. The test for harmless error. ....................17
B. Most of the information in the letter and in Julie's statements to Kosman was duplicated by other admissible evidence. ................................................18
C. Even if the letter had not been admitted in the State's case-in-chief, the jury still would have learned of its existence and some of its content. .........22
D. The case against Jensen was strong even without Julie's testimonial statements...............................................24
4. By failing to raise it below, has Jensen waived the argument that his right to a fair trial was violated when the judge who found Jensen had forfeited his right to confront the victim presided at his murder trial? Alternatively, did Judge Schroeder's pretrial finding that the State had proved by a preponderance of the evidence that Jensen killed Julie render the judge biased against Jensen? These questions were not raised below.

JUDICIAL BIAS............................................32
A. Jensen has waived the claim that the trial judge was biased.............................32
B. Judge Schroeder's pretrial forfeiture ruling is not tantamount to a pretrial
finding of guilt and does not constitute judicial bias............................33
5. Did the trial court erroneously exercise its discretion when it allowed the State to present evidence that Jensen, during the years preceding his wife's death, had repeatedly and surreptitiously placed pornographic photos on and around their property to punish Julie Jensen for a brief extramarital affair? The trial court ruled that this evidence was admissible to prove one of Jensen's motives for killing his wife, i.e., his bitterness toward her and his need to punish her for the affair.
6. Relatedly, did the trial court erroneously exercise its discretion in admitting evidence of Jensen's sex talk with Kelly Jensen, including a discussion of the size of her former lovers' penises, to show that Jensen searched the home computer for "John Jock Joseph" in October 1998 and that he was the source of the photos left around the Jensen home? The trial court admitted the evidence.

7. Did the trial court erroneously exercise its discretion in admitting testimony that penis photos were found on Jensen's home computer in 1998 and his work computer in 2002, to establish that Jensen was the person who had left pornographic photos around the family home for years? The trial court admitted the evidence.

PURPOSES. ...................................................37
A. Only Jensen's conduct in leaving the pornographic photos should be analyzed as "other-acts" evidence..........37
B. Evidence that Jensen had for years left pornographic photos around the house to punish Julie for her brief affair was relevant to prove motive and to explain the dynamics of their
marriage. ................................................42
C. Storing penis photos on his work computer in 2002 made it more likely Jensen had accessed similar pornography on the home computer in 1998, which in turn helped prove he was the one who left pornographic photos around the home and accessed poisoning sites before Julie's death........45
D. Sex talk between Kelly and Jensen helped prove he searched for John Jock Joseph in October 1998 and also helped identify Jensen as the source of the pornographic photos....................48
E. Jensen failed to prove that the probative value of any of the challenged evidence was
substantially outweighed by the danger of unfair prejudice. .....................50
10. Was the seizure and search of Jensen's home computer a valid consent search? The trial court said yes.
V. THE SEIZURE AND SEARCH OF JENSEN'S COMPUTER DID NOT EXCEED THE SCOPE OF HIS CONSENT. ....................................................53
8. Assuming Jensen killed his wife in part to prevent her from initiating family court proceedings, did he thereby forfeit any hearsay objections to the admission of her testimonial statements?This question was not raised below.
9. By killing his wife, did Jensen forfeit any hearsay objections to the admission of her nontestimonial statements to other witnesses, regardless of his motivation in killing her? The trial court said yes.

EXCEPTION. ................................................57
A. A defendant who forfeits the right to object to a witness's testimony on Sixth Amendment grounds also forfeits the right to object on hearsay grounds...................................................58
B. This court is bound by the supreme court's determination that, by killing Julie, Jensen forfeited any confrontation objection to her nontestimonial statements under the Wisconsin Constitution, and that forfeiture ruling should extend to any hearsay objection..........................61
C. Most of Julie's nontestimonial statements were admissible for nonhearsay purposes, i.e., as
circumstantial evidence that she was not suicidal.............................................64
11. Should this court grant Jensen a new trial in the interest of justice? 
VII. JENSEN SHOULD NOT RECEIVE A NEW TRIAL IN THE INTEREST OF JUSTICE........................................................65
CONCLUSIONThis court should affirm the circuit court's judgment.
STATEMENT ON ORAL ARGUMENT AND PUBLICATIONAlthough Jensen provides no reason for requesting oral argument, the State joins in his request because argument would allow the parties to focus their attention on issues the court may find troubling or in need of additional development, a situation likely to arise given the sheer volume of the record and the number of issues raised on appeal. The State also requests oral argument
because due to the word-count limitation established in this court's order of December 14, 2009, the State's brief is not as comprehensive as it could be in addressing each of the issues Jensen has raised on appeal. Oral argument would allow the State to articulate its position in more detail.
If this court orders oral argument, the State respectfully requests that the court specify the issues it would like the parties to address. The State also suggests that the court consider enlarging the time allotted for oral argument from the typical thirty minutes per side to a
longer period, the precise time dependent on the number of issues targeted.
The State requests publication of the court's decision if it addresses the contours of forfeiture by wrongdoing under Giles v. California, 128 S. Ct. 2678 (2008), or if the court determines whether the version of forfeiture by wrongdoing adopted in State v. Jensen, 2007 WI 26, 299
Wis. 2d 267, 727 N.W.2d 518, still applies to nontestimonial statements.
Anticipated Due Date for the Appellant's Reply Brief is 2/16/2010.
This case will be heard by a panel of 3 judges.
Katfishponders will continue to follow the appeal and update what is found.
To see the details of the trial and coverage of this case on Katfishponders click
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  1. Oops LP, your comment posted on the entry below...Harrell Wants Off Sheley I answered you there. There is a hearing in Sheley's case tomorrow too.

  2. Hmm, yes, the appeal will be interesting. I guess, Mark himself has said that he thought Julie did not really mean to kill herself. That she was poisoning herself to make him look like he was doing it to her so that he would be arrested for attempted murder and she would get full custody of the kids and the house and pretty much everything and he would go to prison.

    The letter was a big part of the case, but without it, it is certainly still possible the state could get a conviction but their case would be damaged and it would not be certain a conviction would happen, that is why I think Mark will get a new trial and that the letter will be excluded. Now, I do expect that the neighbors, the teacher and the police officer would once again be allowed to testify that Julie said those things. Heck, even if they were not allowed to testify to that, the state could still get a conviction.

    But the thing is, I just think the letter is going to get thrown out at some point, if not by the Wisconsin State Courts then by the federal courts. I would not be surprised to see this case make it to the U.S. Supreme Court at some point. Basically, whatever the Wisconsin Court of Appeals decides, this thing will wind up before the Wisconsin Supreme Court. If Jensen is denied a new trial by the Court of Appeals, then he will appeal to the State Supreme Court. If Jensen is given a new trial by the Court of Appeals, then the State I expect will appeal that decision to the Wisconsin Supreme Court.

    Now looking at Giles, if you interpreted it literally, then not only would the letter get thrown out, but the Pleasant Prairie Police Officer, the neighbors and the teacher, not would be allowed to testify to any conversations they had with Julie Jensen concerning her alleged allegations that Mark was poisoning her. The reason for this is there is no way to prove the conversations even took place because Julie Jensen cannot be cross examined because she is dead. Where the Wisconsin Supreme Court I feel over stepped their bounds, is when they said oh, well hearsay can be allowed in if the defendant killed the victim to prevent them from testifying. The problem with that is that it illegally pre determines the defendants guilt. Judge Schrader in allowing the letter in called it a 'dying declaration' and basically pre-determined Mark's guilt and also assumed that this was a homicide.

    That is what he used as an excuse to double Mark's bail, knowing that Mark could not post it and thus would be locked up until trial. Mark had originally been out I believe on $250,000 bail, than at one point it was double to $500,000 and Mark actually spent a month in jail at that time before he was able to post it. I want to say that was in 2004 that his bail was doubled. Then he was out for the next 3 years until 2007 when Schrader out of no where and for no obvious reason more than doubled Mark's bail to 1.2 million knowing that Mark could not post it. Mark's construction company went down the drain as he was in jail and could not run it. Mark had been out on bond for 5 years, he had always shown up to court, never ran anywhere, never violated the conditions of his bond, there was no reason for Schrader to increase the bond except that Schrader a career prosecutor, did not want Jensen out of jail, so he raised the bond so high knowing that the chances were basically nil that Mark or his family could post it. Schrader who before he was on the bench was actually a long time Kenosha County District Attorney, in fact he was Robert Jambois predecessor in that office, Schrader knew by having Mark in jail for an extended period of time that it would also expose him to jailhouse snitches.

  3. Looking at other areas: Yes, Ed Klug would be allowed to testify again and I am sure would be called. I was not aware until you mentioned it that Katfish that Mark or at least Mark's parents have conceded that the conversation with Ed Klug did indeed take place but I imagine Mark tried to minimize what he said, and said it was taken out of context and that he was drunk at the time he said it. From what the jurors said they did not find Klug to be very impressive. They found him to be rather the type of person that as you mentioned, does not care to get involved. He is the type of person that could see a dead body in the street and instead of calling 911 would just step over the dead body and keep walking on his way, as if the body was not even there.

    Without the letter, as I expect it will be thrown out at some point, then no doubt the state's strongest evidence is the computer evidence. That would be back in at a re-trial and that was from what I can tell the evidence the defense had the hardest time explaining away. The defense claimed Julie did the searches, as a last desperate act, however the problem with that, is that in Mark's statements to police, he claimed that same morning, Julie was so sick she could not even get out of bed. But clearly whoever did the searches went to great paints to try to delete any evidence the searches were conducted.

    I imagine Kelly Labonte Jensen would also testify again. In fact, she testified at trial only after she was given immunity. She had actually refused to testify prior to that and it was only after she was threatened to be charged as an accessory to murder did she agree to testify but only if she was given immunity which Jambois agreed to. I think Jambois suspected that Kelly had more involvement or at least more knowledge than she came forward with. He basically said as much implying that Kelly knew that Mark was going to poison his wife and did nothing to stop it. Yet he gives her immunity. He only started threatening her with charges after she refused to testify when the trial was getting closer, she had previously pled the 5th in court hearings.

  4. Linda From New YorkMarch 27, 2010 at 4:37 PM

    Hi Katfish. See you at Marinade Dave's a lot.

    I was reading along and the following stopped me in my tracks:

    The couple claims Bank of America failed to notify them of their delinquency as required by federal regulation.

    Notice with the Anthony's NOTHING is EVER thier fault (or Casey's).

    OK, I am going to read on! That just struck me as in , WTH? Are they serious.

  5. The criminal in this case is Schrader.

    A mentally ill woman has successfully framed her husband for her death.

    As more and more real evidence came to light, over the long haul as Mark conducted himself as an innocent man would, Schrader started taking actions to ruin his life and limit his ability to defend himself. The ever-increasing bond amount is evidence of this.

    What mother of 2 young children is going to sit and do nothing while she suspects her husband is poisoning her? Only a mentally-ill woman would do that. This is the "tell". This is how you know she killed herself - both possible course of events tell you she is not sane.

    She knew she was going to die, by poisoning, because she killed herself, because that was the way she could affect the most control over her soon-to-be ex husband's life.

    Leave me will you? I'll kill myself first and you can be miserable here-after and if I do it just right also rot in jail. (Since "you" are leaving me I have nothing left to live for anyway.)

  6. PS I do not know why the Internet searches are not evidence in Mark's favor.
    The searched for items are:

    I think it is quite well known that arsenic is what you use to poison someone if you want to avoid a toxicology finding.
    So the only way someone goes forward with anti-freeze poisoning /after/ looking up the "toxicology" of it is is *they want it to show up*.

    Such as a mentally ill woman that is framing her husband.

    And when have you ever heard of a coroner "changing their minds" about cause of death?
    More likely Schrader realize his case went to Hell if she died of anti-freeze poisoning because the evidence suggested that she did that herself - they needed a different cause of death that someone else had to enact.
    And viola, the coroner changed their mind on cause of death - what are the odds?

  7. Anon May 8, 12:25-:42,

    First off anon, I want to say thanks for taking the time to share your feelings. I really don't agree with most of what you said in your
    comment(s), however I appreciate your explaining the basis for opinions.

    I'm a little say Schrader is the criminal here??? Do you mean Circuit Court Judge Bruce E.Schroeder? This was not "his" case. This case was the State of Wisconsin's case, so I would understand your statement better if you said Robert Jambois or Angelina Gabriele. (note: wouldn't agree but the statement would be more understandable) At this point your statements sound like someone who wasn't happy with the rulings the judge handed down so you villianize him. The forfeiture by wrongdoing doctrine was codified in 1997 in the Federal Rules of Evidence as a hearsay exception.

    Schroeder didn't convict Mark, the jury of 12 peers did, based on the evidence admitted at trial. The WI didn't overturn the conviction so they found no harmful error on Schroeder's part.

    As for your statement of the "tell", you said, "What mother of 2 young children is going to sit and do nothing while she suspects her husband is poisoning her? Only a mentally-ill woman would do that. This is the "tell". This is how you know she killed herself - both possible course of events tell you she is not sane."

    I don't think Julie did nothing. It seemed as a woman who had 2 young children, no income of her own to start over and possibly her love for Mark contributed to her choice to "wish" that she was wrong about Marks intentions as well as under estimate the danger she was in. I think she felt stuck. Even so,imo, she didn't "do nothing". She did a lot, she talked to people about her fears including law enforcement and wrote "the letter" just in case she was wrong.

    Mark's attorney did argue the items on the internet searches were favorable for Mark. The jury did not agree, perhaps that's because the list was much longer than those you listed here, things that taken as a whole didn't fit a suicide or could also indicate someone planning to make a murder look like a suicide.

    As for the arsenic vs antifreeze argument....well I just don't know. IIRC, it took quite a while before Julie's death was ruled to be caused by antifreeze.

    I followed the link you provided and read this,
    "Prosecutors have contended for years that Jensen poisoned his wife with antifreeze, although a pathologist who did the initial autopsy changed his testimony Tuesday and said he now believes she was suffocated."

    The author of this article was obviously not very familiar with this case. The pathologist was a woman not a man and she didn't totally change Julie's cause of death, she extended it...ethyline glycohl poisoning with possible affixiation. I'll never forget her tasting the antifreeze in court!I have heard of cause and/or manner of death changing in other cases after more information came to light.(I concede it is rare)

    The forfeiture by wrongdoing doctrine was codified in 1997 in the Federal Rules of Evidence as a hearsay exception. Schroeder didn't just pull that out of thin air, he was ordered by the WI Supreme court to look at the evidence and determine if jensen had forfieted his right to confront. I do fully expect this case to eventually go up to the WI Supreme court and possibly the US Supreme court because of the case law issues.
    Once again thanks for sharing your thoughts.

  8. i am from abq., n.m. kelly labonte told mark that she had 17 lovers..... lmfao! i lived with her and her then boyfriend. a few years after they broke up, i ran into her and slept with her myself! am i on her "list" to psycho mark? my name is steve. so... im certain while mark rots in prison, he will stew in the fact that she was with many more men than he thinks. p.s..... i wasnt the only "steve!"

  9. I agree with the poster that points the finger at Julie Jensen and her attempt to set up Mark Jensen.

    I've seen this kind of female behavior before. These women "set up a scenario" while provoked 3rd parties carry out the arse whoppin against the selected target.

    Julie Jensen's letter is a prime example of this type of blatant manipulation.

  10. Currently suffering from depression, insomnia, etal for 10 years now. If Julie was so mentally ill, how could she of possibly orchestrated such an elaborate sceme. On the other hand, from fist hand experience, knowledge of an extra martial affair can make a person physically and mentally I'll. The pressure of uncertainy in her future with or without her children could have triggered paranoia and set into motion the purging of private martial information due to fears that she suspected her spouse was trying to kill her. I just don't understand why she didn't voice this fear to everyone who would listen. Well she did voice this to a police officer, and a teacher and subsequently the penning of her worse fear. Trying not to look at this bialy she did have a tremendous fear of her husband, who was having an affair and having found porn on his computer don't put him in a very good light as husband and father. Perhaps because she did self medicate on a daily basis,probably to escape the reality her life lm.

  11. Continued from previous post. She was taking antidepressants which just allows you to let's thing go and unfortunately the writing of the letter was done on a good day when she was thinking clearly and realized the immediate danger she was currently facing. The only thing that upsets me the worse is the children were left parentless due to monitory valve on both their behaves.