Mark Jensen Appeal - The State's Response

UPDATE 12/29/2010- MARK JENSEN LOSES APPEAL 

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)

I. JULIE JENSEN'S LETTER AND HER TESTIMONIAL STATEMENTS TO OFFICER KOSMAN ARE ADMISSIBLE UNDER GILES'S VERSION OF
FORFEITURE BY WRONGDOING BECAUSE ONE REASON JENSEN KILLED HIS WIFE WAS TO PREVENT HER TESTIMONY IN ANY FAMILY COURT PROCEEDING..................................5
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.

II. ANY ERROR IN ADMITTING JULIE'S TESTIMONIAL STATEMENTS WAS
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.

III. JENSEN HAS WAIVED THE ARGUMENT THAT HIS RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN THE JUDGE WHO MADE THE FORFEITURE FINDING PRESIDED AT
JENSEN'S MURDER TRIAL; ALTERNATIVELY, JENSEN HAS FAILED TO DEMONSTRATE
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.

IV. EVIDENCE THAT JENSEN HAD FOR YEARS LEFT PORNOGRAPHIC PHOTOS ON THE JENSEN PROPERTY TO PUNISH JULIE FOR A BRIEF AFFAIR WAS PROPER OTHER-ACTS EVIDENCE DESIGNED TO PROVE MOTIVE AND TO EXPLAIN THE DYNAMICS OF
THEIR MARRIAGE; PORNOGRAPHY RELATED EVIDENCE FROM JENSEN'S COMPUTERS AND EVIDENCE OF JENSEN'S SEX TALK WITH KELLY WAS NOT OTHER ACTS
EVIDENCE BUT WAS PROPERLY ADMITTED FOR OTHER
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.

VI. BECAUSE JENSEN HAS FORFEITED HIS SIXTH AMENDMENT RIGHT TO CONFRONT JULIE'S TESTIMONIAL STATEMENTS UNDER GILES, AND HIS STATE CONSTITUTIONAL RIGHT TO CONFRONT HER NONTESTIMONIAL STATEMENTS UNDER JENSEN, JULIE'S STATEMENTS DID NOT HAVE TO SATISFY A HEARSAY
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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