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

Sphere: Related Content

Harrell Wants Off Of Sheley’s Defense Team

Public defender Jim Harrell filed a motion on January 15 in Knox Count Circuit Court to withdraw as one of the attorneys in the capital case against Nicholas Sheley. In the motion, Harrell claims there has been a “total breakdown in the attorney-client relationship” that would prevent him from effectively representing the defendant.

Sheley has been at odds with his attorneys throughout this case. In 2008 Sheley wanted to fire his attorneys and represent himself. After numerous hearings and several psychiatric evaluations he withdrew the request.

In addition to the murder case, Harrell represented Sheley in a 2009 aggravated battery trial. Sheley was charged last spring, after an incident at the Knox County jail in which three officers were injured. Sheley was found guilty and sentenced to seven years in prison. He is serving time in Pontiac Correctional Center. Sheley tried unsuccessfully to fire Harrell and represent himself in the battery case as well.

Harrell’s motion requests that attorney Jeremy Karlin be appointed lead counsel and another attorney be appointed co-counsel. Because Sheley faces the death penalty if convicted of killing Ronald Randall of Galesburg, any attorney representing him in this case must belong to the Capital Litigation Trial Bar. There is only one other lawyer in Knox County besides Harrell and Karlin who is a member of the Capital litigation Trial bar, his name is Anthony Vaupel. Vaupel has a private practice in Galesburg. There has been no word as to whether Vaupel will join the case. John Hanlon of Springfield who is already a part of the defense team is also qualified to be appointed as co-counsel according to the Capital Litigation Trial Bar Roster. He practices out of the Office of the State Appellate Defender.

There will be a hearing February 9 at 3 p.m. on Harrell’s Motion to Withdraw. Sphere: Related Content

Judge Concerned Sheley Murder Trial Could Be Delayed

Katfishponders attended a case management hearing at the Knox County Courthouse on December 4, 2009 in Galesburg, IL . During the hearing, Ninth Circuit Judge James Stewart expressed concern about a possible delay in the start of the murder trial for accused spree killer Nicholas Sheley ; however, he did so at the same time as granting a defense motion to extend a deadline for providing the state a list of defense experts by 60 days.

For some reason I had some trouble taking notes during this half hour hearing. It seems each side wants the other to provide information before they can provide the information the other requests. On several occasions Judge Stewart told both parties they were arguing in circles and at one point he said he doesn’t want to hear it anymore. I’ll do my best to describe the hearing, but because my notes are so “all over the place” in some areas this may be more of a summary than my normal “in the courtroom report”.

Because Nicholas Sheley was moved to the Statesville Correctional Center in Joliet, IL to begin serving his 7 year sentence for a conviction of assaulting correctional officers in the Knox County Jail, he was escorted into the courtroom by three officers from the IL Department of Corrections. His housing and transportation are no longer the responsibility of Knox County. The only change I noted in his appearance was a bright yellow, jail issued, shirt and pants vs. the orange that inmates in Knox County wear. One officer kept his hands on Sheley’s waist chains until he sat down and then stood directly behind him.


Jeremy Karlin and John Hanlon were the attorneys in court today for the defense, Public Defender Jim Harrell was absent today. At the table for the state was Knox County State’s Attorney John Pepmeyer and Illinois Assistant Attorney General Bill Elward, there may have been someone else from the AG office (not in my notes) but today Elward was the only attorney for the state who addressed the court.

Judge Stewart says there are 2 Motions filed by the defense. I know one is the Motion to extend, I believe the other is a Motion in limine to exclude Sheley’s prior bad acts. Unfortunately, I haven’t been able to afford getting copies of the motions that were filed. Based on the discussion in the hearing that assumption seems reasonable. (I will not be offended if anyone corrects me on anything I have reported here.)

Jeremy Karlin began by telling the court the defense filed the motion to extend discovery because they need more time to line up defense experts.

Bill Elward told the court the state doesn’t object to the extension the defense requests. He also tells the court the state intends to introduce at trial, every prior bad act committed by Sheley, including the “events” he is accused of in Whiteside County on June 23, 2008 until his arrest in Granite City, IL on July 1, 2008. Elward then says our response will depend in part on any defense theory they plan to use such as alibi, insanity.


Karlin replies,” to the extent they don’t object, we ask for extra time. In regards to the other issue, we don’t wish to reply on the fly.” ( intended defense)

My notes then say Judge Stewart replies you need to brief and we can schedule a hearing.
(I think this is where the arguing in circles starts?)

Elward is on his feet saying something about the motion on the other acts. He continues with respect to mental health, what date for defense equitable witnesses? To try this case in 2010 we need to be clear ….if want to set a briefing schedule absent some new affirmation of a reasonable defense. We need a date to file 413 (Rule 413. Disclosure to Prosecution). After the state has a list of defense equitable witnesses the state may need additional witnesses. He continues we are 1 and a ½ years into the case and they tell us they need 45-60 days for briefing.

Karlin replies the $64,000 question is, if the prior bad acts are allowed, will the state seek to use them in the guilt/innocence phase, how much relates to this case? If used in the state’s rebuttal case, we need more information. We need to know what the court will allow in at trial so we know what defense to raise. The state needs to brief the issue on the merits of the motion, not defense disclosures. The motion has been on the docket for a while.
　
Stewart says he doesn’t understand why the defense can’t disclose what they do know. (defense experts?)

Karlin disagrees with the Judge’s premise, per Supreme Court rule 413 we have complied. We need to know the timing of this evidence coming in, whether during the guilt/innocence phase or in the mitigation case (if needed) in order to decide what type of defense we will mount. You have me arguing the merits of response without a written response.

Elward is already on his feet when Judge Stewart says,” I don’t want to argue, you are arguing in circles.” (I think he is addressing both parties) Stewart says he will extend by 60 days.

Elward says the state will have a written response to the defense motion to exclude evidence in a reasonable time.

There was an exchange between Stewart and Elward that I didn’t get, the next thing I have down is Judge Stewart, “if you object to his motion you have until Jan 1“. (I think Elward said the state will file a Motion in Limine to include Sheley’s prior bad acts.)
Karlin says he can have a memorandum and reply 3 weeks after.

Stewart asks the clerk to give him a date on or before January 27. He says there have been no responses filed to set a briefing schedule and he will not argue in circles anymore. The next hearing will be February 19, 2010 at 9:30 a.m. he says the other matters can dealt with at the next case management hearing. Stewart asks if the defense has had the opportunity to go over all the material provided to them.

Karlin replies,” speaking for myself I have once,” Stewart asks Hanlon if he has reviewed the material. Hanlon replies, ”all but the last box.” Stewart then asks what about Harrell? Karlin says he can’t speak for Harrell.

Elward tells the court again, we intend to introduce every offense the defendant has ever committed.

Karlin says our motion doesn’t go to….Elward says, they can’t respond to that until this issue is addressed. Disclosure of experts? Then says defense response by February 26?

Judge Stewart ends the hearing by saying we have had May - October 2010 reserved for the trial….September - October is looking better.

Note: When I got home from this hearing I had a notification from the IDOC that Sheley was moved to his new home at the Pontiac Correctional after court today. For more info on that click here. Sphere: Related Content

A Memorial For The Victims Of Nicholas Sheley's Alleged Killing Spree

As most readers of katfishponders know, Nicholas Sheley has been charged with 8 murders in connection with the week-long, June 2008, killing spree. Of the 8 that were killed 5 people were in Whiteside County, IL, those are Russell Reed 93, of rural Sterling; and Kilynna L. Blake, 20, Dayan K. Blake, 2, Brock A. Branson, 29, and Kenneth R. Ulve, 25 in a Rock Falls, IL apartment that they shared. In Knox County, IL, Ronald Randall 65, of Galesburg was killed. In Festus MO, a couple visiting from Arkansas, Tom and Jill Estes, both 54, were the last to be killed before Sheley was captured in Granite City, IL.

I was recently sent some pictures of Kilynna (Kye) Blake and her son Dayan Blake. The pictures were sent by a friend who said I could share them with the readers of katfishponders, his wish is for them to be remembered how they lived.

I would like to do a memorial with pictures of all of the victims in June at the 2 year anniversary of their deaths. All too often the victims are lost or seemingly forgotten as the accused moves through the criminal justice system. This is about them....not him! There are thousands of readers who have been following this case on katfishponders who, I’m confident, would like to pay their respects. I have hesitated to publish pictures of the victims because I didn’t want to invade the privacy of, nor cause more pain for their loved ones.

I would be interested in hearing from family how they would feel about my publishing this memorial and I will respect your wishes. There is a link to my e-mail on my blog profile where you can send your thoughts and/or pictures of your loved ones. Just put your loved ones name in the subject line. I have pictures of all of the victims except Kenneth Ulve that were released in the media at the time of their deaths. I would ask the family and friends of all 8 to send me pictures of their loved ones they would want to share with the readers of katfishponders.

Sphere: Related Content

Stacey Barker Defense Asks For Change Of Venue- UPDATED 2/10/10

UPDATE 2/10- added to bottom of this entry

On January 14 there was another pretrial hearing in the case of California vs. Stacey M. Barker at the Antelope Valley (AV) Municipal Courthouse in Lancaster, CA.

Stacey Barker is a 25 year old woman from Lancaster, CA accused of suffocating her 18 month old daughter, Emma Leigh Barker, to death on March 18, 2009. On April 27 Barker was arrested and the charges filed against the young mother include murder, assault on a child causing death and child abuse. The complaint alleges that Barker willfully caused and permitted the child to be injured and harmed and that injury resulted in death. Booking details. Barker formally entered a not guilty plea to all counts on August 12, 2009.

As noted in earlier posts on katfishponders about this case, friends of katfishponders are attending the hearings in this case. The information provided here is compiled from various posts and e-mail correspondence about the hearing details so this report is not verbatim and may not be reported in the exact order that it was in court.

Superior Court Judge Hayden Zackey presided over this hearing. Deputy District Attorney (DDA)S. Kelly Cromer is representing the people and Stacey Barker is being represented by Public Defender (PD) Roberto F. Dager.

The defense filed several motions that were addressed in court today. (We are trying to get copies of the motions.) They were a Change of Venue motion, a Discovery motion, a Pitchess motion and a Brady motion.

The first motion addressed was a defense request for a Change of Venue. PD Dager told the court the case has received so much attention in the AV that it is tainting the jury pool (jerking his thumb back towards the camera and reporter from Time Warner, a local cable company, that are in court filming today‘s proceedings, as if to make his point). Mr. Dager said the local newspaper has ran 15-16 stories on the case and added there are internet blogs that are reporting on this case. He said,” These dumb, stupid, idiotic, moronic people blog on things they don’t know or things they think they know in an effort to turn people or potential jurors against my client.” ( Dager reportedly tipped his head in direction of “our friends” as he said this....whatever.)

Judge Zackey cited some case law that we were not able to get down (sorry) and said there are 5 points to consider before a Change of Venue could be granted or denied. Although the judge didn’t make a ruling he did address the 5 points in relation to this case:
1. Nature and Gravity of the Crime.
A child being killed is not a cause for Change of Venue. This court has heard other cases of children being killed.
2. Nature and gravity of news coverage.
The news media was at a peak for a while, acknowledging there was even national coverage for a time, such as CNN, Nancy Grace, and other major news outlets, that coverage was almost a year ago and has died down.
3. Size of the community.
You ( defense) have only included Lancaster and Palmdale in your argument that the jury pool is only about a thousand people. The jury pool extends as far as Santa Clarita and outlying areas, there are many more potential jurors in our AV jury pool. (Antelope Valley is part of Los Angeles County)
4. Status of family in the community.
The Barker family is not well known in the community aside from their own circle of friends and family.
5. Prominence and popularity of the victim in the community.
The victim is a child of a very young age and jurors in any community will have sympathy for a small child that has been killed whether it be in LA, the AV, or any other community in the land. It should be noted that Dager interrupted and said, ”found dead”. The judge corrected himself and said, “found dead”.

Judge Zackey did say that if the motion for Change of Venue is denied, he would like to keep the case in his court. “Our friends” say that Dager did seem pleased that Judge Zackey would keep the case if his motion was denied, but told the court he would ask that all media and news reporters and people in the gallery that report on this case on blogs be kept out of the court if COV was denied!
Judge Z said he would have to do some research on this, because of the "Freedom Of Information Act", the community has the right to know what is going on.

(Katfish here…. Public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the fact finding process, with benefits to both the defendant and the society as a whole... .. permitting the public to participate in and serve as a check upon the judicial process is an essential component in our structure of self-government. The right of the public and the press to attend and observe judicial proceedings is constitutionally rooted in the First Amendment. I think Mr. Dager is well aware that the First Amendment prohibits the court from blocking the public and the media…intimidation tactics, IMO.)

The Discovery motion requests a video made by J. Collins and E. Edmonds of the Field Investigation Service Unit (FISU). PD Dager said they (the FISU) had done a measurement of the crime scene and in doing so had used Detective Nava as Stacey Barker. Dager contends that Nava and Barker are not of the same stature so if the video comes in as evidence he will need to get a professional that is the same stature as Barker to do the measurements again which could delay the proceedings at least 6 months, adding he did not want that delay. (???? It is not clear to katfishponders what crime scene the defense is referring to, the Lancaster City Park where Barker first claimed that Emma was abducted and she was attacked as she put Emma in the car or the location where Emma’s body was found.) Dager also said he wants the reports and raw notes from Collins and Edmonds. DDA S. Kelly Cromer told the court she has no written reports or raw notes from Collins and Edmonds because the notes and report weren’t necessary since Barker led them to the baby’s body. Judge Zackey told the defense if there are no written reports or raw notes he can't make the DA give you what they don't have, adding he won’t have them (Collins and Edmonds) write a report for the DA just to give it to you.

The next motion addressed is the Pitchess motion. In the Pitchess motion the defense is requesting the personnel files of Los Angeles County Sheriff's Department Detective Sandra Nava and a Detective (?) McCarthy. The defense would like to know if they have ever been accused of ‘coercive tactics” in the past in order to elicit a confession. Detective Nava testified during the Preliminary Hearing that Barker made some very incriminating statements to police....I guess we can see where the defense is going regarding those statements.

(Pitchess is the partial name of a California court case that established a criminal defendant's right to information about a police officer's misconduct or dishonesty when the defendant alleges in a declaration that the officer used excessive force or lied about the events surrounding the defendant's arrest.)

There was a Attorney for the Sheriff's Department present (didn’t catch her last name, her first name is Trina), she was not called to speak but was told to be back on the 28th for a hearing that will be held in Judges chambers (in camera). When the Pitchess motion is granted, the court examines the records in camera with only the custodian of records present.

The last motion from the defense is a Brady motion. (A Brady motion is a defendant's request for evidence concerning a material witness which is favorable to the defense and to which the defense may be entitled. Favorable evidence includes not only evidence that tends to exculpate the accused, but also evidence that may impeach the credibility of a government witness.)

In this Brady motion the defense is requesting what is known as the Ribe box. The motion cites case law from “California v Salazar”.Judge Zackey asks the public defender if he had reviewed the Salazar case. When Dager answered no, the Judge told Dager he really should review the case. Salazar did involve Los Angeles County Deputy Coroner James K. Ribe who performed the autopsy on Emma Barker.

The relationship between the Pitchess and Brady motions are explained at this link. There is also information at the link about the Ribe box and the Salazar case. A state appellate court overturned the murder conviction of Salazar for killing an infant girl in 1996, ruling that the L.A. County District Attorney’s Office deliberately concealed from the defense the Ribe box (information about prior cases when forensic pathologist Dr. James Ribe had given inconsistent testimony and/or had changed opinions regarding time of death and/or cause of death.).

DDA Cormer tells the court that the state wants some discovery from the defense as well, a video and 2 photo albums. PD Dager says that he will have them for her on the next court date...Cormer spoke up and said "Judge if it were the PD asking for this you would have made me make it available to them in 3 days time". Evidently Judge Zackey agrees, he tells Dager it doesn’t take long to burn a DVD, and asks when could he have it to Cormer? Dagger said by the end of the day. Judge adds that it does take some time to copy 2 photo albums of color pictures... then Cormer tells the court if the defense gives her the photo albums she will copy them herself and give them back today. All 3 said OK to that.

DDA Cormer next tells the court that there are 2 witnesses on the defense list that the state feels the public defender has not diligently tried to find and she does not want them to show up on the eve of trial, adding she wants to know what they will be saying on the stand well before they are called on. Dagger said, “then have the DA'S office try to find them I have tried and cannot find them“. Judge Z said if they do appear on eve of trial we will deal with it at that time.

Although the 2 missing witnesses from the defense witness list are not named, Judge Zackey does ask about some of the other names on the list. Zackey asks Dager about Mindy Mechanic, Dager tells the court she is a Ph.D. and Zackey adds something about her testifying about PTSD (Post Traumatic Stress Disorder). There is also a Dr. Leo that is a expert on "False confessions", and a Dr. Harry Bonnell, a Forensic Pathologist who will dispute Dr. Ribe's findings.

Cormer speaks up, "Judge, he told me the doctor is full of shit". Dager looked stunned and said " I did not say shit" (they were like little kids telling on each other, Uh huh, Naw ah, back and forth) until Judge Zackey finally said, "the word SHIT will not be used in my courtroom" that was so funny everyone laughed.

With that settled, Judge Zackey asks Stacey if she wants to attend the in camera meeting on January 28 in his chambers. She said, ”no”. The next pretrial hearing will be on February 8.

UPDATE: Here is a note I received from Tori about the February 8 hearing -
We did go to the court but Judge Zackey was gone so another judge was hearing his cases, you know what that means....Dagger won't have it, they postponed it until Zackey can hear it!
Kelly Cromer was in another courtroom doing something and Dagger kept complaining to the judge that they could not find her.....finally, he said his famous line..... lets trail it to another day. The new date is 2/18 and we will be there. Sphere: Related Content

An Absence Of Blogging DOES NOT Indicate An Absence Of Interest

Happy New Year readers! Hope your holidays were merry!

You might have noticed it has been a while since Katfishponders has been updated. There hasn't been much time for the computer with the holidays and tending to a few "leaks in the pond", however, as I indicated in the title, the interest is still there. :)

This entry will summarize two of the cases featured on Katfishponders in 2009 and give you an update on where they stand at the beginning of 2010:


Mark Jensen

Mark Jensen 50, is a Kenosha WI man sentenced to life in prison with no chance for parole. Jensen was found guilty on February 21, 2008 for the 1998 poisoning death of his wife Julie Jensen, 40. Attorney General Bob Jambois argued that Jensen poisoned his wife with anti-freeze and then suffocated her so he could start a new life with his mistress. Indeed, Jensen's mistress, Kelly LaBonte moved into Mark and Julies home shortly after Julie Jensen's death, and she and Mark Jensen were married in 2002.


The 2008 trial was a high profile case covered on CourtTV and live streamed on the internet. To see the complete coverage of this case on Katfishponders click here.


Mark Jensen (also known as inmate# #525607) calls the Dodge Correctional Institution in Waupun, WI home as he awaits the appeal of his case. The appeal which was opened in April of 2009 is slowly making it's way through the Wisconsin Court of Appeals. As of this writing, the case maintenance is listed as "In briefing, Motion pending, Pending supplemental record". To see the case history of the appeal click here. Katfishponders will continue to follow the appeal and update what is found.


In 2009 this case continued to garner attention, InSession (formerly CourtTV) showed the trial again in July. On October 25, the Investigation Discovery Channel aired a 48 Hours Mystery segment entitled "The Letter" about the case. The segment featured interviews with many involved in the case including family of both Julie and Mark.


A reader recently commented that Kelly was granted a default judgment of divorce from Mark Jensen in October. The divorce was published in the newspaper on December 27. Here is another link with details of the divorce case. Is anyone surprised by this development?



Stacey Barker

Stacey Barker is a 24 year old woman from Lancaster CA accused of suffocating her 18 month old daughter, Emma Leigh Barker, to death on March 18, 2009.


Stacey Barker initially told police Emma was abducted from her car in the parking lot of a Lancaster, CA park as they prepared to leave. She claimed she was knocked out by the kidnapper and woke up six hours later, several miles away at the Palmdale Park-n-Ride. Detectives said Barker had injuries consistent with a struggle, including bruises on her head and was taken to the hospital for treatment.

Authorities say Barker later admitted making up the abduction story and inflicting the wounds on herself. She said the little girl died accidentally, but the fear of being blamed caused her to panic and leave the girl's body near the freeway. Barker led police to Emma’s body 12 hours later, dumped in a grassy lot near the Golden State Freeway in Sylmar, CA.


On April 27 Barker was arrested and the charges filed against the young mother include murder, assault on a child causing death and child abuse. The complaint alleges that Barker willfully caused and permitted the child to be injured and harmed and that injury resulted in death.


After a two-day preliminary hearing, Judge Carlos A. Chung ruled on July 27 that he found probable cause to hold Stacey Barker over for trial in the murder of Emma. On August 10, Barker formally pled Not Guilty to all counts. She is being housed in the Century Regional Detention Facility in the city of Lynwood on $1 million bail.


There has been numerous pretrial hearings in this case, most recently on December 29. Friends of Katfishponders have been attending these hearings and keeping us posted. (Thanks! You guys are the best!) Deputy District Attorney (DDA)S. Kelly Cromer is representing the people and Stacey Barker is being represented by Public Defender (PD)Roberto F. Dager. It appears that Judge Hayden Zackey will be presiding over the trial, he has handled most of the pretrial hearings.


At the latest hearing the public defender handed over his witness list to the state. (Our friends report DDA Cromer sounded unhappy when she was overheard telling another DA none of the names on the list include addresses.)


PD Dager also told the judge he would like to "run the Pitchess" motion at the next court date.
Pitchess is the partial name of a California court case that established a criminal defendant's right to information about a police officer's misconduct or dishonesty when the defendant alleges in a declaration that the officer used excessive force or lied about the events surrounding the defendant's arrest. It was alleged during the preliminary hearing that Barker made some very incriminating statements to police....I guess we can see where the defense is going regarding those statements.

After a hearing on December 17th the AntelopeValley Press reported that according to the prosecutor the trial may start in as little as a few weeks....I guess that isn't happening as there is no court date set yet, check back for on going coverage of this case .

If convicted, Barker will face 25 years to life in prison.

For previous reports on this case at Katfishponders and links to media sources click here. Sphere: Related Content

Nicholas Sheley Has Been Moved Again And Scheduled To Testify Next Week In His Brother's Trial

I received notification tonight that Nicholas Sheley has been transferred to Pontiac Correctional Center as of 12/4/2009.

The following information is provided on the Illinois Department of Corrections website:

Pontiac Correctional Center

Opened: June 1871

Capacity: 1,058

Level 1: Maximum-Security Adult Male

Level 3: High Medium-Security Male

Total Average Daily Population: 1,612

Average Age: 34

Average Annual Cost Per Inmate: $33,031.00

The facility consists of a total of 63 buildings, which comprise of more than 744,000 square feet. The facility sits on a 37-acre site, with 32 acres being enclosed by fencing. Pontiac Correctional Center houses the following offenders: segregation, condemned protective custody, mental health, administrative detention reintegration management and medium security.

Sheley was also in court today (12/4) in Galesburg, IL for a case management hearing in the Ronald Randall murder case. I will put up an entry from this hearing later, there was a lot of legal jargon thrown around that I need to research and look at the motions discussed in the hearing before I can transcribe my notes. (Yes, I wrote it, but I don't know what all of it means) LOL

Nicholas Sheley (NS) is scheduled to testify for the defense in his brother Joshua's trial on Wednesday, December 9, in Whiteside County. We'll see if Nick follows through.....you just never know with him. Joshua Sheley (JS), of Rock Falls, is charged with concealment of a homicidal death and obstructing justice. JS is alleged to have helped his brother, NS, hide the body of Russell Reed, 93, Sterling, who was killed in late June 2008.

NS is charged with killing Reed before he allegedly went on to kill seven other people in two states over the next week. Sheley will stand trial for the death of Ronald Randall, 65, of Galesburg first. That trial is tenatively scheduled Late Summer or Early Fall 2010.

Sphere: Related Content