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Jensen v. Clements

United States District Court, E.D. Wisconsin

November 27, 2017

MARK D JENSEN, Petitioner,
MARC CLEMENTS, Respondent.


          William C. Griesbach, United States District Court Chief Judge

         This court granted Petitioner Mark D. Jensen's application for a writ of habeas corpus on December 18, 2013, on the ground that the Wisconsin Court of Appeals had unreasonably applied clearly established federal law in deciding that the admission at his state trial of out-of-court statements his deceased wife had made implicating him in her death, though a violation of Jensen's rights under the Confrontation Clause, was harmless error. Jensen v. Schwochert, No. 11-C-803, 2013 WL 6708767 (E.D. Wis. Dec. 18, 2013), ECF No. 65. The court ordered Jensen “released from custody unless, within 90 days of the date of this decision, the State initiates proceedings to retry him.” Id. at *17. On appeal, during which the order was stayed, a divided panel of the Seventh Circuit affirmed. Jensen v. Clements, 800 F.3d 892 (7th Cir. 2015). Respondent's petitions for reconsideration and en banc review were denied.

         After the Seventh Circuit's mandate issued on October 19, 2015 (ECF No. 79), Jensen was returned to the Kenosha County Jail, and the Kenosha County Circuit Court vacated his judgment of conviction on December 29, 2015, and set the matter for a new trial. ECF No 86-1 at 21. In the proceedings leading up to the trial, the circuit court determined that in light of recent Supreme Court precedent, the statements at issue were not testimonial and their admission at trial did not violate Jensen's Sixth Amendment confrontation right. ECF No. 94-9 at 73-74. The circuit court thereafter determined that its new ruling on Julie's statements, including her letter and reports to police, cured the constitutional defect in Jensen's first trial, and based upon this determination reinstated Jensen's conviction and sentence. ECF No. 94-11 at 11-12, 35-36. This matter now returns to this court on Jensen's motion to enforce judgment, which argues that the State violated this court's order to release or retry Jensen with the series of events that resulted in the reinstatement of his conviction and sentence. ECF No. 93.

         There is no dispute that Jensen has the right to challenge the circuit court's ruling that the out-of-court statements of his deceased wife are admissible after all and its decision to enter a judgment of conviction against him for the murder of his wife based on the earlier verdict, both procedurally and on the merits. The question presented by the unusual facts of the case is whether he must first seek review in the appellate courts of the State of Wisconsin before returning to this court for relief under 28 U.S.C. § 2254. For the reasons set forth below, I conclude that he must do so. Jensen's motion will therefore be denied.


         Earlier orders by this court and the Seventh Circuit recite the history of Jensen's case in great detail, so only a brief summary and discussion of recent procedural developments is necessary here. See Jensen, 800 F.3d at 895-98; Jensen, 2013 WL 6708767, at *1-5. Julie Jensen was found dead in the Jensens' home on December 3, 1998. Jensen, 2013 WL 6708767, at *1. Her death was initially treated as a suicide, but there was no dispute that her death resulted at least in part from poisoning by ethylene glycol, a chemical used in antifreeze. Id. Prosecutors eventually charged her husband, Mark Jensen, with first degree intentional homicide on March 19, 2002. Id. at *3. The case against Jensen relied in part upon a sealed letter she had given to neighbors and several statements to police that Julie made in the weeks before her death expressing her fear that her husband was plotting to kill her. Id. at *1-2. The admissibility of the letter and statements has been the focal point of litigation in this case over the past fifteen years.

         Before Jensen's trial for Julie's murder, the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004), which recast the right protected by the Sixth Amendment's Confrontation Clause. As a result, the circuit court determined that Julie's letter and statements were inadmissible testimonial statements. Jensen, 2013 WL 6708767, at *3. The State sought an interlocutory review of that decision, and after granting a bypass petition allowing the case to skip the Wisconsin Court of Appeals, the Wisconsin Supreme Court reversed the circuit court's decision. State v. Jensen, 2007 WI 26, ¶ 2, 727 N.W.2d 518. Although the Wisconsin Supreme Court agreed with the circuit court that the statements were testimonial, it adopted a broad “forfeiture by wrongdoing doctrine” and remanded for a hearing to determine whether Jensen had “lost the right to object on confrontation grounds to the admissibility of out-of-court statements of a declarant whose unavailability the defendant . . . caused.” Id. On remand, the Kenosha County Circuit Court conducted a ten-day evidentiary hearing and concluded that Jensen forfeited his confrontation right by killing Julie and therefore causing her absence from trial. Jensen, 2013 WL 6708767, at *3. As his defense at the trial that followed, Jensen attempted to show that Julie committed suicide and sought to frame him for her death, but the jury-which saw the letter and Julie's other statements-ultimately convicted Jensen of first-degree intentional homicide. Id. at *4-5.

         While Jensen's direct appeal to the Wisconsin Court of Appeals was pending, the Supreme Court decided Giles v. California, 554 U.S. 353 (2008), which rejected the broad forfeiture by wrongdoing doctrine adopted by the Wisconsin Supreme Court in Jensen's case. Nevertheless, the Wisconsin Court of Appeals affirmed Jensen's conviction on direct review. State v. Jensen, 2011 WI.App. 3, ¶ 1, 794 N.W.2d 482. Assuming, without deciding, that the circuit court erred under Giles by admitting the testimonial letter and statements, the court of appeals concluded that any error was harmless beyond a reasonable doubt in light of the weight of the state's evidence and the strength of its case. Id. ¶ 35. The Wisconsin Supreme Court denied Jensen's petition for review on June 15, 2011.

         On August 24, 2011, Jensen filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, and this court issued its decision granting the petition on December 18, 2013. Jensen, 2013 WL 6708767. Noting that “[t]he parties [did] not dispute that both the letter and Julie Jensen's statements to [a police officer] were testimonial, ” this court concluded that those “erroneously admitted testimonial statements had a ‘substantial and injurious effect' on the jury's verdict.” Id. at *6-7, *10 (quoting Brecht v. Abrahamson, 507 U.S. 619, 622 (1993)). Because the erroneous admission of the letter and statements therefore was not harmless, the decision by the Wisconsin Court of Appeals constituted an unreasonable application of clearly established federal law. Id. at *17. The court issued the following direction with regard to Jensen:

Jensen is therefore ordered released from custody unless, within 90 days of the date of this decision, the State initiates proceedings to retry him. The Clerk is directed to enter judgment accordingly. In the event Respondent elects to appeal, the judgment will be stayed pending disposition of the appeal.

Id. Respondent appealed, and the Seventh Circuit affirmed, agreeing that “the improperly admitted letter and accusatory statements resulted in actual prejudice to Jensen.” Jensen, 800 F.3d at 908. Under this court's order, the 90-day window for the State to release Jensen or initiate proceedings to retry him opened when the Seventh Circuit issued its mandate on October 19, 2015. ECF No. 79.

         On December 29, 2015, the Circuit Court of Kenosha County vacated Jensen's judgment of conviction and reopened the case. ECF No. 86-1 at 21. That day, the State also communicated its intent to retry Jensen. Id. In anticipation of the new trial, Jensen filed a motion on November 29, 2016, to exclude all of Julie's testimonial statements, including the letter. ECF No. 94-3 at 97. After two rounds of extensive briefing and oral argument on the motion, [1] the circuit court found in July 2017 that Julie's letter and statements to officers were non-testimonial based upon the post-Crawford evolution of the meaning of “testimonial” in cases such as Michigan v. Bryant, 562 U.S. 344 (2011), and Ohio v. Clark, 135 S.Ct. 2173 (2015), both decided after Jensen's first trial. ECF No. 94-9 at 73-74, 96. The circuit court therefore denied Jensen's motion and concluded that the letter and related statements would be admissible at Jensen's new trial. ECF No. 94-9 at 96.

         The State took two relevant actions in response the circuit court's decision that Julie's letter and statements would be admissible at Jensen's second trial. First, Respondent filed a motion for clarification in this court on August 10, 2017. ECF No. 86. After explaining recent developments in Jensen's case, Respondent informed this court that the Kenosha County prosecutors intended to move the circuit court to reinstate Jensen's conviction on the grounds that the trial court's recent conclusion that the letter and statements were not testimonial “cure[d] the constitutional error believed to have existed in the first trial.” Id. at 4. Respondent sought clarification as to whether reinstatement of Jensen's conviction under these circumstances would comply with this court's order that Jensen be “released from custody unless, within 90 days of the date of this decision, the State initiates proceedings to retry him.” Id. at 5. This court granted Respondent's motion in an August 18, 2017 order. ECF No. 90. Recognizing that this court possessed continuing jurisdiction to assess Respondent's compliance with the conditional writ of habeas corpus, this court concluded that, because “[t]he State did in fact initiate proceedings to retry Jensen within 90 days of the effective date of the court's order[, ] . . . Respondent is not required to release Jensen from his custody.” Id. at 5. The court further observed that because “Jensen is no longer in Respondent's custody, but is being held awaiting trial in the Kenosha County Jail[, ] . . . Respondent has no power to release him in any event.” Id. at 5-6. However, the court declined to offer an opinion “as to whether the circuit court's determination that the challenged statements are non-testimonial is proper and whether Jensen's previous conviction can be constitutionally reinstated without a new trial, ” recognizing that addressing either would constitute improper issuance of an advisory opinion. Id. at 6.

         Second, as represented to this court, the State filed a motion in the Kenosha County Circuit Court on August 11, 2017, seeking to reinstate Jensen's judgment of conviction and accompanying life sentence. ECF No. 94-10 at 42-56.[2] The circuit court held a hearing on the motion on September 1, 2017 . Id. at 97-100 & ECF No. 94-11 at 1-10. Citing this court's August 18, 2017 order, the circuit court concluded that “it's clear that the State would not be in contempt if there were no trial because the State did, in fact, reinitiate proceedings to try” Jensen. ECF No. 94-11 at 4. The circuit court further found that, as a result of its decision to admit Julie's letter and statements at the upcoming trial, “the evidence in a new trial would be materially the same as in the first trial.” Id. Questioning the appropriateness of investing court time and resources in holding a duplicate trial, the circuit court granted the State's motion. Id. at 5. The circuit court entered the new judgment of conviction and life sentence for Jensen on September 8, 2017. Id. at 11-12. A September 18, 2017 written order briefly elaborated on the circuit court's reasoning: ‚ÄúThere is no constitutional necessity at this point for proceeding with a ...

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