Mark D. Jensen, Petitioner-Appellant,
William Pollard, Respondent-Appellee.
November 7, 2018
from the United States District Court for the Eastern
District of Wisconsin. No. 11-C-803 - William C. Griesbach,
Rovner, Sykes, and Barrett, Circuit Judges.
prior appeal, we affirmed an order granting Mark Jensen's
application for habeas relief from his conviction for the
1998 murder of his wife, Julie. Jensen v. Clements,
800 F.3d 892 (7th Cir. 2015). The Wisconsin Court of Appeals
had rejected Jensen's Confrontation Clause challenge to
the admission of Julie's "voice from the grave"
letter expressing her fear that her husband might kill her.
The rationale for that ruling was harmless error. We agreed
with the district court that the state court unreasonably
applied Supreme Court precedent. Id. at 908.
our mandate issued, the district judge issued a conditional
writ requiring the State of Wisconsin to either release
Jensen or "initiate proceedings to retry him"
within 90 days. The State timely initiated retrial
proceedings. But before the retrial, the state trial judge
concluded that the out-of-court statements were not
testimonial, curing the constitutional defect in Jensen's
first trial. Reasoning that a second trial was unnecessary,
the trial judge reinstated Jensen's original conviction.
Jensen appealed the new judgment, but the Wisconsin Court of
Appeals has not yet ruled.
meantime, Jensen returned to federal court and moved to
enforce the conditional writ, which he argued guaranteed a
retrial without the challenged statements. The district court
denied the motion and we affirm. Our jurisdiction is limited
to assessing the State's compliance with the conditional
writ. The State complied with the writ when it initiated
proceedings for Jensen's retrial.
March 2002 Kenosha County prosecutors charged Jensen with
first-degree intentional homicide for the death of his wife,
Julie, on December 3, 1998. Julie's "voice from the
grave" was central to the prosecution's case. Two
weeks before her death, Julie wrote a letter disclaiming any
intention of suicide and stating that she feared her husband
was going to kill her. She gave the letter to a neighbor in a
sealed envelope with instructions to give it to the police if
anything happened to her. Julie also made similar statements
to a police officer shortly before her death.
on Crawford v. Washington, 541 U.S. 36 (2004), the
Kenosha County Circuit Court concluded that the letter and
statements were testimonial hearsay, inadmissible under the
Confrontation Clause. See U.S. CONST, amend. VI. On
interlocutory appeal the Wisconsin Supreme Court agreed that
the letter and statements were testimonial. But the court
also held that the trial judge could admit the evidence under
the forfeiture exception to the Confrontation Clause if he
found by a preponderance of the evidence that Jensen caused
his wife's death. State v. Jensen ("Jensen
I"), 727 N.W.2d 518, 536 (Wis. 2007). After a
ten-day hearing, the trial judge admitted the evidence. The
State introduced the letter and statements at trial, and a
jury found Jensen guilty.
Jensen's appeal to the Wisconsin Court of Appeals was
pending, the United States Supreme Court held that the
forfeiture exception applies only when a defendant acts with
the particular purpose of preventing the witness's
testimony. See Giles v. California, 554 U.S. 353,
367-68 (2008). The Wisconsin Court of Appeals affirmed
Jensen's conviction without deciding whether
Giles abrogated Jensen I. It instead
concluded that any error, if one occurred, was harmless.
State v. Jensen ("Jensen II"), 794 N.W.2d
482, 493 (Wis. Ct. App. 2010). The court also found that
Jensen had waived a separate due-process claim alleging
judicial bias. Id. at 504. The Wisconsin Supreme
Court denied Jensen's petition for review.
then turned to federal court. He filed a habeas petition
under 28 U.S.C. § 2254, reasserting his Confrontation
Clause and judicial-bias claims. After observing that the
State did not dispute that Julie's letter and statements
were testimonial, the district judge held that the admission
of the evidence was an unreasonable application of the
forfeiture exception and harmless-error doctrine. Jensen
v. Schwochert ("Jensen III"), No. 11-C-0803,
2013 WL 6708767, at *17 (E.D. Wis. Dec. 18, 2013). The judge
issued a conditional writ with the following mandate:
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 [the State] elects
to appeal, the judgment will be stayed pending disposition of
Id. The State appealed and we affirmed.
Jensen, 800 F.3d at 908. The writ issued on October