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Jensen v. Pollard

United States Court of Appeals, Seventh Circuit

May 15, 2019

Mark D. Jensen, Petitioner-Appellant,
v.
William Pollard, Respondent-Appellee.

          Argued November 7, 2018

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 11-C-803 - William C. Griesbach, Chief Judge.

          Before Rovner, Sykes, and Barrett, Circuit Judges.

          Sykes, Circuit Judge.

         In a 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.

         After 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.

         In the 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.

         I. Background

         In 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.

         Based 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.

         While 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.

         Jensen 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 the appeal.

Id. The State appealed and we affirmed. Jensen, 800 F.3d at 908. The writ issued on October ...


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