Admission of letter was harmless error

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The Wisconsin Court of Appeals on Dec. 29 affirmed the conviction of Mark D. Jensen for murdering his wife Julie in 1998, even though it assumed that admission of a letter written by Julie before her death violated the Confrontation Clause.

The court concluded that admission of the letter was harmless error, because all of the statements in the letter were duplicative of other admissible evidence.

Jensen was charged with murdering his wife in 2002. Included in the evidence against him was a letter written by Julie, stating, in effect, that if anything should happen to her, it is not a suicide and that her husband should be the “first suspect.”

Before trial, on interlocutory appeal, the case went to the Wisconsin Supreme Court, which held that the letter was admissible through the forfeiture by wrongdoing doctrine. State v. Jensen, 2007 WI 26, 299 Wis.2d 267, 727 N.W.2d 518. Because Jensen caused Julie’s unavailability to testify, by murdering her, the court held the letter could be admitted.

Jensen was tried, and the jury found him guilty.

Four months later, the Wisconsin Supreme Court’s reasoning was rejected by the U.S. Supreme Court, in Giles v. California, 128 S.Ct. 2678 (2008). In Giles, the court held that the doctrine only applies if the defendant caused the victim’s unavailability for the purpose of preventing her from testifying against him.

Relying on Giles, Jensen appealed his conviction, but the Court of Appeals affirmed.

The court first held that statements similar to those in the letter, made by Julie to friends and neighbors, were properly admitted.

In contrast to the letter, which Julie wrote with the intent that it be given to police if she died, and was thus testimonial evidence, the court found that the informal statements to friends were nontestimonial.

As a result, the court held that Giles did not apply. In Giles, the Supreme Court said that such statements were nontestimonial, and thus, were not subject to scrutiny under the Confrontation Clause.

The Court of Appeals acknowledged that other Wisconsin Supreme Court precedent holds that nontestimonial statements are subject to the Confrontation Clause, the same as testimonial statements.

State v. Manuel, 2005 WI 75, 281 Wis.2d 554, 697 N.W.2d 811.

But the court found that Manuel is no longer valid law in light of Giles.

Turning to the letter, which the court assumed was improperly admitted, the court held its admission was harmless error.

The methodology employed by the court was to break the letter down, sentence by sentence, and then classify each sentence as either relevant or irrelevant.

If a sentence was not relevant, the court noted this, and found it could not be prejudicial either.

For each sentence that was relevant and prejudicial, the court cited other admissible evidence in the record that corroborated the sentence.

For example, the court quoted the third sentence of the letter: “I don’t know what it means, but if anything happens to me, he [Jensen] would be my first suspect.”

It then cited corroborative evidence that was admissible – statements to the same effect that Julie made to neighbors and friends.

After reviewing each statement, the court concluded, “virtually all relevant information in Julie’s letter was duplicated by admissible nontestimonial evidence from other sources. The rest of the record reflects that the jury heard overwhelming evidence of murder, and upon this record, it could rationally have concluded beyond a reasonable doubt that Jensen murdered Julie.”

Finally, the court upheld the admission of assorted other acts evidence, and the search of Jensen’s computer.

Attorney General J.B. Van Hollen released a statement applauding the court’s decision. “Thanks to the hard work of Crime Lab personnel, law enforcement and prosecutors, Mark Jensen has been brought to justice for the cold and calculated murder of his wife twelve years ago. The court of appeals’ painstaking analysis of the evidence marshaled against Jensen should lay to rest his discredited theory that Julie Jensen, described as a devoted mother by all who knew her, took her own life after framing him for her murder.”

But Jensen’s attorney, Christopher William Rose, said in an interview that he is already working on a petition for review in the Wisconsin Supreme Court.

Rose called the harmless error analysis “baffling,” noting that the State has the burden of showing harmless error beyond a reasonable doubt, yet the Court of Appeals did not even mention any evidence presented by the defense.

Rose said the court should not have relied on nontestimonial evidence, which is less reliable than testimonial evidence, to conclude that admission of the inadmissible testimonial evidence was harmless error.

Rose said he also would also seek review of the holding that the other acts evidence was admissible, because the Court of Appeals considered the various acts as a “panorama,” rather than reviewing the admissibility of each act individually.

What the Court Held

Case: State v. Jensen, No. 2009AP898-CR

Issues: Is nontestimonial evidence subject to the Confrontation Clause?

Was the admission of testimonial evidence harmless error?

Holdings: No. Only testimonial evidence is subject to the Confrontation Clause.

Yes. Each inadmissible statement was corroborated by other admissible evidence.

Attorneys: For Plaintiff: Marguerite M. Moeller, Madison; For Defendant: Terry Rose, Christopher William Rose, Michael D. Cicchini, Kenosha.

David Ziemer can be reached at [email protected].