Conditional Writ of Habeas Corpus

Listen to this article

7^th Circuit Court of Appeals

Case Name: Mark D. Jensen v. William Pollard

Case No.: 17-3639

Officials: ROVNER, SYKES, and BARRETT, Circuit Judges.

Focus: Conditional Writ of Habeas Corpus

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.

Affirmed

Full Text

Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.