Jensen v. Clements

• Decision Date: 08 September 2015
• Docket Number: No. 14–1380.,14–1380.
• Citation: 800 F.3d 892
• Parties: Mark D. JENSEN, Petitioner–Appellee, v. Marc CLEMENTS, Respondent–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

800 F.3d 892

Mark D. JENSEN, Petitioner–Appellee

v.Marc CLEMENTS, Respondent–Appellant.

No. 14–1380.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 30, 2014.

Decided Sept. 8, 2015.

Rehearing Denied Oct. 9, 2015.

Craig W. Albee, Attorney, Federal Defender Services of Eastern Wisconsin, Incorporated, Milwaukee, WI, Joseph Aragorn Bugni, Attorney, Federal Defender Services of Wisconsin, Inc., Madison, WI, for Petitioner–Appellee.

Marguerite M. Moeller, Attorney, Office of the Attorney General Wisconsin Department of Justice Madison, WI, for Respondent–Appellant.

Before WILLIAMS, TINDER, and HAMILTON, Circuit Judges.

Opinion

WILLIAMS, Circuit Judge.

Julie Jensen's handwritten letter to the police was “a make or break issue,” an “essential component of the State's case,” and of “extraordinary value” to “the central issue in this case.” Those are not the court's words, but the words of the State, as it fought for the admission of the letter before it placed Mark Jensen on trial for his wife Julie's murder. The State maintained at trial that Jensen killed his wife and framed it to look like suicide. Jensen's defense was that his wife, depressed, and unhappy in marriage, committed suicide and made it look like her husband had killed her. A key piece of evidence at trial was Julie's handwritten letter to the police, written two weeks before her death, in which she wrote that she would never take her life and that her husband should be the suspect if anything should happen to her.

As a later-decided United States Supreme Court case, Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008), made clear, this letter and other accusatory statements she made to police in the weeks before her death regarding her husband should never have been introduced at trial. The Wisconsin appellate court found the error in admission to be harmless. Jensen now seeks a writ of habeas corpus, which he may only receive if the Wisconsin appellate court's adjudication of the claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “resulted in a decision that was based on an unreasonable determination of the facts in light of evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). We agree with the district court that the Wisconsin appellate court's harmless error determination reflects an unreasonable application of the Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), harmless error standard. The erroneous admission of Julie's letter and statements to the police had a substantial and injurious influence or effect in determining the jury's verdict. So we affirm the district court's grant of Jensen's petition for a writ of habeas corpus.

I. BACKGROUND

Two weeks before her death, Julie Jensen gave a sealed envelope to her neighbors, Tadeusz and Margaret Wojt, and told them that if anything happened to her, they should give the envelope to the police. The day of Julie's death, the Wojts did just that. The envelope contained a handwritten letter with Julie's signature that read:

Pleasant Prairie Police Department, Ron Kosman or Detective Ratzburg,

I took this picture [and] am writing this on Saturday 1121–98 at 7 AM. This “list” was in my husband's business daily planner—not meant for me to see, I don't know what it means, but if anything happens to me, he would be my first suspect. Our relationship has deteriorated to the polite superficial. I know he's never forgiven me for the brief affair I had with that creep seven years ago. Mark lives for work [and] the kids; he's an avid surfer of the Internet

Anyway, I do not smoke or drink. My mother was an alcoholic, so I limit my drinking to one or two a week. Mark wants me to drink more—with him in the evenings. I don't. I would never take my life because of my kids—they are everything to me! I regularly take Tylenol

[and] multi-vitamins; occasionally take OTC stuff for colds, Zantac, or Immodium; have one prescription for migraine tablets, which Mark use[s] more than I.

I pray I'm wrong [and] nothing happens ... but I am suspicious of Mark's behaviors [and] fear for my early demise. However, I will not leave David [and] Douglas. My life's greatest love, accomplishment and wish: “My 3 D's”—Daddy (Mark), David, Douglas.

Julie had made other similarly accusatory statements to the police in the weeks before her death as well. She left two voicemails for Officer Ron Kosman, stating in the second that she thought her husband was trying to kill her. (She left this message on a voicemail despite Officer Kosman's message on his voicemail that he was out of the office on a hunting trip and would not check messages until his return.) Officer Kosman then visited Julie, and she told him she had given a letter to the Wojts along with a roll of film with photographs she had taken of Jensen's day planner, evidently to include the “list” in his planner referenced in her letter. She retrieved the film and gave it to Officer Kosman, but the police were unable to connect the photographs of the pages of Jensen's day planner to anything connected to the case. Julie also told Officer Kosman that if she were to be found dead, she did not commit suicide, and Jensen was her first suspect. She made statements to others as well including the Wojts and her son's teacher that she worried her husband was going to kill her.

Julie was found dead in the home she shared with her husband and their two sons on December 3, 1998. The first autopsy did not reveal a cause of death, and the case was initially treated as a suicide. A search of the Jensens' home computer yielded internet searches for suicide and poisoning, including a search at 7:40 am on December 3 for “ethylene glycol poisoning

.” Ethylene glycol, commonly known as antifreeze, was found in Julie's system. But the toxicologist (Dr. Christopher Long)'s initial characterization was badly off. He described the 3,940 micrograms per milliliter of ethylene glycol in the 660 ml of her gastric contents as a “large concentration of ethylene glycol.” His report reached the conclusion that Julie's death was not a suicide, and he reached this conclusion by relying on factors including that Julie's stomach contained significant amounts of ethylene glycol, showing that her death occurred at or near the time of administration; she would have been too weak to drink the amount of ethylene glycol in her stomach without assistance; and she would have been too weak to hide the ethylene glycol container after her final dose. But in reality, the 660 ml of her stomach contents contained only a half teaspoon of ethylene glycol, or .083 ounces, so it was not a “large concentration.” Dr. Long's mistake destroyed the foundation of his opinion that Julie's death was not a suicide, i.e., that she could not have consumed that large a quantity of ethylene glycol on her own. The computer search also revealed numerous emails between Jensen and a woman with whom he was having an affair.

In March 2002, over three years after Julie's death, Jensen was charged with first-degree intentional homicide. Dr. Mark Chambliss, the doctor who conducted an autopsy, said at trial for the first time that the cause of death was asphyxia

by smothering, and a medical examiner concluded that the cause of death was ethylene glycol poisoning with probable terminal asphyxia. From the beginning, the parties contested the admissibility of Julie's letter and her statements to Officer Kosman in the weeks before her death. The State conceded that the voicemails Julie left for Officer Kosman were inadmissible hearsay. The Wisconsin state trial court ruled that Julie's letter was admissible in its entirety. After the Supreme Court decided Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Jensen moved for reconsideration. The trial court granted Jensen's motion for reconsideration, ruling that Julie's letter and statements to Officer Kosman were testimonial and therefore not admissible under Crawford because the declarant was unable to testify at trial and there was no prior opportunity for cross examination. The court also rejected the State's argument that the letter and Julie's statements were admissible under the doctrine of forfeiture by wrongdoing.

The State appealed the trial court's order and petitioned for bypass directly to the Wisconsin Supreme Court. On February 23, 2007, the Wisconsin Supreme Court agreed that the letter and statements to police were testimonial, but it also ruled that the trial court erred in its analysis of whether the statements were admissible under the forfeiture by wrongdoing doctrine. State v. Jensen, 299 Wis.2d 267, 727 N.W.2d 518, 536–37 (2007) (“Jensen I ”). The Wisconsin Supreme Court adopted “a broad forfeiture by wrongdoing doctrine, and conclude[d] that if the State can prove by a preponderance of the evidence that the accused caused the absence of the witness, the forfeiture by wrongdoing doctrine will apply to the confrontation rights of the defendant.”Id. at 536. The court remanded for a hearing to determine the application of the doctrine in Jensen's case. Id. at 537.

On remand, after a ten-day hearing, the trial court found by a preponderance of the evidence that Jensen killed Julie, causing her absence from trial, and so Jensen had forfeited his right to confrontation with respect to the letter.¹ As a result, the letter and Julie's statements to Officer Kosman were admissible at trial.

The resulting six-week trial began more than nine years after Julie's death. The State introduced evidence concerning Julie's statements and actions in the days, weeks, and months before her death, including her handwritten letter and statements to Officer Kosman. The State also introduced evidence that Jensen was having an affair and that he was bitter about a brief affair Julie had seven years...