Jensen v. Schwochert

Filing 65

ORDER GRANTING 23 Amended Petition for Writ of Habeas Corpus and DENYING 64 Motion to Supplement, signed by Chief Judge William C Griesbach on 12/18/2013. Because the Court finds that the admission of Julie Jensens testimonial statements in viol ation of the Confrontation Clause was not harmless error, it is not necessary to address Jensens due process argument. The Clerk is directed to enter judgment accordingly. In the event Respondent elects to appeal, the judgment will be stayed pending disposition of the appeal. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARK D. JENSEN,
Plaintiff,
v.

Case No. 11-C-0803

JAMES R. SCHWOCHERT,
Defendant.

DECISION AND ORDER GRANTING PETITION

On February 21, 2008, following a six-week trial, a jury found Mark D. Jensen guilty of
first-degree intentional homicide in the December 3, 1998 death of his wife Julie. Jensen’s
conviction was affirmed by the Wisconsin Court of Appeals, and the Wisconsin Supreme Court
denied his petition for review. On August 24, 2011, Jensen, who is currently serving a life sentence
at Dodge Correctional Institution, filed a petition seeking federal relief from his state conviction
pursuant to 28 U.S.C. § 2254. Jensen claims that evidence of a series of accusations against him
made by his wife before her death was admitted at trial in violation of his Sixth Amendment right
to confront the witnesses against him and that the erroneous admission of this evidence had a
substantial effect in determining the jury’s verdict. He also argues that his due process right to be
tried by an impartial judge was violated because the judge who presided over his trial had already
found that he was guilty of the very crime for which he was on trial. After a number of extensions
due to the size of the record, the case has been fully briefed and is now ready for disposition. For
the reasons that follow, Jensen’s petition will be granted.

BACKGROUND
This case largely concerns the admission at trial of Julie Jensen’s “voice from the grave” in
the form of a letter and reports to police expressing her fears that her husband was plotting to kill
her. On December 3, 1998, two weeks after penning the letter to police, Julie Jensen was found
dead in the Jensens’ Kenosha County home. The Jensens had been married for 14 years and had
two young sons, David and Douglas, at the time. The first autopsy report did not identify a cause
of death, and the case was initially treated as a suicide. Although there was conflicting medical
evidence and the State later argued that Jensen also suffocated Julie, it was undisputed that she was
poisoned by ethylene glycol, a substance commonly found in antifreeze.
The fundamental question at trial was whether Julie deliberately consumed the ethylene
glycol herself or whether her husband had poisoned her. In other words, “[t]his case was not a
classic whodunit”: the question for the jury was whether Jensen killed his wife as the prosecution
argued, or, as the defense contended, she committed suicide and framed her husband. State v.
Jensen, 2011 WI App 3, ¶ 36, 331 Wis. 2d 440, 794 N.W.2d 482 (Jensen II). The State argued as
much in its closing argument at Jensen’s trial: “That’s the real issue. Did Mark Jensen poison and
then asphyxiate his wife or did Julie Jensen commit suicide, and in the process of planning her
suicide also choose to frame her husband for murder.” (Jury Tr., Feb. 18, 2008, Ex. 38A at 77, ECF
No. 31-5.) Of course, since the burden of proof lies with the prosecution, the real question was
whether the State had proven Jensen’s guilt by evidence that was convincing beyond a reasonable
doubt.
Prior to trial, both parties apparently believed that the jury’s answer to this question would
hinge on the contents of a sealed envelope Julie Jensen gave to her neighbors, Tadeusz and Margaret
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Wojt, two weeks before her death. Julie told the Wojts that if anything happened her, they should
give the envelope to the police. On the day after her death, as instructed, the Wojts gave the
envelope to Detective Paul Ratzburg. It contained a handwritten letter signed by Julie Jensen and
addressed to “Pleasant Prairie Police Department, Ron Kosman or Detective Ratzburg.” The letter
read as follows:
I took this picture [and] am writing this on Saturday 11-21-98 at 7AM. 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 suspicious
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, [and] Douglas.
Jensen II, 2011 WI App at ¶ 7.
In the weeks before her death, Julie Jensen had made other statements to police accusing her
husband of suspicious conduct. Officer Kosman received two voicemails from Julie in which she
stated she thought her husband was trying to kill her. After returning her calls and upon Julie’s
request, Officer Kosman visited the Jensen home to speak with her. Julie told Kosman that she had
given a letter to the Wojts, along with a roll of film that included photographs she had taken of part
of Jensen’s day planner that contained the list apparently referred to in her letter. She retrieved the

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film, but not the letter, from the envelope she had given the Wojts and gave it to Officer Kosman.
(Jury Tr., Jan. 24, 2008, Ex. 22B at 12–13, ECF No. 28-4.) She told him she had seen strange
writings in the planner and saw Jensen looking at material on the internet that concerned her. When
later developed, however, the photographs were of pages from Jensen’s day planner with writing
that police were unable to connect to the case. (Jury Tr., Jan. 24, 2008, Ex 22A at 75–87, ECF No.
28-3.) In any event, Julie told Officer Kosman that if she were found dead, that she did not commit
suicide, and that Jensen was her first suspect. In addition to the letter and statements to police, Julie
made statements that she feared her husband was planning to kill her to several other people,
including the Wojts and her son’s teacher, Therese DeFazio.
A later search of the Jensens’ computer revealed internet searches for, among other things,
suicide and poisoning, including a search on the morning of Julie’s death for “ethylene glycol
poisoning.” The search also uncovered voluminous emails between Jensen and Kelly LaBonte,
which revealed they were engaged in an extramarital affair. Kosman also testified that earlier in the
summer of 1998, Julie Jensen had told him that it had become very “cold” in their home and that
Jensen was not as affectionate as he used to be. He recalled Julie also telling him that when Jensen
came home from work, he would immediately go to the computer. Kosman also noted that he had
contact with Julie Jensen on numerous previous occasions over the course of several years
beginning in the mid-1990s in response to her complaint that someone had been leaving
pornographic photographs around the home and had making harassing phone calls. (Jury. Tr., Jan.
24, 2008, Ex. 22A at 42–43, ECF No. 28-3.) Kosman suspected that Jensen was responsible based
in part on Julie’s statements to that effect, which the State introduced as evidence of Jensen’s anger
over Julie’s infidelity.

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A criminal complaint was filed on March 19, 2002, charging Jensen with first-degree
intentional homicide. From the start, Jensen challenged the admissibility of the letter and Julie
Jensen’s statements to Officer Kosman. He also challenged statements Julie made to the Wojts, Dr.
Borman, and Ms. DeFazio. Jensen filed several pretrial motions to suppress Julie’s statements on
hearsay and confrontation grounds, which were extensively briefed and argued before the trial court.
Although the statements were almost all deemed admissible at first, the trial court reconsidered its
rulings in light of the United States Supreme Court’s intervening decision in Crawford v.
Washington, 541 U.S. 36 (2004). On reconsideration, the trial court ruled that the letter and Julie’s
accusations made to Officer Kosman were testimonial statements and, therefore, they were
inadmissible because the declarant was unavailable to testify at trial and Jensen did not have a
previous opportunity for cross-examination. (Cir. Ct. Order 4, Aug. 4, 2004, ECF No. 45-17.) The
trial court also ruled that her statements to the Wojts and Ms. Defazio were not testimonial. (Id. at
2.) The court reasoned that these later statements did not fall within the definition of testimonial
statements adopted in Crawford because they were not made to the police and the court was unable
to conclude that they had been made under circumstances indicating an intent that they would be
available for use at a later trial. (Id. at 2.) The court rejected, however, the State’s argument that
because the evidence supported a finding that Jensen had procured Julie’s unavailability by killing
her, all of the statements were admissible under the doctrine of forfeiture by wrongdoing. The court
explained:
[i]f an accused forfeits or waives the right of cross-examination merely by killing the
victim to “put her out of the way,” then there would have been no reason for the
development of the Dying Declaration Rule, which . . . makes sense only in an
evidentiary framework in which the mere fact that the defendant can be convincingly

5

shown to the judge to have killed the declarant does not, by itself, justify exception
to the requirements of the Confrontation Clause.
(Id. at 5–6.)
The State filed an interlocutory appeal and petition to bypass to the Wisconsin Supreme
Court. The Wisconsin Supreme Court granted the bypass petition and affirmed in part and reversed
in part the trial court’s decision. State v. Jensen, 2007 WI 26, ¶ 2, 299 Wis. 2d 267, 727 N.W.2d
518 (Jensen I). The court affirmed the trial court’s holding that Julie’s statements to the Wojts and
DeFazio were nontestimonial. Id. at ¶¶ 20, 31–33. It also affirmed the court’s conclusion that
Julie’s letter and statements to police were testimonial. Id. at ¶¶ 26–30. However, the Wisconsin
Supreme Court held that the trial court erred in its analysis of the forfeiture doctrine. Instead of
viewing the forfeiture doctrine as a narrow exception to an accused’s right to confront the witnesses
against him as the trial court had held, the Wisconsin Supreme Court explicitly adopted a broad
interpretation of the forfeiture by wrongdoing doctrine “whereby a defendant is deemed to have lost
the right to object on confrontation grounds to the admissibility of out-of-court statements of a
declarant whose unavailability the defendant has caused.” Id. at ¶ 2. It concluded that where “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 ¶ 57. The court rejected Jensen’s argument that forfeiture only applies if the
witness’ absence was procured for the particular purpose of preventing the witness from testifying.
On remand, the trial court was directed to hold a forfeiture hearing to determine whether a
preponderance of the evidence supported a finding that Jensen killed his wife and thereby caused
her absence from trial. Id. at ¶ 58. After a ten-day evidentiary hearing, the trial court found Jensen

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had forfeited his right, and accordingly, held that all of Julie Jensen’s statements—testimonial or
otherwise—would be admissible.
On January 3, 2008, almost six years after the criminal complaint was filed, and more than
nine years after Julie’s death, Jensen’s jury trial commenced. The resulting six-week trial produced
a voluminous record, which will only be summarized as relevant here. The prosecution’s case
rested heavily on Julie Jensen’s actions and statements in the months leading up to her death. The
State presented evidence that it contended showed that Jensen was having an affair with Kelly
LaBonte, that he was bitter about Julie’s own previous affair, that Jensen had made elaborate plans
to murder his wife in order to plan a future with Kelly, that he wanted to avoid a messy divorce and
keep custody of the children, and that for months he had searched the internet for ways to carry out
his plan to make Julie’s death look like a suicide. The State also offered the testimony of two of
Jensen’s co-workers who claimed Jensen had made suspicious and incriminating statements to
them. The State argued Julie Jensen’s state of mind and behavior were inconsistent with someone
who would commit suicide: she was a devoted mother and housewife who was worried about her
husband’s suspicious behavior but was optimistic that their family would stay intact. The State
repeatedly argued that any suicide theory was directly contradicted by Julie’s letter and
conversations with police and other acquaintances. The State also argued that the medical evidence
was inconsistent with suicide. Instead, it suggested that Julie Jensen could not have ingested the
ethylene glycol by herself, and that Jensen had also suffocated her after she showed signs of
recovering from the poison he administered.
The defense presented a markedly different story. The defense argued that Julie Jensen had
the motive and opportunity to commit suicide, to frame her husband for her attempted murder, or
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both. The defense established that Julie was suffering from depression and possibly other mental
illness, and presented evidence of her resulting fear, irrational behavior, and delusional thinking in
the weeks leading up to her death. Dr. Richard Borman, the Jensens’ family physician, testified that
during an appointment on December 1—two days before she died—Julie “seemed depressed and
distraught and almost frantic, actually.” (Jury Tr., Feb. 11. 2008, Ex. 33A at 35, ECF No. 30-5.)
The defense also was allowed to offer evidence that Julie had a troubled family history, including
allegations that she was abused, that her brother attempted suicide by slashing his wrists, that her
mother struggled with alcoholism and depression before a drowning death that was rumored to be
a possible suicide or homicide, and that another brother passed away in childhood under tragic and
suspicious circumstances.
The defense also contested the medical and forensic computer evidence, attacked the
credibility of the State’s witnesses, and contended that much of the evidence was consistent with
suicide. The defense described the medical evidence as questionable and inconclusive, attacking
the credibility of the State’s experts and presenting experts who concluded the evidence supported
suicide. For example, the defense pointed to Julie Jensen’s contradictory actions before her death,
including her refusals of help from the Wojts and the police. The defense also highlighted the
fifteen-minute telephone conversation Julie had with Mrs. Wojt on December 2, 1998, the day
before Julie died, in which Julie told Mrs. Wojt not to worry if she did not see Julie outside that day
because Julie was not feeling well due to her medication. (Jury Tr., Jan. 18, 2008, Ex. 19A at
15–16, ECF No. 27-7.) Julie made a similar statement to her sister-in-law on November 30, 1998,
that she would be ill on Wednesday, December 2, 1998, because she expected to be put on
medication by her doctor. (Jury Tr., Feb. 11, 2008, Ex. 33A at 137–38, ECF No. 30-5; Jury Tr.,
Feb. 11, 2008, Ex. 33B at 1–2, ECF No. 30-6.) And despite telling numerous people that she feared
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her husband was trying to poison her, she did nothing when she actually started to get sick two days
before her death and could have left the home or called someone for help.
The jury deliberated for more than thirty hours before finding Jensen guilty of first-degree
intentional homicide. Jensen appealed his conviction, and raised, among other things, the same
claims at issue here. Meanwhile, four months after Jensen’s trial, the United States Supreme Court
decided Giles v. California, in which it rejected the broad interpretation of the forfeiture doctrine
that the Wisconsin Supreme Court had adopted in its decision reversing the trial court’s order
excluding Julie’s letter and statements to police. The Supreme Court held in Giles that a defendant
forfeits his right to confrontation only when he procured the absence of the witness for the particular
purpose of preventing his or her testimony. 554 U.S. 353, 376–77 (2008). In other words, it was
not enough that the defendant’s conduct had the effect of making the witness unavailable to testify;
for the statement to be admissible, the defendant’s conduct must have been motivated by the
specific intent to prevent the witness from testifying. Id. at 361–62.
Notwithstanding this substantial change in the law, the Wisconsin Court of Appeals affirmed
Jensen’s conviction on December 29, 2010. As relevant here, the court considered (1) whether
“Giles’ narrow interpretation of the forfeiture by wrongdoing exception to the Confrontation Clause
overrule[d] the Wisconsin Supreme Court’s broad interpretation in Jensen [I, 2007 WI 26] making
Julie’s letter and statements to Kosman inadmissible pursuant to Crawford”; (2) if so, whether the
admission of the statements was harmless error; and (3) whether the circuit court was biased.
Jensen II, 2011 WI App 3 at ¶ 20.
The court of appeals began its opinion by discussing Giles and its application to Jensen’s
case. Before the court of appeals, the State argued that even under Giles, Julie Jensen’s testimonial
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statements would be admissible because a preponderance of the evidence supported its theory that
one reason Jensen killed his wife was to prevent her testimony in a divorce proceeding, and
therefore, he forfeited his right to confrontation in her murder trial. The Wisconsin Court of
Appeals decided, however, that it would “leave for another day whether Giles should be read to
permit testimonial evidence when the state can establish by a preponderance of the evidence that
the defendant sought to prevent the victim from testifying in any court proceeding.” Id. at ¶ 34.
Instead, it “assume[d] that the disputed testimonial evidence was erroneously admitted” and found
the error was harmless beyond a reasonable doubt “given the voluminous corroborating evidence,
the duplicative untainted evidence, the nature of the defense, the nature of the State’s case, and the
overall strength of the State’s case.” Id. at ¶ 35.
The court of appeals also rejected Jensen’s judicial bias claim. Jensen had argued that his
due process right to a fair trial was violated because the trial judge’s pretrial forfeiture by
wrongdoing ruling amounted to a prejudgment of guilt and rendered him biased when he
subsequently presided over Jensen’s trial. The court determined Jensen had waived the argument
because he failed to present it in the trial court, but went on to state that “[f]urther, even if this
argument had not been waived, it lacks merit.” Id. at ¶ 95. Following the court of appeals’
decision, Jensen filed a petition for review in the Wisconsin Supreme Court. The petition was
denied on June 15, 2011 and Jensen timely filed his habeas petition two months later.

ANALYSIS
Sixth Amendment Confrontation Clause Violation
Jensen contends that the admission at trial of Julie Jensen’s letter and statements to police
violated his Sixth Amendment right to confrontation. The Confrontation Clause of the Sixth
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Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him.” The Supreme Court has interpreted this right to bar
the admission of testimonial hearsay evidence against the accused unless the declarant is both
unavailable at trial and the defendant had a prior opportunity for cross-examination. Crawford, 541
U.S. at 68. However, nontestimonial out-of-court statements are “exempted . . . from Confrontation
Clause scrutiny altogether.” Id. Although the definition of testimonial remains unsettled,
particularly as it relates to statements made to private parties, Jensen does not challenge the
Wisconsin Supreme Court’s determination that Julie’s statements to non-police witnesses, i.e., the
Wojts and DeFazio, were nontestimonial and therefore not subject to Confrontation Clause analysis.
Instead, Jensen focuses on Julie’s letter to law enforcement and her statements to Officer Kosman
as violations of his constitutional rights. The parties do not dispute that both the letter and Julie
Jensen’s statements to Officer Kosman were testimonial and that Jensen did not have a prior
opportunity to cross-examine her. Respondent nevertheless argues that admission of Julie’s letter
and statements to Officer Kosman did not violate Jensen’s confrontation rights, again advancing the
forfeiture argument. Respondent also contends that the Wisconsin Court of Appeals’ determination
that any error was harmless constitutes a reasonable application of federal law.

1.

Constitutional Violation

Testimonial hearsay statements otherwise barred under Crawford may be admissible at trial
under the forfeiture by wrongdoing exception to the Confrontation Clause. Giles, 554 U.S. at 359.
Under that doctrine, a defendant forfeits his confrontation right if his own wrongful conduct
prevented any cross-examination of the declarant. Giles clarified that the forfeiture by wrongdoing
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exception only applies upon a showing that the defendant acted with the specific intent to prevent
the declarant from testifying, meaning “the exception applies only if the defendant has in mind the
particular purpose of making the witness unavailable.” 554 U.S. at 367 (citations omitted). The
decision affirmed the historical understanding that where “the evidence suggested that the defendant
had caused a person to be absent, but had not done so to prevent the person from testifying—as in
the typical murder case involving accusatorial statements by the victim—the testimony was
excluded . . . .” Id. at 361.
As a threshold matter, Respondent argues that Jensen is not entitled to the benefit of the
holding in Giles because it was not “clearly established Federal law” when the last state court
considered Jensen’s confrontation claim on the merits. Under 28 U.S.C. § 2254(d)(1), habeas relief
“shall not be granted with respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim . . . resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law.” See Greene v. Fisher,
132 S. Ct. 38, 44–45 (2011). Respondent contends that under Greene, “clearly established Federal
law” is assessed at the time of the last state court adjudication on the merits of the claim, rather than
at the time the defendant’s conviction becomes final. Id. at 42 (holding that “clearly established
Federal law” does not include decisions of the Supreme Court “that are announced after the last
adjudication of the merits in state court but before the defendant’s conviction becomes final”).
More specifically, Respondent’s view is that the last state court decision to address the
merits of Jensen’s confrontation claim was the trial court’s forfeiture ruling in 2007 on remand from
the Wisconsin Supreme Court. Because Giles was decided in 2008, four months after Jensen’s
conviction, its narrow forfeiture by wrongdoing exception was not clearly established at the time
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of the trial court’s decision. Although Giles was binding precedent when the Wisconsin Court of
Appeals denied relief in 2010, Respondent argues that court declined to consider the confrontation
claim on the merits, instead assuming that the testimonial statements were unconstitutionally
admitted into evidence but finding any error harmless. Thus, in Respondent’s view, Giles does not
apply.
Respondent is mistaken. Respondent’s mistake is in viewing the Wisconsin Court of
Appeals’ harmless error determination as separate and apart from its decision on the Sixth
Amendment claim. The court of appeals expressly addressed the merits of Jensen’s Sixth
Amendment claim by assuming a violation occurred and finding it harmless. It therefore affirmed
his conviction. This constitutes a decision on the merits of the claim. It also follows that the court
of appeals’ decision is the relevant decision for § 2254 review. The relevant decision is “the last
reasoned opinion on the claim.” Woolley v. Rednour, 702 F.3d 411, 421 (7th Cir. 2012) (quoting
Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). The court of appeals plainly delivered a reasoned
opinion on Jensen’s confrontation claim. Respondent’s contention that this court should ignore
Giles and instead consider the trial court’s forfeiture finding as the last decision on the merits is
simply wrong. Giles most certainly applies. “Clearly established federal law” within the meaning
of § 2254(d) includes Supreme Court decisions announced prior to the initial direct appeal of a
defendant’s conviction. State courts cannot avoid federal habeas review by declining to decide
issues that are presented to them.
The fact that the Wisconsin Court of Appeals simply assumed Jensen’s Sixth Amendment
rights were violated and did not actually decide the issue does affect this court’s standard of review
on that issue, however.

As Jensen notes, where the state court does not reach a federal
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constitutional issue that was fairly presented to it, a federal habeas court reviews the claim de novo,
rather than under § 2254(d)(1). Cone v. Bell, 556 U.S. 449, 472 (2009); see also Wooley, 702 F.3d
at 402 (“Because the Illinois Appellate Court did not reach Strickland's ineffectiveness prong, we
apply Wiggins [v. Smith, 539 U.S. 510 (2003)] to review the issue de novo.”). Here, it appears that
there was no dispute after Giles that the admission of Julie’s letter and statements to Kosman, based
solely on the trial court’s pretrial determination that Jensen had killed her, violated Jensen’s Sixth
Amendment rights. The State did not even argue to the contrary. Instead, the State argued that
Giles left open the possibility that Julie’s testimonial statements could still be admissible upon a
finding that Jensen had killed her in order “to prevent her testimony in a family court action.”
Jensen II, 2011 WI App 3, at ¶ 33. It was this issue—“whether Giles should be read to permit
testimonial evidence when the state can establish by a preponderance of the evidence that the
defendant sought to prevent the victim from testifying in any court proceeding,” id. at ¶ 34—that
the Wisconsin Court of Appeals declined to address, choosing instead to “assume that the disputed
testimonial evidence was erroneously admitted.” Id. at ¶ 35. Respondent now asks this court to
decide the same issue that the Wisconsin Court of Appeals left “for another day.” Id. at ¶ 34.
Respondent argues that, even under Giles, Julie Jensen’s letter and other testimonial
statements to Officer Kosman would be admissible because a preponderance of the evidence
establishes that one reason Jensen killed Julie was to prevent her testimony in a divorce or child
custody action. Respondent points out that the prosecution pursued this theory from an early stage
through closing arguments. (Resp’t Br. in Opp’n 9, ECF No. 57.) In Respondent’s view, logic
dictates that it is more likely than not that “Jensen’s intent in killing Julie was to prevent her from

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using the legal system.” (Id.) Respondent therefore asks this Court to conduct a de novo review
of the record and make such a determination. (Id. at 13.)
Respondent’s argument fails both procedurally and on its merits. It fails procedurally
because a federal court reviewing a state conviction under § 2254 cannot modify or alter a state
court’s decision. In essence, Respondent is asking this court to make the findings of fact needed
to preserve an evidentiary ruling made by the trial court on a ground that played no role in the trial
court’s ruling. The court has no authority to do so. Under § 2254, a federal court is authorized to
review a decision a state court made; it may not review decisions the state court did not make or
render new decisions that otherwise justify the state court’s rulings. See Barefoot v. Estelle, 463
U.S. 880, 887 (1983) (“Federal courts are not forums in which to relitigate state trials.”). If, as a
general matter, there are other grounds that can constitutionally support a state court’s ruling that,
as rendered, is contrary to clearly established federal law, the state may seek the same ruling on the
alternative grounds at a new trial in state court. The principles of federalism and comity that are so
much a part of habeas jurisprudence counsel against the greater federal involvement in state criminal
proceedings that would be required were this court to accede to Respondent’s request. Engle v.
Isaac, 456 U.S. 107, 126–28 (1982).
To the extent the issue is properly before the court, Respondent’s argument also fails on its
merits. Giles holds that the forfeiture exception to the Confrontation Clause requires that the
defendant engaged in conduct that had the specific purpose of preventing the declarant from
testifying. 554 U.S. at 361–62. Respondent notes that the prosecutor argued to the trial court that
one reason Jensen killed Julie was “‘to avoid any litigation surrounding a divorce or a custody
dispute involving their two children.’” (Resp’t Br. in Opp’n 9, ECF No. 57 (quoting State Trial Br.
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Regarding Implications of Crawford v. Washington 13, ECF No. 45-12 ).) But the exception applies
when the action taken by the defendant is intended to prevent testimony, not prevent litigation. One
who kills a spouse to avoid a messy divorce is not acting to prevent the spouse from testifying, but
to eliminate the need for the divorce altogether. If that is enough to invoke the forfeiture exception
to the Confrontation Clause, then the exception would apply in any case in which the motive for the
murder could arguably have been the subject of litigation. Read in this way, the exception would
almost swallow the rule.
If Jensen caused Julie’s death as the State alleged, he did so not to prevent her from
testifying at a divorce but to eliminate any need for a divorce. The argument that Jensen killed his
wife to prevent her from testifying in their divorce is essentially no different than the argument that
he killed her to prevent her from testifying at her murder trial. In both cases, her unavailability to
testify would be a result of the crime, not the motivation for it. This is, of course, exactly the motive
the State advanced at trial. (State Trial Br. Regarding Implications of Crawford v. Washington 13,
ECF No. 45-12 (“[The murder] was very carefully planned and calculated to get Julie Jensen out
of the way so the defendant could pursue his relationship with Kelly LaBonte, maintain his
relationship with his children and avoid the financial sacrifices associated with divorce in this
marital property state.”).) This is not the kind of specific intent that Giles requires in order to
invoke the forfeiture by wrongdoing exception to a defendant’s right of confrontation.
Respondent’s contention that Jensen murdered Julie to prevent her testimony during a divorce that
neither person was actually pursuing or even planning to pursue when her death would necessarily
obviate the need for the divorce is, therefore, fundamentally flawed.

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Finally, as support for its argument that Julie’s letter and testimonial statements are
admissible even under Giles, Respondent relies most directly on United States v. Lentz, 524 F.3d
501 (4th Cir. 2008). (Resp’t Br. in Opp’n 12, ECF No. 57.) However, Lentz is distinguishable
because in that case the divorce proceedings were actually pending between the defendant and his
ex-wife, the victim. The victim was never heard from again after she left to pick up her child at the
defendant’s home the night before a hearing was to occur in the divorce case to determine the
amount of money the defendant was required to pay in child support payments, property division
and toward the victim’s attorneys fees. Lentz, 524 F.3d at 507–09. Here, by contrast, no divorce
was pending, and there is no evidence one was even being contemplated. Finally, Giles was decided
after Lentz, and thus Lentz does not address Giles’ teaching on the forfeiture doctrine. For all of
these reasons, Lentz is not persuasive.
The admission of Julie’s letter and statements to Officer Kosman at trial based solely on the
trial court’s pretrial determination that Jensen killed her violated Jensen’s Sixth Amendment right
to confront the witnesses against him as the Supreme Court defined that right in Crawford v.
Washington. The question remaining is whether the error was harmless.

2.

Harmless Error

On collateral review, a habeas court independently determines whether the error was
harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993). Fry v. Pliler, 551 U.S. 112, 119–20
(2007). Under Brecht, habeas relief must be granted if the constitutional error “‘had substantial
and injurious effect or influence in determining the jury’s verdict.’” 507 U.S. at 623 (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)). As such, a habeas petitioner must establish
17

the trial error caused actual prejudice. Id. at 637. The Brecht standard is crafted to be a “less
onerous harmless-error standard,” from the standpoint of the state, in order to “promote[] the
considerations underlying . . . habeas jurisprudence.” Id. at 623; see also Jones v. Basinger, 635
F.3d 1030, 1052 n.8 (7th Cir. 2011) (citing Fry, 551 U.S. at 119–20) (explaining that because “any
error sufficiently harmful to satisfy the Brecht ‘actual prejudice’ standard could be deemed harmless
beyond a reasonable doubt only by unreasonably applying Chapman,” formal application of both
tests is not necessary). That is, it is harder for the petitioner to demonstrate actual prejudice under
Brecht than it is for the petitioner to demonstrate that the state court unreasonably applied the
“harmless beyond a reasonable doubt” standard in Chapman v. California, 386 U.S. 18 (1967).
Thus, if the introduction of Julie Jensen’s testimonial statements caused Jensen actual prejudice
under Brecht, Jensen has necessarily demonstrated that the Wisconsin Court of Appeals
unreasonably applied the Chapman test, without formal application of the AEDPA standard. See
id. If a court considering a habeas petition “is in grave doubt as to the harmlessness of an error that
affects substantial rights, it should grant relief.” O’Neal v. McAninch, 513 U.S. 432, 445 (1995).
A “host of factors” may be considered in conducting harmless error review, including the
importance of the evidence to the prosecution’s case, whether the testimony was cumulative, the
presence or absence of corroborating or contradictory evidence, and the overall strength of the
prosecution’s case. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). The court must “ponder[]
all that happened without stripping the erroneous action from the whole” such that the “inquiry
cannot be merely whether there was enough to support the result, apart from the phase affected by
the error.” Kotteakos, 328 U.S. at 764–65. Rather, in light of the entire record, the court will find
an error harmless where “the error did not influence the jury, or had but slight effect” and where the
18

“judgment was not substantially swayed by the error.” Id.; see also Brecht, 507 U.S. at 642
(Stevens, J., concurring) (emphasizing that the “habeas court cannot ask only whether it thinks the
petitioner would have been convicted even if the constitutional error had not taken place”).
However, the untainted evidence in a case can be so overwhelming that the tainted evidence can be
considered insignificant by comparison and the error deemed harmless. Schneble v. Florida, 405
U.S. 427, 430 (1972) (finding an error harmless because “properly admitted evidence of guilt” was
overwhelming compared to the “insignificant” prejudicial effect).
In this case, having reviewed the voluminous trial record, the court concludes that the
erroneously admitted testimonial statements had a “substantial and injurious effect” on the jury’s
verdict. Brecht, 507 U.S. at 622. Although the prosecution presented a significant amount of
properly admitted circumstantial evidence against Jensen, it was not so overwhelming that Julie
Jensen’s “voice from the grave” could be considered harmless, especially given the central role her
testimonial statements played during the trial. Viewed in the context of the entire trial, the court
concludes that Julie Jensen’s letter and accusatory statements to Officer Kosman influenced the
jury’s decision or had a substantial effect on the outcome of the trial. The court reaches this
conclusion for a number of reasons.
First, Julie Jensen’s statements, especially the letter, played a key role from the outset of the
trial. The prosecution framed its narrative of the case around the letter and Julie Jensen’s predictions
that her husband was trying to kill her. As Jensen argues, the State used the letter as a roadmap for
trial, developing the themes Julie herself identified—she was caught in an unhappy marriage, Jensen
was bitter about her affair, she would never take her own life because she loved her kids too much,
Jensen was the only user of internet, and she feared he was plotting her murder. (Pet’r Br. in Supp.
19

44, ECF No. 50.) The letter was read during the State’s opening statement. (Jury Tr., Jan. 7, 2008,
Ex. 8 at 9–10, ECF No. 25-9.) Later, the defense addressed the letter in its opening. (Id. at 64–65,
69, 93–94.)
After opening arguments, the prosecution returned to the letter repeatedly during trial, using
Julie Jensen’s own words to support other evidence. The defense, in turn, attempted to counter the
letter’s weight. Expert and non-expert witnesses testified on direct and cross-examination about the
letter: the police (Jury Tr., Jan. 24, 2008, Ex. 22A at 45–46, ECF No. 28-3; Jury Tr., Jan. 24, 2008,
Ex. 22B at 143–44, ECF No. 28-4; Jury Tr., Jan. 30, 2008, Ex. 26B at 95, 97–99, 119, ECF No. 292; Jury Tr., Feb. 1, 2008, Ex. 28B at 112–19, ECF No. 29-5); the Wojts (Jury Tr., Jan. 17, 2008, Ex.
18A at 117–18, 124–25, ECF No. 27-5; Jury Tr., Jan. 17, 2008, Ex. 18B at 67–68, ECF No. 27-6;
Jury. Tr., Jan. 19, 2008, Ex. 19A at 35–37, ECF No. 27-7); the prosecution’s experts (Jury. Tr., Jan.
8, 2008, Ex. 11B at 39–47, ECF No. 26-2; Jury. Tr., Jan. 17, 2008, Ex. 18A at 40–41, ECF No. 27-5;
Jury. Tr., Jan. 28, 2008, Ex. 24A at 26–29, ECF No. 28-7); and the defense’s experts (Jury Tr., Feb.
12, 2008, Ex. 34A at 30, ECF No. 30-7; Jury Tr., Feb. 13, 2008, Ex. 35A at 145, 165–66, ECF No.
30-9; Jury Tr., Feb. 13, 2008, Ex. 35B at 12–19, 32–56 ECF No. 30-10). The letter was again
emphasized during both parties’ closing arguments. (Jury Tr., Feb. 18, 2008, Ex. 38A at 44, 100,
115, 131, ECF No. 31-5; Jury Tr., Feb. 18, 2008, Ex. 38B at 59–60, 62–65, 84, 129–132, ECF No.
31-6.) In short, the letter consistently served as an important source of the prosecution’s ability to
argue its theory of the case, while undermining the defense’s suicide theory, because Julie Jensen’s
unconfronted words established her version of the facts.
Second, the Wisconsin Court of Appeals ignored this central role Julie Jensen’s testimonial
statements played in the trial. Instead, in finding any error harmless, the Wisconsin Court of
20

Appeals’ decision focused almost exclusively on the “untainted and undisputed gripping evidence
against Jensen,” including the computer evidence, motive evidence, and the medical evidence
supporting the State’s homicide theory. Jensen II, 2011 WI App at ¶¶ 37–38. It set out the contents
of Julie’s letter sentence by sentence and identified evidence it construed as corroborating each
allegation. Id. at ¶¶ 39–69. The court of appeals then conducted a similar, though less detailed,
analysis of Julie’s verbal statements to police. Id. at ¶¶ 71–72. Having found corroborating
evidence for each sentence of the letter and each statement to Officer Kosman, it concluded “[t]he
sine qua non is that the testimonial statements provided nothing significant beyond the properly
admitted nontestimonial statements.” Id. at ¶ 73.
The characterization of the “untainted and undisputed gripping evidence against Jensen” is
somewhat misleading. Id. at ¶ 38. What the court of appeals did not acknowledge is that the
undisputed evidence was entirely circumstantial and subject to more than one inference. The
decision of the court of appeals demonstrated that the State’s evidence was persuasive, but it did so
largely by ignoring the contrary evidence and competing inferences drawn by the defense. In fact,
the defense challenged much of the State’s evidence and presented an alternative interpretation of
much that it did not dispute. There was nothing close to a smoking gun, and even evidence the court
of appeals characterized as the most incriminating evidence against Jensen—the computer evidence,
including the internet searches for poisoning—was less than conclusive. There was no evidence that
precluded the jury from finding that at least some of the internet searches had been conducted by
Julie Jensen.
Moreover, although Jensen’s ongoing extramarital affair served as strong evidence of motive
for homicide, it could also provide a motive for Julie Jensen to commit suicide and to seek to harm
21

her husband in the process. In a case where virtually every piece of properly admitted evidence was
contested and subject to competing inferences and interpretations, Julie Jensen’s prediction that her
husband was going to poison her and that she would “never take her own life” substantially
influenced the jury’s ultimate decision and dramatically colored their view of the rest of the
evidence.
To be sure, the State presented weighty circumstantial evidence of Jensen’s guilt without the
letter, and a reasonable jury could perhaps reach the same verdict in a trial free of constitutional
error. But this does not mean the error was harmless. Kotteakos, 328 U.S. at 776 (“That conviction
would, or might probably, have resulted in properly conducted trial is not the criterion.”). The focus
of the harmless error analysis is not solely on the guilt of the defendant, but on the effect the error
had on the jury’s verdict. A reviewing court must consider “not what effect the constitutional error
might generally be expected to have upon a reasonable jury, but rather what effect it had upon the
guilty verdict in the case at hand.” Sullivan v. Louisiana, 508 U.S. 275, 279 (1993); accord.
Kotteakos, 328 U.S. at 764 (explaining that courts must determine the impact of the error “on the
minds of other men, not on one’s own,” an “important difference, but one not easy to ignore when
the sense of guilt comes strongly from the record”). The Wisconsin Court of Appeals focused its
harmless error analysis far too narrowly. See Sullivan, 508 U.S. at 279–80 (“The inquiry, in other
words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have
been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable
to the error.”) (emphasis in original); accord. Kotteakos, 328 U.S. at 764 (finding the inquiry is
“different, or may be, from guilt in fact . . . [a]nd the question is, not were [the jurors] right in their
judgment, regardless of the error or its effect upon the verdict”); Jones, 635 F.3d at 1053 (explaining
22

a court does not “imagine[] what the record would have shown without [the erroneously admitted
evidence] and ask[] whether the remaining evidence was legally sufficient to sustain a finding of
guilt”); State v. Stuart, 2005 WI 47, ¶ 40, 279 Wis. 2d 659, 695 N.W.2d 259 (“An error is harmless
if the beneficiary of the error proves ‘beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.’” (quoting Chapman, 386 U.S. at 24.)). To do otherwise would
ignore “the significant prejudicial effect the error can have on a jury’s ability to evaluate fairly the
remaining evidence.” Jones, 635 F.3d at 1053.
Third, the court of appeals’ finding that the erroneously admitted testimonial evidence
provided “nothing significant beyond the properly admitted nontestimonial statements” is
contradicted by the history of this case. Jensen II, 2011 WI App at ¶ 73. This finding is belied by
the fact that the parties engaged in a lengthy pretrial battle, (Cir. Ct. Order 4, Aug. 4, 2004, ECF No.
45-17), including an interlocutory appeal directly to the Wisconsin Supreme Court, in order to
determine whether Julie’s letter and statements would come in at trial. See Jensen I, 2007 WI at
¶¶ 1–2. After the Wisconsin Supreme Court’s ruling, the prosecution then engaged in a ten-day
forfeiture hearing in order to introduce Julie’s statements. During this prolonged evidentiary battle,
the prosecution referred to the admission of Julie’s letter as a “make or break issue from the State’s
perspective.” (Mot. Hr’g Tr. 3, June 2, 2004, ECF No. 45-21). The prosecution viewed Julie’s
testimonial statements, especially the letter, as “very damaging to [the defense]” and “an essential
component of the State’s case” because Julie’s statements were a “cry out for help to law
enforcement” and her effort to “warn a potential jury in the future that she was not suicidal, that she
would never commit suicide, that she lived for her children.” (Id. at 22–23.) For these reasons, the
prosecution argued before the trial court that the letter was of “extraordinary value as to Julie
23

Jensen’s state of mind which is the central issue in this case.” (State’s Reply to Def. Supp’l
Mem. 18, ECF No. 45-11.) In light of this history, Respondent’s argument to this court that the letter
or her statements to Officer Kosman were, in effect, mere surplusage is incredible.
Moreover, erroneously admitted evidence may bolster and corroborate other evidence such
that it is not simply cumulative under the circumstances of the case. See, e.g., Arizona v.
Fulminante, 499 U.S. 279, 299 (1991) (finding an erroneously admitted confession was not merely
cumulative of another because “the jury might have believed that the two confessions reinforced and
corroborated each other”). Just because two items of evidence might tend to prove the same fact
does not mean the jury placed equal emphasis on each. For example, as Jensen argues, the letter was
powerful and “had a greater aura of reliability than the statements to other witnesses because it was
made to police and memorialized in writing.” (Pet’r Br. in Supp. 44, ECF No. 50.) By their very
nature, testimonial statements are “a solemn declaration or affirmation made for the purpose of
establishing or proving some fact” and thus, an “accuser who makes a formal statement to
government officers bears testimony in a sense that a person who makes a casual remark to an
acquaintance does not.” Crawford, 541 U.S. at 51. And although witnesses testified that Julie
Jensen had told them similar things, their testimony was subject to attack in ways the letter was not.
This is, of course, exactly the point of the “crucible of cross-examination.” Id. at 61. Viewed
alongside the letter, however, Julie’s unconfronted words served to reinforce and corroborate their
testimony.
The admission of Julie Jensen’s accusations infected the trial in other ways. For instance,
it critically shifted the defense’s strategy and presentation of its case. The prosecution argued as
much in its closing argument, stating Jensen was “stuck with a story that Julie Jensen committed
24

suicide and framed her husband for murder. He [sic] wouldn’t be his favorite story, it wouldn’t be
his first choice.” (Jury Tr., Feb. 18, 2008, Ex. 38A at 100, ECF No. 31-5.) The State also argued:
But the defense in this case is far more than just that Julie Jensen committed suicide.
The defense is that Julie Jensen was a virulently angry, resentful, bitter woman who
not only took her own life, but tried, plotted to destroy her husband’s life.
In other words, not just that she committed suicide, but that in the process she framed
her husband for murder, thereby assuring that her two children would be left without
a mother and without a father.
(Id. at 48.) Had the testimonial statements not been admitted, Jensen may have argued that Julie
Jensen simply committed suicide—not that she committed suicide and deliberately framed her
husband for her murder. The availability of this argument to the prosecution is one reason that
the letter was “an essential component” (Mot. Hr’g Tr. 21–22, June 2, 2004, ECF No. 45-21) and
“of extraordinary value.” (State’s Reply to Def. Supplemental Mem. 18, ECF No. 45-11.)
Fourth, aside from the failure to properly consider the significance of Julie’s testimonial
statements, the harmless error analysis suffered from another major flaw. One of the factors to
consider in any harmless error analysis, including Brecht and Chapman, is the presence of
contradictory evidence. E.g., Jones, 635 F.3d at 1052 (applying Brecht); Stuart, 2005 WI at ¶ 41
(applying Chapman). Here, although the court of appeals conducted an extensive examination of
what it considered duplicative/corroborative evidence in the record supporting the conviction, it
failed to discuss any of the evidence that supported Jensen’s defense. Jensen II, 2011 WI App at
¶¶ 25–73. A reader of the court of appeals’ opinion would conclude that Jensen called no witnesses,
introduced no evidence, never questioned the credibility of any witness, and never even elicited
helpful testimony from a prosecution witness. See id. This is far from an accurate account of the
trial.
25

For example, viewed in isolation, the State’s computer evidence against Jensen was quite
convincing. But that was not the only evidence the jury heard about the computer. The jury also
heard Jensen’s statement to one of the investigators in which he denied any knowledge of the
searches for poison and claimed that Julie also used the computer and accessed the internet,
information that was confirmed by one of Julie’s friends. (Interview of Mark Jensen Tr. 10–12, Apr.
21, 1998, Trial Ex. 142, ECF No. 46-83; Jury. Tr., Feb. 11, 2008, Ex. 33A at 106–09, ECF No. 305.) Jensen told the investigator that the computer was not password protected and that Julie entered
information on a financial program called Quicken and was interested in medical information.
(Interview of Mark Jensen Tr. 11–12, Apr. 21, 1998, Trial Ex. 142, ECF No. 46-83.) The defense
also challenged the State’s portrayal of Julie as timid, unsophisticated, and totally dependent on
Jensen, introducing evidence that Julie studied nursing at the University of Wisconsin at Oshkosh
and took courses in subjects such as chemistry, pharmacology, bacteriology, and genetics. (Julie
Jensen UW-Oshkosh Tr. 1, Trial Ex. 289, ECF No. 49-32; Jury Tr., Feb. 8, 2008, Ex. 32B at 90–94,
103–04, ECF No. 30-4.) She later obtained a Series Seven brokers license that allowed her to place
and accept stock trades. (Id. at 102–03.) The defense pointed out evidence in the internet history
of a search for “suicide” on November 10, 2008, which was also the first day on which the word
ethylene glycol appears in the internet history. (Jury Tr., Feb. 8, 2008, Ex. 32A at 36–38, ECF No.
30-3.) And while it appears true that more incriminating sites were accessed when Jensen (as well
as Julie) was home, the defense argues from Ms. Wojt’s testimony at one of the pretrial hearings that
a December 2, 1998 computer search for ethylene glycol was made after he had left the home that
day to see Dr. Borman. (Pet.’s Reply Br. in Supp. 21, ECF No. 61 (citing Jury Tr., Jan. 11, 2008,
Ex. 14A at 65, ECF No. 26-7; Jury Tr., Jan. 18, 2008, Ex. 19A at 31, ECF No. 27-7).) Jensen also
26

points to the testimony of his own medical experts as support for the fact that the amount of ethylene
glycol found in Julie would not have rendered her incapable of deleting internet history, and argues
that the deletion of internet history is as consistent with Julie trying to hide evidence of her suicide
as it is with his hiding evidence of murder.
Other evidence offered by the prosecution was likewise challenged, perhaps none more so
than the precise cause of death. The State initially claimed, relying on the March 11, 2002 report of
Dr. Christopher Long of the St. Louis University Health Sciences Center, that Julie had died of
ethylene glycol poisoning, and that the evidence showed that she had ingested the poison on at least
two occasions, with the last occurring within hours of her death. (Letter from Dr. Christopher Long
2–3, Mar. 11, 2002, Trial Ex. 121, ECF No 46-74.) Dr. Long explained that ethylene glycol initially
affects a person like alcohol when consumed. (Id. at 1.) During the first phase, which can occur
between thirty minutes and twelve hours post ingestion, the person may appear intoxicated, but
without the smell of alcohol. (Id.) The products of the ethylene glycol’s metabolism become more
toxic at each step. During the second phase, which begins 12 to 14 hours after ingestion, oxalate
crystals may be present and tachycardia, hypotension, pulmonary edema and congestive heart failure
can result. (Id. at 1–2.) Dr. Long concluded from the fact that there were crystals in her kidneys and
“large amounts” of ethylene glycol in her stomach contents, that Julie did not die from a single dose
of the poison. (Id. at 2.) The presence of crystals in her kidneys, as well as reports of her condition
the day before her death, Dr. Long concluded, demonstrated that she had survived an initial dose that
she had ingested more then 12 hours before her death. (Id.) The “large concentration” of ethylene
glycol in her stomach, in Dr. Long’s opinion, indicated “an acute ingestion at or near the time of
death.” (Id.) Dr. Long found this fact particularly significant:
27

The final administration of ethylene glycol didn’t have time for absorption before her
death. It is not reasonable that Ms. Jensen could have consumed any ethylene glycol
in her condition (by herself) and then cleans up (hides) the source of the ethylene
glycol afterwards. Her death was very close to the last administration of ethylene
glycol.
(Id. at 3.) Based on the autopsy, the fact that there was no ethylene glycol found in the house, and
Julie’s letter and reports to the police, Dr. Long concluded that Julie’s death was not a suicide. (Id.)
Eight days later, the State charged Jensen with her murder.
Even before trial, however, defense experts had uncovered a serious flaw in Dr. Long’s
analysis. Instead of “large amounts” or “a large concentration” of ethylene glycol in Julie’s stomach,
the actual amount was 3940 micrograms, or a half teaspoon, out of 660 milliliters, or 22 ounces, of
stomach contents. (Jury Tr., Feb. 13, 2008, Ex. 35A at 140-42, ECF No. 30-9.) According to Dr.
J. Scott Denton, a forensic pathologist and deputy medical examiner for Cook County, Illinois, and
Dr. Barry H. Rumack, a medical toxicologist, this amount of ethylene glycol in her stomach contents
was entirely consistent with Julie having ingested a lethal dose of the poison 24 to 48 hours before
her death. (Letter from Dr. J. Scott Denton 1–2, 5–6, May 7, 2004, Trial Ex. 310, Ex. 49-43; Letter
from Dr. Barry H. Rumack 1–3, May 7, 2004, Trial Ex. 279, ECF No. 49-1.) Dr. Rumack further
noted that it was “extremely difficult to administer any significant quantity of commercial
automobile antifreeze, the most commonly available source of ethylene glycol, to an individual
without their knowledge.” (Id. at 2.) Both experts concluded from their review of the case that the
likely cause of death was suicide.
By the time of trial, the State was advancing yet another theory of how Julie had
died—Jensen had suffocated her. This new theory was based largely on the testimony of Aaron
Dillard, a jailhouse informant with seven prior convictions who even the prosecutor conceded was
28

“a liar and a con man and a thief.” (Jury Tr., Feb. 18, 2008, Ex. 38B at 229, ECF No. 31-6.) Dillard
testified that while in jail awaiting sentencing for his own crimes, he had many conversations with
Jensen, who had been placed in custody when his bond was increased after the forfeiture hearing.
Dillard claimed that Jensen eventually admitted to him that he had in fact killed his wife. According
to Dillard, Jensen admitted that he had tried to poison Julie with antifreeze but later suffocated her
by pushing her face into her pillow when it appeared she might be recovering. (Jury Tr., Jan. 18,
2008, Ex. 19A 116-20, ECF No. 27-7.)

In return for his testimony, Dillard received a

recommendation from the prosecutor for early release from prison. (Id. at 65.) Jensen reasonably
argues that the State’s initial missteps in determining the cause of Julie’s death, its introduction of
this new theory based on the testimony of such an unsavory witness, and the willingness of its
experts to embrace it did considerable damage to the credibility of the State’s theory. This difficulty
with the State’s case was not mentioned by the Wisconsin Court of Appeals in its harmless error
analysis.
Other problems went unmentioned as well. For example, the court of appeals recounted in
its decision the testimony of Edward Klug, one of Jensen’s co-workers who attended a national sales
convention a month before Julie’s death. Klug testified that during a late-night conversation when
they were complaining about their spouses, Jensen told him that there were web sites with
instructions on how to poison your wife with antifreeze. According to Klug, Jensen said that “giving
doses of Benadryl and antifreeze ‘over a long period of time’ is ‘relatively undetectable’ and will
start ‘crystallizing you from the inside out.’” Jensen II, 2011 WI App 3 at ¶37. Klug described the
conversation not as an abstract discussion, “but rather that Jensen ‘was telling me that he was going
to be doing that.’” Id. The court omitted from its discussion of Klug’s testimony, however, the fact
29

that Klug did not report this discussion to the police until almost nine years after Julie’s death, even
though he worked with Jensen and had talked with the district attorney’s office in 2002. In fact,
Klug had offered Jensen condolences when he first heard of Julie’s death. (Jury Tr., Jan. 8, 2008,
Ex. 11B at 111, ECF No 26-2.) The defense also offered evidence that Klug’s account was
contradicted by other witnesses, that he was viewed by other colleagues as an attention seeker and
that he had a reputation for dishonesty, none of which was mentioned by the court of appeals.
The court also ignored defense evidence concerning Julie’s mental health. For example, the
court considered Dr. Borman’s testimony that Julie “alluded to an affair” as “corroborative” of two
sentences of Julie’s letter regarding the deterioration of the marriage. Id. at ¶¶ 48–49. But it ignored
Dr. Borman’s testimony that she was “depressed and distraught and almost frantic, actually.” (Jury
Tr., Feb. 11. 2008, Ex. 33A at 35, ECF No. 30-5.) In fact, the opinion never mentioned any of the
evidence presented by the defense regarding Julie’s depression or her troubled family history. (Id.
at 33–34; Jury. Tr., Feb. 8, 2008, Ex. 32A at 99, 101–05, ECF No. 30-3.) The defense introduced
evidence of a “psychological autopsy” conducted by Dr. Herzl Spiro, a forensic psychiatrist who
reviewed Julie’s medical and mental health records and conducted interviews with her physician,
pastor, husband, friends, and family in an effort to assess her risk of suicide. (Jury Tr., Feb. 12,
2008, Ex. 34A at 12–17, ECF No. 30-7; Psychiatric Case Study, May 26, 2004, Trial Ex. 300, ECF
No. 49-37.) Dr. Spiro was permitted to testify that Julie was suffering from a major depressive
disorder that was complicated by anxiety and agitation with possible delusional features. (Jury Tr.,
Feb. 12, 2008, Ex. 34A at 47, 51–52, 69–70, ECF No. 30-7.) Dr. Spiro testified that based on this
diagnosis and because of other factors, including marital problems, employment issues and family
history, Julie posed a heightened risk of suicide. (Id. at 58–70.) Based on his “psychological

30

autopsy,” Dr. Spiro testified that Julie’s ingestion of ethylene glycol was “more likely the product
of suicidal intent than it is from accidental ingestion or homicide.” (Id. at 74.)
Finally, the court ignored other facts that supported the defense’s suicide theory, such as
Julie’s fifteen minute telephone conversation with Mrs. Wojt the day before Julie died in which she
told Mrs. Wojt not to worry if she did not see Julie outside that day because Julie was not feeling
well due to her medication (Jury Tr., Jan. 18, 2008, Ex. 19A at 15–16, 32–34, ECF No. 27-7), the
conversation with her sister-in-law a few days earlier that she would be ill on Wednesday, December
2, 1998, because she expected to be put on medication by her doctor (Jury Tr., Feb. 11, 2008, Ex.
33A at 137–38, ECF No. 30-5; Jury Tr., Feb. 11, 2008, Ex. 33B at 1–2, ECF No. 30-6), and Julie’s
refusals of help from the Wojts and Officer Kosman. (Jury. Tr., Jan. 17, 2008, Ex. 18A at 118–20,
124, ECF No. 27-5; Jury. Tr., Jan. 18, 2008, Ex. 19A at 34–35, ECF No. 27-7; Jury. Tr., Jan 24,
2008, Ex. 22A at 47–48, ECF No. 28-3; Jury. Tr., Jan. 24, 2008, Ex. 22B at 13–15, ECF No. 28-4.)
While it is possible that a jury would have convicted Jensen based on the case presented by the State
despite the testimony and facts that supported his defense, the court of appeals’ conclusion that the
constitutional errors in this case were harmless beyond a reasonable doubt is based on a one-sided
recounting of the evidence that omits the entire case presented by Jensen.
In sum, Julie’s letter from the grave served as an unrebuttable and emotionally compelling
accusation of guilt. As noted, the statement reflected Julie’s state of mind and her opinion about
conduct that Jensen might undertake in the future. It provided key and emotionally compelling facts
allowing the jury, in a close case where it deliberated for more than thirty hours, to make inferences
about a possible motive and premeditation, as well as exonerating Julie in the process. As another
federal court has explained: “[t]he statement presented all the classic hearsay dangers and abuses.

31

Here was that voice from the grave casting an incriminating shadow on the defendant. . . . The
damaging evidence stands impregnable—irretrievably lodged in the jurors’ minds.” United States
v. Brown, 490 F.2d 758, 781 (D.C. Cir. 1973). Or, as Justice Cardozo eloquently put it, “[t]he
reverberating clang of those accusatory words would drown all weaker sounds.” Shepard v. United
States, 290 U.S. 96, 104 (1933) (decedent’s statement to nurse that her husband poisoned her was
not admissible as a dying declaration or upon other grounds). Only by ignoring the impact of such
evidence, as well as the contrary evidence offered and inferences drawn by the defense can it be said
that the error in admitting it was harmless. To say that the letter was not a key piece of evidence and
to downplay its effect on trial is to create a sterilized, post-hoc rationalization for upholding the
result. The erroneous admission of the evidence was prejudicial to Jensen, and therefore, it cannot
be deemed harmless.

CONCLUSION
For the reasons set forth above, the Court concludes that Jensen’s rights under the
Confrontation Clause of the Sixth Amendment were violated when the trial court admitted Julie
Jensen’s letter and testimonial statements to police at his trial and that the errors were not harmless.
The decision of the Wisconsin Court of Appeals to the contrary constitutes an unreasonable
application of clearly established federal law. It thus follows that Jensen’s petition for relief under
28 U.S.C. § 2254 should be granted. Because the Court finds that the admission of Julie Jensen’s
testimonial statements in violation of the Confrontation Clause was not harmless error, it is not
necessary to address Jensen’s due process argument.

32

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 Respondent elects to appeal, the judgment will be stayed pending
disposition of the appeal. Finally, Respondent’s motion to file a supplemental brief (ECF No. 64)
is denied.
SO ORDERED this

18th

day of December, 2013.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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