Judge vacates Mark Jensen conviction in antifreeze killing of wife
Case hinged on 'voice from the grave' letter from Julie Jensen
By John Diedrich and Bruce Vielmetti of the Journal Sentinel
Dec. 19, 2013
A federal judge in Wisconsin has vacated the conviction of a man sentenced to life in prison for killing his wife with antifreeze in Kenosha County 15 years ago.
Mark D. Jensen was convicted of murdering his wife, Julie, after a highly publicized trial in 2008. He appealed the conviction first unsuccessfully in state courts and then took it to federal court.
Chief U.S. District Judge William Griesbach issued a 33-page order Wednesday vacating the conviction, finding that Jensen's constitutional rights were violated during the trial.
The ruling does not automatically mean Jensen will go free. Attorneys with the state Department of Justice, which has handled the case since sentencing, can appeal the order or file new charges against Jensen.
In an email Thursday, Justice Department spokeswoman Dana Brueck wrote, "We're evaluating the order to determine our best responsive options, which may include an appeal to the United States Court of Appeals for the Seventh Circuit."
Federal Defender Daniel Stiller, whose office handled the federal appeal, applauded Griesbach's decision.
"Mark Jensen always claimed his Sixth Amendment rights were violated," he said. "We are grateful to Judge Griesbach for his interpretation of the Sixth Amendment in this case."
Griesbach said his order for Jensen's release would be stayed if prosecutors announce within 90 days their intention to appeal or to retry Jensen.
If prosecutors refile charges without filing an appeal, they would have to try the case without the use of a so-called "voice from the grave" note used in the first trial.
According to court records, two weeks before her death in 1998 Julie Jensen wrote the note and gave it to neighbors, telling them if anything should happen to her, they should give it to police. In the letter, she wrote that she thought her husband was trying to kill her and that if she was dead, her death was not a suicide.
"If anything happens to me," Julie Jensen wrote, "he (Mark) would be my first suspect."
Around that time, she also left messages for a Pleasant Prairie police officer with the same information.
An autopsy did not identify a cause of death. It was initially treated as a suicide. Later tests showed she was poisoned by ethylene glycol, commonly found in antifreeze.
The state later would argue that Mark Jensen suffocated his wife, though there was conflicting medical evidence, according to Griesbach's order.
After the death, a search of Mark Jensen's computer revealed searches on the subject of poisoning, suicide and "ethylene glycol poisoning." The search also showed that Mark Jensen was in frequent contact with a woman, whom he married after Julie Jensen's death.
Jensen's attorney had argued from the start that use of the Julie Jensen letter violated his Sixth Amendment right because he was unable to confront witnesses against him.
Robert Jambois, former Kenosha County district attorney, who prosecuted the case, said Thursday his argument was that the letter should have been admissible because the key witness was not available.
"You have forfeited your right to cross-examine a witness if you killed the witness," he said. "Is it fair that Julie Jensen's letter was unavailable because she was unavailable to testify about that letter? She was unavailable because Mark Jensen allegedly killed her."
Before the trial, Circuit Judge Bruce Schroeder first found all of Julie Jensen's statements admissible but later ruled that her statements to police, and the letter, were not. Jambois appealed directly to the Supreme Court, which in 2007 adopted a broad definition of when a defendant forfeits his right to confront witness and said the letter could be admitted as evidence.
Complicating the Jensen case was the fact that the U.S. Supreme Court issued a couple of decisions around the time of the trial, first expanding and later narrowing the circumstances when a defendant can confront witnesses.
Jensen's lawyer, Craig Albee, appealed the 2008 conviction, arguing the later Supreme Court ruling meant the letter should not been admitted.
In 2010, the state Court of Appeals upheld the conviction of Jensen, saying that even if Julie Jensen's letter was admitted into evidence improperly it was a "harmless" error.
In his order this week, Griesbach strongly disagreed, writing that the letter "played a key role from the outset of the trial" and had a "substantial and injurious effect" on the verdict.
In explaining that admission of the letter was "harmless," the Court of Appeals said other evidence in the case provided "untainted and undisputed gripping evidence" that would have supported conviction even without Julie Jensen's letter.
Griesbach disputed that. He called that other evidence largely circumstantial and subjected to second interpretations. He put it on a par with the theory advanced by Mark Jensen as a defense — that his depressed wife took her own life and framed him.
Griesbach concluded the letter was wrongly admitted and was far from 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 judge wrote. "The erroneous admission of the evidence was prejudicial to Jensen, and therefore, it cannot be deemed harmless."
Griesbach graduated from Marquette's law school in 1979, clerked for Wisconsin Supreme Court Justice Bruce Bielfuss, then a staff attorney for the 7th U.S. Circuit Court of Appeals. He spent five years in private practice then was a prosecutor and judge in Brown County before he was nominated to federal bench by George W. Bush.
||Truth in Justice