Almost six years ago, a jury found Mark Jensen guilty of first degree intentional homicide for the December 3, 1998, death of his wife Julie. It was big news at the time and for the years following Mr. Jensen’s conviction. The case was a profound tragedy that had some unique facts. At the center of the trial was Julie’s “voice from the grave letter.” For those who don’t recall, about two weeks prior to her death Julie wrote a letter to the police that essentially stated that if she died then her husband most likely killed her. She gave the letter to a neighbor and instructed her to give the letter to the police if anything happened to her. Julie was poisoned by ethylene glycol (antifreeze) a short time later.
At trial, and on appeal, Mr. Jensen has maintained that Julie committed suicide and framed him for her death. Mr. Jensen’s position had some support because the first autopsy report did not identify a cause of death, and the case was initially treated as a suicide. The main question at trial was whether Julie deliberately consumed the ethylene glycol herself or whether Mr. Jensen had poisoned her.
Mr. Jensen was not charged with murder until almost four years after Julie’s death and it took six additional years for the state to get Mr. Jensen to trial. The six year delay in the case centered largely upon the admissibility of Julie’s “voice from the grave” letter. Initially the trial court judge determined that Julie’s letter was inadmissible, meaning the state could not present that letter to a jury. The judge reasoned that the admission of the voice from the grave letter violated Mr. Jensen’s constitutional right to confront his accusers. This constitutional right generally prevents the state from allowing a witness to tell the jury what another witness said unless the criminal defendant had a chance to cross examine the witness who is not testifying. This same principle applies to Julie’s letter. The judge concluded that because Mr. Jensen did not have an opportunity to cross examine Julie about the contents of the letter (and explore her bias and potential motives, if any, to write false statements) the state was not allowed to use the letter against Mr. Jensen at trial. The state argued that the judge should allow it to use the letter because Mr. Jensen “forfeited” his constitutional right to confront his accusers when he killed Julie. The judge side with Mr. Jensen and excluded the letter.
The state immediately appealed and requested the Wisconsin Supreme Court to review the judge’s ruling. The state asked the Wisconsin Supreme Court to adopt a broad interpretation of the forfeiture by wrongdoing doctrine. The Supreme Court agreed and concluded that a criminal defendant (Mr. Jensen) loses the right to object on confrontation grounds to the admissibility of out of court statements (the letter) when the defendant caused the person to be “unavailable” for cross examination. The court sent the case back to the trial judge and asked him to figure out if this doctrine applies specifically to Mr. Jensen’s case. The trial judge concluded that Mr. Jensen most likely killed his wife and ruled that the state could present the voice to the grave letter to the jury after all.
The jury deliberated for more than 30 hours before finding Mr. Jensen guilty. After trial, the judge sentenced Mr. Jensen to life in prison. Mr. Jensen has spent the last five years appealing his conviction. Recently a federal court judge reviewed the case and concluded that Mr. Jensen’s conviction was in error. For Mr. Jensen the recent federal ruling was a godsend. The federal judge determined that the Wisconsin Supreme Court erred by interpreting the forfeiture by wrongdoing doctrine too expansively. In essence, the federal judge said that doctrine only applies when the state can produce evidence that a defendant did something with the specific intent to prevent the person from testifying. Further, the judge concluded that there was insufficient evidence to prove that Mr. Jensen had such intent.
The federal judge ordered that Mr. Jensen be released from prison with 90 days unless the state decides to refile charges against him or appeal the decision. At this point, there are two possibilities for Mr. Jensen. First, the state could decide to re-charge him for Julie’s murder. The state may conclude that even without Julie’s voice from the grave letter there is still sufficient evidence to prove Mr. Jensen’s guilt beyond a reasonable doubt. The other option is the state may conclude that Julie’s letter was a central component of its case against Mr. Jensen and without the ability to present that letter to a jury it could not prove the murder allegations beyond a reasonable doubt.
Regardless of the ultimate outcome the case is a tragedy. Sadly, Julie Jensen is dead. If she committed suicide, it was a tremendous loss especially to her two boys. Further, it would be a horrible injustice if Mr. Jensen has had to endure a very lengthy legal battle and years of imprisonment for a crime that he did not commit. On the other hand, if Mr. Jensen did poison Julie some will view this ruling as a terrible miscarriage of justice. Mr. Jensen may have literally gotten away with murder. At the time of this blog, the state Department of Justice, which is handling the prosecution in conjunction with the Kenosha County district attorney’s office, said it’s still deciding whether to appeal to the 7th Circuit Court of Appeals. We will all learn more about this fascinating case in the months to come.
