MADISON, Wis. (CN) — The Wisconsin Supreme Court on Thursday upheld a lower court’s ruling that a dead wife’s communications to police that warned her husband may kill her cannot be used as evidence at his murder retrial.
Julie Jensen died in 1998 from poisoning. Prior to her death, she had given a letter to a neighbor with instructions to provide that letter to police if anything should happen to her. She also left voicemails with police officer Ron Kosman warning that if she died, her husband Mark Jensen should be investigated.
After her death, he was charged with first-degree murder in 2002 and was eventually found guilty. However, that conviction has spawned over a decade’s worth of appeals and challenges, mostly centered around the inclusion of Julie’s statements as evidence.
The inclusion of the letter and voicemails as evidence is contentious because the Sixth Amendment’s confrontation clause allows criminal defendants the chance to cross-examine witnesses who provide evidence against them.
The dispute centers on the legal definition of “testimonial” statements and whether Julie’s communications meet that criteria. If a statement is considered testimonial, the person making that statement must usually be available to be cross-examined by the defense.
In 2017, a Kenosha County judge found that Julie’s letter was not considered testimonial, canceled Mark’s retrial and affirmed the original conviction.
However, last year the Wisconsin Court of Appeals reversed that decision and ordered a new trial for Jensen, one that would not include Julie’s letter and statements as evidence.
That decision spawned an appeal from the state to the Wisconsin Supreme Court, which heard oral arguments last November.
On Thursday, the state high court ruled for Jensen and upheld the appeals court’s ruling. The justices found that controlling precedent comes from their previous decision in the case, which found that Julie’s statements were not admissible.
In that 2007 ruling, referred to as Jensen I in court documents, the high court found that admitting the statements violated the Constitution’s confrontation clause.
“Our decision in Jensen I that Julie's statements constituted testimonial hearsay established the law of the case. Subsequent developments in the law on testimonial hearsay are not contrary to Jensen I,” Justice Rebecca Dallet wrote in Thursday’s unanimous decision. “Therefore, the circuit court was not permitted to deviate from our holding in Jensen I. Accordingly, we affirm the court of appeals' decision.”
Assistant Attorney General Aaron O’Neil argued for the state during the November hearing and in a brief submitted to the court that Julie’s statements should not be considered testimonial.
“The primary purpose of these conversations was not to create a substitute for trial testimony. They were informal discussions between two people who had an ongoing relationship addressing suspicious events in one of their lives,” the brief states. “Julie’s statements were a product of her being scared and confused and needing reassurance from an authority figure who knew her situation and who had helped her before. They were not a deliberate or calculated attempt to accuse Jensen of anything, let alone build a criminal case against him.”
In a concurring opinion Thursday, Justice Jill Karofsky said she agreed with the court’s decision but wrote that the context of Julie’s statements was not properly discussed.
Karofsky, joined by Justice Annette Ziegle, argued that given the evidence that Julie was an apparent victim of domestic abuse and prior to her death she lived in terror that her husband would kill her, her statements must be evaluated in that specific context.
“With this context in mind, we must ask: Was Julie making statements for the future prosecution of her husband for her murder? Or was she a woman trying to survive ongoing domestic abuse, fearing and predicting an imminent attempt on her life, telling her sons that she loved them too much to commit suicide? This is the voice——Julie's voice——that this court failed to acknowledge in Jensen I,” Karofsky wrote.
But Karofsky and Ziegler joined the court’s decision because “law of the case prohibits this court from reconsidering the determination” of Julie’s statements.
A request for comment from the Wisconsin Department of Justice was not returned Thursday.
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