‘Letter From the Grave’ Tainted Wis. Conviction

     CHICAGO (CN) – A wife’s “letter from the grave” accusing her husband of murder was improperly used to convict him, a divided panel of the Seventh Circuit ruled.
     Mark Jensen, whose habeas relief the decision Tuesday affirms, claims that his late wife, Julie, deliberately planted evidence to implicate him before she killed herself.
     “That the jury improperly heard Julie’s voice from the grave in the way it did means there is no doubt that Jensen’s rights under the federal Confrontation Clause were violated,” the ruling from the two-judge majority states. “Any reasonable jurist using the proper standard would have to find ‘grave doubt’ about whether that violation is harmless.”
     Before she was found dead in 1998 with antifreeze in her system, Julie had told police officers and acquaintances that she feared her husband was going to kill her. The woman had even given her neighbors a letter with instructions to open it should anything happen to her.
     “I would never take my life because of my kids – they are everything to me!” the letter stated in part.
     In another section, Julie accused her husband of trying to get her to drink more and stating he had not gotten over an affair she had had years ago.
     “If anything happens to me, he would be my first suspect,” the letter said.
     After he was charged with homicide in 2002, Mark tried to bar the letter’s admission into evidence by claiming it violated his constitutional right to confront any witnesses against him.
     The trial court waffled on the issue, but the Wisconsin Supreme Court found in 2007 that the letter was admissible if prosecutors could prove Mark prevented his wife from testifying by killing her.
     With the letter admitted as evidence, Mark faced a six-week trial more than nine years after his wife’s death and was convicted.
     The Wisconsin Court of Appeals ultimately affirmed his conviction in 2010, rejecting a challenge by Mark that relied on confrontation-clause precedent the U.S. Supreme Court had reached four months after his conviction.
     The 2008 case Giles v. California upheld a defendant’s confrontation rights unless he did something to prevent testimony directly and not for another reason.
     Since Mark was found to have killed his wife because he wanted her dead, not to prevent her testimony, he said the letter was barred under Giles.
     Though the state appeals court saw his point, it considered the error harmless.
     A federal judge in Wisconsin found that decision unreasonable, however, and the Seventh Circuit affirmed 2-1 Tuesday.
     “To be clear, if the question was whether there was sufficient evidence to convict Jensen, the answer would be ‘yes,'” Judge Ann Williams wrote for the court. “But the harmless error test does not focus just on the sufficiency of other evidence,” it includes analysis of whether an error prejudiced the accused before the jury.
     After excluding Julie’s letter and examining other evidence, the state’s case weakens, Williams found.
     In particular, Julie Jensen had told neighbors and friends not to check on her if they did not see her, implying she was planning to commit suicide and did not want to be discovered.
     “This case was no slam dunk,” the opinion states. “The evidence was all circumstantial. And there was significant evidence in support of Jensen’s theory that Julie had taken her life, evidence not discussed at all by the Wisconsin appellate court.”
     Judge John Daniel Tinder wrote in dissent that a “fair-minded jurist” could side with the state appeals court in affirming the conviction and ruling the letter’s admission was harmless error. Citing the “great deference” that federal courts owe, the Seventh Circuit cannot overturn its decision, Tinder said.
     The dissent contends that other testimony corroborated Julie’s statements in the letter, and it was thus properly analyzed by the Wisconsin appeals court, making habeas corpus relief improper.

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