MADISON, Wis. (CN) — The high-profile prosecution of a decades-old Wisconsin murder case was resurrected by the state high court on Tuesday as the justices scrutinized whether a dead wife’s letter blaming her husband for her murder can be used as evidence against him.
At issue Tuesday was the case against Mark Jensen, who lived with his wife Julie and their two sons in Pleasant Prairie, Wisconsin, before he was accused of murdering Julie in 1998 by poisoning her with antifreeze.
At trial a decade later, prosecutors introduced as evidence a letter Julie wrote prior to her death stating that she would never commit suicide and suspected that her husband was planning to kill her based on their domestic disputes and his recent behavior, which included internet searches for information about poisons. In all, the letter, which was addressed to local law enforcement, indicated that if she died, Jensen was responsible.
Jensen’s defense maintained that Julie suffered from severe depression, committed suicide and used the theatrical letter to frame him in the process as revenge for an affair he had been having.
The inclusion as evidence of Julie’s letter and other statements she made before her death became a critical issue, particularly because the Sixth Amendment’s confrontation clause affords criminal defendants the right to confront their accusers and cross-examine witnesses who testify against them.
The Wisconsin Supreme Court was ultimately tasked with ruling on the inclusion of the letter and decided based on U.S. Supreme Court precedent in 2007 that the letter did count as “testimonial,” but that under the “forfeiture by wrongdoing” doctrine Jensen could not use confrontation grounds to halt the letter’s inclusion because a witness’ statement cannot be blocked if the alleged wrongdoing prevented the witness from testifying.
Jensen was convicted by the jury of first-degree murder and sentenced to life without parole by a Kenosha County Circuit Court judge in 2008. Numerous appeals followed, and eventually a federal judge overturned Jensen’s conviction in 2013 and the Seventh Circuit Court of Appeals in Chicago upheld the district court’s decision in 2015.
Prosecutors chose to retry Jensen in 2017, but Kenosha County Circuit Court Judge Chad Kerkman found that Julie’s letter was not testimonial, called off the retrial and reinstated Jensen’s conviction.
But in February of this year, the Wisconsin Court of Appeals for District II in Waukesha reversed Kerkman’s ruling and remanded for a new trial “at which Julie’s letter and other statements may not be admitted into evidence.”
The three-judge appeals panel found that since the state supreme court already called the letter testimonial and “we are not at liberty to state otherwise,” the circuit court erred in including the letter as evidence and convicting Jensen based on its contents.
The state then asked the high court to review its 2007 decision, leading to Tuesday’s virtual arguments.
Assistant Attorney General Aaron O’Neil argued on behalf of the state that the high court’s broad definition of testimonial from 2007 has been refined by various courts since then and “the issue in this case is whether Julie’s statements are testimonial under that narrower definition.”
Controlling law states that if something is not considered formal testimony, or testimonial, it is not subject to the Sixth Amendment’s confrontation clause.
O’Neil encouraged the court to think about the letter’s primary purpose, which he argued was not to create out-of-court testimony or evidence to use against her husband at a future trial.
Justice Jill Karofsky introduced the context of the Jensen case as one involving domestic violence early and often on Tuesday and seemed to indicate that under all the available tests, the letter should be considered nontestimonial.
O’Neil agreed, putting forth that Julie’s letter was not a means to make false statements to law enforcement but was rather “responding to what is essentially years of psychological torture” by Jensen gaslighting her into questioning her own sanity.
“She was looking for someone to talk about her problems with,” O’Neil said.
Karofsky offered that this case is different from similar prior cases in that it deals with a victim talking about something that is going to happen in the future rather than something that happened in the past and asked how that prospective view plays into O’Neil’s argument.
The state’s attorney responded that he was not aware of any controlling cases dealing with such prospective statements and “the fact that no crime had yet been committed when Julie wrote her letter and made her statements is really very relevant to whether the statements were testimonial.”
“It makes little sense to say that something is intended to be a substitute for trial testimony if we don’t know if a trial is ever going to happen,” he said.
Wisconsin State Public Defender Lauren Breckenfelder countered that no appellate court has disagreed with the high court’s finding that Julie’s letter was testimonial and “the Seventh Circuit found both implicitly and explicitly that there was a confrontation clause violation.”
Justice Annette Ziegler asked Breckenfelder, “Could you ever change these statements to have them be nontestimonial?”
The public defender replied that was not the case with Julie’s letter since she named her husband as the primary suspect in a letter addressed to law enforcement and outlined why he might murder her in the future, which Breckenfelder considered a means of “laying out her testimony in the event that she might be killed and there might be a trial.”
Karofsky resisted and put it to Breckenfelder simply: “What you are saying is that she killed herself to frame her husband?”
Breckenfelder acknowledged that was the defense used at trial, but reiterated that “what we need to look to is the primary purpose of the letter, and there is no other purpose I can think of” other than to implicate her husband in her murder.
Karofsky retorted that Julie was maybe using the letter to let her two sons know she would not take her own life, but Breckenfelder held that the letter was not addressed to her sons and there was no instructions that it go to them.
Ziegler also seemed averse to the idea that the letter was testimonial just because it was addressed to law enforcement and pressed Breckenfelder to provide more proof that it was.
The defense attorney pointed to the letter’s language and tone and asked why else but for the purposes of testimony would Julie be “directing a letter full of accusations to be given to police?”
Upon rebuttal, O’Neil said the record does not bear the conclusion that Julie was trying to commit suicide and frame her husband for her death and reiterated that the primary purpose of the letter was not to offer testimony. The state’s attorney asked the court to revisit its 2007 decision and send the case back to the appeals court.
Jensen, 61, remains incarcerated at Dodge Correctional Institute in Waupun, Wisconsin.