Retrial in antifreeze poisoning case stopped
Judge reinstates homicide conviction for husband
KENOSHA - Nineteen years after Julie Jensen died of antifreeze poisoning, prosecutors said they would try to prove — for a second time — that her husband killed her.
That promise was made in 2013 after a federal judge found that Mark D. Jensen’s right to confront witnesses against him at his first trial, in 2008, was violated by the use of a letter and statements his wife made before her death, suggesting that if she died, Jensen was responsible.
But in a hearing on numerous pretrial motions Friday, Kenosha County Circuit Judge Chad Kerkman granted special prosecutor Robert Jambois’ motion to simply reinstate Jensen’s conviction — and his life sentence — without a retrial. Jambois was the Kenosha County district attorney when he first tried the case in 2008.
“It’s an enormously complex issue,” Jambois said after the hearing. “It’s very difficult to adequately explain even to judges and lawyers.”
Kerkman said that since he had ruled in July that Julie’s letter was, in fact, admissible as nontestimonial evidence, he didn’t see the point of an expensive, six- to sevenweek retrial when the materially same evidence would likely produce the same outcome. He canceled the Sept. 25 trial date.
Jensen’s attorney, Deja Vishny, said she completely disagreed and promised the matter would return to federal court, where U.S. District Judge William Griesbach ruled in 2013 that Jensen deserved a new trial or should be released, a decision upheld by the U.S. 7th Circuit Court of Appeals.
“Our position is the letter and other statements are testimonial and can’t be admitted as evidence,” Vishny said. “Our client is innocent and looking forward to a new trial.”
Marquette University law professor Michael O’Hear, an expert in criminal law, said he’s never heard of a conviction being reinstated after a federal judge’s granting of a defendant’s habeas corpus petition.
‘Case full of oddities’
“I guess it’s just kind of a continuing oddity in a case full of oddities,” he said. “I’ll be very interested to hear what Judge Griesbach has to say
about this.”
Though Julie Jensen died in 1998, Jensen was not found guilty until 10 years later, after a drawn-out case that gained national attention over its key issue: whether Julie’s so-called voicefrom-the-grave statements were admissible as evidence, or would violate Jensen’s 6th Amendment right to confront witnesses.
Convoluted appeals followed and in 2007 the Wisconsin Supreme Court adopted a broad reading of an exception that would allow Julie Jensen’s statements as evidence.
But in 2013, Griesbach found the use of the statements did violate Jensen’s rights and threw out his conviction. Contrary to a state appeals court, which upheld the conviction on the theory that even if the letter was improperly admitted into evidence it was a harmless error, the federal judge concluded it was a critical part of the prosecution’s case.
The 7th U.S. Circuit Court of Appeals affirmed the Griesbach ruling in 2015. Faced with having to otherwise release Jensen, the state announced its intention to retry him. And until this summer, that’s how it looked, with extensive trial preparation on each side.
Then, Jambois persuaded Kerkman — who was not the original trial judge — that Julie Jensen’s many statements were not really “testimonial,” under newer, narrow definitions of that
term explained by more recent U.S. Supreme Court decisions, and should be admitted.
And since the improper admission of the letter was the basis for the federal grant of habeas corpus, if that problem was now fixed, the conviction could simply be reinstated, Jambois argued.
In federal court pleadings, Jensen’s other lawyers saw that as merely ignoring a federal court’s order, which might now subject the state to being found in contempt. They also pointed out that the 7th Circuit was aware of the U.S. Supreme Court decisions cited by Jambois, and still upheld Griesbach.
After Kerkman decided to allow the letter in as evidence, the state returned to federal court with an unusual request for Griesbach to “clarify” his 2013 order.
The state wondered if reinstating the conviction without trial would violate Griesbach’s order. Jensen’s attorney called it an improper request for an advisory opinion, and nearly ridiculed Kerkman’s finding that Julie Jensen’s statements were not testimonial, saying five other courts had found they were.
Judge walks fine line
But Griesbach walked a fine line, saying only that his order was to release Jensen if the state did not initiate efforts to retry him within 90 days. The state did. Griesbach specifically declined to opine on the admission of Julie Jensen’s contested statements, or the reinstatement of the conviction.
Citing that order as guidance Friday, Kerkman said he felt confident the state would not be in contempt for skipping a retrial and merely reinstating Jensen’s conviction.
Julie Jensen was found dead in her bed during a period of marital troubles. She had written the letter by hand and given it to neighbors 10 days before she died, with instructions to turn it over to police if she died. “If anything happens to me,” Julie wrote, “he (Mark) would be my first suspect.”
Originally, a medical examiner concluded Julie Jensen’s death was a suicide by antifreeze poisoning.
Another doctor brought up asphyxiation as a final cause of death for the first time during trial testimony, prompted by a question that, in turn, relied on claims by a cell mate that Jensen had told him he pushed his wife’s face into a pillow.
Prosecutors presented evidence of searches on Jensen’s computer about antifreeze and suicide, and from jail inmates who said he admitted smothering his wife. Jensen never testified, but his attorneys suggested Julie was depressed, took her own life and framed Jensen as revenge for an affair he was having.
The jury deliberated more than 30 hours before finding Jensen guilty.