Lawyers ask federal judge to release Mark Jensen
After what they call an unprecedented maneuver by a Kenosha County judge last month, lawyers for Mark D. Jensen have asked the federal judge who first threw out his 2008 conviction to not only release Jensen from prison but bar the state from retrying him for his wife’s 1998 death from antifreeze poisoning.
They expected a retrial to be going on now, one without use of a letter Julie Jensen wrote before her death that implicated her husband if anything were to happen to her. Federal courts ruled prosecutors’ use of the letter violated Jensen’s right to confront witnesses against him. His conviction was thrown out, and he was ordered to be released from prison if the state didn’t start the process of retrying him within 90 days.
That was in 2013. The trial was finally set to start last month, but then a prosecutor convinced Kenosha County Circuit Judge Chad Kerkman that Julie Jensen’s statements were actually admissible evidence and that therefore the outcome of a retrial would be the same as in 2008.
Kerkman then just reinstated Jensen’s conviction and life sentence without a retrial.
Jensen’s lawyers say that amounts to ignoring U.S. District Judge William Griesbach’s order for a new trial or Jensen’s release, and asked Griesbach on Monday to not only order Jensen’s immediate release but prohibit any retrial, as a sanction for what they say was years of delay and bad faith by the state.
“The state has never once abided by its duty to ensure that Jensen receive a fair trial,” the defense motion reads. “In an effort to keep Jensen incarcerated as long as possible, it has raised frivolous arguments before this Court, the Seventh Circuit and the trial court.
“And the arguments made since the mandate issued have not been the work of opposing ideas: it was a concerted effort to keep Jensen from having his day in Court.”
Griesbach has given the state 21 days to respond.
Since Griesbach originally ordered Jensen to be released or retried, the state appealed and lost, then asked the full appellate court to reconsider. It declined. Prosecutors then got extra time to seek U.S. Supreme Court review, but never filed for the review. The process took a couple of years, and Griebach’s order didn’t become finally effective until 2015.
Back in state court, prosecutors raised the idea of having Julie Jensen’s letter admitted as a “dying declaration,” and Kerkman gave prosecutors time to brief that issue, but they never followed through.
Then late last year, they blocked Jensen’s use of a Milwaukee County medical examiner as a defense expert, under a clause in Kenosha County’s contract to hire the Milwaukee County office for autopsies there. That forced Jensen to seek more time to find a replacement expert.
That pushed the case to early this year, when prosecutors first introduced the idea that federal case law had narrowed the definition of out-of-court testimonial statements, leading to more lengthy briefing.
Lastly, according to Jensen’s lawyers, Special Prosecutor Robert Jambois told Kerkman he wanted the summer off to be with his family and couldn’t start the retrial until fall. Jambois was Kenosha County’s district attorney when he first tried Jensen.
Julie Jensen was found dead at home during a period of marital troubles. She had given a handwritten letter to neighbors 10 days earlier, 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.”
The original autopsy did not determine a cause of death, and the death was considered a suicide. It was later determined Julie Jensen died of 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 cellmate 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 the inmate claims. Jensen never testified, but his attorneys suggested Julie Jensen was depressed, took her own life and framed Jensen as revenge for an affair he was having.
A jury deliberated 30 hours before convicting Jensen of first-degree intentional homicide.