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Federal district court grants habeas relief based on violation of Confrontation Clause; calls Wisconsin court’s harmless error analysis “a sterilized, post-hoc rationalization for upholding the result”

Mark D. Jensen v. James Schwochert, No. 11-C-0803 (E.D. Wis. Dec. 18, 2013)

Judge William Griesbach of the U.S. District Court, Eastern District of Wisconsin, has ordered a new trial for Mark Jensen, who was convicted of killing his wife Julie based in part on the use of oral and written statements she made before her death in which she told police she suspected her husband was trying to kill her. Jensen’s defense was that she committed suicide. For readers not familiar with this case, some background will help in understanding the habeas court’s decision and its significance.

The state’s desire to introduce the statements Julie Jensen made to police led to lengthy pretrial litigation, including an interlocutory appeal to the Wisconsin Supreme Court. State v. Jensen, 2007 WI 26, 299 Wis. 2d 267, 727 N.W.2d 518 (Jensen I). In its decision, the court adopted a broad interpretation of the doctrine of “forfeiture by wrongdoing,” under which, the court held, a defendant forfeits his confrontation right if he has “caused” the absence or unavailability of the witness. 299 Wis. 2d 267, ¶57. On remand, the trial court applied this broad test and admitted the statements. After his conviction, but before Jensen’s direct appeal from the conviction was decided, Giles v. California, 554 U.S. 353 (2008), rejected the broadly formulated forfeiture by wrongdoing doctrine adopted by the Wisconsin Supreme Court in Jensen I. Instead, Giles held that forfeiture by wrongdoing required not just that the defendant prevented the witness from testifying, but also that the defendant intended to prevent the witness from testifying. 554 U.S. at 361-66. (This narrower view was the one advanced by Justice Butler’s dissent in Jensen I, 299 Wis. 2d 267, ¶¶84-97.)

Instead of facing this sea-change in the law, the court of appeals’ decision in Jensen’s appeal from the conviction sidestepped the question of whether Giles precluded the admission of Julie Jensen’s statements. The court assumed that the statements were erroneously admitted and held that the error was harmless. State v. Jensen, 2011 WI App 3, 331 Wis. 2d 440, 794 N.W.2d 482 (Jensen II). Jensen’s petition for review was denied, and he sought habeas relief.

As described in more detail below, the federal habeas court: 1) rejects the state’s arguments that Julie Jensen’s statements would be admissible under Giles ; and 2) rejects the court of appeals’ holding that the erroneous admission of her statements was harmless.

Forfeiture by wrongdoing

As it did in Jensen II, ¶33, the state contends that Giles left an opening that allows the admission of Julie Jensen’s statement–namely, that Giles should be read to permit a finding of forfeiture by wrongdoing if there is a preponderance of evidence the defendant killed Julie to prevent her testimony in any court proceeding–e.g. a family court action–not just in his criminal trial for her homicide. After finding this argument procedurally barred (because it would require the federal habeas court to make findings of fact to preserve a ruling by a state court on a ground that played no role in the state court’s ruling (slip op. at 15)), Judge Griesbach rejects the argument on its merits:

Giles holds that the forfeiture exception to the Confrontation Clause requires that the defendant engaged in conduct that had the specific purpose of preventing the declarant from testifying. 554 U.S. at 361-62. Respondent notes that the prosecutor argued to the trial court that one reason Jensen killed Julie was “‘to avoid any litigation surrounding a divorce or a custody dispute involving their two children.'” [Record citation omitted.] But the exception applies when the action taken by the defendant is intended to prevent testimony, not prevent litigation. One who kills a spouse to avoid a messy divorce is not acting to prevent he spouse from testifying, but to eliminate the need for the divorce altogether. If that is enough to invoke the forfeiture exception to the Confrontation Clause, then the exception would apply in any case in which the motive for the murder could arguably have been the subject of litigation. Read this way, the exception would almost swallow the rule.

If Jensen caused Julie’s death as the State alleged, he did so not to prevent her from testifying at a divorce [trial] but to eliminate any need for a divorce. The argument that Jensen killed his wife to prevent her from testifying in their divorce is essentially no different than the argument that he killed her to prevent her from testifying at her murder trial. In both cases, her unavailability to testify would be a result of the crime, not the motivation for it. This is, of course, exactly the motive the State advanced at trial. [Record citation omitted.] This is not the kind of specific intent that Giles requires in order invoke the forfeiture by wrongdoing exception to a defendant’s right to confrontation. Respondent’s contention that Jensen murdered Julie to prevent her testimony during a divorce that neither person was actually pursuing or even planning to pursue when her death would necessarily obviate the need for the divorce is, therefore, fundamentally flawed. (Slip op. at 15-16).

The court thus rejects the State’s reliance on United States v. Lentz, 524 F.3d 501, 526-29 (4th Cir. 2008), which applied the forfeiture by wrongdoing exception to a defendant charged with interstate kidnapping resulting in death. In addition to the fact that Lentz was decided in before Giles, in that case family court proceedings were pending between the defendant and his ex-spouse, who disappeared after she went to the defendant’s home to pick up their child the night before a hearing that was to set child support and determine property division. (Slip op. at 17).

A rejection, then, of the broad interpretation of Giles the state advanced in Jensen II. The state’s interpretation has not been addressed by a Wisconsin appellate court, though the court of appeals did implicitly recognize the limits imposed by Giles on the forfeiture by wrongdoing exception in an opinion issued a scant two months before Jensen II. See State v. Baldwin, 2010 WI App 162, ¶¶34-45, 330 Wis. 2d 500, 794 N.W.2d 769 (trial court’s “prescient” decision (¶41) found defendant intended to prevent witness from testifying at his trial) (further discussion here)). Of course, even if this federal habeas opinion is published and affirmed by the Seventh Circuit (should it be appealed), its interpretation of federal constitutional law is not binding on state courts, State v. Mechtel, 176 Wis. 2d 87, 94, 449 N.W.2d 662 (1993), though state courts can follow lower federal court decisions they find persuasive, State v. Boettcher, 144 Wis. 2d 86, 96-97, 423 N.W.2d 533 (1988). See Streff v. Town of Delafield, 190 Wis. 2d 348, 356-57, 526 N.W.2d 822 (Ct. App. 1994).

For readers attuned to the dangers, toils, and snares of habeas litigation under AEDPA, note that Judge Griesbach rebuffs the state’s threshold claim that Giles doesn’t apply at all because it wasn’t “clearly  established law” at the time of the operative state court decision. Under AEDPA, a defendant bringing a habeas challenge to a state conviction in federal court must show the state court decision was contrary to, or an unreasonable application of, “clearly established Federal law,” 28 U.S.C. § 2254(d)(1). The state contends that Jensen II did not address Jensen’s confrontation claim on its merits, but assumed there was error, which means the last state court decision addressing Jensen’s confrontation claim on it merits was the trial court’s decision to admit Julie Jensen’s statements. Because the trial court’s decision was in 2007, a year before Giles, the state argued Giles‘s holding wasn’t clearly established law at the time of the trial court’s decision. Judge Griesbach concludes that Jensen II expressly addressed the merits of Jensen’s Sixth Amendment claim by discussing Giles, assuming a violation occurred without addressing the state’s broader argument about the case, and then finding the error harmless. “Respondent’s contention that this court should ignore Giles and instead consider the trial court’s forfeiture finding as the last decision on the merits is simply wrong. Giles most certainly applies. ‘Clearly established federal law’ within the meaning of § 2254(d) includes Supreme Court decisions announced prior to the initial direct appeal of a defendant’s conviction. State courts cannot avoid federal habeas review by declining to decide issues that are presented to them.” (Slip op. at 13). Amen.

Harmless error

In this case, having reviewed the voluminous trial record, the court concludes that the erroneously admitted testimonial statements had “a substantial and injurious effect” on the jury’s verdict. Brecht [v. Abrahamson], 507 U.S. [619,] 622 [(1993)]. Although the prosecution presented a significant amount of properly admitted circumstantial evidence against Jensen, it was not so overwhelming that Julie Jensen’s “voice from the grave” could be considered harmless, especially given the central role her testimonial statements played during the trial. (Slip op. at 19).

****

… Julie’s letter from the grave served as an unrebuttable and emotionally compelling accusation of guilt. As noted, the statement reflected Julie’s state of mind and her opinion about conduct that Jensen might undertake in the future. It provided key and emotionally compelling facts allowing the jury, in a close case where it deliberated for more than thirty hours, to make inferences about a possible motive and premeditation, as well as exonerating Julie in the process. … [A]s Justice Cardozo eloquently put it, “[t]he reverberating clang of those accusatory words would drown all weaker sounds.” Shepard v. United States, 290 U.S. 96, 104 (1933) (decedent’s statement to nurse that her husband poisoned her was not admissible as a dying declaration or upon other grounds). Only by ignoring the impact of such evidence, as well as the contrary evidence offered and inferences drawn by the defense[,] can it be said that the error in admitting it was harmless. To say that the letter was not a key piece of evidence and to downplay its effect on trial is for create a sterilized, post-hoc rationalization for upholding the result…. (Slip op. at 31-32).

A must-read for every litigator frustrated (or more) by the slapdash application of harmless error analysis by appellate courts. In what must be termed an excoriation—careful, measured, thorough, to be sure, but an excoriation nonetheless—the federal court canvasses the aspects of the record Jensen II downplayed or simply ignored in concluding that the erroneous admission of Julie Jensen’s statements was harmless. As the court here notes, Julie’s letter to the police “played a key role from the outset,” for it served as the state’s roadmap for the trial, was read during the state’s opening, and cited repeatedly during the trial. (Slip op. at 19-20). The court of appeals “ignored this central role” of the letter, instead focusing on the evidence against Jensen. (Slip op. at 20). Yet Jensen II‘s characterization of the evidence against Jensen “is somewhat misleading” because it is circumstantial and subject to competing inferences the court of appeals ignored. (Slip op. at 21). Further, the notion that Julie’s statements to the police added “nothing significant beyond the properly admitted nontestimonial statements” is belied by the history of the case, which shows the state striving mightily to get the statements admitted. Indeed, the state’s arguments that Julie’s statements to the police “were, in effect, mere surplusage is incredible.” (Slip op. at 24). Finally, Jensen II suffers from the “major flaw” of failing to discuss the extensive evidence supporting Jensen’s defense: “A reader of the court of appeals’ opinion would conclude that Jensen called no witnesses, introduced no evidence, never questioned the credibility of any witness, and never even elicited helpful testimony from a prosecution witness. See [Jensen II, 331 Wis. 2d 440, ¶¶25-73]. This is far from an accurate account of the trial.” (Slip op. at 25).

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