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Six years after habeas affirmed, SCOW directs circuit court to hold new trial in Jensen case

State v. Mark D. Jensen, 2021 WI 27, 3/18/21, affirming a court of appeals summary disposition; case activity (including some briefs)

Julie Jensen died by poisoning in 1998. The state eventually charged her husband, Mark, with having killed her; the defense was that she had died by suicide. Before her death Julie had made oral and written statements to the effect that Mark would be responsible if something happened to her. She wasn’t available to testify at the trial, of course, and Mark moved to exclude these statements on Confrontation grounds. Our supreme court now holds that, when it held these statements testimonial in a prior appeal (in 2007), it established the law of the case; it further concludes that SCOTUS has not altered the law so much since then that the law-of-the-case doctrine should give way. So, it remands for a new trial, without the statements.

The case was charged in 2002; the first appellate decision came out in 2007. The history since then is convoluted; you can read about its earlier stages here or in the first few paragraphs of SCOW’s latest opinion. The issues have changed too: the first round of (interlocutory) appeal involved “forfeiture by wrongdoing”; this is the notion that even if the statements were testimonial and thus subject to the Confrontation Clause, the circuit court could find, pretrial, that Jensen had killed the author, causing her unavailability, and permit the statements in. SCOW held certain statements testimonial–this will be important later–but it also held that the circuit court should consider forfeiture by wrongdoing, and remanded for it to do so. SCOTUS made the forfeiture-by-wrongdoing theory untenable in Giles v. California, 554 U.S. 353 (2008), after the first appeal. But in the meantime, the circuit court had found forfeiture and Jensen had been convicted at a trial that included the statements.

When Jensen appealed the conviction, the court of appeals held that any confrontation violations were harmless, and affirmed. SCOW denied review, but Jensen petitioned in federal court for a writ of habeas corpus. The district court granted the writ and the Seventh Circuit affirmed, holding the harmlessness determination unreasonable. Thus it ordered a new trial.

But the circuit court did not hold a new trial. Instead, it said that even though SCOW had held the statements testimonial in 2007, SCOTUS cases had since rendered the statements non-testimonial and thus admissible. From there the court reasoned that since the statements should be admitted at a new trial, there was no reason to have a new trial, and it simply entered a new judgment of conviction without one. Jensen appealed again, advancing several grounds for reversal, including that the circuit court was simply wrong to call the statements non-testimonial. The court of appeals didn’t see the need to go back to the merits; in fact it held it was precluded from doing so by the rule of Cook v. Cook that it cannot overrule or alter either its own decisions or those of SCOW.

The Supreme Court granted review, and it now holds the court of appeals was right, but for the wrong reason. Cook isn’t the authority that should prevent the courts from re-deciding what they’ve already decided here: instead it’s the law of the case doctrine. Per the decision

The law of the case is a “longstanding rule” that requires courts to adhere to an appellate court’s ruling on a legal issue “in all subsequent proceedings in the trial court or on later appeal.” The rule ensures stability for litigants and reinforces the finality of a court’s decisions. Courts in subsequent proceedings should therefore “be loathe” to revisit an appellate court’s decision absent “extraordinary circumstances.” That admonition aside, absolute adherence to the law of the case is not required. As is relevant here, lower courts may depart from the initial decision if “a controlling authority has since made a contrary decision of the law” on the same issue.

(¶13 (citations omitted)).

The state argued that two post-2007 SCOTUS cases–Ohio v. Clark, 135 S. Ct. 2173 (2015), and Michigan v. Bryant, 562 U.S. 344 (2011)–so altered the law on confrontation that it was now “contrary” to the law SCOW applied the first time around. We’ve characterized this argument as “thin” and SCOW–in a rare unanimous decision favoring a criminal defendant–has no trouble rejecting it. (¶¶32-35). The two cases, SCOW says, further developed the law of confrontation, but not in a way that undermines its earlier decision that the statements were testimonial.

Justice Karofsky, joined by Justice Ziegler, concurs. She agrees law of the case precludes further review of the testimonial nature of the statements, but faults the 2007 court for, in her view, failing to consider the domestic-abuse related context in which the statements were made.

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