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SCOW continues Jensen saga, grants state’s rather thin petition

State v. Mark D. Jensen, 2018AP1952, petition for review of a summary court of appeals order granted 6/16/20; affirmed 3/18/21; case activity

Usually we do to the issues presented first. Here, they’re pretty insubstantial, so let’s just say what’s going on: the supreme court has intervened to (potentially) save a manifestly unconstitutional (and you don’t have to take our word for it) homicide conviction and life sentence in a notorious case.

We’ve discussed the underlying facts and circuitous appellate history of this case elsewhere, and we won’t repeat them here. But to understand the questions SCOW has now elected to decide, you have to understand the current procedural posture: leaving aside all that’s gone before, the Seventh Circuit affirmed a habeas grant because the state violated Jensen’s right to confrontation at his murder trial. It ordered a new trial. The Kenosha County Circuit Court said, in essence, “you’re wrong, Seventh Circuit, there was no confrontation violation.” More precisely, the state trial court held the statements at issue not “testimonial,” and thus not subject to the Confrontation Clause under the rubric of Crawford v. Washington, 541 U.S. 36 (2004) and its progeny. It then ordered that Jensen be convicted (and sentenced to life) without a trial or a plea.

The court of appeals had no trouble saying this was not how things are supposed to go, for the simple reason that several appellate courts–including itself, SCOW, the district court, and the Seventh Circuit–had all already decided the statements were testimonial. Oh, also, the state had conceded the same. After reciting the course of the litigation, the court of appeals said:

While our recitation of the procedural history of this case is long, our analysis will be short. Neither we nor the circuit court are at liberty to decide that the letter and other statements Julie made to Kosman are nontestimonial. Under Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997), “[t]he supreme court is the only state court with the power to overrule, modify or withdraw language from a previous supreme court case.” See Jensen II, 331 Wis. 2d 440, ¶27. That is what the circuit court erroneously did and what the State asks us to affirm in this case.

(slip op. at 11).

So here’s the state’s complaint: the court of appeals was wrong to think it (and the circuit court) were bound by the prior decisions of SCOW in this litigation. Instead of looking to Cook v. Cook, the state says, the court should have evaluated things under the law of the case doctrine. That doctrine consists of a general rule that a previous appellate ruling on an issue won’t be revisited later on in the same litigation. But it has exceptions, such as where “controlling authority has since made a contrary decision of the law applicable to such issues.” State v. Brady, 130 Wis. 2d 443, 388 N.W.2d 151 (1986). If the court of appeals had applied this doctrine, said the state, it would have been compelled by changes in confrontation law embodied in recent SCOTUS cases to revisit the question of whether the statements here were testimonial.

Here’s the thing: the Cook v. Cook rule also directs the court of appeals to follow federal constitutional law as announced by SCOTUS, even if that contradicts earlier Wisconsin authority. It’s a simple matter of the Supremacy Clause. “The court of appeals must not follow a decision of this court on a matter of federal law if it conflicts with a subsequent controlling decision of the United States Supreme Court.” State v. Jennings, 2002 WI 44, ¶19, 252 Wis. 2d 228, 647 N.W.2d 142. So even if the state were right about the law of the case being the right analysis here, it’s precisely the same in every relevant respect. So the state’s first issue presented–“Did the court of appeals ignore an established exception to the law-of-the-case doctrine when it concluded that it and the circuit court were bound to follow this Court’s 2007 holding that Julie Jensen’s statements were testimonial?”–has nothing to do with either the court of appeals’ decision or with how this case should be decided on the merits.

All that is to say, the state’s second issue presented–“Did the circuit court correctly determine that, under the narrower definition of testimonial adopted by the Supreme Court since 2007, Julie’s statements are nontestimonial?”–is the only real legal question presented by this case. And “real” is generous. This “narrower definition,” the state posits, is located in two cases: Ohio v. Clark, 135 S. Ct. 2173 (2015), and Michigan v. Bryant, 562 U.S. 344 (2011). You can read the petition yourself, but the essential claim is that these cases cut down the definition of “testimonial” from statements whose primary purpose is to “to establish or prove past events potentially relevant to later criminal prosecution” to those whose primary purpose is “to create a substitute for trial testimony.” The state’s position is apparently that the Confrontation Clause can only be violated where the statement is made with the intent to violate the Confrontation Clause.

Thus, in the state’s view, the letter and voicemails here–which were directed to the police and accused Jensen of a crime which, by definition, would mean there could be no trial testimony–don’t offend the Constitution. We’ll see what SCOW says, but there’s every reason to think that won’t be the end of this case.

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