Letter From Grave Violated Confrontation Rights

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By Lance J. Rogers

Sept. 9 — A man convicted in 2008 of poisoning his wife with antifreeze 17 years ago may get a new trial because the state violated his Sixth Amendment right to confront witnesses by showing the jury a letter the wife wrote two weeks before her death predicting that her husband would kill her, the U.S. Court of Appeals for the Seventh Circuit ruled Sept. 8.

Writing for the 2-1 majority, Judge Ann Claire Williams rejected the state's argument that the constitutional error was harmless, saying the missive was the “central issue in the case.”

“No other piece of evidence had the emotional and dramatic impact as did this ‘letter from the grave,' ” the court said.

‘Forfeiture by Wrongdoing.'

The trial court originally ruled that the wife's letter to the police was inadmissible, but the Wisconsin Supreme Court reversed that decision. It held that the document could be admitted under the doctrine of “forfeiture by wrongdoing,” which allows the state to introduce testimonial evidence from an absent witnesses if the state can show by a preponderance of the evidence that the accused caused the witness's absence.

On remand, the jury read the letter and Mark D. Jensen was convicted of killing his wife, Julie.

While the case was on appeal a second time, the U. S. Supreme Court clarified, in Giles v. California, 554 U.S. 353 (2008), that the forfeiture-by-wrongdoing exception can be invoked only if there is proof that the defendant caused the declarant's unavailability with the intent of silencing the witness.

Taking note that the state argued only that Jensen poisoned his wife because he wanted her dead, not because he wanted to keep her from testifying, the Wisconsin court ruled that the exception didn't apply. It went on to hold, however, that the confrontation clause violation was harmless.

Two weeks before her death, Julie Jensen wrote a letter pointing the finger of suspicion at her husband “if anything happens to me” and gave the missive to a neighbor.

Harmless Error as Merits Adjudication

On habeas review, the federal district court found that the state court's application of the harmless-error doctrine constituted an unreasonable application of federal law and therefore was subject to review under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d)(1).

The Seventh Circuit agreed and affirmed the lower court's decision to void Jensen's conviction.

In doing so, it rebuffed the state's argument that Jensen couldn't invoke Giles because the substantive state ruling in question occurred before Giles was decided.

The appeals court invoked the recent Supreme Court decision in Davis v. Ayala, 2015 BL 193928 (U.S. June 18, 2015), for the proposition that a state court's rejection of a claim of federal constitutional error on the ground that any error that occurred was harmless qualifies as a reviewable adjudication on the merits for AEDPA purposes.

Letter Had ‘Key Role.'

The court acknowledged that there was sufficient evidence to convict Jensen. However, the harmless-error test isn't the same as a sufficiency-of-the-evidence test, it said.

The standard under Brecht v. Abrahamson, 507 U.S. 619 (1993), is whether the trial error of federal law had a substantial and injurious effect or influence on the jury's verdict, the court said. That requires looking at the evidence submitted by both sides, it said.

Here, the state appellate court focused on the evidence favoring the guilty verdict without analyzing, let alone weighing, the defense evidence, the circuit court said.

This was problematic because the letter had a huge impact in that it came straight from the victim's mouth and played a “key role” in the prosecution, it said.

Not only did both sides discuss the letter in their opening and closing statements, the state's medical experts relied on the letter to support their medical conclusions, the court said.

The jury's second note to the court in its 30 hours of deliberations requested the letter, it added.

Competing Evidence

This case was no “slam dunk,” the court said. There was significant evidence that Julie Jensen may have taken her own life and framed her husband. She was taking anti-depressant medication and appeared “distraught” and “frantic,” and she made a cryptic comment to a neighbor telling her not to worry if Julie disappeared, it noted.

The defense also presented medical experts who testified that the active ingredient in antifreeze, ethylene glycol, is a fairly slow-acting poison, and it then used this point to argue that Julie's failure to seek help was more consistent with suicide than with murder.

A jailhouse snitch called by the state testified that Jensen confessed to killing his wife, but the court said the trial judge characterized the snitch as the “top liar I've ever had in court.”

An unreasonable application of federal law is different from an incorrect application of federal law, the court acknowledged. However, the state appellate court's harmless-error ruling was unreasonable because, by failing to discuss the defense evidence, it failed to take into account how the inadmissible evidence may have tilted the verdict, the court said.

“That the jury improperly heard Julie's voice from the grave in the way it did means there is no doubt that Jensen's rights under the federal Confrontation Clause were violated,” the court said.

Any reasonable jurist would have “grave doubt” about whether that violation was harmless, it said.

Because Jensen satisfied the Brecht standard, he necessarily satisfied the AEDPA standard of an unreasonable application of the federal harmless-error standard articulated in Chapman v. California, 386 U.S. 18 (1967), the court said.

‘Fair-Minded Alternatives.'

Judge David F. Hamilton joined the opinion, but Judge John Daniel Tinder dissented, arguing that the state appellate court reasonably applied the harmless-error test.

Tinder said that the Seventh Circuit owed “great deference” to that decision because it was no position “to choose between two fair-minded alternatives.”

There was ample evidence duplicating and corroborating Julie Jensen's testimonial statement, Tinder said.

Craig W. Albee, of the Federal Defender Services of Eastern Wisconsin, Milwaukee, argued for Jensen. Marguerite M. Moeller, of the U.S. Attorney's Office, Madison, Wis., argued for the government.

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: Tom P. Taylor at ttaylor@bna.com



Julie Jensen's handwritten letter stated she became suspicious after discovering a list her husband prepared that included items such as syringes and drugs:

This ‘list' was in my husband's business daily planner—not meant for me to see, I don't know what it means, but if anything happens to me, he would be my first suspect…

I pray I'm wrong [and] nothing happens… but I am suspicious of Mark's behaviors [and] fear for my early demise.”

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