Petition for Writ of Certiorari — Mark D. Jensen, Petitioner v. William Pollard
Supreme Court briefFeb 4, 2020
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451
JENSEN v. POLLARD
Cite as 924 F.3d 451 (7th Cir. 2019)
Officer Hartman to believe Gant was holding a gun when he was shot. Outside of
irrefutable evidence like that in Scott and
Dockery, an appellate court is not in the
position to decide on interlocutory appeal
what facts may eventually be established
at trial by a reasonable fact-finder. See
McKinney v. Duplain, 463 F.3d 679, 688
(7th Cir. 2006).
Officer Hartman claims that he is entitled to qualified immunity because his actions did not violate Gant’s constitutional
rights and, even if they did, those rights
were not clearly established on or before
August 23, 2015. To make this argument,
however, Officer Hartman asks in effect
that we resolve facts that the district court
treated as disputed. Officer Hartman relies
on several cases, such as Ford v. Childers,
855 F.2d 1271 (7th Cir. 1988), and Tom v.
Voida, 963 F.2d 952 (7th Cir. 1992), to
support his claim that his use of deadly
force was reasonable. However, the facts
of those police-action shootings were not
comparable to the district court’s version
of the evidence here most favorable to
plaintiff Gant. The armed suspect in Ford
was attempting to flee when he was shot.
855 F.2d at 1275. The suspect in Tom was
actively engaged in a violent struggle with
the officer when she used deadly force. 963
F.2d at 955. Our decisions show that it is
unreasonable to use deadly force against a
suspect who is not resisting arrest and
who is genuinely attempting to surrender.
See, e.g., Miller v. Gonzalez, 761 F.3d 822,
829 (7th Cir. 2014) (‘‘This prohibition
against significant force against a subdued
suspect applies notwithstanding a suspect’s
previous behavior—including resisting arrest, threatening officer safety, or potentially carrying a weapon.’’); see also Alicea
v. Thomas, 815 F.3d 283, 292 (7th Cir.
2016) (It is ‘‘clearly established that using
a significant level of force on a non-resisting or a passively resisting individual constitutes excessive force.’’). To answer the
question of reasonableness as a matter of
law, we would need to resolve disputed
issues of material fact about that critical
one second.
Because Officer Hartman’s appellate argument relies on disputed facts and he has
not presented sufficient evidence to ‘‘utterly discredit’’ the district court’s findings,
this court lacks jurisdiction over this interlocutory appeal. The appeal is
DISMISSED.
,
Mark D. JENSEN, PetitionerAppellant,
v.
William POLLARD, RespondentAppellee.
No. 17-3639
United States Court of Appeals,
Seventh Circuit.
Argued November 7, 2018
Decided May 15, 2019
Background: Following affirmance of his
conviction for first-degree murder, 331
Wis.2d 440, 794 N.W.2d 482, state inmate
filed petition for writ of habeas corpus.
The United States District Court for the
Eastern District of Wisconsin, William C.
Griesbach, Chief Judge, 2013 WL 6708767,
granted petition, and state appealed. The
Court of Appeals, 800 F.3d 892, affirmed.
After mandate issued, state trial reinstated
petitioner’s conviction. The United States
District Court for the Eastern District of
Wisconsin, No. 11-C-803, William C. Griesbach, Chief Judge, 2017 WL 5712690, de-
App. p. 1
452
924 FEDERAL REPORTER, 3d SERIES
nied petitioner’s motion to enforce conditional writ, and petitioner appealed.
Holding: The Court of Appeals, Sykes,
Circuit Judge, held that district court did
not abuse its discretion in determining that
state complied with conditional habeas
writ.
Affirmed.
Rovner, Circuit Judge, concurred in part,
concurred in judgment, and filed opinion.
1. Habeas Corpus O795(1)
When district court issues conditional
habeas writ, it retains jurisdiction to determine compliance, but once state complies
with writ, it loses jurisdiction. 28 U.S.C.A.
§ 2254.
2. Habeas Corpus O843
Court of Appeals reviews district
court’s interpretation of its conditional habeas writ for abuse of discretion.
3. Habeas Corpus O795(1)
District court did not abuse its discretion in determining that state complied
with conditional habeas writ mandating
that petitioner be ‘‘released from custody
unless … the State initiates proceedings to
retry him,’’ and thus that it lacked jurisdiction to consider petitioner’s challenge to
state’s reinstatement of his conviction,
where state initiated retrial proceedings
within time period required by writ, and
petitioner’s custody flowed from new judgment reinstating his original conviction on
alternative ground. U.S. Const. Amend. 6;
28 U.S.C.A. § 2254.
4. Habeas Corpus O795(1)
Conditional federal habeas writ is not
general grant of supervisory authority
over state trial courts. 28 U.S.C.A.
§ 2254.
Appeal from the United States District
Court for the Eastern District of Wisconsin. No. 11-C-803 — William C. Griesbach, Chief Judge.
Craig W. Albee, Attorney, FEDERAL
DEFENDER SERVICES OF EASTERN
WISCONSIN, INCORPORATED, Milwaukee, WI, Joseph Aragorn Bugni, Attorney, FEDERAL DEFENDER SERVICES OF WISCONSIN, INC., Madison,
WI, for Petitioner-Appellant.
Aaron R. O’Neil, Attorney, OFFICE OF
THE ATTORNEY GENERAL, Wisconsin
Department of Justice, Madison, WI, for
Respondent-Appellee.
Before Rovner, Sykes, and Barrett,
Circuit Judges.
Sykes, Circuit Judge.
In a prior appeal, we affirmed an order
granting Mark Jensen’s application for habeas relief from his conviction for the 1998
murder of his wife, Julie. Jensen v. Clements, 800 F.3d 892 (7th Cir. 2015). The
Wisconsin Court of Appeals had rejected
Jensen’s Confrontation Clause challenge to
the admission of Julie’s ‘‘voice from the
grave’’ letter expressing her fear that her
husband might kill her. The rationale for
that ruling was harmless error. We agreed
with the district court that the state court
unreasonably applied Supreme Court precedent. Id. at 908.
After our mandate issued, the district
judge issued a conditional writ requiring
the State of Wisconsin to either release
Jensen or ‘‘initiate[ ] proceedings to retry
him’’ within 90 days. The State timely initiated retrial proceedings. But before the
retrial, the state trial judge concluded that
the out-of-court statements were not testimonial, curing the constitutional defect in
Jensen’s first trial. Reasoning that a second trial was unnecessary, the trial judge
reinstated Jensen’s original conviction.
App. p. 2
JENSEN v. POLLARD
Cite as 924 F.3d 451 (7th Cir. 2019)
Jensen appealed the new judgment, but
the Wisconsin Court of Appeals has not
yet ruled.
In the meantime, Jensen returned to
federal court and moved to enforce the
conditional writ, which he argued guaranteed a retrial without the challenged
statements. The district court denied the
motion and we affirm. Our jurisdiction is
limited to assessing the State’s compliance
with the conditional writ. The State complied with the writ when it initiated proceedings for Jensen’s retrial.
I.
Background
In March 2002 Kenosha County prosecutors charged Jensen with first-degree intentional homicide for the death of his
wife, Julie, on December 3, 1998. Julie’s
‘‘voice from the grave’’ was central to the
prosecution’s case. Two weeks before her
death, Julie wrote a letter disclaiming any
intention of suicide and stating that she
feared her husband was going to kill her.
She gave the letter to a neighbor in a
sealed envelope with instructions to give it
to the police if anything happened to her.
Julie also made similar statements to a
police officer shortly before her death.
Based on Crawford v. Washington, 541
U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177
(2004), the Kenosha County Circuit Court
concluded that the letter and statements
were testimonial hearsay, inadmissible under the Confrontation Clause. See U.S.
CONST. amend. VI. On interlocutory appeal
the Wisconsin Supreme Court agreed that
the letter and statements were testimonial.
But the court also held that the trial judge
could admit the evidence under the forfeiture exception to the Confrontation Clause
if he found by a preponderance of the
evidence that Jensen caused his wife’s
death. State v. Jensen (‘‘Jensen I’’), 299
Wis.2d 267, 727 N.W.2d 518, 536 (2007).
After a ten-day hearing, the trial judge
453
admitted the evidence. The State introduced the letter and statements at trial,
and a jury found Jensen guilty.
While Jensen’s appeal to the Wisconsin
Court of Appeals was pending, the United
States Supreme Court held that the forfeiture exception applies only when a defendant acts with the particular purpose of
preventing the witness’s testimony. See
Giles v. California, 554 U.S. 353, 367–68,
128 S.Ct. 2678, 171 L.Ed.2d 488 (2008).
The Wisconsin Court of Appeals affirmed
Jensen’s conviction without deciding
whether Giles abrogated Jensen I. It instead concluded that any error, if one occurred, was harmless. State v. Jensen
(‘‘Jensen II’’), 331 Wis.2d 440, 794 N.W.2d
482, 493 (Wis. Ct. App. 2010). The court
also found that Jensen had waived a separate due-process claim alleging judicial
bias. Id. at 504. The Wisconsin Supreme
Court denied Jensen’s petition for review.
Jensen then turned to federal court. He
filed a habeas petition under 28 U.S.C.
§ 2254, reasserting his Confrontation
Clause and judicial-bias claims. After observing that the State did not dispute that
Julie’s letter and statements were testimonial, the district judge held that the admission of the evidence was an unreasonable
application of the forfeiture exception and
harmless-error doctrine. Jensen v. Schwochert (‘‘Jensen III’’), No. 11-C-0803, 2013
WL 6708767, at *17 (E.D. Wis. Dec. 18,
2013). The judge issued a conditional writ
with the following mandate:
Jensen is therefore ordered released
from custody unless, within 90 days of
the date of this decision, the State initiates proceedings to retry him. The Clerk
is directed to enter judgment accordingly. In the event [the State] elects to
appeal, the judgment will be stayed
pending disposition of the appeal.
App. p. 3
454
924 FEDERAL REPORTER, 3d SERIES
Id. The State appealed and we affirmed.
Jensen, 800 F.3d at 908. The writ issued
on October 19, 2015.
On December 29 the state trial judge
vacated Jensen’s conviction, and the prosecution noticed its intent to retry him. Jensen predictably moved to exclude Julie’s
statements. The prosecution objected, arguing that two Supreme Court decisions
postdating Jensen II narrowed the definition of ‘‘testimonial,’’ abrogating Jensen I’s
holding that Julie’s letter and statements
were testimonial for purposes of Confrontation Clause analysis. See Ohio v. Clark,
––– U.S. ––––, 135 S. Ct. 2173, 192 L.Ed.2d
306 (2015); Michigan v. Bryant, 562 U.S.
344, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011).
The trial judge agreed. Applying Wisconsin’s law-of-the-case doctrine, he concluded
that Jensen I no longer controlled and
ruled that Julie’s statements were not testimonial.
At this point the State asked the federal
habeas court for clarification. Its position
was that the trial court’s latest ruling
cured any constitutional error, so it intended to move for reinstatement of the original judgment if the conditional writ allowed it. The district judge clarified that
the State was not required to release Jensen because it initiated retrial proceedings
within 90 days of the order. The prosecution then asked the state trial court to
reinstate Jensen’s original conviction. The
judge granted that request, reasoning that
no purpose would be served by holding a
duplicate trial with identical evidence. Jensen’s appeal from the new judgment is
pending in the state court of appeals.
While still exhausting his state remedies, Jensen returned to federal court with
a motion challenging the reinstatement of
the conviction. He argued that the State
didn’t comply with the writ because it
1.
We thus lack jurisdiction to consider Jen-
didn’t actually retry him. Alternatively, he
asked the district judge to adjudicate his
judicial-bias claim, which wasn’t resolved
in the original habeas proceedings.
The judge declined to do either. He
instead held that the conditional writ only
compelled the State to initiate retrial proceedings and that the State had done so.
But he didn’t stop there. The judge determined that § 2254 ‘‘require[d]’’ him to ‘‘inquire into whether the State’s actions constitute[d] a good faith effort to comply
with the substance, as well as the form, of
the court’s order.’’ He then examined the
state court’s post-writ proceedings in detail. After concluding that the State had
colorable legal grounds to seek reinstatement of Jensen’s conviction, the judge denied relief. Jensen appealed.
II.
Discussion
[1] When a district court issues a conditional habeas writ, it retains jurisdiction
to determine compliance. See Hudson v.
Lashbrook, 863 F.3d 652, 656 (7th Cir.
2017). But once the State complies with
the writ, the district court loses jurisdiction. Id. Accordingly, the only question
properly before this court is whether the
State complied with the writ.1
[2] The relevant facts are undisputed:
After initiating proceedings to retry Jensen, the State sought to introduce Julie’s
letter and statements. Relying on Supreme
Court decisions that postdated Jensen II,
the trial judge held that the evidence was
admissible and granted the State’s ensuing
motion to reinstate the conviction. That
new judgment is now under review by the
Wisconsin Court of Appeals. The sole federal dispute centers on the meaning of the
conditional writ. We review a district
court’s interpretation of its conditional writ
sen’s judicial-bias claim.
App. p. 4
JENSEN v. POLLARD
Cite as 924 F.3d 451 (7th Cir. 2019)
for abuse of discretion. Pidgeon v. Smith,
785 F.3d 1165, 1172 (7th Cir. 2015).
The writ mandates that Jensen must be
‘‘released from custody unless TTT the
State initiates proceedings to retry him.’’
The district judge rejected Jensen’s contention that the writ guaranteed him a
trial free of Julie’s letter and statements.
The judge reasoned that the State could
not have complied with such a writ within
90 days given the complexity of the case.
He also explained that the language of the
writ left room to resolve the case without a
new trial. That is, the writ ‘‘deliberately
required only the initiation of proceedings
for a retrial within the time allowed in
order for the State to comply with the
writ.’’
[3] That interpretation was not an
abuse of discretion. It neatly tracks the
conditional writ’s unambiguous language.
Conversely, Jensen’s proposed interpretation asks us to ignore the writ’s instruction
to ‘‘initiate proceedings’’ in favor of a more
robust command for a ‘‘trial free of [Julie’s] letter.’’ The Supreme Court has cautioned that courts ‘‘should not infer TTT
conditions from silence’’ when interpreting
conditional writs. Jennings v. Stephens,
––– U.S. ––––, 135 S. Ct. 793, 799, 190
L.Ed.2d 662 (2015). Instead, a petitioner’s
‘‘rights under the judgment were what the
judgment provided.’’ Id. at 798. The judgment here gave the State two options:
release Jensen or initiate proceedings to
retry him. It did not contain an implicit
right to retrial without Julie’s letter or
statements.
But while the judge’s interpretation of
his order is correct, we are skeptical that
§ 2254 required him to scrutinize the prosecutor’s good faith. As with all conclusions
of law, we consider this issue de novo. See
Warren v. Baenen, 712 F.3d 1090, 1096
(7th Cir. 2013). Looking beyond the express terms of a writ to assess the State’s
455
good faith risks creating the very unstated
conditions that courts cannot read into
writs. See Jennings, 135 S. Ct. at 799. And
asking whether post-writ proceedings are
‘‘shams’’ requires examining the legal merits of state proceedings prior to exhaustion. See 28 U.S.C. § 2254(b)(1). Indeed,
the district court’s inquiry here discussed
the very issues that remain pending in
Jensen’s direct appeal in the Wisconsin
Court of Appeals.
[4] We have long held that courts
should presume that states will comply
with equitable remedies in good faith. Jenkins v. Bowling, 691 F.2d 1225, 1234 (7th
Cir. 1982). This presumption applies with
particular force in § 2254 proceedings,
where ‘‘[f]ederalism and comity principles
pervade.’’ Johnson v. Foster, 786 F.3d 501,
504 (7th Cir. 2015). A conditional writ under § 2254 is not ‘‘a general grant of supervisory authority over state trial courts.’’
Jennings, 135 S. Ct. at 799; see also Hudson, 863 F.3d at 656 (‘‘The writ is directed
to the person detaining another: it is not
directed at the state government in toto.’’).
In short, jurisdiction to assess state compliance with conditional writs is constrained by the actual remedy ordered by
the court—that is, the terms of the writ.
In this case the conditional writ required
the State to either release Jensen or ‘‘initiate proceedings to retry him.’’ The State
did the latter, and at that moment the
district court lost jurisdiction. Jensen’s
custody flows from a new judgment reinstating the original conviction on an alternative ground from that challenged in Jensen III. See Coulter v. McCann, 484 F.3d
459, 466 (7th Cir. 2007) (holding that postwrit proceedings in state court can confirm
that no constitutional violation occurred in
the first place). We lack jurisdiction to
explore whether that judgment is constitutionally infirm. Jensen is free to challenge
any perceived constitutional errors via his
App. p. 5
456
924 FEDERAL REPORTER, 3d SERIES
direct appeal in state court. Indeed, he
must exhaust those remedies before raising any constitutional claims in a new
§ 2254 petition.
AFFIRMED.
Rovner, Circuit Judge, concurring in
part and concurring in the judgment.
I agree with my colleagues that we may
review only for abuse of discretion the
district court’s determination that the
State complied with the writ. And I am
persuaded that, once we have concluded
that there is no abuse of discretion, there
is nothing left for the federal courts to do
until the petitioner has exhausted state
court remedies and brings a new federal
habeas proceeding. I do not agree, however, that it was inappropriate for the district court to examine whether the State
complied in good faith with the writ or
instead engaged in sham proceedings in
order to circumvent the writ.
The majority cites Jenkins v. Bowling,
691 F.2d 1225, 1234 (7th Cir. 1982), for the
proposition that, ‘‘We have long held that
courts should presume that states will
comply with equitable remedies in good
faith.’’ But Jenkins also makes clear that
the presumption is rebuttable and that
federal courts have the power to correct
noncompliance:
When formulating equitable remedies
against a state—an entity still to be
regarded as having some sovereign dignity—a federal court should try to minimize their abrasive potential. It should
presume that the state will attempt to
comply in good faith with the letter and
spirit of its ruling. Events may rebut the
presumption in particular cases[.] TTT If
the state does try [to evade the order],
the federal courts have all the powers
they need, including the power to issue
mandatory injunctions as detailed and
specific as the situation requires, backed
up by all the force of the United States,
to make their decisions effective.
Jenkins, 691 F.2d at 1234. Although Jenkins did not address habeas proceedings, it
did involve a federal court ‘‘formulating
equitable remedies against a state,’’ and
the comity concerns are comparable.
In my view, the district court properly
assessed whether there was good faith
compliance with the writ, or a possible bad
faith effort to circumvent the writ. That
was especially appropriate in a case where
the State sought to reinstate (and in fact
did reinstate) the very same judgment
that the federal courts had found constitutionally infirm, a procedural scenario that I
believe I have not encountered in my nearly thirty-five years on the federal bench.
The district court’s analysis of whether the
State had engaged in sham proceedings to
circumvent the writ was part and parcel of
its review of whether the State had complied with the writ. Therefore, I respectfully concur in part, and concur in the judgment.
,
VARLEN CORPORATION,
Plaintiff-Appellant,
v.
LIBERTY MUTUAL INSURANCE
COMPANY, DefendantAppellee.
No. 17-3212
United States Court of Appeals,
Seventh Circuit.
Argued December 3, 2018
Decided May 16, 2019
Background: Insured brought action
challenging insurer’s denial of coverage
App. p. 6
Case: 17-3639
Document: 54
Filed: 11/06/2019
Pages: 1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
November 6, 2019
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 17-3639
MARK D. JENSEN,
Petitioner-Appellant,
Appeal from the
United States District Court
for the Eastern District of Wisconsin.
v.
No. 11-C-803
WILLIAM POLLARD,
Respondent-Appellee.
William C. Griesbach,
Judge.
ORDER
On consideration of the petition for rehearing and for rehearing en banc, no judge
in active service has requested a vote on the petition for rehearing en banc,1 and all of
the judges on the original panel have voted to deny rehearing. It is therefore ordered that
the petition for rehearing and for rehearing en banc is DENIED.
1
Circuit Judge Michael B. Brennan did not participate in the consideration of the petition
for rehearing.
App. p. 7
App. p. 8
App. p. 9
App. p. 10
App. p. 11
App. p. 12
App. p. 13
App. p. 14
892
800 FEDERAL REPORTER, 3d SERIES
728 (1985). It would also nullify the evident purpose of § 2001.3.
interpretation of terms in the plan at issue.’’ Id.
MetLife’s second argument is that
§ 2001.3 should not apply because Fontaine’s disability insurance policy was offered not by MetLife—the only ‘‘health
carrier’’ in the picture—but by the employer. Yet the first page of Fontaine’s disability insurance policy states, ‘‘This policy
is issued in return for the payment by the
Policyholder of required Premiums,’’ and it
specifies the employer as the Policyholder.
The page is printed on MetLife stationery
and signed by MetLife’s corporate officers.
MetLife obviously issued Fontaine’s disability insurance policy.
The judgment of the district court is
AFFIRMED.
MetLife’s third argument is that MetLife did not reserve discretionary authority to itself; rather, the employer delegated
discretionary authority to MetLife. This
similarly artificial distinction makes no difference under the terms of § 2001.3. The
regulation prohibits any ‘‘provision purporting to reserve discretion to the health
carrier.’’ What matters is that the policy
provision purports to reserve discretion,
not who put the provision in the policy.
MetLife’s final argument is that
§ 2001.3 does not prohibit all discretionary
clauses but only clauses reserving discretion ‘‘to interpret the terms of the contract, or to provide standards of interpretation or review that are inconsistent with
the laws of this State.’’ MetLife claims
that clauses reserving discretion to make
benefit determinations are unaffected by
§ 2001.3. In Firestone, the Supreme Court
rejected this artificial dichotomy between
‘‘benefit determinations’’ and ‘‘contract interpretation,’’ pointing out that ‘‘the validity of a claim to benefits under an ERISA
plan is likely to turn on the interpretation
of terms in the plan at issue.’’ 489 U.S. at
115, 109 S.Ct. 948. MetLife does not
grapple with this point, much less argue
that this is an exceptional case where its
benefit determination did not ‘‘turn on the
,
Mark D. JENSEN, Petitioner–Appellee,
v.
Marc CLEMENTS, Respondent–
Appellant.
No. 14–1380.
United States Court of Appeals,
Seventh Circuit.
Argued Oct. 30, 2014.
Decided Sept. 8, 2015.
Rehearing Denied Oct. 9, 2015.
Background: Following affirmance on direct appeal of the petitioner’s state-court
conviction for the first-degree murder of
his wife, 331 Wis.2d 440, 794 N.W.2d 482,
2011 WI App 3, he filed petition for writ of
habeas corpus. The United States District
Court for the Eastern District of Wisconsin, William C. Griesbach, Chief Judge,
2013 WL 6708767, granted the petition.
The state appealed.
Holdings:
The Court of Appeals,
Williams, Circuit Judge, held that:
(1) admission of murder victim’s handwritten letter and statements made to
police prior to her death, accusing defendant of her murder, violated Confrontation Clause;
(2) state appellate court’s decision affirming conviction on direct appeal was last
state-court decision adjudicating peti-
App. p. 15
JENSEN v. CLEMENTS
Cite as 800 F.3d 892 (7th Cir. 2015)
tioner’s Confrontation Clause claim on
the merits; and
(3) Confrontation Clause error was not
harmless.
Affirmed.
Tinder, Circuit Judge, filed dissenting
opinion.
1. Criminal Law O662.40
Admission of murder victim’s handwritten letter, written two weeks prior to
her death, and statements made to police
in the weeks prior to her death, accusing
defendant of killing her if anything happened to her, violated the confrontation
clause, in first-degree murder prosecution;
none of the statements were dying declarations, and forfeiture by wrongdoing exception did not apply, absent showing that
defendant killed victim to prevent her from
testifying. U.S.C.A. Const.Amend. 6.
2. Criminal Law O662.9
Ordinarily, a witness who makes testimonial statements against a defendant will
be available at trial for cross-examination,
and if not available then, pursuant to the
confrontation clause, the witness’s earlier
testimony will only be introduced at trial if
the defendant had an earlier opportunity
to cross examine the witness. U.S.C.A.
Const.Amend. 6.
3. Criminal Law O662.80
Testimonial hearsay statements for
which no hearsay exception applies should
be excluded, under the confrontation
clause, even if the evidence suggests that
the defendant had caused the declarant to
be absent, but had not done so to prevent
the person from testifying. U.S.C.A.
Const.Amend. 6.
4. Habeas Corpus O770
Wisconsin state appellate court’s decision affirming first-degree murder conviction on direct appeal was last state-court
decision adjudicating petitioner’s claim on
the merits, alleging that the admission of
893
murder victim’s handwritten letter and
statements made to police in the weeks
prior to her death accusing petitioner of
killing her if anything happened to her
violated the Confrontation Clause, and
therefore clearly established federal law
with respect to Confrontation Clause in
effect at time of state appellate court decision applied on habeas review; although
state appellate court assumed that the
Confrontation Clause was violated, it determined that such violation was harmless
error, which was a substantive decision.
U.S.C.A. Const.Amend. 6; 28 U.S.C.A.
§ 2254(d)(1).
5. Habeas Corpus O481
Confrontation clause error in admitting wife’s handwritten letter, written two
weeks prior to her death from ethylene
glycol poisoning, and statements made to
police in weeks prior to her death, stating
that she would never commit suicide and
accusing her husband of killing her if anything happened to her, had substantial and
injurious effect or influence on jury’s verdict finding husband guilty of first-degree
murder, and thus, error was not harmless,
warranting habeas relief; letter played key
role in prosecution’s case, as prosecutor
read entire letter to jury in his opening
statement, focused on letter in his closing
argument, displayed letter to jury, and
urged jury to believe in truth of letter
because it contained victim’s own words,
letter was effectively corroborated by
statements to police, and defense theory
was that wife committed suicide and
framed husband for murder, which was
supported by significant evidence, including wife’s doctor’s testimony that she presented in his office depressed and distraught two days before her death, and
testimony that wife had discouraged others
from worrying about her on date she died
so that they would not come to her assis-
App. p. 16
894
800 FEDERAL REPORTER, 3d SERIES
tance.
U.S.C.A. Const.Amend.
U.S.C.A. § 2254(d)(1).
6;
28
6. Criminal Law O1162
The test for whether a federal constitutional error was harmless depends on
the procedural posture of the case.
7. Criminal Law O1162
Before a federal constitutional error
can be held harmless on direct appeal, the
appellate court must be able to declare a
belief that it was harmless beyond a reasonable doubt.
8. Habeas Corpus O442
For habeas petitioners where the
state court ruled that an error in admission was a harmless error, the petitioners
are not entitled to habeas relief based on
the state court error unless they can establish that it resulted in actual prejudice.
28 U.S.C.A. § 2254(d)(1).
9. Habeas Corpus O481
Under the harmless error standard
required for habeas relief, requiring a
showing of actual prejudice, relief is proper only if the habeas court has grave doubt
about whether a trial error of federal law
had substantial and injurious effect or influence in determining the jury’s verdict.
28 U.S.C.A. § 2254(d)(1).
10. Criminal Law O1159.2(3)
A statement of what a rational jury
could conclude is not a statement of a
harmless-error inquiry on direct appeal; it
is instead the question presented when a
direct appeal asks whether there is sufficient evidence to support a verdict.
11. Habeas Corpus O481
In applying the harmless error test on
habeas review to the admission of testimony in violation of the Confrontation Clause,
the habeas court looks to a host of factors,
such as the importance of the testimony in
the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contra-
dicting the testimony of the witness on
material points, the extent of cross-examination otherwise permitted, and, of course,
the overall strength of the prosecution’s
case.
U.S.C.A. Const.Amend. 6; 28
U.S.C.A. § 2254(d)(1).
12. Habeas Corpus O490(1)
In assessing whether the improperly
admitted evidence had a substantial and
injurious effect on the verdict, for purpose
of analyzing harmless error on habeas review, the habeas court is concerned with
the overall strength of the prosecution’s
case, not merely the evidence in its favor.
28 U.S.C.A. § 2254(d)(1).
Craig W. Albee, Attorney, Federal Defender Services of Eastern Wisconsin, Incorporated, Milwaukee, WI, Joseph Aragorn Bugni, Attorney, Federal Defender
Services of Wisconsin, Inc., Madison, WI,
for Petitioner–Appellee.
Marguerite M. Moeller, Attorney, Office
of the Attorney General Wisconsin Department of Justice Madison, WI, for Respondent–Appellant.
Before WILLIAMS, TINDER, and
HAMILTON, Circuit Judges.
WILLIAMS, Circuit Judge.
Julie Jensen’s handwritten letter to the
police was ‘‘a make or break issue,’’ an
‘‘essential component of the State’s case,’’
and of ‘‘extraordinary value’’ to ‘‘the central issue in this case.’’ Those are not the
court’s words, but the words of the State,
as it fought for the admission of the letter
before it placed Mark Jensen on trial for
his wife Julie’s murder. The State maintained at trial that Jensen killed his wife
and framed it to look like suicide. Jensen’s defense was that his wife, depressed,
App. p. 17
JENSEN v. CLEMENTS
Cite as 800 F.3d 892 (7th Cir. 2015)
and unhappy in marriage, committed suicide and made it look like her husband had
killed her. A key piece of evidence at trial
was Julie’s handwritten letter to the police,
written two weeks before her death, in
which she wrote that she would never take
her life and that her husband should be
the suspect if anything should happen to
her.
As a later-decided United States Supreme Court case, Giles v. California, 554
U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488
(2008), made clear, this letter and other
accusatory statements she made to police
in the weeks before her death regarding
her husband should never have been introduced at trial. The Wisconsin appellate
court found the error in admission to be
harmless. Jensen now seeks a writ of
habeas corpus, which he may only receive
if the Wisconsin appellate court’s adjudication of the claim ‘‘resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,’’ or
‘‘resulted in a decision that was based on
an unreasonable determination of the facts
in light of evidence presented in the State
court proceeding.’’ 28 U.S.C. § 2254(d).
We agree with the district court that the
Wisconsin appellate court’s harmless error
determination reflects an unreasonable application of the Chapman v. California,
386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705
(1967), harmless error standard. The erroneous admission of Julie’s letter and
statements to the police had a substantial
and injurious influence or effect in determining the jury’s verdict. So we affirm
the district court’s grant of Jensen’s petition for a writ of habeas corpus.
I.
BACKGROUND
Two weeks before her death, Julie Jensen gave a sealed envelope to her neighbors, Tadeusz and Margaret Wojt, and
told them that if anything happened to
895
her, they should give the envelope to the
police. The day of Julie’s death, the Wojts
did just that. The envelope contained a
handwritten letter with Julie’s signature
that read:
Pleasant Prairie Police Department, Ron
Kosman or Detective Ratzburg,
I took this picture [and] am writing this
on Saturday 1121–98 at 7 AM. 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. Our relationship has deteriorated to the polite superficial. I know
he’s never forgiven me for the brief
affair I had with that creep seven years
ago. Mark lives for work [and] the kids;
he’s an avid surfer of the Internet
Anyway, I do not smoke or drink. My
mother was an alcoholic, so I limit my
drinking to one or two a week. Mark
wants me to drink more—with him in
the evenings. I don’t. I would never
take my life because of my kids—they
are everything to me! I regularly take
Tylenol [and] multi-vitamins; occasionally take OTC stuff for colds, Zantac, or
Immodium; have one prescription for
migraine tablets, which Mark use[s]
more than I.
I pray I’m wrong [and] nothing happens
TTT but I am suspicious of Mark’s behaviors [and] fear for my early demise.
However, I will not leave David [and]
Douglas. My life’s greatest love, accomplishment and wish: ‘‘My 3 D’s’’—Daddy (Mark), David, Douglas.
Julie had made other similarly accusatory statements to the police in the weeks
before her death as well. She left two
voicemails for Officer Ron Kosman, stating
in the second that she thought her husband was trying to kill her. (She left this
message on a voicemail despite Officer
Kosman’s message on his voicemail that he
App. p. 18
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800 FEDERAL REPORTER, 3d SERIES
was out of the office on a hunting trip and
would not check messages until his return.) Officer Kosman then visited Julie,
and she told him she had given a letter to
the Wojts along with a roll of film with
photographs she had taken of Jensen’s day
planner, evidently to include the ‘‘list’’ in
his planner referenced in her letter. She
retrieved the film and gave it to Officer
Kosman, but the police were unable to
connect the photographs of the pages of
Jensen’s day planner to anything connected to the case. Julie also told Officer
Kosman that if she were to be found dead,
she did not commit suicide, and Jensen
was her first suspect. She made statements to others as well including the
Wojts and her son’s teacher that she worried her husband was going to kill her.
Julie was found dead in the home she
shared with her husband and their two
sons on December 3, 1998. The first autopsy did not reveal a cause of death, and
the case was initially treated as a suicide.
A search of the Jensens’ home computer
yielded internet searches for suicide and
poisoning, including a search at 7:40 am on
December 3 for ‘‘ethylene glycol poisoning.’’ Ethylene glycol, commonly known
as antifreeze, was found in Julie’s system.
But the toxicologist (Dr. Christopher
Long)’s initial characterization was badly
off. He described the 3,940 micrograms
per milliliter of ethylene glycol in the 660
ml of her gastric contents as a ‘‘large
concentration of ethylene glycol.’’ His report reached the conclusion that Julie’s
death was not a suicide, and he reached
this conclusion by relying on factors including that Julie’s stomach contained significant amounts of ethylene glycol, showing that her death occurred at or near the
time of administration; she would have
been too weak to drink the amount of
ethylene glycol in her stomach without assistance; and she would have been too
weak to hide the ethylene glycol container
after her final dose. But in reality, the
660 ml of her stomach contents contained
only a half teaspoon of ethylene glycol, or
.083 ounces, so it was not a ‘‘large concentration.’’ Dr. Long’s mistake destroyed
the foundation of his opinion that Julie’s
death was not a suicide, i.e., that she could
not have consumed that large a quantity of
ethylene glycol on her own. The computer
search also revealed numerous emails between Jensen and a woman with whom he
was having an affair.
In March 2002, over three years after
Julie’s death, Jensen was charged with
first-degree intentional homicide.
Dr.
Mark Chambliss, the doctor who conducted an autopsy, said at trial for the first
time that the cause of death was asphyxia
by smothering, and a medical examiner
concluded that the cause of death was
ethylene glycol poisoning with probable
terminal asphyxia. From the beginning,
the parties contested the admissibility of
Julie’s letter and her statements to Officer
Kosman in the weeks before her death.
The State conceded that the voicemails
Julie left for Officer Kosman were inadmissible hearsay. The Wisconsin state trial court ruled that Julie’s letter was admissible in its entirety. After the Supreme
Court decided Crawford v. Washington,
541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d
177 (2004), Jensen moved for reconsideration. The trial court granted Jensen’s motion for reconsideration, ruling that Julie’s
letter and statements to Officer Kosman
were testimonial and therefore not admissible under Crawford because the declarant was unable to testify at trial and there
was no prior opportunity for cross examination. The court also rejected the State’s
argument that the letter and Julie’s statements were admissible under the doctrine
of forfeiture by wrongdoing.
The State appealed the trial court’s order and petitioned for bypass directly to
the Wisconsin Supreme Court. On Febru-
App. p. 19
JENSEN v. CLEMENTS
Cite as 800 F.3d 892 (7th Cir. 2015)
ary 23, 2007, the Wisconsin Supreme
Court agreed that the letter and statements to police were testimonial, but it
also ruled that the trial court erred in its
analysis of whether the statements were
admissible under the forfeiture by wrongdoing doctrine. State v. Jensen, 299
Wis.2d 267, 727 N.W.2d 518, 536–37 (2007)
(‘‘Jensen I ’’). The Wisconsin Supreme
Court adopted ‘‘a broad forfeiture by
wrongdoing doctrine, and conclude[d] that
if the State can prove by a preponderance
of the evidence that the accused caused the
absence of the witness, the forfeiture by
wrongdoing doctrine will apply to the confrontation rights of the defendant.’’ Id. at
536. The court remanded for a hearing to
determine the application of the doctrine
in Jensen’s case. Id. at 537.
On remand, after a ten-day hearing, the
trial court found by a preponderance of the
evidence that Jensen killed Julie, causing
her absence from trial, and so Jensen had
forfeited his right to confrontation with
respect to the letter.1 As a result, the
letter and Julie’s statements to Officer
Kosman were admissible at trial.
The resulting six-week trial began more
than nine years after Julie’s death. The
State introduced evidence concerning Julie’s statements and actions in the days,
weeks, and months before her death, including her handwritten letter and statements to Officer Kosman. The State also
introduced evidence that Jensen was having an affair and that he was bitter about a
brief affair Julie had seven years earlier.
Two of Jensen’s former co-workers testified that he had made incriminating statements to them. The State contended that
Jensen had made plans to murder his wife
1.
There are serious reasons to question this
finding, however. For example, the medical
examiner Dr. Mary Mainland testified for the
State during the forfeiture hearing that murder was likely, and she testified that Julie
would have been too weak the day before she
897
to have a future with his mistress, wanted
to avoid a messy divorce, and had searched
on the internet for ways to make Julie’s
death look like a suicide. The State also
argued that Julie was a devoted mother
who would not have committed suicide.
The State maintained that Julie could not
have ingested ethylene glycol by herself
and that Jensen had suffocated her after
she showed signs of recovering from poison he had given her.
Surprisingly, this suffocation theory
arose for the very first time at the trial
more than nine years after Julie’s death,
when it came up for the first time during
Dr. Chambliss’s redirect examination. Dr.
Chambliss had performed an autopsy, and
his report had not identified a cause of
death. But during redirect examination,
the prosecutor showed Dr. Chambliss photographs of Julie at the scene that appeared to show Julie with an unnaturally
bent nose. The prosecutor posed a hypothetical question to Dr. Chambliss. It
asked him to, among other things, ‘‘consider the manner in which the face appears to
be smashed into the pillow’’ and to consider information from Jensen’s cellblock
mate Aaron Dillard (whose significant
credibility concerns we will discuss later)
that Jensen ‘‘had shoved her face into the
pillow and suffocated her.’’ When the
prosecutor asked whether Dr. Chambliss
had an opinion as to the cause of death in
those circumstances, Dr. Chambliss responded with the opinion, for the first
time, that the immediate cause of death
would be smothering. Yet the autopsy
report did not report any damage to Julie’s
nose, and witnesses at the scene had not
observed anything unusual about her nose.
died to use the telephone. But at trial Dr.
Mainland admitted that she had been ‘‘mistaken’’ in her testimony during the forfeiture
hearing because Julie did in fact use the
phone that day and had a telephone conversation with Mrs. Wojt.
App. p. 20
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800 FEDERAL REPORTER, 3d SERIES
As for Dr. Mainland, she had testified at
the forfeiture hearing that Julie died from
ethylene-glycol poisoning.
Then five
months later, at trial, she too testified that
Julie had been suffocated, based on details
from Dillard.
The defense account at trial was much
different. It took the position that Julie,
depressed, had committed suicide by poisoning herself but had made it look as
though her husband, from whom she was
distant, had killed her. The defense maintained that Julie was discouraging others
from worrying about her absence so they
would not come to her assistance. Julie
had not been restrained or otherwise incapacitated from seeking help, and ethylene
glycol was a fairly slow-acting poison, so
the defense contended that Julie’s failure
to seek help was more consistent with
suicide than with murder.
The defense evidence included testimony
from the Jensens’ family doctor, who told
the jury that during an appointment two
days before her death, Julie ‘‘seemed depressed and distraught and almost frantic,
actually.’’ The jury heard Julie had a
fifteen-minute conversation with her neighbor, Mrs. Wojt, the day before her death
in which she told Mrs. Wojt not to worry if
she did not see Julie outside that day
because she was not feeling well due to her
medication. Julie also made a similar
statement to her sister-in-law three days
earlier that she would be ill on December 2
because she expected to be put on medication by her doctor. The defense also
highlighted that although Julie had made
multiple statements saying she feared her
husband was trying to kill her, she did not
call anyone or otherwise seek help when
she began to feel ill.
After thirty hours of deliberation, the
jury convicted Jensen of first-degree intentional homicide. Four months later, the
United States Supreme Court decided
Giles v. California, 554 U.S. 353, 128 S.Ct.
2678, 171 L.Ed.2d 488 (2008), which
adopted a narrower interpretation of the
Confrontation Clause than had the Wisconsin Supreme Court in Jensen I. On the
direct appeal of his conviction, Jensen argued that Giles made clear that Julie’s
handwritten letter and statements to the
police were erroneously admitted.
In a December 29, 2010 ruling, the Wisconsin Appellate Court ‘‘assume[d] that
the disputed testimonial evidence was erroneously admitted’’ in light of Giles but
found that any error was harmless, and it
affirmed Jensen’s conviction. State v. Jensen, 331 Wis.2d 440, 794 N.W.2d 482, 493
(App.Ct.2010) (‘‘Jensen II ’’). The Wisconsin Supreme Court denied Jensen’s petition for review. Jensen then filed a petition for a writ of habeas corpus in federal
district court. The district court granted
Jensen’s petition, and the warden appeals.
II.
ANALYSIS
[1, 2] Jensen’s habeas petition is premised on his contention that the admission
of Julie’s handwritten letter and her accusatory statements to the police in the
weeks before her death violated his right
to confrontation under the Sixth Amendment to the United States Constitution.
The Sixth Amendment provides that ‘‘[i]n
all criminal prosecutions, the accused shall
enjoy the right TTT to be confronted with
the witnesses against him.’’ Ordinarily, a
witness who makes testimonial statements
against a defendant will be available at
trial for cross examination, and if not available then the witness’s earlier testimony
will only be introduced at trial if the defendant had an earlier opportunity to cross
examine the witness. See Crawford, 541
U.S. at 68, 124 S.Ct. 1354.
[3] The state trial court concluded that
an exception to the right of confrontation
was present here because Jensen had committed a wrongful act (murder) that made
App. p. 21
JENSEN v. CLEMENTS
Cite as 800 F.3d 892 (7th Cir. 2015)
the witness unavailable to testify at trial.
But the Supreme Court subsequently held
in Giles that the forfeiture by wrongdoing
exception to the Confrontation Clause in
the United States Constitution applies only
when the defendant engaged in conduct
designed to prevent the witness from testifying. Giles, 554 U.S. at 359, 128 S.Ct.
2678; see also id. at 367, 128 S.Ct. 2678
(‘‘Every commentator we are aware of has
concluded the requirement of intent
‘means that the exception applies only if
the defendant has in mind the particular
purpose of making the witness unavailable.’ ’’) (citation omitted). In other words,
testimonial hearsay statements for which
no other exception applies should be excluded if ‘‘the evidence suggested that the
defendant had caused a person to be absent, but had not done so to prevent the
person from testifying—as in the typical
murder cases involving accusatorial statements by the victim.’’ Id. at 361, 128 S.Ct.
2678. The warden makes no argument
that the letter and statements were admissible under Giles. Indeed, the State’s theory at trial was that Jensen killed his wife
not to prevent her from testifying, but
because he wanted her dead. Under
Giles, the admission of Julie’s letter and
statements to the police, none of which
were dying declarations, violated the Confrontation Clause and was federal Constitutional error. The warden does, however,
argue that Jensen cannot benefit from
Giles as a procedural matter, and we turn
to that argument now.
A.
Giles Decided Before Claim Adjudicated on the Merits by State
Court
[4] The parties dispute which Wisconsin state court decision constitutes the
relevant decision for Antiterrorism and
Effective Death Penalty Act of 1986
(‘‘AEDPA’’) purposes. Under AEDPA,
habeas relief
899
shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established
Federal law, as determined by the
Supreme Court of the United States;
or
(2) resulted in a decision that was based
on an unreasonable determination of
the facts in light of the evidence
presented in the State court proceeding.
28 U.S.C. § 2254(d)(1) (emphasis added).
Jensen argues that the Wisconsin appellate court’s post-Giles decision is the last
state-court decision adjudicating his claim
on the merits, and he maintains our review
under AEDPA is therefore of the state
appellate court decision.
The warden, however, argues that the
last state court adjudication of the merits
of Jensen’s Confrontation Clause claim
was the trial court’s 2007 decision concluding that the disputed evidence was admissible under the forfeiture by wrongdoing
exception. Because the Supreme Court did
not decide Giles until 2008, the warden
contends there is no decision contrary to
clearly established Supreme Court case
law at the time, and so Jensen’s petition
for habeas relief fails. The state appellate
court assumed that the disputed testimonial evidence was erroneously admitted under Giles but found that any error was
harmless, and the warden maintains the
state appellate court did not adjudicate the
claim ‘‘on the merits’’ because the decision
was made on harmless-error grounds.
Jensen II, 794 N.W.2d at 493.
If the warden is correct that the trial
court decision is the relevant decision in
this case, Jensen’s habeas request fails
because it is premised on Giles, which the
App. p. 22
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800 FEDERAL REPORTER, 3d SERIES
Supreme Court had not decided at the
time of the trial court ruling. See Cullen
v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388,
1399, 179 L.Ed.2d 557 (2011) (measuring
state-court decisions against the Supreme
Court precedents as of the time the state
court renders its decision); Knowles v.
Mirzayance, 556 U.S. 111, 122, 129 S.Ct.
1411, 173 L.Ed.2d 251 (2009) (stating it is
not an unreasonable application of clearly
established federal law ‘‘for a state court
to decline to apply a specific legal rule that
has not been squarely established by this
Court.’’).
The United States Supreme Court’s recent decision in Davis v. Ayala, ––– U.S.
––––, 135 S.Ct. 2187, 192 L.Ed.2d 323
(2015), guides us here. There, neither the
criminal defendant nor his lawyer was given the opportunity to be present during
the hearings on his challenges to the prosecutor’s use of peremptory challenges to
exclude minority jurors, and he maintained
that the ex parte hearings violated his
federal Constitutional rights. Id. at 2194–
95. The California Supreme Court ruled
that any error was harmless beyond a
reasonable doubt. Id. at 2195 (citing People v. Ayala, 24 Cal.4th 243, 99 Cal.
Rptr.2d 532, 6 P.3d 193, 204 (2000)). The
United States Supreme Court granted a
petition for a writ of certiorari, and one of
the questions was ‘‘[w]hether a state
court’s rejection of a claim of federal constitutional error on the ground that any
error, if one occurred, was harmless beyond a reasonable doubt is an ‘adjudicat[ion] on the merits’ within the meaning
of 28 U.S.C. § 2254(d), so that a federal
court may set aside the resulting final
state conviction only if the defendant can
satisfy the restrictive standards imposed
by that provision.’’ Brief for Petitioner at
i, Chappell v. Ayala, 135 S.Ct. 401 (2014)
(No. 13–1428), 2014 WL 2335007, at *i; see
Chappell v. Ayala, ––– U.S. ––––, 135 S.Ct.
401, 190 L.Ed.2d 288 (Oct. 20, 2014)
(granting petition for writ of certiorari).
In its resulting decision, the Court stated that ‘‘[t]here is no dispute that the
California Supreme Court held that any
federal error was harmless beyond a reasonable doubt under Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d
705 (1967) ].’’ Ayala, 135 S.Ct. at 2198.
The Court then ruled that ‘‘this decision
undoubtedly constitutes an adjudication of
Ayala’s constitutional claim ‘on the merits.’ ’’ Id.
That a state court holding of harmless
error beyond a reasonable doubt constitutes the adjudication of a claim on the
merits for AEDPA purposes makes sense.
The Court has previously explained that
‘‘as used in this context, the word ‘merits’
is defined as ‘[t]he intrinsic rights and
wrongs of a case as determined by matters
of substance, in distinction from matters of
form.’ ’’ Johnson v. Williams, ––– U.S.
––––, 133 S.Ct. 1088, 1097, 185 L.Ed.2d 105
(2013) (quoting Webster’s New International Dictionary 540 (2d ed.1954)). In
contrast, an adjudication on matters ‘‘extraneous’’ to the particular claim, ‘‘such as
competence of the tribunal or the like,’’ or
on ‘‘procedural details’’ or ‘‘technicalities,’’
would not be a decision ‘‘on the merits.’’
Id. A harmless-error determination is a
substantive determination, not merely one
of form.
In his brief written before Ayala, the
warden pointed to Greene v. Fisher, –––
U.S. ––––, 132 S.Ct. 38, 43, 181 L.Ed.2d
336 (2011). In Greene, the parties agreed
that the last state court adjudication on
the merits of a federal Confrontation
Clause claim took place on direct appeal to
the Pennsylvania Superior Court. Id. at
45. The United States Supreme Court
decision on which the defendant wished to
rely, Gray v. Maryland, 523 U.S. 185, 118
S.Ct. 1151, 140 L.Ed.2d 294 (1998), did not
issue until three months later. The
Greene Court ruled that although Gray
App. p. 23
JENSEN v. CLEMENTS
Cite as 800 F.3d 892 (7th Cir. 2015)
was issued while the defendant’s petition
for leave to appeal to the Pennsylvania
Supreme Court was pending, and that
court initially granted the petition (though
later dismissed it as improvidently granted), Gray was not ‘‘clearly established
Federal law’’ under AEDPA because it
had not been issued at the time of the last
state-court adjudication on the merits. Id.
No harmless-error determination was at
issue in Greene, and Greene does not inform the analysis of whether a harmlesserror determination is an adjudication on
the merits.
Under Ayala, though, it is clear that the
Wisconsin appellate court decision is the
last ‘‘adjudication on the merits’’ for AEDPA purposes in Jensen’s case. Therefore,
Giles had been decided by the time of the
last adjudication of the claim on the merits, and Julie’s letter and the statements to
Officer Kosman at issue were admitted in
violation of Jensen’s rights under the United States Constitution, as shown by clearly
established Supreme Court precedent at
the time of the Wisconsin appellate court
decision.
B.
Error Had Substantial and Injurious Effect in Determining Jury’s
Verdict
[5] We must now assess whether the
Wisconsin appellate court’s decision that
any federal constitutional error was harmless was contrary to, or involved an unreasonable application of, clearly established
federal law as determined by the United
States Supreme Court, or was based on an
unreasonable determination of the facts.
28 U.S.C. § 2254(d)(1), (2). Jensen maintains it was, and the district court agreed.
[6, 7] ‘‘The test for whether a federal
constitutional error was harmless depends
on the procedural posture of the case.’’
Ayala, 135 S.Ct. at 2197. When a case is
on direct appeal, the standard for harmless
error is that articulated in Chapman:
901
‘‘ ‘[B]efore a federal constitutional error
can be held harmless, the court must be
able to declare a belief that it was harmless beyond a reasonable doubt.’ ’’ Ayala,
135 S.Ct. at 2197 (quoting Chapman, 386
U.S. at 24, 87 S.Ct. 824).
However, because the conviction here
originated in state court, this case is a
collateral proceeding governed by AEDPA. Our case law had given some contrary signals as to the applicability of the
Supreme Court’s decisions in Chapman
and Brecht v. Abrahamson, 507 U.S. 619,
113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), in
cases where the state-court ruling was
based on harmless error. Compare, e.g.,
Kamlager v. Pollard, 715 F.3d 1010, 1016
(7th Cir.2013) and Brown v. Rednour, 637
F.3d 761, 766 (7th Cir.2011) with, e.g.,
Jones v. Basinger, 635 F.3d 1030, 1052 n. 8
(7th Cir.2011) (recognizing that ‘‘any error
sufficiently harmful to satisfy the Brecht
‘actual prejudice’ standard could be
deemed harmless only by unreasonably applying Chapman.’’).
[8, 9] The Supreme Court’s recent decision in Ayala clarified the standard of
review. For habeas petitioners like Jensen, where the state court ruled that an
error in admission was a harmless error,
the petitioners are
‘‘not entitled to habeas relief based on
trial error unless they can establish that
it resulted in ‘actual prejudice.’ ’’ Brecht,
507 U.S. at 637, 113 S.Ct. 1710 (quoting
United States v. Lane, 474 U.S. 438, 449,
106 S.Ct. 725, 88 L.Ed.2d 814 (1986)).
Under this test, relief is proper only if
the federal court has ‘‘grave doubt about
whether a trial error of federal law had
‘substantial and injurious effect or influence in determining the jury’s verdict.’ ’’
O’Neal v. McAninch, 513 U.S. 432, 436,
115 S.Ct. 992, 130 L.Ed.2d 947 (1995).
Ayala, 135 S.Ct. at 2197–98.
So the Supreme Court has made clear
that Jensen must meet the Brecht stan-
App. p. 24
902
800 FEDERAL REPORTER, 3d SERIES
dard. But Ayala also makes clear that
this requirement does not mean that the
Wisconsin appellate court’s harmless error
determination lacks significance. See Ayala, 135 S.Ct. at 2198. Rather, the ‘‘Brecht
standard ‘subsumes’ the requirements that
§ 2254(d) imposes when a federal habeas
petitioner contests a state court’s determination that a constitutional error was
harmless under Chapman.’’ Id. (citing
Fry v. Pliler, 551 U.S. 112, 120, 127 S.Ct.
2321, 168 L.Ed.2d 16 (2007)). While a
federal court adjudicating a habeas petition does not need to ‘‘ ‘formal[ly]’ apply
both Brecht and ‘AEDPA/ Chapman,’
AEDPA nevertheless ‘sets forth a precondition to the grant of habeas relief.’ ’’ Ayala, 135 S.Ct. at 2198.
Jensen maintains that the Brecht standard is satisfied here and that the Wisconsin court’s finding that the error was
harmless beyond a reasonable doubt was
not just wrong, but also unreasonable. Cf.
Ayala, 135 S.Ct. at 2199 (stating that when
reviewing state court’s determination that
error was harmless under Chapman, federal court cannot grant habeas relief unless harmlessness determination itself was
unreasonable). He also argues that the
Wisconsin court unreasonably applied
clearly established Supreme Court law by
applying the wrong test, failing to consider
his evidence in defense, and erroneously
determining that key points of evidence
were undisputed.
We begin with the test for harmless
error. Time and again, the Supreme
Court has emphasized that a harmlesserror inquiry is not the same as a review
for whether there was sufficient evidence
at trial to support a verdict. Nearly seventy years ago, in Kotteakos v. United
States, 328 U.S. 750, 66 S.Ct. 1239, 90
L.Ed. 1557 (1946), the Supreme Court explained as it conducted harmless-error review of jury’s decision:
And the question is, not were they right
in their judgment, regardless of the error or its effect upon the verdict. It is
rather what effect the error had or reasonably may be taken to have had on the
jury’s decisionTTTTThe inquiry cannot be
merely whether there was enough to
support the result, apart from the phase
affected by the error. It is rather, even
so, whether the error itself had substantial influence.
Id. at 764–65, 66 S.Ct. 1239. The Supreme
Court has reinforced this principle over
and over. For example, in Satterwhite v.
Texas, 486 U.S. 249, 108 S.Ct. 1792, 100
L.Ed.2d 284 (1988), the Court considered a
death sentence where the state appellate
court found contested testimony harmless
on the basis that the properly admitted
evidence would have been sufficient to support a jury decision. Id. at 258, 108 S.Ct.
1792. The Supreme Court reversed, explaining, ‘‘[t]he question, however, is not
whether the legally admitted evidence was
sufficient to support the death sentence,
which we assume it was, but rather whether the State has proved ‘beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained.’ ’’
Id. at 258–59, 108 S.Ct. 1792 (quoting
Chapman, 386 U.S. at 24, 87 S.Ct. 824).
Finding this standard satisfied, the Court
reversed the state court’s judgment. Id.
at 260, 108 S.Ct. 1792; see also Sullivan v.
Louisiana, 508 U.S. 275, 279, 113 S.Ct.
2078, 124 L.Ed.2d 182 (1993) (‘‘The inquiry, in other words, is not whether, in a
trial that occurred without the error, a
guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.’’); Fahy v. State of
Conn., 375 U.S. 85, 86, 84 S.Ct. 229, 11
L.Ed.2d 171 (1963) (‘‘We find that the erroneous admission of this unconstitutionally obtained evidence at this petitioner’s
trial was prejudicial; therefore, the error
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was not harmless, and the conviction must
be reversed. We are not concerned here
with whether there was sufficient evidence
on which the petitioner could have been
convicted without the evidence complained
of.’’).
[10] Despite this long line of cases establishing the test for harmless error, the
Wisconsin appellate court’s reasoning
reads as though it is conducting an evaluation of whether there was sufficient evidence to support the verdict, not whether
the error in admitting Julie’s letter and
statements to police affected the jury’s
verdict. Cf. Kotteakos, 328 U.S. at 764–65,
66 S.Ct. 1239. Near the beginning of its
analysis, the state appellate court stated,
‘‘Here, we will not attempt to catalog all
the untainted evidence the State presented; however, we will summarize some of
the compelling pieces in order to illustrate
that the record is replete with reason to
uphold the jury’s verdict, even if the assumedly tainted evidence is disregarded.’’
Jensen II, 794 N.W.2d at 493. The court
then went through five categories of evidence presented by the State—computer
evidence, motive evidence, Jensen’s incriminating statements, medical evidence, and
miscellaneous evidence. Id. at 493–94.
The court said this was evidence from
which ‘‘a rational jury could alone conclude
beyond a reasonable doubt’’ that Jensen
murdered his wife. Id. at 494. But a
statement of what a ‘‘rational jury could
conclude’’ is not a statement of a harmlesserror inquiry; it is instead the question
presented when a direct appeal asks
whether there is sufficient evidence to support a verdict. See State v. Kimbrough,
246 Wis.2d 648, 630 N.W.2d 752, 756 (App.
2001). That is not the question here.
The state appellate court next said it
would examine the admitted testimonial
evidence to determine whether any error
in admitting it was harmless. Id. at 495,
630 N.W.2d 752. It looked at Julie’s letter
903
and found other properly admitted evidence in the record that the appellate
court said made similar points as to those
made in the letter, or to corroborate statements in the letter. For example, the
court stated that a sentence in Julie’s letter stating that ‘‘if anything happens to
me, he would be my first suspect’’ was
assumed inadmissible evidence. It then
discussed what it termed ‘‘[ad]missible duplicative/corroborative evidence in the record.’’ Id. at 495, 630 N.W.2d 752. The
court pointed to Mr. Wojt’s testimony that
about a month before her death, Julie told
him she suspected Jensen was trying to
poison her or drive her nuts to take the
children from her. Id. at 496, 630 N.W.2d
752. Mr. Wojt also recounted that Julie
said Jensen would go to work and leave his
computer on with a screen displaying a
website about poisoning. Id. The court
also pointed to her son’s teacher’s testimony recounting Julie’s statement, ‘‘I think
my husband is going to kill me’’ as well as
Jensen’s sister’s testimony that Julie told
her in the fall of 1998 that she thought
Jensen might be planning to kill her. Id.
The court concluded its discussion comparing the individual statements in the
letter to other evidence in the record by
stating, ‘‘The State’s additional evidence,
compared to Julie’s letter, illustrates that
virtually all relevant information in Julie’s
letter was duplicated by admissible nontestimonial evidence from other sources. The
rest of the record reflects that the jury
heard overwhelming evidence of murder,
and upon this record, it could rationally
have concluded beyond a reasonable doubt
that Jensen murdered Julie. The same is
true regarding Julie’s testimonial statements to Kosman; that is, virtually everything related in Julie’s statements to Kosman was duplicated by admissible evidence
from other sources.’’ Jensen II, 794
N.W.2d at 498. This analysis from the
Wisconsin appellate court demonstrates
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800 FEDERAL REPORTER, 3d SERIES
that it is conducting a review for whether
there is sufficient evidence to support a
verdict, a review that looks at all the evidence in the light most favorable to the
conviction, and where the inquiry is only
whether the jury could have convicted.
See Kimbrough, 630 N.W.2d at 756. That
is very different than the harmless error
test under clearly established Supreme
Court law.
And these statements do not just seem
to be slips of the pen. The state appellate
court decision contains a very detailed discussion of the State’s evidence. But its
discussion does not engage with the defense evidence that goes against the evidence discussed by the court. The Supreme Court has said, however, that when
a court ‘‘evaluat[es] the strength of only
one party’s evidence, no logical conclusion
can be reached regarding the strength of
contrary evidence offered by the other side
to rebut or cast doubt.’’ Holmes v. South
Carolina, 547 U.S. 319, 331, 126 S.Ct. 1727,
164 L.Ed.2d 503 (2006).
[11] To be clear, if the question was
whether there was sufficient evidence to
convict Jensen, the answer would be ‘‘yes.’’
But the harmless error test does not focus
just on the sufficiency of other evidence.
The question as we conduct the Brecht
analysis is whether we are in ‘‘ ‘grave
doubt about whether a trial error of federal law had ‘‘substantial and injurious effect
or influence in determining the jury’s verdict.’’ ’ ’’ Ayala, 135 S.Ct. at 2198 (quoting
O’Neal, 513 U.S. at 436, 115 S.Ct. 992
(emphasis added)). So we must look at
the influence the improperly admitted
handwritten letter and accusatory statements to the police had on the verdict. In
this analysis ‘‘we look to ‘a host of factors,’
such as ‘the importance of the witness’
testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating
or contradicting the testimony of the wit-
ness on material points, the extent of
cross-examination otherwise permitted,
and, of course, the overall strength of the
prosecution’s case.’ ’’ Jones, 635 F.3d at
1052 (quoting Delaware v. Van Arsdall,
475 U.S. 673, 684, 106 S.Ct. 1431, 89
L.Ed.2d 674 (1986)).
The letter, a handwritten letter, penned
just two weeks before her death, was unlike anything else in evidence. It came
straight from Julie, shortly before her
death. (At least according to the State—
there was some question at trial as to its
authenticity.) And it played a key role in
the trial from the outset. The jury first
heard about the letter early in the State’s
opening statement, when it read the letter
in its entirety out loud for the jury to hear.
The State used Julie’s own words from the
letter and her statements to Officer Kosman in its opening statement to underscore its themes of fear, motive, and absence of intent to take her own life. In
light of the pretrial ruling that the letter
would be allowed into evidence, the defense addressed the letter in its opening as
well, even presenting it as a large exhibit.
Defense counsel accurately in its opening
statement told the jury that ‘‘[w]e’ll come
back to the letter many times during this
case, and you’ll have to decide whether it’s
a blueprint for framing her husband or
legitimate.’’
The letter was also the last thing the
State left in the jury’s mind before it deliberated Jensen’s fate, as the State’s end to
its rebuttal closing argument focused on
the letter. (It had also highlighted the
letter and Julie’s statements to the police
in other parts of its closing argument.) In
its final arguments to the jury the State
stressed that the letter contained Julie’s
own thoughts: ‘‘So here was her unexpressed thoughts. She wrote them down,
and she hid them awayTTTT Hid them
away until a time when she could resolve
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JENSEN v. CLEMENTS
Cite as 800 F.3d 892 (7th Cir. 2015)
this terrible dilemma she was inTTTT’’ The
State also emphasized here that the jury
should believe the letter because it contained Julie’s own words: ‘‘It was a
thought which was only to be expressed
upon her death, because she wanted the
world to know the truth. She wanted you
to know the truth.’’ The State told the
jury to believe the letter because Julie
would not have lied: ‘‘At the time she
wrote those words Julie had no motive to
lie. She was hoping and she was praying
nobody would ever see these words.’’ The
State, in its final words, left the jury with
words from the letter: ‘‘She hoped, she
prayed that would not happen. But as she
indicated, however, I will not leave David
and Douglas, my life’s greatest love, accomplishment and wish. That’s why she
stayed. Dr. Spiro doesn’t understand that.
Well, there’s a lot of things that Dr. Spiro
doesn’t understand. The important thing
is that you do. Thank you.’’
The prosecution’s choice to end its closing arguments with the letter reflects its
importance in the prosecution’s case. The
letter was a unique piece of evidence. No
other piece of evidence had the emotional
and dramatic impact as did this ‘‘letter
from the grave.’’ While some of the statements in the letter also came out through
other witnesses at trial, only the letter
contained words straight from Julie. And
what words they were. Julie’s handwritten letter said her husband would be her
first suspect if anything were to happen to
her, along with emotionally compelling
statements that she would never take her
life or leave her children. The themes in
the letter that Julie identified—she was
caught up in an unhappy marriage, Jensen
was still bitter about her affair, it was just
Jensen who used the internet, she would
never take her life because she loved her
children too much, she feared Jensen was
plotting her murder—were the same
themes that the State developed throughout trial. Cf. United States v. Brown, 490
905
F.2d 758, 781 (D.C.Cir.1973) (‘‘The statement presented all the classic hearsay dangers and abuses. Here was that voice
from the grave casting an incriminating
shadow on the defendant TTT The damaging evidence stands impregnable—irretrievably lodged in the jurors’ minds.’’).
Recognizing the significance of the letter, the prosecutor did not merely ask one
witness to discuss the letter’s contents;
rather, it displayed the handwritten letter
itself on the screen and asked the jury to
read it. Twelve witnesses testified about
the letter, including five experts. Notably,
state medical experts Dr. Mainland and
Dr. Long relied on the letter to support
their medical opinions that Julie’s death
was a homicide. Dr. Long testified that
the letter and Julie’s other statements to
police regarding fearing for her life from
her husband were two of the reasons for
his conclusion that Julie’s death was a
homicide. And Dr. Mainland testified that
‘‘every sentence in the letter influenced’’
her, and that the sentence in the letter
that Julie would not take her own life
because of her children was especially influential in her opinion that the death was
a homicide. The police and the Wojts also
testified about the letter. The letter was
also shown to Jensen during a video-recorded interrogation, and the State emphasized Jensen’s reaction to the letter in its
closing. The letter also came up during
the jury deliberations—the jury’s second
note in its thirty hours of deliberations
requested the letter.
Indeed, the importance of the letter in
the State’s case was emphasized over and
over by the State as it repeatedly fought to
get the letter admitted. In pretrial litigation, the State called the letter an ‘‘essential component of the State’s case,’’ ‘‘highly
relevant to the central issues of this case:
suicide, motive, and fear,’’ and of ‘‘extraordinary value.’’ It also called the letter’s
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906
800 FEDERAL REPORTER, 3d SERIES
admissibility ‘‘a make or break issue’’ from
the State’s perspective. While the Wisconsin appellate court found the improperly
admitted evidence added ‘‘nothing significant beyond the properly admitted nontestimonial statements,’’ Jensen II, 794
N.W.2d at 499, in addition to all that we
discussed, the State’s own words reflect
the importance of the letter to its case and
the unreasonable nature of the appellate
court’s finding of harmless error.
[12] In assessing whether the improperly admitted evidence had a substantial
and injurious effect on the verdict, we are
concerned with the overall strength of the
prosecution’s case, not merely the evidence
in its favor. Jones, 635 F.3d at 1032.
Although the state appellate court discussed the State’s evidence at length, it did
not engage with the defense evidence. As
the district court observed, ‘‘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.’’ But that is far from what
actually happened during the six-week trial.
While the Wisconsin appellate court referred to ‘‘untainted and undisputed gripping evidence against Jensen,’’ Jensen II,
794 N.W.2d at 494, the ‘‘undisputed’’ evidence in the case was all circumstantial
and subject to more than one interpretation. Even the computer evidence, which
the appellate court called the most incriminating evidence against Jensen, was not
conclusive. The State presented evidence
of searches for various means of death
(poisoning, botulism, pipe bombs, and mercury fulminate, and one visited website
explained how to reverse the polarity of a
swimming pool, which the Jensens had),
testimony from her son’s teacher that Julie
and her son had both said Julie did not
know how to use a computer, and testimo-
ny that there was no internet use on the
home computer in November 1998 from
Monday through Friday between 9 a.m.
and 6 p.m., while Jensen was at work, nor
was there internet use during days when
he was at a conference out of town.
But no evidence precluded a jury from
finding that Julie did at least some of the
internet searches, including those for ethylene glycol poisoning. In addition to the
pro-prosecution evidence discussed by the
appellate court, the jury also heard from
Julie’s best friend, who testified that Julie
used the computer to conduct research and
for household bookkeeping. Julie’s resume stated that she had performed ‘‘online security order entry’’ while working at
Dean Witter. She had also obtained a
Series Seven broker’s license that allowed
her to place and accept stock trades. That
evidence was consistent with Jensen’s
statement to investigators denying any
knowledge of the internet searches for poison and stating that Julie also used the
internet and accessed the computer.
Moreover, that the home computer’s internet search history was deleted is equally
consistent with both Julie trying to hide
evidence of her suicide and with Jensen
trying to hide evidence of murder. And no
searches for poisons were found on Jensen’s work computer, which one might
have expected if he were the person doing
that search on the home computer.
This case was no slam dunk. The evidence was all circumstantial. And there
was significant evidence in support of Jensen’s theory that Julie had taken her life,
evidence not discussed at all by the Wisconsin appellate court. For example, she
had visited her doctor, Dr. Richard Borman, two days before her death. Dr. Borman testified that she was ‘‘highly upset’’
and ‘‘seemed depressed and distraught and
almost frantic, actually.’’ The jury heard
that Dr. Borman prescribed the anti-depressant Paxil, which can worsen a de-
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JENSEN v. CLEMENTS
Cite as 800 F.3d 892 (7th Cir. 2015)
pressed person’s symptoms. Julie became
ill the day after she saw Dr. Borman,
starting in the early hours of the day, and
by mid-morning Jensen had gone to see
Dr. Borman. Jensen expressed concern
that Julie was suffering from Paxil’s side
effects including sleeplessness, and Dr.
Borman prescribed a sleep aid. It was
while Jensen was away seeing Dr. Borman
that Julie phoned Mrs. Wojt to say not to
worry if she did not see Julie outside that
day, another significant piece of evidence
that supported the defense’s suicide theory. A jury could infer that once Jensen
left for the doctor, Julie put her suicide
plan into action, including calling Mrs.
Wojt and going on the computer to search
for ethylene glycol poisoning. (There was
an internet search for ethylene glycol poisoning at 9:45 am that day, when the defense said Jensen was away seeing Dr.
Borman.)
Nor did the state appellate court discuss
the significant credibility problems of seven-time convict Aaron Dillard, Jensen’s
one-time cellblock mate whom the trial
judge called the ‘‘top liar I’ve ever had in
court.’’ Dillard, testifying at trial while
awaiting his own sentencing, testified that
Jensen admitted to him in prison that he
had poisoned Julie and later suffocated her
by pushing her face into a pillow. The
medical professionals who opined for the
very first time at trial that Julie was suffocated (Dr. Chambliss and Dr. Mainland)
relied on Dillard’s account for the suffocation details. Dillard had in his cell a transcript of the lead detective’s interrogation
2.
The dissent suggests that it is somehow irrelevant that the Wisconsin appellate court’s
lengthy opinion ignored extensive evidence.
But in Harrington v. Richter, 562 U.S. 86, 131
S.Ct. 770, 178 L.Ed.2d 624 (2011), to which
the dissent points, there was no state court
opinion that explained the reasons for denying relief. Id. at 98, 131 S.Ct. 770. Here,
however, the state court gave a detailed account of the ‘‘arguments or theories [that]
supported TTT the state court’s decision,’’ and
907
of Jensen, and the trial judge recognized
there was testimony from which the jury
could conclude that Dillard was in and out
of Jensen’s cell. Although the State argued that Jensen had confessed to his
cellblock mate Dillard, if the transcript
was in Jensen’s cell, that could have been
the way Dillard obtained the details.
The state appellate court also did not
discuss the testimony of Dr. Herzl Spiro,
who examined Julie’s mental health records and interviewed persons close to her.
He testified that Julie was suffering from a
major depressive disorder that was complicated by anxiety and agitation with possible delusional features, and he concluded
that she posed a significant suicide risk
and that it was more likely that Julie’s
ingestion of antifreeze was the result of
suicidal intent rather than homicide or accident.
The state appellate court noted the testimony from Edward Klug who said that
during a late-night gripe session with Jensen about their wives, Jensen said that if
one wanted to get rid of his wife, there
were websites instructing how to kill her
with undetectable poison. But the court
did not discuss the fact that Klug had not
come forward with this account until nine
years after Julie’s death, despite the large
amount of publicity surrounding the case.
The state appellate court was concerned
only with the evidence in the prosecution’s
favor, while the proper concern is with the
overall strength of the prosecution’s case.
Van Arsdall, 475 U.S. at 684, 106 S.Ct.
1431; Jones, 635 F.3d at 1032.2
that account matters to our analysis. Id. at
102, 131 S.Ct. 770; see Brady v. Pfister, 711
F.3d 818, 826 (7th Cir.2013) (explaining that
even after Richter, federal courts must evaluate whether § 2254(d) satisfied in light of
state court’s explanation); cf. Kubsch v.
Neal, 800 F.3d 783, 803–07, 2015 WL
4747942, at *17–19 (7th Cir. Aug. 12, 2015)
(discussing review where state court rationale
is incomplete). The actual arguments and
App. p. 30
908
800 FEDERAL REPORTER, 3d SERIES
We conclude that after consideration of
the correct standard of review, the improperly admitted letter and accusatory statements resulted in actual prejudice to Jensen. We recognize that ‘‘an unreasonable
application of federal law is different from
an incorrect application of federal law.’’
Harrington v. Richter, 562 U.S. 86, 131
S.Ct. 770, 178 L.Ed.2d 624 (2011). But the
state appellate court’s ruling was not simply incorrect. The state trial judge recognized this when he called the letter’s admittance ‘‘grave constitutional error’’ when
he foresaw the Giles ruling. 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.
Any reasonable jurist using the proper
standard would have to find ‘‘grave doubt’’
about whether that violation is harmless.
The error in admission had a substantial
and injurious effect or influence in determining the jury’s verdict; it was one ‘‘well
understood and comprehended in existing
law beyond any possibility for fairminded
disagreement.’’ Richter, 562 U.S. at 103,
131 S.Ct. 770. Because Jensen satisfies
the Brecht standard, he necessarily satisfies the AEDPA standard of an unreasonable application of the Chapman harmless
error standard. See Ayala, 135 S.Ct. at
2198; Fry, 551 U.S. at 120, 127 S.Ct. 2321.
As a result, we agree with the district
court that Jensen’s petition must be granted.
lated Jensen’s confrontation rights, but the
Wisconsin Court of Appeals affirmed his
conviction, holding that the error was
harmless beyond a reasonable doubt under
Chapman v. California, 386 U.S. 18, 24, 87
S.Ct. 824, 17 L.Ed.2d 705 (1967). Fairminded jurists could disagree with that
holding. Indeed, my colleagues in the majority, who epitomize fair-mindedness, disagree, and make a strong case for doing
so. But I submit that fairminded jurists
could also agree with the Wisconsin Court
of Appeals. And because we owe great
deference to the state court’s decision, we
are not in a position to choose between two
fairminded alternatives. I would uphold
the decision of the Wisconsin Court of
Appeals as a reasonable application of
Chapman. Therefore, I respectfully dissent.
The admission of Julie’s letter and testimonial statements to Officer Kosman vio-
In Brecht v. Abrahamson, 507 U.S. 619,
113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), the
Supreme Court established the harmlesserror standard that applies ‘‘in determining whether habeas relief must be granted
because of constitutional error of the trial
type.’’ Id. at 638, 113 S.Ct. 1710. The
test is ‘‘whether the error had substantial
and injurious effect or influence in determining the jury’s verdict.’’ Id. at 637, 113
S.Ct. 1710 (quotation omitted). In other
words, there must be ‘‘actual prejudice.’’
Id. (quotation omitted).
Three years after [the Court] decided
Brecht, Congress passed, and the President signed, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), under which a habeas petition may
not be granted unless the state court’s
adjudication ‘‘resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the
theories supporting the state appellate court’s
decision convince us that its error was ‘‘well
understood and comprehended in existing
law beyond any possibility for fairminded disagreement.’’ Richter, 562 U.S. at 103, 131
S.Ct. 770.
III.
CONCLUSION
The judgment of the district court is
AFFIRMED.
TINDER, Circuit Judge, dissenting.
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JENSEN v. CLEMENTS
Cite as 800 F.3d 892 (7th Cir. 2015)
Supreme
Court
of
the
United
StatesTTTT’’
Fry v. Pliler, 551 U.S. 112, 119, 127 S.Ct.
2321, 168 L.Ed.2d 16 (2007) (quoting 28
U.S.C. § 2254(d)(1)).
The Court recently held that when a
state prisoner ‘‘seeks federal habeas corpus relief, he must meet the Brecht standard, but that does not mean TTT that a
state court’s harmlessness determination
has no significance under Brecht.’’ Davis
v. Ayala, ––– U.S. ––––, 135 S.Ct. 2187,
2198, 192 L.Ed.2d 323 (2015). Rather,
‘‘[w]hen a Chapman decision is reviewed
under AEDPA, ‘a federal court may not
award habeas relief under § 2254 unless
the harmlessness determination itself was
unreasonable.’ ’’ Id. at 2199 (quoting Fry,
551 U.S. at 119, 127 S.Ct. 2321). ‘‘And a
state-court decision is not unreasonable if
‘fairminded jurists could disagree on [its]
correctness.’ ’’ Id. (quoting Harrington v.
Richter, 562 U.S. 86, 101, 131 S.Ct. 770,
178 L.Ed.2d 624 (2011)) (internal quotation
marks omitted). Thus, to prevail, a petitioner ‘‘must show that the state court’s
decision to reject his claim ‘was so lacking
in justification that there was an error well
understood and comprehended in existing
law beyond any possibility for fairminded
disagreement.’ ’’ Id. (quoting Richter, 562
U.S. at 103, 131 S.Ct. 770).
As assumed by the Wisconsin Court of
Appeals, the admission of Julie’s letter and
testimonial statements to Officer Kosman
violated the Confrontation Clause. However, to obtain habeas relief, Jensen ‘‘must
show that he was actually prejudiced by
this [violation], a standard that he necessarily cannot satisfy if a fairminded jurist
could agree with the [state court’s] decision that the [violation] met the Chapman
standard of harmlessness.’’ Id.
The Wisconsin Court of Appeals examined Julie’s letter line by line, and it explained in great detail how all of Julie’s
statements in the letter were duplicative of
909
other, admissible evidence. State v. Jensen (Jensen II), 331 Wis.2d 440, 794
N.W.2d 482, 495–98 (App.2010). It did the
same with Julie’s testimonial statements to
Officer Kosman. Id. at 498–99. For example, Jensen’s sister, Laura Koster, testified that Julie told her that she thought
Jensen might be planning to kill her.
Koster also testified that Julie showed her
a photo of a list from Jensen’s day planner
and something that ‘‘looked like a syringe.’’
Tadeusz Wojt, Julie’s neighbor, testified
that during the three weeks prior to Julie’s
death, Julie was upset and ‘‘scared she was
go[ing] to die,’’ because Julie feared that
Jensen was trying to poison her by
‘‘put[ting] something in the wine’’ Jensen
insisted Julie drink. Wojt also testified
that Julie told him that she did not think
she would make it through one particular
weekend because she had found suspicious
notes written by her husband and she had
seen a computer page about poisoning that
Jensen had left open on the home computer. Wojt testified that Julie repeatedly
told him about marital problems she and
Jensen were having.
Therese DeFazio, Julie’s son’s teacher,
testified that a week before her death,
Julie told DeFazio that she thought Jensen
was trying to kill her and ‘‘was going to
make it look like a suicide.’’ DeFazio said
Julie told her about a list written by Jensen that included ‘‘syringes TTT and drugs
and items like that,’’ and Julie feared that
Jensen was going to try to give her an
overdose of drugs by putting them in her
food or drink. DeFazio testified that Julie
said that Jensen ‘‘never forgave her’’ for
the affair she had eight years earlier. DeFazio also testified that in August 1998 she
asked Julie to help in the computer lab
with the children, and Julie said, ‘‘[O]h, I
can’t do that, I don’t even know how to
turn one on.’’ DeFazio testified that Julie’s son told DeFazio that he was teaching
App. p. 32
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800 FEDERAL REPORTER, 3d SERIES
his mother how to use a computer because
‘‘she didn’t know how.’’ DeFazio testified
that Julie said she gave her neighbor a
note, ‘‘saying that if my husband ever kills
me please believe that I did not commit
suicide, I would never do that because I
love my children and I wouldn’t do that to
my children.’’
Dr. Richard Borman, Julie’s physician,
testified that two days before her death,
Julie denied being suicidal and said she
loved her children ‘‘more than anything
and they were the most important thing in
the world to her,’’ and she did not want to
lose them. Dr. Borman said Julie alluded
to an affair that she had in the past and
said she believed that Jensen had ‘‘never
really forgiven’’ her for it.
Jensen’s friend and co-worker, David
Nehring, testified that soon after he met
Jensen, sometime around 1990 or 1991,
Jensen told him about Julie’s brief affair.
Nehring testified that eight years after
telling him about the affair, Jensen’s anger
had not diminished. He said that ‘‘[Jensen] remained upset about [the affair] and
distressed over it for as long as I knew
him.’’ Nehring described Jensen’s computer skills as ‘‘above average,’’ and testified that during the month before Julie’s
death, Jensen conducted Internet searches
on drug interactions ‘‘on a very frequent
basis.’’ Nehring testified that Jensen said
he was trying to get Julie to relax by
offering her glasses of wine at night, but
she was resisting his efforts. Nehring also
testified that a day after Nehring told
Jensen he was surprised the police had not
seized Jensen’s work computer as part of
the investigation into Julie’s death, Jensen
reported that his work computer ‘‘had
been fried and he’d have to get a new one.’’
The State presented evidence indicating
that Jensen repeatedly placed pornographic photos around the house for Julie to find
and that Jensen knew Julie believed her
former paramour was planting them. Jen-
sen denied knowing the origin of the pornographic photos, but he told the investigating officer, Detective Paul Ratzburg,
that he began saving the photos and using
them to upset Julie when ‘‘something
would happen’’ that caused him to ‘‘get
pissed off.’’ Detective Ratzburg said Jensen explained that sometimes Jensen
would leave the photos out for Julie to find
and other times he would bring them out,
show them to Julie and tell her that he
‘‘found these in the shed.’’ Detective Ratzburg testified that Jensen admitted that
their marriage was never the same after
Julie’s affair.
Detective Ratzburg also testified that
Jensen told him that on the morning of
Julie’s death, Julie ‘‘could hardly sit up,’’
she ‘‘was not able to get out of bed,’’ and
she ‘‘was not able to move around and
function.’’ Jensen said he propped Julie
up in bed at 7:30 a.m., and he did not leave
home that morning until 8:00 or 9:00 a.m.
This timetable is significant because of
computer evidence that, at 7:40 a.m. on the
day of Julie’s death, a search for ‘‘ethylene
glycol poisoning’’ was conducted on the
Jensen home computer and then the user
double-deleted that morning’s Internet history. Computer evidence also revealed
that, two months earlier, the Jensen home
computer was used to search for methods
of poisoning on the same day Jensen and
his then-paramour exchanged emails planning their future together.
In short, there were multiple sources of
admissible evidence duplicating (or corroborating) every relevant aspect of Julie’s
erroneously admitted testimonial statements. In particular, Julie’s letter and
statements to Officer Kosman were not the
only times Julie told her story; during the
same time period, she told variations of the
same story to multiple people. This contributed to what the Wisconsin Court of
Appeals described as ‘‘the staggering
App. p. 33
JENSEN v. CLEMENTS
Cite as 800 F.3d 892 (7th Cir. 2015)
weight of the untainted evidence and cumulatively sound evidence presented by
the State,’’ which led the court to conclude
that ‘‘the State has proven beyond a reasonable doubt that any error complained of
did not contribute to the verdict obtained.’’
Jensen II, 794 N.W.2d at 504.
The Wisconsin Court of Appeals recognized that ‘‘[t]his case was not a classic
whodunit.’’ Id. at 493. Instead, the jury
was asked to choose between two dark and
premeditated alternatives—either Jensen
murdered Julie and framed it to look like
suicide, or Julie committed suicide and
framed Jensen for murder. One unique
aspect of this case is that each of Julie’s
testimonial statements, as well as much of
the duplicative admissible evidence, could
be interpreted to support either alternative. (Given the wealth of duplicative admissible evidence, it seems safe to assume
the jury will be presented with the same
stark choice if there is a retrial.) It reasonably could be said that the inclusion or
exclusion of Julie’s letter and testimonial
statements to Officer Kosman would not
significantly alter the jury’s choice or the
considerations underlying that choice, no
matter the rhetoric employed by the
State’s lawyers in pretrial filings or the
parties’ use of the letter as a framing
device during trial.
In part because so much of the evidence
could be viewed as supporting either of the
two competing theories, the prosecution’s
case was not a slam dunk, as discussed by
the majority. And as also noted by the
majority, there might be reason to believe
that Julie’s letter was especially forceful
evidence (even though its authenticity was
questioned) and that members of the jury
would have given less weight to Julie’s oftrepeated fears and accusations if all they
had were her oral statements to her neighbor, her son’s teacher, and Jensen’s sister,
as well as the corroborating computer and
medical evidence, evidence of Jensen’s in-
911
criminating statements and motive, and evidence of Julie’s lack of suicidal intent and
devotion to her children. But it might also
be reasonable to think that without the
letter and testimonial statements to Officer
Kosman, the jury would have been less
inclined to believe Jensen’s theory that
Julie committed suicide and framed him
for murder, because anyone concocting
such a scheme likely would have memorialized their accusations in writing and taken
steps to ensure they came to the attention
of the police. In other words, in this
unique situation—where the evidence at
issue supported each side’s theory—the
state court could reasonably decide that
despite the significant role Julie’s testimonial statements played in the trial, those
statements did not play a significant role
in deciding the jury’s verdict.
The majority faults the Wisconsin Court
of Appeals for ignoring evidence supporting the defense theory. It is worth pointing out that the Wisconsin court stated
that it ‘‘review[ed] the extensive record.’’
Jensen II, 794 N.W.2d at 504. But ‘‘of
greater moment is the Supreme Court’s
ruling in Harrington [v. Richter ] that
even a state court ‘opinion’ consisting of
the single word ‘affirmed’ is entitled to the
full deference that the habeas corpus statute demands be given determinations by
state courts. The Supreme Court’s ruling
precludes our inferring error from the
Wisconsin court’s failure to discuss particular pieces of evidence.’’ Price v. Thurmer, 637 F.3d 831, 839 (7th Cir.2011) (citing
Richter, 562 U.S. at 98–99, 131 S.Ct. 770).
The majority reads the Wisconsin Court
of Appeals’s decision as employing a sufficiency-of-the-evidence test, rather than a
harmlessness test. If that was true, it
would be an unreasonable application of
Chapman, and to be fair, there are a few
statements in the state court’s opinion to
support this reading. But in each case,
the court reiterated its finding of harm-
App. p. 34
912
800 FEDERAL REPORTER, 3d SERIES
lessness based on ‘‘the staggering weight
of the untainted evidence and cumulatively
sound evidence presented by the State.’’
Jensen II, 794 N.W.2d at 504. For example, after cataloging some of the state’s
corroborating evidence, the court stated:
With the above illustrative summary of
the other, untainted and undisputed
gripping evidence against Jensen—from
which a rational jury could alone conclude beyond a reasonable doubt that
Jensen cruelly planned and plotted and,
in fact, carried out the murder of his
wife Julie—we move on to examine the
admitted testimonial evidence for a determination as to whether the assumed
error in admitting it was harmless or
reversible. As already noted, we conclude that the State has met its burden
of proving admission of the testimonial
evidence was harmless beyond a reasonable doubt. The State deftly dissects
the challenged testimonial evidence and
is able to point to admissible duplicative
and corroborative evidence in the record.
Id. at 494–95 (emphasis added). This passage makes clear that while the Wisconsin
Court of Appeals found the nontestimonial
evidence against Jensen sufficient to support the jury’s verdict, this was not the
basis of its harmlessness finding. Instead,
the court ‘‘move[d] on’’ to conclude that
the admission of Julie’s testimonial statements was harmless because the statements were duplicative of other, untainted
corroborative evidence. Cf. Delaware v.
Van Arsdall, 475 U.S. 673, 684, 106 S.Ct.
1431, 89 L.Ed.2d 674 (1986) (‘‘Whether
such an error is harmless in a particular
case depends upon a host of factorsTTTT
These factors include TTT whether the testimony was cumulative, [and] the presence
or absence of evidence corroborating or
contradicting the testimony of the witness
on material pointsTTTT’’). As the Wisconsin court stated in concluding its harmlessness analysis, ‘‘[t]he sine qua non is that
the testimonial statements provided nothing significant beyond the properly admitted nontestimonial statements.’’ Jensen
II, 794 N.W.2d at 499. And as the court
reiterated in concluding its opinion: ‘‘the
State has proven beyond a reasonable
doubt that any error complained of did not
contribute to the verdict obtained.’’ Id. at
504; cf. Chapman, 386 U.S. at 24, 87
S.Ct. 824 (‘‘[B]efore a federal constitutional
error can be held harmless [on direct appeal], the court must be able to declare a
belief that it was harmless beyond a reasonable doubt.’’).
The Wisconsin Court of Appeals concluded that ‘‘even assuming the testimonial
evidence of Julie’s letter and Julie’s statements to Kosman were inadmissible under
the rules of evidence and the Sixth
Amendment Confrontation Clause, we
deem any error in admission harmless.’’
Jensen II, 794 N.W.2d at 499. Based on
the duplicative nature of Julie’s testimonial
statements and the overall strength of the
prosecution’s case (even considering the
defense evidence discussed by the majority), I am not convinced that the state
court’s decision ‘‘ ‘was so lacking in justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.’ ’’ Ayala, 135 S.Ct. at 2199
(quoting Richter, 562 U.S. at 103, 131 S.Ct.
770); cf. id. at 2198 (‘‘There must be more
than a ‘reasonable possibility’ that the error was harmful. The Brecht standard
reflects the view that a ‘State is not to be
put to th[e] arduous task [of retrying a
defendant] based on mere speculation that
the defendant was prejudiced by trial error; the court must find that the defendant was actually prejudiced by the error.’ ’’) (quoting Brecht, 507 U.S. at 637,
113 S.Ct. 1710; Calderon v. Coleman, 525
U.S. 141, 146, 119 S.Ct. 500, 142 L.Ed.2d
521 (1998)). I would find that the decision
of the Wisconsin Court of Appeals represented a reasonable application of control-
App. p. 35
COMMON CAUSE INDIANA v. INDIVIDUAL MEMBERS OF IEC
Cite as 800 F.3d 913 (7th Cir. 2015)
ling precedent. Accordingly, I would reverse the grant of habeas relief.
,
COMMON CAUSE INDIANA,
Plaintiff–Appellee,
v.
INDIVIDUAL MEMBERS OF THE
INDIANA ELECTION COMMISSION,
et al., Defendants–Appellants.
No. 14–3300.
United States Court of Appeals,
Seventh Circuit.
Argued March 31, 2015.
Decided Sept. 9, 2015.
Background: Advocacy group brought action alleging that statute governing county’s process for electing judges violated
voters’ First Amendment right to political
association. The United States District
Court for the Southern District of Indiana,
Richard L. Young, Chief Judge, 60
F.Supp.3d 982, entered summary judgment in group’s favor, and state appealed.
Holding: The Court of Appeals, Theresa
L. Springmann, District Judge, sitting by
designation, held that statute violated voters’ First Amendment right of political
association.
Affirmed.
1. Constitutional Law O1461, 4232
In reviewing state law regulating elections, court must consider character and
magnitude of asserted injury to rights protected by First and Fourteenth Amendments that plaintiff seeks to vindicate
against precise interests put forward by
state as justifications for burden imposed
by its rule, taking into consideration extent
* Of the Northern District of Indiana, sitting by
913
to which those interests make it necessary
to burden plaintiff’s rights. U.S.C.A.
Const.Amends. 1, 14.
2. Constitutional Law O1477
Judges O3
Indiana statute establishing process
for electing judges to county superior
court, pursuant to which each major party
could nominate candidates for no more
than half of eligible seats, which resulted
in nearly all positions for office of judge
being uncontested in general elections, violated voters’ First Amendment right to
associate with others for political ends;
statute hindered electoral choice by which
voters would have opportunity to choose
between competing alternatives that would
have otherwise existed, partisan balance
amongst judges who comprised court,
alone, had little bearing on impartiality,
and state could serve its interest in protecting judicial elections from extreme partisanship through proper enforcement of
restrictions on political and campaign activities already in place for judicial candidates. U.S.C.A. Const.Amends. 1, 14;
West’s A.I.C. 33–33–49–13.
West Codenotes
Held Unconstitutional
West’s A.I.C. 33–33–49–13
Kenneth J. Falk, Indiana Civil Liberties
Union, Indianapolis, IN, for Plaintiff–Appellee.
Thomas M. Fisher, Office of the Attorney General, Indianapolis, IN, for Defendants–Appellants.
Before KANNE and ROVNER, Circuit
Judges, and SPRINGMANN, District
Judge.*
designation.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.