Petition for Writ of Certiorari — Wisconsin, Petitioner v. Mark D. Jensen
Supreme Court briefAug 10, 2021
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No. 21In The
Supreme Court of the United States
♦
STATE OF WISCONSIN,
Petitioner,
v.
MARK D. JENSEN,
Respondent.
♦
PETITION FOR A WRIT OF CERTIORARI
♦
JOSHUA L. KAUL
Attorney General of Wisconsin
SCOTT E. ROSENOW*
Assistant Attorney General
JOHN A. BLIMLING
Assistant Attorney General
Attorneys for Petitioner
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-3539
(608) 266-9594 (Fax)
rosenowse@doj.state.wi.us
*Counsel of Record
QUESTIONS PRESENTED
Before Julie Jensen died, she told a police officer acquaintance that she was not
suicidal and that if she died, the police should look at her husband, Mark Jensen, as a
suspect. The Wisconsin Supreme Court held that these statements were testimonial
hearsay whose admission violated Jensen’s confrontation rights at his trial for killing
Julie.
The questions presented are:
1.
Can a person’s statement expressing fear about a possible future crime
be testimonial under the Sixth Amendment’s Confrontation Clause?
2.
When a person reports ongoing psychological domestic abuse and
expresses fear about future physical harm, is the person’s statement aimed at ending
an ongoing emergency such that it is non-testimonial?
i
RELATED PROCEEDINGS
State v. Jensen, No. 2004AP2481-CR, Wisconsin Supreme Court. Judgment
entered February 23, 2007.
State v. Jensen, No. 2002-CF-314, Kenosha County Circuit Court. Judgment of
conviction entered February 27, 2008.
State v. Jensen, No. 2009AP898-CR, Wisconsin Court of Appeals. Judgment
entered December 29, 2010.
State v. Jensen, No. 2009AP898-CR, Wisconsin Supreme Court. Order entered
June 15, 2011.
Jensen v. Schwochert, No. 11-C-803, U.S. District Court for the Eastern
District of Wisconsin. Judgment entered December 18, 2013, and January 23, 2014.
Jensen v. Clements, No. 14-1380, U.S. Court of Appeals for the Seventh Circuit.
Judgment entered September 8, 2015. Rehearing denied October 9, 2015.
State v. Jensen, No. 02-CF-314, Kenosha County Circuit Court. Judgment of
conviction entered September 8, 2017.
Jensen v. Clements, No. 11-C-803, U.S. District Court for the Eastern District
of Wisconsin. Order entered November 27, 2017.
Jensen v. Pollard, No. 17-3639, U.S. Court of Appeals for the Seventh Circuit.
Judgment entered May 15, 2019. Rehearing and rehearing en banc denied
November 6, 2019.
ii
Jensen v. Pollard, No. 19-7603, U.S. Supreme Court. Certiorari denied
June 29, 2020.
State v. Jensen, No. 2018AP1952-CR, Wisconsin Court of Appeals. Judgment
entered February 26, 2020.
State v. Jensen, No. 2018AP1952-CR, Wisconsin Supreme Court. Judgment
entered March 18, 2021.
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................................................................... i
RELATED PROCEEDINGS.......................................................................................... ii
TABLE OF CONTENTS ............................................................................................... iv
TABLE OF APPENDIX ................................................................................................. v
TABLE OF AUTHORITIES ......................................................................................... vi
OPINIONS BELOW ...................................................................................................... 1
JURISDICTION............................................................................................................. 2
CONSTITUTIONAL PROVISION INVOLVED ........................................................... 2
INTRODUCTION .......................................................................................................... 3
STATEMENT OF THE CASE....................................................................................... 4
A.
The murder of Julie, interlocutory appeal, and trial .............................. 4
B.
Direct appeal from conviction .................................................................. 9
C.
Federal habeas corpus proceedings ....................................................... 10
D.
Reinstated conviction ............................................................................. 11
E.
Direct appeal from reinstated conviction .............................................. 13
REASONS FOR GRANTING THE PETITION .......................................................... 14
I.
CERTIORARI IS WARRANTED ON THE QUESTION
WHETHER A STATEMENT ABOUT A POSSIBLE FUTURE
CRIME CAN BE TESTIMONIAL. ........................................................ 16
A.
The lower courts are divided on this issue. ................................ 16
B.
The Wisconsin Supreme Court’s ruling on the issue is
wrong. ........................................................................................... 18
iv
II.
III.
CERTIORARI IS WARRANTED ON THE QUESTION
WHETHER A STATEMENT TO POLICE BY A VICTIM OF
ONGOING DOMESTIC ABUSE IS AIMED AT ENDING AN
ONGOING EMERGENCY AND THUS NOT TESTIMONIAL. .......... 23
A.
The Wisconsin Supreme Court’s ruling on the issue
conflicts with this Court’s decisions. ........................................... 23
B.
Whether Julie’s voicemails were made during an ongoing
emergency raises an important question with nationwide
legal implications. ........................................................................ 29
THIS CASE IS AN APPROPRIATE VEHICLE. ................................... 31
CONCLUSION............................................................................................................. 32
TABLE OF APPENDIX
State v. Jensen (Jensen III),
2021 WI 27, 396 Wis. 2d 196, 957 N.W.2d 244 ...................................... Pet-App. 1 – 13
Wisconsin Court of Appeals Opinion
Reversing Reinstated Conviction ......................................................... Pet-App. 14 – 26
Kenosha County Circuit Court Order
Reinstating Judgment of Conviction ................................................... Pet-App. 27 – 28
Transcript of Motion Hearing on 09-01-2017 ...................................... Pet-App. 29 – 42
United States Supreme Court Order Denying Certiorari,
141 S. Ct. 165 ................................................................................................ Pet-App. 43
7th Circuit Order Denying Petition for Rehearing on 11-06-2019 ............. Pet-App. 44
Jensen v. Pollard,
924 F. 3d 451 (7th Cir. 2019)................................................................ Pet-App. 45 – 48
Jensen v. Clements,
No. 11-C-803, 2017 WL 5712690 (E.D. Nov. 27, 2017)........................ Pet-App. 49 – 55
v
State v. Jensen (Jensen II),
2011 WI App. 3, 331 Wis. 2d 440, 794 N.W.2d 482 ............................. Pet-App. 56 – 70
State v. Jensen (Jensen I),
2007 WI 26, 299 Wis. 2d 267, 727 N.W.2d 518 .................................... Pet-App. 71 – 90
U.S. Const. amend VI ................................................................................... Pet-App. 91
TABLE OF AUTHORITIES
Cases
Bray v. Commonwealth,
177 S.W.3d 741 (Ky. 2005) ........................................................... 16, 17, 18, 19
Commonwealth v. Wardsworth,
124 N.E.3d 662 (Mass. 2019) ......................................................................... 20
Crawford v. Washington,
541 U.S. 36 (2004) ...............................................................................7, passim
Davis v. Washington,
547 U.S. 813 (2006) ...........................................................................19, passim
Demons v. State,
595 S.E.2d 76 (Ga. 2004) .......................................................................... 17, 18
Giles v. California,
554 U.S. 353 (2008) .............................................................................. 9, 29, 30
Hathorn v. Lovorn,
457 U.S. 255 (1982) .................................................................................. 16, 31
Houchin v. Commonwealth,
No. 2008-SC-373-MR, 2009 WL 4251645 (Ky. Nov. 25, 2009) ..................... 19
Jensen v. Clements,
11-C-803, 2017 WL 5712690 (E.D. Wis. Nov. 27, 2017) ................................. 1
Jensen v. Clements,
800 F.3d 892 (7th Cir. 2015) ................................................................ 1, 10, 11
vi
Jensen v. Pollard,
141 S. Ct. 165 (2020) .................................................................................. 1, 13
Jensen v. Pollard,
924 F. 3d 451 (7th Cir. 2019) ..................................................................... 1, 13
Jensen v. Schwochert,
No. 11-C-0803, 2013 WL 6708767 (E.D. Wis. Dec. 18, 2013) ................... 2, 10
Jensen v. Schwochert,
No. 11-C-0803, 2014 WL 257861 (E.D. Wis. Jan. 23, 2014) ........................... 2
Michigan v. Bryant,
562 U.S. 344 (2011) ...........................................................................11, passim
Ohio v. Clark,
576 U.S. 237 (2015) ...........................................................................14, passim
Padgett v. Commonwealth,
312 S.W.3d 336 (Ky. 2010) ....................................................................... 16, 17
Pennsylvania v. Ritchie,
480 U.S. 39 (1987) .......................................................................................... 31
Reece v. Georgia,
350 U.S. 85 (1955) .......................................................................................... 31
State v. Brown,
173 P.3d 612 (Kan. 2007) ............................................................................... 20
State v. Jensen (Jensen I),
2007 WI 26, 299 Wis. 2d 267, 727 N.W.2d 518 ........................................... 2, 7
State v. Jensen (Jensen II),
2011 WI App. 3, 331 Wis. 2d 440, 794 N.W.2d 482 .............................. 2, 9, 13
State v. Jensen (Jensen III),
2021 WI 27, 396 Wis. 2d 196, 957 N.W.2d 244 ......................................... 1, 14
State v. Williams,
392 P.3d 1267 (Kan. 2017) ............................................................................. 20
vii
Turner v. State,
641 S.E.2d 527 (Ga. 2007) .............................................................................. 17
United States v. Cromer,
389 F.3d 662 (6th Cir. 2004) .................................................................... 16, 18
United States v. Mayhew,
380 F. Supp. 2d 961 (S.D. Ohio 2005) ........................................................... 18
United States v. Smalls,
605 F.3d 765 (10th Cir. 2010) .................................................................. 20, 21
United States v. Summers,
414 F.3d 1287 (10th Cir. 2005) .......................................................... 19, 20, 21
Constitution
U.S. Const. amend VI .......................................................................................... 2
Statute
28 U.S.C. § 1254(1) .............................................................................................. 2
Other Authorities
Confrontation: The Search for Basic Principles,
86 Geo. L.J. 1011 (1998) ........................................................................... 16, 18
U.S. Sup. Ct. R. 10(b) ............................................................................. 18, 23, 31
U.S. Sup. Ct. R. 10(c) ............................................................................. 29, 30, 31
viii
OPINIONS BELOW
Direct challenge to reinstated conviction: The opinion of the Wisconsin Supreme
Court reversing Jensen’s reinstated conviction is reported as State v. Jensen, 2021 WI
27, 396 Wis. 2d 196, 957 N.W.2d 244 (Jensen III). (Pet-App. 1–13.) The opinion of the
Wisconsin Court of Appeals reversing Jensen’s reinstated conviction is unreported.
(Pet-App. 14–26.) The Kenosha County Circuit Court’s order reinstating Jensen’s
judgment of conviction is unreported. (Pet-App. 27–28.)
Federal collateral challenge to reinstated conviction: The order of the United
States Supreme Court denying certiorari is reported as Jensen v. Pollard, 141 S. Ct.
165 (2020). (Pet-App. 43.) The opinion of the United States Court of Appeals for the
Seventh Circuit denying enforcement of the writ of habeas corpus is reported as Jensen
v. Pollard, 924 F.3d 451 (7th Cir. 2019). (Pet-App 45–48.) The order of the Seventh
Circuit denying the petition for rehearing en banc is not reported. (Pet-App. 44.) The
opinion of the United States District Court for the Eastern District of Wisconsin
denying enforcement of the writ of habeas corpus is unreported but available at Jensen
v. Clements, No. 11-C-803, 2017 WL 5712690 (E.D. Wis. Nov. 27, 2017) (unpublished).
(Pet-App. 49–55).
Federal collateral challenge to original conviction: The opinion of the United
States Court of Appeals for the Seventh Circuit affirming the grant of the writ of
habeas corpus is reported as Jensen v. Clements, 800 F.3d 892 (7th Cir. 2015). The
opinion of the Seventh Circuit denying the petition for rehearing en banc is not
reported. The opinion of the United States District Court for the Eastern District of
Wisconsin granting a writ of habeas corpus is unreported but available at Jensen v.
Schwochert, No. 11-C-0803, 2013 WL 6708767 (E.D. Wis. Dec. 18, 2013) (unpublished).
The district court’s order denying the State’s motion to alter or amend the judgment is
unreported but available at Jensen v. Schwochert, No. 11-C-0803, 2014 WL 257861
(E.D. Wis. Jan. 23, 2014).
Direct challenge to original conviction: The opinion of the Wisconsin Court of
Appeals affirming Jensen’s original conviction is reported as State v. Jensen, 2011 WI
App. 3, 331 Wis. 2d 440, 794 N.W.2d 482 (Jensen II). (Pet-App. 56–70.)
Interlocutory appeal of evidentiary rulings: The opinion of the Wisconsin
Supreme Court is reported as State v. Jensen, 2007 WI 26, 299 Wis. 2d 267, 727 N.W.2d
518 (Jensen I). (Pet-App. 71–90.)
JURISDICTION
The Wisconsin Supreme Court entered judgment on March 18, 2021. On
March 19, 2020, this Court extended the deadline to file petitions for writs of certiorari
to 150 days from the date of the lower court judgment. This Court has jurisdiction
under 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
“In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend. VI.
2
INTRODUCTION
Julie Jensen died from poisoning. A jury found her husband, Mark Jensen,
guilty of her homicide. The evidence at Jensen’s month-long trial included Julie’s
handwritten letter and voicemails to a police officer, in which Julie expressed her fear
that Jensen was planning to kill her.
The Wisconsin Supreme Court held that these statements by Julie were
“testimonial” hearsay under the Sixth Amendment’s Confrontation Clause. The court
adopted a broad test that would deem any statement testimonial if it could reasonably
be anticipated to be used in an investigation or prosecution of a crime. The court
reasoned that Julie’s voicemails and letter were testimonial because they implicated
Jensen in a crime, even though Jensen had not yet committed the crime when Julie
made those statements. The court further reasoned that Julie’s voicemails were not
made during an ongoing emergency, even though she said in a voicemail that she
thought her husband was going to kill her.
That analysis conflicts with decisions of other courts and stands in significant
tension with this Court’s precedent. Several courts have held that statements about
possible future crimes are almost certainly never testimonial, in direct conflict with the
Wisconsin Supreme Court’s decision. Courts have also recognized that the expansive
definition of “testimonial,” which the Wisconsin Supreme Court adopted and applied
in Jensen’s case, is overly broad and inconsistent with this Court’s precedent. Finally,
the Wisconsin Supreme Court took an overly narrow view of what constitutes an
3
ongoing emergency, ignoring that Julie made her statements at issue while suffering
ongoing psychological abuse. Whether those statements are testimonial is an
important issue of constitutional law involving multiple splits of authority.
STATEMENT OF THE CASE
A.
The murder of Julie, interlocutory appeal, and trial
Jensen’s wife, Julie, died in 1998. (Pet-App. 56, ¶ 3.) The doctor who performed
the autopsy on Julie believed her cause of death was “asphyxia by smothering.” (PetApp. 62, ¶ 37.) A different doctor, one of Kenosha County’s medical examiners,
believed that Julie’s cause of death was ethylene glycol (antifreeze) poisoning “with
probable terminal asphyxia,” “an indicator for homicide rather than suicide.” (PetApp. 62, ¶ 37.) In 2002, the State charged Jensen with first-degree intentional
homicide for killing Julie. (Pet-App. 56, ¶ 3.)
Weeks before Julie died, she told her son’s teacher (Theresa DeFazio), her
neighbor (Tadeusz Wojt), and Police Officer Ron Kosman that she feared that Jensen
was trying to poison her and make her death look like a suicide. (Pet-App. 57, 62–65,
88, ¶¶ 5–7, 40–67, 72.) She also said that she was not suicidal. (Pet-App. 65, ¶ 67.)
About three weeks before Julie died, she “was upset and scared” and told Wojt that
“she feared that Jensen was trying to poison her or inject her with something because
Jensen was trying to get her to drink wine and she found syringes in a drawer.” (PetApp. 57, ¶ 5.) “Julie also allegedly told [Wojt] that she did not think she would make
it through one particular weekend because she had found suspicious notes written by
4
her husband and computer pages about poisoning.” (Pet-App. 57, ¶ 5.) About two
weeks before Julie died, she told Wojt “that Jensen was ‘chasing her’ with a glass of
wine trying to get her to drink it, that Jensen kept following her with the wine, would
put it next to her and this went on until three in the morning.” (Pet-App. 63, ¶ 46.)
“Julie told Wojt that the same night she also saw their nightstand drawer left cracked
open and inside the drawer she could see syringes.” (Pet-App. 63, ¶ 46.) Julie made
similar statements to DeFazio. (Pet-App. 63, ¶ 43.)
Julie gave an envelope to her neighbor, Wojt, shortly before her death and
asked him to give it to the police if anything happened to her. (Pet-App. 57, ¶ 5.) The
envelope held a letter that said, among other things, “if anything happens to me,
[Jensen] would be my first suspect.” (Pet-App. 57, ¶ 7.) It also said, “I would never
take my life because of my kids—they are everything to me! . . . I will not leave [my
two sons].” (Pet-App. 57, ¶ 7.) The letter was addressed to Officer Kosman and a
detective. (Pet-App. 57, ¶ 7.) Wojt gave the sealed envelope to police after Julie died.
(Pet-App. 57, ¶ 7.)
Officer Kosman had interacted with Julie many times over the past several
years. Julie contacted Kosman 40 to 50 times since 1992 or 1993. (R. 834:42, 51–52.) 1
These contacts primarily involved her reporting harassing telephone calls and
pornographic photos left at Jensen and Julie’s residence that Julie thought were
1 Citations to “R.” refer to the record in Kenosha County Circuit Court case
number 2002-CF-314.
5
threatening to their relationship. (R. 834:52; 909:51–57.) Kosman said that he
responded to the residence for these calls about 30 times. (R. 909:53.) Through the
course of these contacts, Julie and Kosman’s relationship developed a social aspect,
as well. Kosman would stop by the Jensen home as many as ten times per year to
check on Julie and “see if things had quieted down.” (Dkt. 28-4:11.) 2
In the weeks before the murder, Julie left two voicemails for Kosman while
Kosman was out of town, “stating that if she were found dead, Jensen should be
Kosman’s ‘first suspect.’” (Pet-App. 1, ¶ 2.) In the first voicemail, Julie asked Kosman
“to call [her] as soon as possible.” (Pet-App. 65, ¶ 71 (alteration in original).) In the
second voicemail, Julie, who sounded “confused” and “a little afraid,” said “that she
thought Jensen was trying to kill her.” (Pet-App. 72, ¶ 6; Dkt. 28-3:42.)
When Kosman returned from his trip, he met with Julie. (Dkt. 28-3:44.) During
this meeting, Julie was “confused,” “scared,” and “somewhat emotional.” (Dkt. 283:45.) She told Kosman that Jensen had been acting strangely, was being very
secretive, and was complaining that Julie was not being romantic enough. (Dkt. 283:44.) Julie expressed concern to Kosman over several suspicious things she had
noticed, including a “shopping list” that listed aspirin, razor blades, and syringes—
items that neither Julie nor Jensen would usually need. (Dkt. 28-:49.) Julie said that
Citations to “Dkt.” refer to the docket of the U.S. District Court for the
Eastern District of Wisconsin in case number 11-C-803.
6
2
if she died, Jensen would be her first suspect and she would not have killed herself.
(Pet-App. 57, ¶ 6.)
After being charged with Julie’s death, Jensen moved the trial court to exclude
Julie’s letter and her statements to Kosman to protect his rights under the Sixth
Amendment’s Confrontation Clause. (Pet-App. 57, ¶ 9.) The court initially denied the
motion, but after this Court decided Crawford v. Washington, 541 U.S. 36 (2004), it
reconsidered and ruled that the evidence was testimonial hearsay and inadmissible.
(Pet-App. 57–58, ¶ 10.) The court also denied the State’s request to admit this
evidence under the forfeiture-by-wrongdoing doctrine. (Pet-App. 58, ¶ 10.)
Both parties took an interlocutory appeal, and the case went to the Wisconsin
Supreme Court. State v. Jensen, 2007 WI 26, 299 Wis. 2d 267, 727 N.W.2d 518
(Jensen I). (Pet-App. 71–90.) The court held that Julie’s letter and voicemails to
Kosman were testimonial. (Pet-App. 58, ¶¶ 28–30.)3
In doing so, the Wisconsin Supreme Court adopted a “broad” definition of
“testimonial.” (Pet-App. 75, ¶ 24.) Crawford discussed three proposed definitions of
“testimonial” without specifically adopting one. Crawford, 541 U.S. at 51–52. The
Wisconsin Supreme Court analyzed Julie’s letter and voicemails under Crawford’s
third formulation, which asks whether the circumstances “would lead an objective
witness reasonably to believe that the statement would be available for use at a later
3 The court held that Julie’s statements to her neighbor and son’s teacher were
non-testimonial.
7
trial.” (Pet-App. 75, ¶ 20 (citation omitted).) Julie’s letter was testimonial, the court
said, because “a reasonable person in Julie’s position would anticipate a letter
addressed to the police and accusing another of murder would be available for use at
a later trial,” and she intended it “to be used to further investigate or aid in
prosecution in the event of her death.” (Pet-App. 76, ¶ 27.) The court held that the
voicemail was testimonial because Julie “sought to relay information in order to
further the investigation of Jensen’s activities.” (Pet-App. 76, ¶ 30.) The court rejected
the State’s argument that Julie’s letter and voicemails were non-testimonial because
they referred to a possible future crime. Instead, the court held that “it does not
matter if a crime has already been committed or not.” (Pet-App. 76, ¶ 28.) The court
did not address whether Julie’s in-person statements to Kosman were testimonial.
The Wisconsin Supreme Court then addressed the forfeiture-by-wrongdoing
doctrine. (Pet-App. 77–81, ¶¶ 35–37.) It adopted a “broad” version of the doctrine
under which a defendant forfeits his right to confront a witness if he is the cause of
the witness’s unavailability for cross-examination. (Pet-App. 81, ¶ 57.) It remanded
to allow the trial court to address whether to admit Julie’s letter and voicemails to
Kosman on that basis. (Pet-App. 81, ¶ 58.)
On remand, the trial court found that Jensen had forfeited his right to confront
Julie by killing her, so it admitted into evidence her letter and statements to Kosman.
(Pet-App. 58 ¶ 14.) After a trial that lasted more than 30 days, a jury convicted Jensen
8
of first-degree intentional homicide for killing Julie. (Pet-App. 59 ¶ 19.) The trial court
sentenced him to life in prison without the possibility of release. (See Pet-App. 28.)
B.
Direct appeal from conviction
Shortly after Jensen’s conviction, this Court decided Giles v. California, 554
U.S. 353 (2008), addressing the forfeiture-by-wrongdoing exception to the
Confrontation Clause. (Pet-App. 59, ¶ 20.) This Court held that, for the exception to
apply, a defendant must have made the witness unavailable by “conduct designed to
prevent a witness from testifying.” Giles, 554 U.S. at 365.
Jensen then appealed his conviction. He argued that Giles’s narrow
interpretation of the forfeiture doctrine overruled the Wisconsin Supreme Court’s
broad interpretation that the trial court applied when admitting Julie’s letter and
statements. (Pet-App. 59, ¶ 20.) The Wisconsin Court of Appeals affirmed Jensen’s
conviction. State v. Jensen, 2011 WI App. 3, 331 Wis. 2d 440, 794 N.W.2d 482
(Jensen II). (Pet-App. 56–70.) It assumed without deciding that Giles barred the
admission of the evidence and held that any error was harmless. (Pet-App. 61–65,
¶¶ 35–73.) In so holding, the court determined that it was bound by the Wisconsin
Supreme Court’s prior ruling that Julie’s letter and voicemails to Kosman were
testimonial. (Pet-App. 60, ¶ 27.) The Wisconsin Supreme Court denied Jensen’s
petition for review.
9
C.
Federal habeas corpus proceedings
After his state-court appeal, Jensen filed a petition for a writ of habeas corpus
in the U.S. District Court for the Eastern District of Wisconsin. (Dkt. 1.) He argued
that the state court of appeals had unreasonably resolved his confrontation claim.
(Dkt. 1:15–17) See also Jensen v. Schwochert, No. 11-C-0803, 2013 WL 6708767, at
*6 (E.D. Wis. Dec. 18, 2013) (Schwochert). The State did not challenge the Wisconsin
Supreme Court’s holding in Jensen I that Julie’s statements to Detective Kosman
were testimonial. Schwochert, 2013 WL 6708767, at *6.
The court granted Jensen’s federal habeas petition in 2013. Id. at *17. The
court held that the Wisconsin Court of Appeals had unreasonably concluded that the
letter’s and statements’ admission into evidence was harmless error. Id. at *9–16.
The court did not address whether the letter and statements were testimonial, noting
instead that “the parties do not dispute” the issue. Id. at *6.
The court ordered that Jensen be “released from custody unless, within 90 days
of the date of this decision, the State initiates proceedings to retry him.” Id. at *17.
The State appealed, and a divided panel of the Seventh Circuit affirmed.
Jensen v. Clements, 800 F.3d 892, 892 (7th Cir. 2015) (Clements). The majority agreed
with the district court’s holding that the admission of the letter and the statements
was not harmless. Id. at 901–08. It did not address whether the evidence was
testimonial. Id. at 899–908. The dissent concluded that the Wisconsin Court of
10
Appeals’ harmless-error decision was a reasonable application of federal law. Id. at
908–13. The Seventh Circuit denied rehearing in October 2015.
D.
Reinstated conviction
In December 2015, the Kenosha County Circuit Court vacated Jensen’s
judgment of conviction. (Dkt. 101:1–2, 5; see also Pet-App. 50.) The State said it
intended to retry Jensen. (Dkt. 101:5.)
Jensen moved to exclude Julie’s statements and letter at a new trial. (Dkt. 943:97; 101:5.) The parties extensively briefed and orally argued the motion. (Dkt. 101:5
& n.1.) The State argued that the Wisconsin Supreme Court’s 2007 holding that the
statements and letter were testimonial was no longer valid because this Court had
narrowed the definition of “testimonial” since that decision. (Dkt. 94-5:50.) The State
argued the statements were no longer testimonial under current law. (Dkt. 94-5:50.)
The State further argued that, under Wisconsin’s law-of-the-case doctrine, the trial
court should apply the current law rather than following the state supreme court’s
2007 decision. (Dkt. 94-5:74–77.)
The trial court determined that Julie’s statements and letter were not
testimonial and thus admissible. (Dkt. 94-9:68–71; 101:5.) Specifically, it concluded
that under Ohio v. Clark, 576 U.S. 237 (2015), and Michigan v. Bryant, 562 U.S. 344
(2011)—both issued since the Wisconsin Supreme Court’s 2007 decision—the letter
and statements were no longer testimonial. (Dkt. 94-9:70–71; 101:5.) The trial court
also addressed whether the law-of the-case doctrine required it to follow the state
11
appellate courts’ or federal courts’ decisions. (Dkt. 94-9:69–70.) It determined that, of
these courts, only the Wisconsin Supreme Court had addressed whether the
statements and letter were testimonial. (Dkt. 94-9:69–70.) And, the court concluded,
it was able to revisit that decision under the law-of-the-case doctrine and apply
current law. (Dkt. 94-9:69–70.)
The State moved the trial court to reinstate Jensen’s judgment of conviction.
(Dkt. 101:6.) 4 The trial court granted that motion. (Dkt. 94-11:4–5; 101:6–7.) The
court reasoned that, because of its decision to admit Julie’s letter and statements,
“the evidence in a new trial would be materially the same as in the first trial.” (Dkt.
94-11:4; 101:6–7.) It further explained that “it doesn’t make a whole lot of sense to
me as far as judicial economy to have a new trial on the same evidence as in the first
trial.” (Dkt. 94-11:5.) The trial court entered a judgment of conviction sentencing
Jensen to life imprisonment without the possibility of release. (Dkt. 94-11:11–12.) 5
The State also filed a motion asking the federal district court to clarify
whether reinstating Jensen’s conviction without a new trial would violate the court’s
order granting habeas relief. (Dkt. 86:5; 101:5–6.) The court concluded that “[t]he
State did in fact initiate proceedings to retry Jensen within 90 days of the effective
date of the court’s order.” (Dkt. 90:5.) But the court declined to say what it would do
if the state trial court reinstated Jensen’s conviction, concluding that such a ruling
would be an advisory opinion. (Dkt. 90:6.)
4
5 Jensen returned to federal district court, arguing that the trial court violated
the habeas order by reinstating the judgment of conviction without holding a new
jury trial. (Dkt. 93; 101:2, 7.) The district court denied Jensen’s request to enforce the
writ of habeas corpus, reasoning that the habeas order did not require a new trial but
only required the State to initiate proceedings to retry him. (Dkt. 101:1, 7–16.) Jensen
appealed the district court’s order to the Seventh Circuit, which unanimously
(continued on next page)
12
E.
Direct appeal from reinstated conviction
Jensen appealed his reinstated conviction to the Wisconsin Court of Appeals.
See State v. Jensen, No. 2018AP1952-CR (Wis. Ct. App. Feb. 26, 2020). (Pet-App. 14–
26.) Jensen argued that the trial court had violated the conditional habeas writ by
reinstating his judgment of conviction without a new trial. (Pet-App. 15, 23.) He also
claimed that the trial court was bound by Wisconsin’s law-of-the-case doctrine to
follow the prior decisions of the federal courts and Wisconsin’s appellate courts and
deem Julie’s letter and statements testimonial. (Pet-App. 15, 23.) Jensen further
argued that the trial court had erred by finding the letter and statements nontestimonial. (Pet-App. 15, 23.)
The Wisconsin Court of Appeals reversed the trial court on February 26, 2020.
(Pet-App. 23–25.) Sidestepping most of the issues Jensen raised, it concluded that it
and the trial court were bound to follow the Wisconsin Supreme Court’s 2007 Jensen I
decision holding that Julie’s statements and letter to Officer Kosman were
testimonial. (Pet-App. 23–25.) The court determined that the trial court had thus
erred by reinstating the judgment of conviction based on inadmissible evidence and
remanded to the trial court for a new trial. (Pet-App. 23–25.)
affirmed, with one judge concurring. Jensen v. Pollard, 924 F.3d 451 (7th Cir. 2019).
Jensen moved for rehearing en banc, which the court denied. Jensen then filed a
petition for a writ of certiorari, which this Court denied. Jensen v. Pollard, 141 S. Ct.
165 (2020).
13
The State filed a petition for review, which the Wisconsin Supreme Court
granted. (Pet-App. 3.) The court affirmed. State v. Jensen, 2021 WI 27, 396 Wis. 2d
196, 957 N.W.2d 244 (Jensen III). (Pet-App. 1–13.) It held that this Court’s decisions
in Clark and Bryant did not affect the Confrontation Clause analysis “in any way that
undermines our reasoning in Jensen I.” (Pet-App. 4, ¶ 17.) The court concluded that
its “decision in Jensen I that Julie’s statements constituted testimonial hearsay
established the law of the case. Subsequent developments in the law on testimonial
hearsay are not contrary to Jensen I.” (Pet-App. 7, ¶ 36.) It thus affirmed the court of
appeals’ decision. (Pet-App. 7, ¶ 36.)
Justice Jill Karofsky, joined by now-Chief Justice Annette Ziegler, concurred.
Justice Karofsky argued that the majority opinion in Jensen I had failed to recognize
the domestic-abuse context in which Julie made her statements at issue. (Pet-App.
7–9, ¶¶ 37–38, 48.) She agreed that the law-of-the-case doctrine barred the court from
reconsidering Jensen I, but she thought that the court in Jensen I would have
“possibly reached a different conclusion” had it considered the context in which Julie
made her statements. (Pet-App. 12, ¶ 58.)
REASONS FOR GRANTING THE PETITION
In Crawford, this Court held that the Sixth Amendment’s Confrontation Clause
“prohibits the introduction of testimonial statements by a nontestifying witness, unless
the witness is ‘unavailable to testify, and the defendant had had a prior opportunity
for cross-examination.’” Ohio v. Clark, 576 U.S. 237, 243 (2015) (quoting Crawford v.
14
Washington, 541 U.S. 36, 54 (2004)). The Confrontation Clause does not bar the
introduction of a statement “unless its primary purpose was testimonial.” Id. at 245.
“But . . . Crawford did not offer an exhaustive definition of ‘testimonial’ statements.”
Id. at 243.
In Jensen I, the Wisconsin Supreme Court adopted a broad view of which
statements are testimonial for Confrontation Clause purposes. Applying this broad
test, the court held that Julie’s voicemails and letter were testimonial because they
accused Jensen of planning a crime that he had not yet committed. The court further
reasoned that Julie’s statements were testimonial because she did not make them
during an ongoing emergency.
The reasoning in Jensen I conflicts with precedent from this Court and other
courts in two main respects. First, several courts have held that victims’ statements
regarding possible future crimes by the defendants were non-testimonial, in conflict
with Jensen I. Those other courts have it right: this Court’s decisions deem a statement
testimonial when it is directed at establishing past events, not events that have not yet
occurred and which may never occur. Second, Jensen I applied an unduly narrow view
of what constitutes an ongoing emergency. A woman such as Julie Jensen, who
complains to police about ongoing domestic abuse that threatens her life, is facing an
ongoing emergency. How courts should treat statements by victims facing ongoing
domestic abuse is an important issue this Court should resolve.
15
I.
CERTIORARI IS WARRANTED ON THE QUESTION WHETHER A
STATEMENT ABOUT A POSSIBLE FUTURE CRIME CAN BE
TESTIMONIAL.
The decision below 6 rejected the proposition that statements about possible
future crimes are non-testimonial. Other courts, however, have held the opposite. This
Court should grant certiorari to resolve this split of authority.
A.
The lower courts are divided on this issue.
In Jensen I, “the State insist[ed] that [Julie’s] letter is nontestimonial because it
was created before any crime had been committed so there was no expectation that the
letter would potentially be available for use at a later trial.” (Pet-App. 76, ¶ 28.) The
Wisconsin Supreme Court rejected that argument, reasoning that “under the standard
we adopt here it does not matter if a crime has already been committed or not.” (PetApp. 76, ¶ 28.)
Other courts, though, have held that “in the case of a crime committed over a
short period of time, a statement . . . made before the crime is committed . . . almost
certainly is not testimonial.” Bray v. Commonwealth, 177 S.W.3d 741, 746 (Ky. 2005)
(quoting United States v. Cromer, 389 F.3d 662, 673 (6th Cir. 2004), in turn quoting
Richard D. Friedman, Confrontation: The Search for Basic Principles, 86 Geo. L.J.
1011, 1040–43 (1998)), overruled on other grounds by Padgett v. Commonwealth, 312
6 This petition refers to the Wisconsin Supreme Court’s decision in Jensen I as
the decision below, although the decision under review is Jensen III. Because the
court in Jensen III held that it was bound by Jensen I under the law-of-the-case
doctrine, this Court may consider the reasoning in Jensen I. See Hathorn v. Lovorn,
457 U.S. 255, 261–62 (1982).
16
S.W.3d 336 (Ky. 2010). In Bray, for example, a woman called her sister on the phone
and said she was scared because the defendant was outside of her mobile home. Id. at
744. Police officers later found the mobile home burned to the ground, with the victim’s
body inside. Id. at 743. The victim had a gunshot wound to the head. Id. A jury
convicted the defendant of the arson and murder. Id. at 743–44. On appeal, the
Kentucky Supreme Court held that the victim’s “statements to her sister were made
prior to the crime. A declarant’s fearful statements over the telephone that a crime may
occur do not alone establish ‘circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial . . . .’”
Id. at 746 (alteration in original) (footnote omitted) (quoting Crawford, 541 U.S. at 52).
Courts have found victims’ statements non-testimonial in murder cases where
the victims expressed fear that the defendants were going to kill them. In a case
materially indistinguishable from Jensen’s case, a murder victim told police officers
(his coworkers) “that he would not commit suicide and that his wife would probably
have something to do with it if he died.” Turner v. State, 641 S.E.2d 527, 531 (Ga. 2007).
The Georgia Supreme Court found the statements non-testimonial because they were
“made in . . . conversation[s] with . . . friend[s], before the commission of any crime, and
without any reasonable expectation that they would be used at a later trial.” Id.
(alterations in original) (emphasis added) (quoting Demons v. State, 595 S.E.2d 76, 80
(Ga. 2004)). Similarly, in Demons, a murder victim told a coworker “that [the
defendant] was going to kill him.” Demons, 595 S.E.2d at 79. The Georgia Supreme
17
Court found these statements non-testimonial because “they were made in a
conversation with a friend, before the commission of any crime, and without any
reasonable expectation that they would be used at a later trial.” Id. at 80 (emphasis
added).
A federal court reached a similar conclusion in United States v. Mayhew, 380
F. Supp. 2d 961, 971–72 (S.D. Ohio 2005). There, two weeks before the defendant
allegedly killed his daughter, she wrote a letter to her mother discussing daily physical
beatings by her father. Id. at 970–71. The court held that the victim wrote this letter
“before the charged crimes occurred, thus, it can easily be categorized as nontestimonial.” Id. at 972. It noted that a statement is non-testimonial if “made before
the criminal act has occurred.” Id. (quoting Friedman, supra, 86 Geo. L.J. at 1043).
These state and federal cases conflict with Jensen I. According to the Wisconsin
Supreme Court, when deciding whether a statement is testimonial, “it does not matter
if a crime has already been committed or not.” (Pet-App. 76, ¶ 28.). But it does matter.
A lot. Other courts have held that a statement that is made before the crime charged
“almost certainly is not testimonial.” Bray, 177 S.W.3d at 746 (quoting Cromer, 389
F.3d at 673). This split of authority involves “an important federal question” that this
Court should resolve. U.S. Sup. Ct. R. 10(b).
B.
The Wisconsin Supreme Court’s ruling on the issue is wrong.
In the decision below, the Wisconsin Supreme Court held that (1) “under the
standard we adopt here it does not matter if a crime has already been committed or
18
not,” and (2) ”[t]he focus of the inquiry is whether a ‘reasonable person in the position
of the declarant would objectively foresee that his statement might be used in the
investigation or prosecution of a crime.’” (Pet-App. 76, ¶ 28 (quoting United States v.
Summers, 414 F.3d 1287, 1302 (10th Cir. 2005)).) Both of those holdings are wrong. An
application of correct legal principles shows that Julie’s letter and voicemails to
Kosman were not testimonial.
First, the decision below was wrong to hold that, when deciding whether a
statement was testimonial, “it does not matter if a crime has already been committed
or not.” (Pet-App. 76 ¶ 28.) A statement is testimonial if “the primary purpose of the
[police] interrogation is to establish or prove past events potentially relevant to later
criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006) (emphasis
added). Law enforcement interrogations “‘fall squarely within [the] class’ of
testimonial hearsay” when they are “solely directed at establishing the facts of a past
crime, in order to identify (or provide evidence to convict) the perpetrator.” Id. at 826
(alteration in original) (emphasis added) (quoting Crawford, 541 U.S. at 53). By
definition, a statement that is made before a crime has been committed is “almost
certainly” non-testimonial “because nothing has yet occurred ‘to establish or prove.’”
Houchin v. Commonwealth, No. 2008-SC-373-MR, 2009 WL 4251645, at *4 (Ky. Nov.
25, 2009) (first quoting Bray, 177 S.W.3d at 746, then quoting Davis, 547 U.S. at 822).
19
Second, the decision below took a wrong turn on future crimes because it
adopted an overly broad definition of “testimonial” that conflicts with this Court’s
precedent. Even if a “statement might be used in the investigation or prosecution of a
crime” (Pet-App. 76, ¶ 25 (quoting Summers, 414 F.3d at 1302)), the statement is not
necessarily “procured with a primary purpose of creating an out-of-court substitute
for trial testimony,” Clark, 576 U.S. at 245 (quoting Michigan v. Bryant, 562 U.S. 344,
358 (2011)). To the contrary, this Court has “never suggested” that “all out-of-court
statements that support the prosecution’s case” are testimonial. Clark, 576 U.S. at
250. Instead, the test is “whether a statement was given with the ‘primary purpose of
creating an out-of-court substitute for trial testimony.’” Id. at 250–51 (quoting Bryant,
562 U.S. at 358).
Although some courts have adopted the broad Summers test (Pet-App. 89 n.9
(collecting cases)), other courts have declined to adopt it as being overly broad, see,
e.g., State v. Brown, 173 P.3d 612, 635 (Kan. 2007), abrogated on other grounds by
State v. Williams, 392 P.3d 1267 (Kan. 2017). Other courts have employed a broad
test like the Summers one, only to scrap it in favor of this Court’s more-recent
“primary purpose” test. See, e.g., Commonwealth v. Wardsworth, 124 N.E.3d 662,
675 n.18 (Mass. 2019).
Even the Tenth Circuit, which adopted this broad test in Summers, has since
questioned the correctness of this test. United States v. Smalls, 605 F.3d 765, 777
(10th Cir. 2010). As that court noted, a statement’s primary purpose might not be
20
testimonial even if a reasonable person “may well foresee that her statement might
be used in the investigation or prosecution of a crime,” such as a 911 call. Id.
Third, application of the “primary purpose” test to the facts of this case shows
why Julie’s letter and voicemails about a possible future crime were not testimonial.
The primary purpose of those statements was not “to establish or prove past events”
because no crime had yet been committed when Julie made those statements. Davis,
547 U.S. at 822. Although one perhaps could have expected that Julie’s statements
“might be used in the investigation or prosecution of a crime” (Pet-App. 76, ¶ 28
(quoting Summers, 414 F.3d at 1302)), her statements were not “procured with a
primary purpose of creating an out-of-court substitute for trial testimony,” Bryant,
562 U.S. at 358.
Indeed, law enforcement officers did not procure those statements. Law
enforcement was not involved in creating Julie’s letter or voicemails to Officer
Kosman. These statements were not the product of a police interrogation.
The primary purpose of Julie’s letter was to encourage police to investigate
her anticipated death so that her sons would know that she did not commit suicide.
The letter twice stated that Julie would not commit suicide because she loved her
sons too much to take her own life. (Pet-App. 57, ¶ 7.) Julie did not even give the
letter directly to Kosman despite telling him about it; she gave it to a neighbor
instead. (Pet-App. 57, ¶ 6.) Julie thus had no way of guaranteeing that police would
receive the letter. The letter’s primary purpose was not to create a substitute for
21
testimony about a possible crime that had not yet occurred; its primary purpose was
for Julie’s sons to learn the true cause of her death if she were to die in an apparent
suicide.
The primary purpose of Julie’s voicemails was to confide in Kosman about
her marital problems and to either get reassurance that she was safe or get police
protection from future harm. In the voicemails, Julie asked Kosman to call her and
said that if she died, Jensen would be her suspect. (R. 909:41, 127–28.) Julie was
thus trying to end a threatening situation. Julie’s in-person conversation with
Kosman indicates that she was trying to confide in him when she left him voicemails.
In person, Julie told Kosman that she thought Jensen was trying to kill her and
make it look like a suicide. (R. 909:45–46.) Kosman later testified that Julie was
“confused, scared, [and] somewhat emotional” at the start of the in-person
conversation. (R. 909:45.) She calmed down the more they talked, and as she did, she
said that she thought Jensen would not try to harm her. (R. 909:45–46.) Kosman
explained that he thought Julie “just needed someone to talk to and maybe get some
reassurance that everything was going to be okay.” (R. 909:45.) The primary purpose
of the voicemails was not to create a substitute for testimony about a possible crime
that had not yet occurred.
Further, Julie’s acquaintanceship with Kosman helps show that the letter and
voicemails were not testimonial. She and Kosman did not have the usual police–
citizen relationship. Kosman had more than 40 contacts with Julie since 1992 or
22
1993 about harassing behavior. (R. 834:42, 51–52; 909:51–56.) He had been to her
residence about 30 times. (R. 909:53.) Kosman was thus someone Julie could trust
to report her concerns to, and he was as much an acquaintance or a friend as a police
officer. Despite this relationship, however, Kosman did not encourage Julie to make
any statements implicating Jensen, nor were her statements the product of any
formal police interrogation or questioning—hallmarks of statements that would
generally be considered testimonial under this Court’s precedents.
In sum, this Court should grant certiorari to resolve a split of authority on
this “important federal question.” U.S. Sup. Ct. R. 10(b).
II.
CERTIORARI IS WARRANTED ON THE QUESTION WHETHER A
STATEMENT TO POLICE BY A VICTIM OF ONGOING DOMESTIC
ABUSE IS AIMED AT ENDING AN ONGOING EMERGENCY AND
THUS NOT TESTIMONIAL.
The decision below held that Julie’s voicemails to Officer Kosman were
testimonial because they were not made during an ongoing emergency. This Court
should grant certiorari to determine whether Julie’s voicemails were made during an
ongoing emergency. Addressing this issue would provide much-needed clarity for
courts when addressing Sixth Amendment confrontation challenges in far-too-common
cases of domestic abuse.
A.
The Wisconsin Supreme Court’s ruling on the issue conflicts
with this Court’s decisions.
In this Court’s post-Crawford confrontation decisions, whether a victim’s
statement was testimonial has largely hinged on whether the statement’s primary
23
purpose was to prevent future harm. This Court has referred to the risk of future harm
as an “ongoing emergency.” The decision below conflicts with those precedents.
In a joint opinion in Davis v. Washington and Hammon v. Indiana, 547 U.S. 813
(2006), this Court addressed victims’ incriminating statements to police in two
separate instances of domestic violence. In Davis, a 911 caller made a non-testimonial
statement when she described a domestic disturbance and identified the defendant as
the assailant. 547 U.S. at 817–18, 826–28. This Court reasoned that the 911 call’s
“primary purpose was to enable police assistance to meet an ongoing emergency”
because the victim called 911 “to describe current circumstances requiring police
assistance.” Id. at 827–28. The victim’s “statements were necessary to be able to resolve
the present emergency, rather than simply to learn (as in Crawford) what had
happened in the past.” Id. at 827. This Court assumed without deciding that the
victim’s statements after the defendant left the premises were testimonial because the
emergency “appear[ed] to have ended” then. Id. at 828.
In Hammon, by contrast, this Court found the victim’s statement testimonial
partly because it was not made during an emergency. Police in Hammon responded to
a reported domestic disturbance at the defendant’s house. Id. at 819. While there, a
police officer had the defendant’s wife fill out a battery affidavit accusing the defendant
of physically assaulting her. Id. at 820. This Court found the victim’s statement
testimonial because “[t]here was no emergency in progress” and “no immediate threat
to [the victim’s] person.” Id. at 829–30. That is, the victim’s “statements were neither
24
a cry for help nor the provision of information enabling officers immediately to end a
threatening situation.” Id. at 832. Distinguishing Davis, this Court noted that the
victim in Davis “was seeking aid” from police, “not telling a story about the past.” Id.
at 831.
More recently in Bryant, a victim made a non-testimonial statement when he
told police, while lying on the ground bleeding, that someone named “Rick” had shot
him. 562 U.S. at 349. This Court reasoned that the primary purpose of the victim’s
statement was to allow police to meet an ongoing emergency because the scene was not
yet secured and because the shooter’s motive and whereabouts were unknown. Id. at
372–77. “During an ongoing emergency,” this Court noted, “a victim is most likely to
want the threat to her and to other potential victims to end, but that does not
necessarily mean that the victim wants or envisions prosecution of the assailant.” Id.
at 368. The victim’s statement did not indicate “that the threat from the shooter had
ended.” Id. at 372. The victim, in other words, did not suggest that “there was no
emergency or that a prior emergency had ended.” Id. at 377. He “gave no reason to
think that the shooter would not shoot again if he arrived on the scene.” Id. at 377.
This Court cautioned against “construing the emergency to last only precisely
as long as the violent act itself, as some have construed our opinion in Davis.” Id. at
374. It rejected the lower court’s and defendant’s “unduly narrow” view of what
constitutes an ongoing emergency. Id. at 362–63, 373–74. “[W]hether an emergency
exists and is ongoing is a highly context-dependent inquiry.” Id. at 363. This Court
25
explained that “[b]ecause Davis and Hammon were domestic violence cases, we focused
only on the threat to the victims and assessed the ongoing emergency from the
perspective of whether there was a continuing threat to them.” Id.
In another domestic-violence case, Clark, this Court also drew a connection
between the “ongoing emergency” concept and the risk of future harm. There, a threeyear-old preschooler, L.P., made a non-testimonial statement when he told his teachers
that the defendant had physically abused him. 576 U.S. at 246–51. This Court held
that L.P.’s statement “occurred in the context of an ongoing emergency involving
suspected child abuse.” Id. at 246. It reasoned that, “[b]ecause the teachers needed to
know whether it was safe to release L.P. to his guardian at the end of the day, they
needed to determine who might be abusing the child. Thus, the immediate concern was
to protect a vulnerable child who needed help.” Id. at 246–47. The teachers’ “questions
and L.P.’s answers were primarily aimed at identifying and ending the threat. . . . The
teachers’ questions were meant to identify the abuser in order to protect the victim
from future attacks.” Id. at 247 (emphasis added).
In the decision below, the Wisconsin Supreme Court correctly noted that
“[s]tatements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency.” (Pet-App.
74 ¶ 19 (quoting Davis, 547 U.S. at 822).) Yet the court held that “Julie’s voicemail was
not made for emergency purposes or to escape from a perceived danger. She instead
26
sought to relay information in order to further the investigation of Jensen’s activities.
This distinction convinces us that the voicemails are testimonial.” (Pet-App. 76, ¶ 30.)
This reasoning takes an unduly narrow view of what constitutes an ongoing
emergency, ignoring that Julie was a victim of continual psychological abuse who
feared for her life. Julie’s voicemails were aimed at ending an ongoing emergency.
Officer Kosman received two voicemails from Julie about two weeks before she died.
(Pet-App. 72, ¶ 6.) “Julie told Kosman in the second voicemail that she thought Jensen
was trying to kill her, and she asked him to call her back.” (Pet-App. 72, ¶ 6.) As the
Wisconsin Supreme Court characterized the voicemails, “The crux of Julie’s message
was that Jensen had been acting strangely and leaving himself notes Julie had
photographed and that she wanted to speak with Kosman in person because she was
afraid Jensen was recording her phone conversations.” (Pet-App. 76, ¶ 30.)
The Wisconsin Supreme Court’s holding that Julie’s voicemails were not made
during an ongoing emergency is deeply problematic. “[T]he Jensen I court completely
failed to consider the context in which Julie made her statements.” (Pet-App. 7, ¶ 37.)
Had the court considered this context, “it would have recognized that Julie was
undeniably a victim of domestic abuse and that prior to her death she lived in terror
born of the unimaginable fear that her husband was going to kill her and claim that
her death was a suicide.” (Pet-App. 7–8, ¶ 38.) The majority opinion in Jensen I did not
mention “even in a passing phrase or fleeting word . . . that Julie was the victim of
domestic abuse.” (Pet-App. 9, ¶ 48.)
27
Under this Court’s precedent, Julie’s voicemails to Kosman were primarily
aimed at ending an ongoing emergency. Because a battery in Davis was an emergency,
Julie’s fear that her husband would fatally poison her was likewise an emergency.
Whether that emergency was ongoing depends on whether Julie faced a “continuing
threat” when she left voicemails for Kosman. Bryant, 562 U.S. at 363. She did. Julie
“was a victim of domestic abuse” and “believed there was an ongoing emergency as she
feared her husband was going to kill her.” (Pet-App. 11, ¶ 55.) This belief was not
arbitrary; it was based on specific facts, including Jensen’s suspicious behavior towards
her and her observations about the strange items on Jensen’s shopping list. And this
belief is significant because “[t]he existence of an emergency or the parties’ perception
that an emergency is ongoing is among the most important circumstances that courts
must take into account in determining whether an interrogation is testimonial.”
Bryant, 562 U.S. at 370 (emphasis added).
Like the child’s statements to his teachers in Clark, Julie’s voicemails to Kosman
were meant to protect Julie from “future” harm. Clark, 576 U.S. at 247. Physical abuse
was not actively in progress when the child in Clark made statements to his teachers
or when Julie left voicemails for Kosman, but the scope of an emergency can extend
beyond a violent act. Bryant, 562 U.S. at 374. Like the child in Clark, Julie’s voicemails
indicated that she “needed help.” Clark, 576 U.S. at 247. Julie’s voicemails were
“primarily aimed at identifying and ending the threat” to her life. Id. Unlike the
victim’s testimonial statements in Hammon, Julie’s voicemails were “a cry for help” for
28
the police “to end a threatening situation.” Davis, 547 U.S. at 832. Like the victim in
Davis, Julie “was seeking aid” from police instead of “telling a story about the past”
when she left voicemails for Kosman. Id. at 831.
In short, this Court should grant certiorari because the Wisconsin Supreme
Court’s decision “conflicts with relevant decisions of this Court.” U.S. Sup. Ct. R. 10(c).
B.
Whether Julie’s voicemails were made during an ongoing
emergency raises an important question with nationwide legal
implications.
There is a strong need for this Court to explore whether or how victims’
statements about possible future domestic abuse can be non-testimonial. “Each year,
domestic violence results in more than 1,500 deaths and more than 2 million injuries;
it accounts for a substantial portion of all homicides . . . .” Giles v. California, 554 U.S.
353, 405 (2008) (Breyer, J., dissenting). “Domestic abuse, or interpersonal violence, is
a significant public health issue. About one in four women and one in seven men have
experienced an act of physical violence from an intimate partner in their lifetime.”
(Pet-App. 8, ¶ 40.) And “over half of female homicide victims in the United States are
killed by a current or former intimate partner.” (Pet-App. 8, ¶ 40.)
Unfortunately, prosecuting cases of domestic abuse “is often a difficult, if not
impossible, task because abusers’ actions often render their victims unavailable to
testify.” (Pet-App. 8, ¶ 41.) This Court has recognized that domestic violence “is
notoriously susceptible to intimidation or coercion of the victim to ensure that she does
not testify at trial.” Davis, 547 U.S. at 832–33. “Acts of domestic violence often are
29
intended to dissuade a victim from resorting to outside help, and include conduct
designed to prevent testimony to police officers or cooperation in criminal
prosecutions.” Giles, 554 U.S. at 377. Crimes of domestic violence are thus “difficult to
prove in court because the victim is generally reluctant or unable to testify,”
sometimes because the victim has been murdered, which is “not an uncommon
occurrence.” Id. at 405 (Breyer, J., dissenting).
So, the ability to prosecute many cases of domestic abuse will often hinge on
whether a court determines that the victim made his or her accusatory statements
during an ongoing emergency. This area of the law needs further guidance from this
Court.
Whether Julie’s voicemails were made during an ongoing emergency, and
whether the absence of an emergency renders those voicemails testimonial, raise
“important question[s] of federal law that ha[ve] not been, but should be, settled by
this Court.” U.S. Sup. Ct. R. 10(c). Given the widespread nature of domestic violence
and the difficulty of prosecuting abusers without their victims’ testimony, this Court
should grant certiorari to explain whether Julie’s voicemails were testimonial.
30
III.
THIS CASE IS AN APPROPRIATE VEHICLE.
The Wisconsin Supreme Court’s decision in Jensen I conflicts with decisions by
this Court, other state supreme courts, and federal courts of appeals in multiple ways
discussed above. This conflict is a compelling reason for granting certiorari. U.S. Sup.
Ct. R. 10(b) and (c).
Although the Wisconsin Supreme Court relied on the law-of-the-case doctrine in
the decision under review, “[l]aw-of-the-case principles are not a bar to this Court’s
jurisdiction.” Pennsylvania v. Ritchie, 480 U.S. 39, 48 n.7 (1987). This Court has a
“right to re-examine” federal questions that were “determined in the earlier stage of
[state proceedings]” if “the first decision of the state court became the law of the case.”
Hathorn v. Lovorn, 457 U.S. 255, 261–62 (1982) (alteration in original) (quoting Reece
v. Georgia, 350 U.S. 85, 87 (1955)).
The question presented here is a legal one concerning the definition of
“testimonial” for Sixth Amendment confrontation purposes. Although this case has a
lengthy procedural history, the question presented involves simple facts: brief
statements that Julie made in two voicemails and one written letter. It involves a legal
question that applies broadly in cases of ongoing domestic abuse.
31
CONCLUSION
This Court should grant the petition for a writ of certiorari.
Dated this 10th day of August 2021.
Respectfully submitted,
JOSHUA L. KAUL
Attorney General of Wisconsin
SCOTT E. ROSENOW*
Assistant Attorney General
State Bar #1083736
JOHN A. BLIMLING
Assistant Attorney General
State Bar #1088372
Attorneys for Petitioner
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-3539
(608) 294-2907 (Fax)
rosenowse@doj.state.wi.us
* Counsel of Record
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