Petition for Writ of Certiorari — Wisconsin, Petitioner v. Mark D. Jensen

Supreme Court briefAug 10, 2021

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State v. Jensen, 396 Wis.2d 196 (2021)

957 N.W.2d 244, 2021 WI 27

the briefs was Joshua L. Kaul, attorney general. There was an

oral argument by Aaron O'Neil.

396 Wis.2d 196

Supreme Court of Wisconsin.

STATE of Wisconsin, PlaintiffRespondent-Petitioner,

Mark D. JENSEN, Defendant-Appellant.

No. 2018AP1952-CR

Oral Argument: November 17, 2020

Opinion Filed: March 18, 2021

For the defendant-appellant, there was a brief filed by Lauren

J. Breckenfelder and Dustin C. Haskell, assistant state public

defenders. There was an oral argument by Lauren Jane

Breckenfelder.

DALLET, J., delivered the majority opinion of the Court,

in which ROGGENSACK, C.J., ANN WALSH BRADLEY,

REBECCA GRASSL BRADLEY, and HAGEDORN, JJ.,

joined, and in which ZIEGLER and KAROFSKY, JJ., joined

except for ¶35. KAROFSKY, J., filed a concurring opinion,

in which ZIEGLER, J., joined.

Opinion

Synopsis

Background: State, following order of the United States

District Court for the Eastern District of Wisconsin, William

C. Griesbach, C.J., 2013 WL 6708767, vacating defendant's

conviction for first-degree intentional homicide of his wife,

initiated new proceedings against defendant. The Circuit

Court, Kenosha County, Chad G. Kerkman, J., granted state's

motion to reinstate the original conviction and life sentence.

Defendant appealed. The Court of Appeals reversed. State

petitioned for review.

The Supreme Court, Rebecca Frank Dallet, J., held that the

Court's prior holding, 299 Wis.2d 267, 727 N.W.2d 518,

that certain statements made by wife before she died were

testimonial in nature constituted the law of the case.

REBECCA FRANK DALLET, J.

**246 *199 ¶1 Fourteen years ago, Mark Jensen was on

trial for killing his wife, Julie.1 Before the start of that trial,

we held that certain hearsay statements made by Julie were

testimonial. State v. Jensen (Jensen I), 2007 WI 26, ¶2, 299

Wis. 2d 267, 727 N.W.2d 518. For that reason, and because

Jensen had no opportunity to cross-examine Julie about

those statements, the statements were inadmissible under

the Confrontation Clause.2 We are now asked to determine

whether the law on testimonial hearsay has since changed to

such a degree that, at Jensen's new trial,3 the circuit court was

no longer *200 bound by Jensen I. We hold that it has not.

We therefore affirm the court of appeals’ decision.4

Affirmed.

Attorneys and Law Firms

¶2 Julie died from poisoning in 1998. Prior to her death,

she made several statements suggesting that, if she died, the

police should investigate Jensen. She wrote a letter and gave it

to her neighbor with instructions to give the letter to the police

should anything happen to her. She also left two voicemails

with Pleasant Prairie Police Officer Ron Kosman two weeks

before she died stating that if she were found dead, Jensen

should be Kosman's “first suspect.” In 2002, Jensen was

charged with first-degree intentional homicide. Over the next

several years, the circuit court held a series of pretrial hearings

addressing the admissibility of Julie's letter and voicemails.

For the plaintiff-respondent-petitioner, there were briefs filed

by Aaron R. O'Neil, assistant attorney general; with whom on

¶3 The circuit court initially ruled that Julie's letter was

admissible but her voicemails were not. After that ruling,

Jill Karofsky, J., concurred and filed opinion, which Annette

Kingsland Ziegler, J., joined.

See also 331 Wis.2d 440, 794 N.W.2d 482.

**245 Appeal from Circuit Court, Kenosha County, Chad

G. Kerkman, Judge (L.C. No. 2002CF314)

Pet-App. 1

State v. Jensen, 396 Wis.2d 196 (2021)

957 N.W.2d 244, 2021 WI 27

however, the United States Supreme Court decided Crawford

v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d

177 (2004), which established that an unavailable witness's

hearsay statement is inadmissible under the Confrontation

Clause if the statement is testimonial and the defendant

had no prior opportunity to cross-examine the witness. Id.

at 50-54, 124 S.Ct. 1354. In light of that decision, Jensen

asked the circuit court to reconsider its previous ruling.

Upon reconsideration, the circuit court determined that, under

Crawford, Julie's letter and voicemails (“Julie's statements”)

were testimonial hearsay and were inadmissible because

Jensen had no opportunity to cross-examine Julie.

*201 ¶4 The State appealed and we affirmed, applying

Crawford and the United States Supreme Court's subsequent

decision, Davis v. Washington, 547 U.S. 813, 126 S.Ct.

2266, 165 L.Ed.2d 224 (2006).5 **247 Jensen I, 299 Wis.

2d 267, 727 N.W.2d 518. Davis set out what has come

to be known as the “primary purpose test”: a statement is

testimonial if its primary purpose is “to establish or prove

past events potentially relevant to later criminal proceedings.”

547 U.S. at 822, 126 S.Ct. 2266. The Court explained that

although statements made in response to police questioning

are generally testimonial, such statements are nontestimonial

if their primary purpose is to help the police “meet an

ongoing emergency.” Id. at 822, 126 S.Ct. 2266. Applying

that test, we determined in Jensen I that the primary purpose

of Julie's statements was not to help the police resolve an

active emergency but to “investigate or aid in prosecution

in the event of her death.” Jensen I, 299 Wis. 2d 267, ¶¶27,

30, 727 N.W.2d 518. Thus, under Crawford and Davis’s

interpretation of the Confrontation Clause, Julie's statements

were inadmissible. Id., ¶34.

¶5 We remanded the cause to the circuit court to determine

whether Julie's statements were nevertheless admissible

under the forfeiture-by-wrongdoing doctrine, which we

adopted in Jensen I. See id., ¶¶2, 52. At the time, that

doctrine stated that a defendant forfeits his constitutional

right to confront a witness when the defendant caused that

witness's unavailability. See id., ¶57. On remand, the circuit

court found that the State had shown by a preponderance

of the evidence that Jensen caused Julie's unavailability.

Therefore, the Confrontation Clause notwithstanding, *202

Julie's statements were admissible after all. Relying at least

in part on those statements, a jury convicted Jensen of Julie's

murder.

¶6 Jensen again appealed. State v. Jensen (Jensen II), 2011

WI App 3, 331 Wis. 2d 440, 794 N.W.2d 482. While that

appeal was pending, the United States Supreme Court decided

another case directly affecting Jensen, Giles v. California, 554

U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008). There, the

Court refined the forfeiture-by-wrongdoing doctrine, holding

that it applies only when the defendant caused the witness's

unavailability with the specific intent of preventing the

witness from testifying. See id. at 361-68, 128 S.Ct. 2678.

In Jensen II, the court of appeals “assum[ed]” that Jensen

had not killed Julie specifically to keep her from testifying

at trial; therefore, under Giles, Jensen had not forfeited his

Confrontation Clause rights and the circuit court had erred

in admitting Julie's statements. But the court of appeals also

held that the circuit court's error was harmless, given the

“voluminous” other evidence supporting the jury's guilty

verdict. See Jensen II, 331 Wis. 2d 440, ¶35, 794 N.W.2d 482.

¶7 That harmless error conclusion formed the basis for

Jensen's federal habeas corpus litigation.6 There, the federal

courts agreed with Jensen that it was not harmless error

to admit Julie's testimonial statements in violation of the

Confrontation Clause. Jensen v. Schwochert, No. 11-C-0803,

2013 WL 6708767 (E.D. Wis. Dec. 18, 2013), aff'd, Jensen v.

Clements, 800 F.3d 892, 908 (7th Cir. 2015) (holding that was

it was “beyond any possibility for fairminded disagreement”

that admitting Julie's statements “had a *203 substantial

and injurious effect” on the jury's verdict (quoted source

omitted)). Concluding that the Wisconsin court of appeals’

decision in Jensen II was an “unreasonable application of

**248 clearly established federal law,” the federal court

ordered Jensen's conviction vacated. Schwochert, 2013 WL

6708767, at *16-17. The State immediately initiated new

proceedings against Jensen.

¶8 In this new pretrial period, Jensen filed a motion to exclude

Julie's statements, per our holding in Jensen I. The State urged

the circuit court to address anew whether Julie's statements

were admissible, arguing that the United States Supreme

Court had since “narrowed” the definition of “testimonial” to

such a degree that the circuit court was not bound by Jensen I.

The circuit court agreed. It explained that “a lot has happened”

since Jensen I and that “based upon the law that we have

today,” Julie's statements were not testimonial. The circuit

court reached that conclusion by “applying the factors in Ohio

v. Clark, the more recent cases including Michigan v. Bryant,

and other cases that came out since Crawford v. Washington

and Jensen I.”7 The State then moved the circuit court to forgo

a new trial and reinstate Jensen's original conviction and life

Pet-App. 2

State v. Jensen, 396 Wis.2d 196 (2021)

957 N.W.2d 244, 2021 WI 27

sentence on the grounds that, if Julie's statements were again

admissible, the evidence now was identical to that in Jensen's

first trial. The circuit court granted the State's motion. Jensen

appealed.

¶9 The court of appeals reversed, holding that neither it

nor the circuit court was “at liberty to decide” that Julie's

statements were nontestimonial, given our *204 holding in

Jensen I. State v. Jensen (Jensen III), No. 2018AP1952-CR,

unpublished slip op., at 12 (Wis. Ct. App. Feb. 26, 2020).

The court of appeals explained that under Cook v. Cook, 208

Wis. 2d 166, 560 N.W.2d 246 (1997), this court is the only

one with the power to modify or overrule one of our previous

decisions. The court of appeals concluded that, because we

have never modified or overruled Jensen I, the circuit court

erred in finding Julie's statements admissible and, in turn,

failing to hold a new trial. It then remanded the cause “for a

new trial at which Julie's letter and [voicemails] may not be

admitted into evidence.” Id. Having decided Jensen's appeal

under Cook, the court of appeals declined to address Jensen's

other challenges, including claims that the circuit court judge

was biased against him and that the circuit court violated

the federal court's habeas order by reinstating his conviction

without a trial.

¶10 We granted the State's petition for review of the following

three issues: (1) whether the court of appeals erred in

reviewing the circuit court's decision under Cook instead

of the law of the case; (2) if so, whether the circuit court

permissibly deviated from the law of the case and correctly

determined that Julie's statements are nontestimonial hearsay;

and (3) whether we should remand the cause to the court of

appeals to decide Jensen's remaining challenges.

¶11 Although we agree with the court of appeals’ ultimate

conclusion that the circuit court is bound by Jensen I, we hold

that the court of the appeals erred in relying on Cook to reach

that decision. In Cook, we held that the court of appeals has

no power to overrule, modify, or withdraw language from one

of its own published decisions; only this court has that power.

See Cook, 208 Wis. 2d at 189, 560 N.W.2d 246. The issue

here, *205 however, is about the law of the case, to which

Cook does not apply. Accordingly, we modify the court of

appeals’ decision to the extent it relies on **249 Cook. Our

analysis proceeds under the doctrine of the law of the case.

¶12 Whether a decision establishes the law of the case is

a question of law that we review de novo. State v. Stuart

(Stuart I), 2003 WI 73, ¶20, 262 Wis. 2d 620, 664 N.W.2d 82.

Although lower courts have the discretion to depart from the

law of the case when a “controlling authority has since made

a contrary decision of the law,” State v. Brady, 130 Wis. 2d

443, 448, 388 N.W.2d 151 (1986), whether such a contrary

decision has been made is a question of law that we review

de novo. See Kocken v. Wis. Council, 2007 WI 72, ¶¶25-26,

301 Wis. 2d 266, 732 N.W.2d 828.

¶13 The law of the case is a “longstanding rule” that requires

courts to adhere to an appellate court's ruling on a legal issue

“in all subsequent proceedings in the trial court or on later

appeal.” Stuart I, 262 Wis. 2d 620, ¶23, 664 N.W.2d 82

(quoting Univest Corp. v. Gen. Split Corp., 148 Wis. 2d 29,

38, 435 N.W.2d 234 (1989)). The rule ensures stability for

litigants and reinforces the finality of a court's decisions. See

Univest Corp., 148 Wis. 2d at 37-38, 435 N.W.2d 234. Courts

in subsequent proceedings should therefore “be loathe” to

revisit an appellate court's decision absent “extraordinary

circumstances.” Christianson v. Colt Indus. Oper. Corp., 486

U.S. 800, 817, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988). That

admonition aside, absolute adherence to the law of the case

is not required. As is relevant *206 here, lower courts may

depart from the initial decision if “a controlling authority has

since made a contrary decision of the law” on the same issue.8

Stuart I, 262 Wis. 2d 620, ¶24, 664 N.W.2d 82 (quoting Brady,

130 Wis. 2d at 448, 388 N.W.2d 151).

¶14 Our analysis thus proceeds in two parts. First, we

determine which case established the law of the case that

Julie's statements are testimonial hearsay. Second, we analyze

whether a controlling court has since issued a contrary

decision on the same point of law.

¶15 The parties largely agree that Jensen I established the

law of the case. Jensen also argues that either federal habeas

case, Schwochert or Clements, could establish the law of the

case because both concluded that admitting Julie's statements

violated the Confrontation Clause. But a federal habeas

proceeding cannot establish the law of the case because

it “is not a subsequent stage of the underlying criminal

proceedings; it is a separate civil case.” E.g., Edmonds v.

Smith, 922 F.3d 737, 739 (6th Cir. 2019). Therefore, Jensen I

Pet-App. 3

State v. Jensen, 396 Wis.2d 196 (2021)

957 N.W.2d 244, 2021 WI 27

is the only decision establishing the law of the case that Julie's

hearsay statements are testimonial.

*207 B

¶16 We next analyze whether the current law regarding the

admissibility of testimonial **250 hearsay is contrary to

that relied upon in Jensen I. We decided Jensen I under both

Crawford and Davis. Therefore, we must determine whether

the United States Supreme Court has since contradicted

Crawford or Davis.

State

Stuart

- See

--v.- (Stuart II), 2005

WI 47, ¶3 n.2, 279 Wis. 2d 659, 695 N.W.2d 259. As

Jensen's Confrontation Clause issue arises under the federal

Constitution, we are bound by the United States Supreme

Court's jurisprudence interpreting that clause. See, e.g., State

v. Delebreau, 2015 WI 55, ¶43, 362 Wis. 2d 542, 864 N.W.2d

852.

¶17 Since Jensen I, the United States Supreme Court has

decided two cases that address the definition of testimonial

hearsay: Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143,

179 L.Ed.2d 93 (2011), and Ohio v. Clark, 576 U.S. 237,

135 S.Ct. 2173, 192 L.Ed.2d 306 (2015). The State argues

that Bryant and Clark narrowed the definition of “testimonial”

so extensively that Jensen I no longer applies, thereby

allowing the circuit court to re-evaluate Julie's statements and

conclude that they are admissible nontestimonial statements.

Jensen counters that neither Bryant nor Clark altered the

Confrontation Clause analysis set forth in Crawford and

Davis in any way that undermines our reasoning in Jensen I.

¶18 We agree with Jensen. At the time we decided Jensen

I, the Confrontation Clause barred the admission at trial of

an unavailable witness's hearsay *208 statement that the

defendant had no prior meaningful opportunity to crossexamine and that was made for the primary purpose of

creating prosecutorial evidence. Bryant and Clark represent

developments in applying the primary purpose test, but

neither is contrary to it.

¶19 Prior to Crawford, an unavailable witness's hearsay

statement was admissible under the Confrontation Clause if

it met a certain “reliability” threshold. See Ohio v. Roberts,

448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

A statement met that threshold if it fell within a “firmly

rooted hearsay exception” or if it bore some other “indicia

of reliability.” Id. The United States Supreme Court had

read traditional hearsay rules and the Confrontation Clause

as somewhat redundant, reasoning that “certain hearsay

exceptions rest upon such solid foundations that admission

of virtually any evidence within them comports with” the

Confrontation Clause. See id.

¶20 Crawford “fundamentally change[d]” that analysis.

Jensen I, 299 Wis. 2d 267, ¶14, 727 N.W.2d 518.

Crawford first focused the scope of the Confrontation

Clause analysis on the circumstances in which one makes a

statement, explaining that the Constitution is “acute[ly]”—

but not exclusively—concerned with “formal statement[s]

to government officers” rather than “casual remark[s] to an

acquaintance.” Crawford, 541 U.S. at 51, 124 S.Ct. 1354.

The Court then turned to the statement itself, holding that the

Confrontation Clause's application to an unavailable witness's

hearsay statement turns on two key factors: the statement's

purpose and whether the statement had been “tested” on

cross-examination. Crawford, 541 U.S. at 55-56, 124 S.Ct.

1354.10

**251 *209 ¶21 On the former, Crawford held that

the Confrontation Clause applied only to statements that

are “testimonial,” which it defined as a statement “made

for the purpose of establishing or proving some fact.”

Id. at 51, 124 S.Ct. 1354 (quoted source omitted). The

Court declined, however, to “spell out a comprehensive

definition of ‘testimonial.’ ” Id. at 68, 124 S.Ct. 1354; see

also Davis, 547 U.S. at 822, 126 S.Ct. 2266 (declining

to “produce an exhaustive classification of all conceivable

statements”). Rather, it identified three broad “formulations”

of testimonial statements: (1) “ex parte in-court testimony,”

such as “prior testimony that the defendant was unable

to cross-examine”; (2) out-of-court statements “contained

in formalized testimonial materials,” such as an affidavit

or a deposition; and (3) “statements that were made

under circumstances [that] would lead an objective witness

reasonably to believe that the statement would be available

for use at a later trial.” Crawford, 541 U.S. at 51-52, 124 S.Ct.

1354 (quoted sources omitted). Putting these factors together,

but again declining to limit its holding to the specific facts in

Crawford, the Court held that, “at a minimum,” the definition

of “testimonial” includes prior testimony and a statement

made during police interrogation. Id. at 68, 124 S.Ct. 1354.

¶22 In Davis and its companion case, Hammon, however,

the Court explained that not all statements to police are

Pet-App. 4

State v. Jensen, 396 Wis.2d 196 (2021)

957 N.W.2d 244, 2021 WI 27

testimonial. There, the Court analyzed statements made to

police during their response to two *210 domestic violence

incidents. It applied Crawford to both situations, but factual

differences between the two cases led the Court to divergent

conclusions. In Davis, the victim told the 911 operator that

Davis was “jumpin’ on [her] again” and beating her with

his fists. She “described the context of the assault” and gave

the 911 operator other identifying information about Davis.

Davis, 547 U.S. at 817-18, 126 S.Ct. 2266. In Hammon,

the police had responded to a report of domestic violence,

finding the victim on the front porch and Hammon inside

the house. The victim allowed the police to go inside, where

they first questioned Hammon and then her. At the end of

that questioning, the victim “fill[ed] out and sign[ed] a battery

affidavit” in which she explained that Hammon broke a glass

heater, pushed her into the broken glass, hit her in the chest,

damaged her van so that she could not leave, and attacked her

daughter. Id. at 819-21, 126 S.Ct. 2266.

¶23 The Court held that the victim's statements in Davis

were not testimonial because their primary purpose was to

“enable police assistance with an ongoing emergency.” Id. at

828, 126 S.Ct. 2266. The Court differentiated these “frantic”

statements, made “as they were actually happening” and

while the victim was “in immediate danger,” from those

in Crawford, which were made “hours after the events ...

described had occurred.” Id. at 827, 831, 126 S.Ct. 2266

(emphasis removed). The statements also helped the police

“assess the situation, the threat to their own safety, and

possible danger to the potential victim.” Id. at 832, 126 S.Ct.

2266 (quoting Hiibel v. Sixth Jud. Dist. Ct., 542 U.S. 177, 186,

124 S.Ct. 2451, 159 L.Ed.2d 292 (2004)). Thus, the victim

“simply was not ... testifying” because “[n]o ‘witness’ goes

into court to proclaim an emergency.” Id. at 828, 126 S.Ct.

2266.

¶24 The Court reached the opposite conclusion in Hammon.

There, it held that the victim's statements *211 were

testimonial because their primary purpose was to provide

a “narrative of past events.” Id. at 832, 126 S.Ct. 2266.

Even though Hammon **252 was present while the police

took the victim's statements, there “was no emergency in

progress.” Id. at 829, 126 S.Ct. 2266. Her statements did

not describe what was happening at that very moment, as in

Davis, but rather what happened before the police arrived. Id.

at 830, 126 S.Ct. 2266.

¶25 We decided Jensen I by analyzing Julie's statements under

the primary purpose test as explained in Davis. See Jensen

I, 299 Wis. 2d 267, ¶¶18-19, 727 N.W.2d 518. We must

therefore examine the United States Supreme Court's more

recent decisions in Bryant and Clark to determine if either

decision is contrary to that test, thereby justifying the circuit

court's departure from Jensen I.

¶26 The Court's main task in Bryant was to clarify what

it means, outside of Davis’s specific factual context, for a

statement to have the primary purpose of “enabl[ing] police

assistance to meet an ongoing emergency.” See Bryant,

562 U.S. at 359, 131 S.Ct. 1143 (quoting Davis, 547 U.S.

at 822, 126 S.Ct. 2266). Indeed, the Court noted that it

“confront[ed] for the first time circumstances in which the

‘ongoing emergency’ discussed in Davis extends beyond an

initial victim to a potential threat to the responding police and

the public at large.” Id. In Bryant, the police found the victim,

Covington, at a gas station bleeding badly from a gunshot

wound and having trouble speaking. They asked Covington

who shot him and where the shooting occurred. Covington

told the police that Bryant shot him through the back door

of Bryant's house. Covington was then taken to a hospital,

where he died a few hours later. *212 Id. at 349-50, 131 S.Ct.

1143. The Michigan Supreme Court held that Covington's

statements were inadmissible testimonial hearsay similar to

those in Hammon because he made them after the shooting

occurred and the police did not “perceive[ ] an ongoing

emergency at the gas station.” Id. at 351, 131 S.Ct. 1143.

¶27 The United States Supreme Court reversed. It held that

the primary purpose of Covington's statements was to help

the police resolve an ongoing emergency, because when the

police arrived on the scene, they did not know whether the

person who shot Covington posed an ongoing threat to the

public. Id. at 371-72, 131 S.Ct. 1143. Covington's behavior

—profusely bleeding from the stomach, repeatedly asking

when an ambulance would arrive, having difficulty breathing

—objectively revealed that he was answering the officers’

questions only to give them information about what might

be an active-shooter scenario. Id. at 373-74, 131 S.Ct. 1143.

Other evidence supporting that conclusion included the fact

that, like the 911 call in Davis, Covington's statements were

“harried” and made during a “fluid and somewhat confused”

situation. Id. at 377, 131 S.Ct. 1143. Because the primary

purpose of the statements was to help the police resolve an

ongoing emergency, they were not testimonial.

Pet-App. 5

State v. Jensen, 396 Wis.2d 196 (2021)

957 N.W.2d 244, 2021 WI 27

¶28 In reaching that conclusion, Bryant emphasized that

the test for determining a statement's primary purpose is an

objective one. Id. at 360, 131 S.Ct. 1143. When deciding

whether a statement is made to assist the police in resolving

an ongoing emergency, courts must consider the overall

circumstances in which the statement is made, such as

whether the statement is made near the scene of the crime

or later at the police station. Id. at 360–61, 131 S.Ct. 1143.

Ultimately, the crux of the inquiry is whether the statement

is made to “end[ ] a threatening *213 situation” (not

testimonial) or to “prove[ ] past events potentially relevant to

later criminal prosecution” (testimonial). Id. at 361, 131 S.Ct.

1143 (quoting **253 Davis, 547 U.S. at 822, 832, 126 S.Ct.

2266). On that point, the Court cautioned against construing

Davis’s “ongoing emergency” definition too narrowly:

Domestic violence cases like Davis and Hammon often

have a narrower zone of potential victims than cases

involving threats to public safety. An assessment of

whether an emergency that threatens the police and public

is ongoing cannot narrowly focus on whether the threat

solely to the first victim has been neutralized because the

threat to the first responders and public may continue.

Id. at 363–64, 131 S.Ct. 1143.

¶29 Bryant also reminded courts that whether an ongoing

emergency exists is only one factor for determining a

statement's primary purpose. Id. at 366, 131 S.Ct. 1143.

Other factors are also relevant, such as the statements and

actions of both the declarant and the interrogators and

formality of the encounter. Id. at 366-67, 131 S.Ct. 1143.

But just as formal police interrogations do not always

produce testimonial statements, informal questioning “does

not necessarily indicate ... the lack of testimonial intent.”

Id. at 366, 131 S.Ct. 1143; see also Davis, 547 U.S. at 822

& n.1, 126 S.Ct. 2266. Courts must objectively analyze the

declarant's and the interrogator's “actions and statements.”

Bryant, 562 U.S. at 367-68, 131 S.Ct. 1143. The Court noted

that this approach was the one it “suggested in Davis” when

it first articulated that statements made to resolve an ongoing

emergency are not testimonial. Id. at 370, 131 S.Ct. 1143.

*214 3

¶30 Whereas Bryant’s contextual analysis focused on the

person making the statement, Clark focused on the person

to whom the statement was made. In Clark, the Court was

asked to resolve “whether statements to persons other than

law enforcement officers are subject to the Confrontation

Clause.” 576 U.S. at 246, 135 S.Ct. 2173. There, Clark

had been convicted of assaulting his girlfriend's three-yearold child due, in part, to statements the child made to his

teachers identifying Clark as his abuser. The child made those

statements in response to his teachers’ inquiries about visible

injuries on his body. Concerned that the child was being

abused, the teachers asked him questions “primarily aimed at

identifying and ending the threat” of potentially letting him

go home that day with his abuser. Id. at 247, 135 S.Ct. 2173.

When the teachers were questioning the child, their objective

was “to protect” him, “not to arrest or punish his abuser”; they

“were not sure who had abused him or how best to secure his

safety.” Id.

¶31 The Court held that the Confrontation Clause applied to

“at least some statements made to individuals who are not law

enforcement,” but not the child's statements here. Id. at 246,

135 S.Ct. 2173. Reiterating Bryant’s guidance to consider

all of the relevant circumstances, the Court explained that

“[c]ourts must evaluate challenged statements in context, and

part of that context is the questioner's identity.” Id. at 249,

135 S.Ct. 2173 (explaining that it is “common sense that the

relationship between a student and his teacher is very different

from that between a citizen and the police”). The Court then

considered “all the relevant circumstances,” including the

child's age, the school setting, the teachers’ objective, and

the overall informality of the situation, *215 and concluded

that the primary purpose of the child's statements was not

to “creat[e] evidence” for Clark's prosecution. Id. at 246,

135 S.Ct. 2173. Although the Court again “decline[d] to

adopt a categorical rule” on the issue, id., it pointed out that

statements by someone as young as this child **254 “will

rarely, if ever, implicate the Confrontation Clause,” id. at 248,

135 S.Ct. 2173.

¶32 Bryant and Clark neither contradicted Crawford or

Davis nor drastically altered the Confrontation Clause

analysis. Given that both Crawford and Davis declined to

“comprehensive[ly]” define “testimonial statement,” it was

inevitable that future cases like Bryant and Clark would

further refine that term. See Crawford, 541 U.S. at 68, 124

S.Ct. 1354; Davis, 547 U.S. at 821-22, 126 S.Ct. 2266. In

the “new context” of a potential threat to the responding

police and the public at large, Bryant “provide[d] additional

clarification with regard to what Davis meant by ‘the primary

Pet-App. 6

State v. Jensen, 396 Wis.2d 196 (2021)

957 N.W.2d 244, 2021 WI 27

purpose of the interrogation is to enable police assistance

to meet an ongoing emergency.’ ” Bryant, 562 U.S. at 359,

131 S.Ct. 1143. Similarly, in Clark, the Court applied the

primary purpose test to answer a question it had “repeatedly

reserved: whether statements made to persons other than law

enforcement officers are subject to the Confrontation Clause.”

Clark, 576 U.S. at 246, 135 S.Ct. 2173.

¶33 The Court's own reflections on its post-Crawford

decisions demonstrate that it did not see those decisions as

contradicting Crawford or Davis but rather as efforts to “flesh

out” the test it first articulated there. See id. at 243-46, 135

S.Ct. 2173; see also id. at 252, 135 S.Ct. 2173 (Scalia, J.,

concurring) (plainly stating in 2015 that Crawford “remains

the law”). Federal courts of appeals’ interpretations of Bryant

and Clark confirm that *216 progression. See, e.g., United

States v. Norwood, 982 F.3d 1032, 1043-44 (7th Cir. 2020);

Issa v. Bradshaw, 910 F.3d 872, 876 (6th Cir. 2018); United

States v. LeBeau, 867 F.3d 960, 980 (8th Cir. 2017). The

Seventh Circuit Court of Appeals, for instance, recently

noted that Bryant “further elaborated” on Davis’s ongoing

emergency analysis by “ma[king] clear that the totality of the

circumstances guides the primary purpose test, not any one

factor.” Norwood, 982 F.3d at 1043-44 (emphasis removed).

That court has likewise cited Clark as a continuation in the

primary purpose test's development. See, e.g., United States

v. Amaya, 828 F.3d 518, 528-29, 529 n.4 (7th Cir. 2016).

content of Julie's statements but also objectively evaluating

the relevant “circumstances” under which she made them.

Jensen I, 299 Wis. 2d 267, ¶¶26-30, 727 N.W.2d 518. That

is what the United States Supreme Court held in Bryant. See

562 U.S. at 359, 131 S.Ct. 1143 (requiring **255 courts

to “objectively evaluate the circumstances” surrounding the

statement's creation when determining its primary purpose).

In Jensen I, we rejected the State's argument that “the

government needs to be involved in the creation of the

statement” for that statement to be testimonial. See Jensen

I, 299 Wis. 2d 267, ¶24, 727 N.W.2d 518. This mirrors

the holding in Clark. See 576 U.S. at 246, 135 S.Ct. 2173

(recognizing that “at least some statements to individuals

who are not law enforcement officers could conceivably raise

confrontation concerns”). Far from being contrary to Jensen

I, Bryant and Clark are consistent with it.

III

¶36 Our 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. Therefore, the circuit

court was not permitted to deviate from our holding in Jensen

I. Accordingly, we affirm the court of appeals’ decision. We

modify that decision, however, to the extent that the court of

appeals incorrectly relied upon Cook.

¶34 Our recent jurisprudence also reveals that Crawford and

Davis—and therefore our analysis in Jensen I—have not been

contradicted. Even after Bryant and Clark, we continue to

cite Crawford and Davis in resolving whether an unavailable

witness's statement is testimonial. See State v. Reinwand,

2019 WI 25, ¶¶19-22, 385 Wis. 2d 700, 924 N.W.2d 184;

State v. Nieves, 2017 WI 69, ¶¶26-29, 376 Wis. 2d 300, 897

N.W.2d 363; State v. Zamzow, 2017 WI 29, ¶13, 374 Wis. 2d

220, 892 N.W.2d 637; State v. Mattox, 2017 WI 9, ¶¶24-25,

373 Wis. 2d 122, 890 N.W.2d 256. Even more to the point,

on the limited occasions we have cited Bryant or Clark, we

have interpreted them as continuing to apply the primary

purpose test. See Reinwand, 385 Wis. 2d 700, ¶¶22, 24, 924

N.W.2d 184; Mattox, 373 Wis. 2d 122, ¶32, 890 N.W.2d 256

(“Clark reaffirms the primary purpose test”). We have never

interpreted Bryant or Clark to be a departure from Crawford

or Davis, much less the type of drastic departure required to

justify deviating from the law of the case.

JILL J. KAROFSKY, J. (concurring).

¶37 I join the majority opinion, with the exception of ¶35,

*218 because I agree that our decision in Jensen I that

Julie's statements constituted testimonial hearsay established

the law of the case and a controlling court has not issued a

contrary decision on the same point of law. State v. Jensen

(Jensen I), 2007 WI 26, 299 Wis. 2d 267, 727 N.W.2d

518. I write separately, however, because I disagree with

the majority's assertion that the Jensen I court “objectively

evaluat[ed] the relevant ‘circumstances’ under which she

made [her statements].” Majority op., ¶35. In other words, I

conclude that the Jensen I court completely failed to consider

the context in which Julie made her statements.

¶35 In some ways, Jensen I anticipated Bryant and Clark. For

instance, we decided Jensen I by not *217 only analyzing the

¶38 Had this court in Jensen I truly considered that context, it

would have recognized that Julie was undeniably a victim of

By the Court.—The decision of the court of appeals is

modified, and as modified, affirmed.

Pet-App. 7

State v. Jensen, 396 Wis.2d 196 (2021)

957 N.W.2d 244, 2021 WI 27

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. It was under

these circumstances that she left two voicemails for Pleasant

Prairie Police Officer Ron Kosman and wrote a letter which

she gave to a neighbor with instructions to give it to the police

should anything happen to her.

¶39 This writing begins with a discussion of domestic abuse

and how Crawford v. Washington, 541 U.S. 36, 124 S.Ct.

1354, 158 L.Ed.2d 177 (2004), impacted the prosecution of

domestic abuse cases. Next, I summarize the United States

Supreme Court's decisions in Crawford, Davis v. Washington,

547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), and

Davis’ companion case, Hammon v. Indiana. I follow with an

examination of Jensen I, since it was decided less than a year

after Davis and Hammon, and with a discussion of three cases

from the United States Supreme Court and this court that were

decided post-Jensen I. This case overview reveals how the

United States Supreme Court and this court have increasingly

given weight to *219 context when assessing whether the

hearsay statement of an unavailable witness is testimonial in

nature. Next, to assist future courts in assessing context, I

supply a non-exhaustive list of contextual questions based

off the previously summarized cases. Finally, I conclude

this concurrence with a discussion of assessing context in

domestic abuse cases **256 and an objective evaluation of

the circumstances under which Julie made her statements.

DOMESTIC

PROSECUTION

ABUSE

AND

VICTIMLESS

¶40 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. Caitlin Valiulis, Domestic

Violence, 15 Geo. J. Gender & L. 123, 124 (2014). In addition,

and far more sobering, the nation's crime data suggests that

over half of female homicide victims in the United States are

killed by a current or former intimate partner. See Natalie

Nanasi, Disarming Domestic Abusers, 14 Harv. L. & Pol'y

Rev. 559, 563 & n.16 (2020) (citing statistics from the Center

for Disease Control and Prevention regarding the role of

intimate partner violence).

¶41 To counteract this public health issue, prosecutors

have worked to hold abusers accountable. This is often a

difficult, if not impossible, task because abusers’ actions often

render their victims unavailable to testify. Beginning in the

mid-1990s, prosecutors pursued these so-called “victimless”

prosecutions by seeking to introduce reliable evidence

using victims’ out-of-court statements through 911 operators,

medical professionals, social workers, and law enforcement

officers. See Andrew King-Ries, *220 Crawford v.

Washington: The End of Victimless Prosecution?, 28 Seattle

U. L. Rev. 301 (2005). Victim advocates and prosecutors

applauded this approach because it maintained victims’ safety

and avoided retraumatization. Id. This practice, however,

came to a screeching halt after the United States Supreme

Court's decision in Crawford,1 in which the Court profoundly

altered the analysis as to when an unavailable witness's

hearsay statement is admissible under the Confrontation

Clause of the Sixth Amendment.

II. PRECEDENT FROM THE UNITED STATES SUPREME

COURT ABOUT NONTESTIMONIAL HEARSAY

¶42 In Crawford, the United States Supreme Court

fundamentally changed the analysis regarding the

admissibility of an out-of-court witness's statement by

deciding that when such a statement is testimonial in nature,

the witness must testify and face cross-examination. 541

U.S. at 68, 124 S.Ct. 1354. Consequently, if that witness

is unavailable, his or her testimony will be excluded. Id.

The Crawford Court did not further explain what it meant

by “testimonial.” Writing for the majority, Justice Scalia

reasoned:

Where testimonial evidence is at issue, however, the

Sixth Amendment demands what the common law *221

required: unavailability and a prior opportunity for crossexamination. We leave for another day any effort to spell

out a comprehensive definition of ‘testimonial.’ Whatever

else the term covers, it applies at a minimum to prior

testimony at a preliminary hearing, before a grand jury, or

at a former trial; and to police interrogations.

Id. (Footnote omitted.)

¶43 The United States Supreme Court first applied its

reasoning in Crawford to **257 situations of domestic

abuse in Davis and Hammon. In doing so, the Court

created a primary-purpose test to determine whether or not

a statement is testimonial. In short, the test is designed to

ascertain whether the primary purpose of an interrogation is

to enable police to meet an ongoing emergency. Statements

are “testimonial when the circumstances objectively indicate

Pet-App. 8

State v. Jensen, 396 Wis.2d 196 (2021)

957 N.W.2d 244, 2021 WI 27

that there is no such ongoing emergency, and that the primary

purpose of the interrogation is to establish or prove past events

potentially relevant to later criminal prosecution.” Davis, 547

U.S. at 822, 126 S.Ct. 2266.

¶44 In Davis, the Court analyzed a 911 call in which the victim

reported that Davis was “jumpin’ on [her] again” and beating

her with his fists. Id. at 817, 126 S.Ct. 2266. The victim also

“described the context of the assault” and gave identifying

information about Davis. Id. at 818, 126 S.Ct. 2266. The

Court held that these statements were admissible because their

primary purpose was to “enable police assistance to meet

an ongoing emergency.” Id. at 828, 126 S.Ct. 2266.2 The

Court distinguished this statement from the *222 one at issue

in Crawford, reasoning that the statements were made “as

they were actually happening” and while the victim was “in

immediate danger.” Id. at 827, 831, 126 S.Ct. 2266 (emphasis

in original). The Court also determined that the statements

were helpful to the police because they allowed them to assess

any potential threats towards them or the victim. Id. at 832,

126 S.Ct. 2266. In sum, the Court decided that the victim

was not testifying because “[n]o ‘witness’ goes into court to

proclaim an emergency and seek help.” Id. at 828, 126 S.Ct.

2266.

¶45 The Court reached a different conclusion in Hammon, in

which police called to a domestic violence incident found the

victim on the front porch and Hammon inside the house. Id. at

819, 126 S.Ct. 2266. As part of their investigation, the officers

asked the victim to fill out and sign a “battery affidavit.” Id.

at 820, 126 S.Ct. 2266. In filling out the affidavit, the victim

described how Hammon broke a glass heater, pushed her into

the broken glass, hit her in the chest, prevented her from

leaving by damaging her van, and attacked her daughter. Id.

The Court determined the primary purpose of this statement

was to provide a “narrative of past events,” and the Court

reasoned that giving a statement about past events meant

there was “no emergency in progress.” Id. at 829, 832, 126

S.Ct. 2266. For these reasons, the Court decided the victim's

affidavit was inadmissible hearsay. Id. at 834, 126 S.Ct. 2266.

*223 III. JENSEN I

¶46 Shortly after the United States Supreme Court decided

Davis and Hammon, this court determined in Jensen I that

the primary purpose of Julie's letter was not to help the

police in an ongoing emergency, but to “investigate or aid

in prosecution in the event of her death.” Jensen I, 299 Wis.

2d 267, ¶27, 727 N.W.2d 518. Additionally, **258 the

court also reasoned that the voicemails “were entirely for

accusatory and prosecutorial purposes.” Id., ¶30.

¶47 In Julie's second voicemail, she told Officer Kosman that

she thought Jensen was going to kill her. The letter that Julie

gave her neighbor read as follows:

I took this picture [and] am writing this on Saturday

11-21-98 at 7AM. 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] multivitamins; 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 ... but I am

suspicious of Mark's suspicious behaviors [and] fear for my

early demise. However, I will not leave David *224 [and]

Douglas. My life's greatest love, accomplishment and wish:

“My 3 D's”—Daddy (Mark), David [and] Douglas.

Id., ¶7.

¶48 Although the record in this case was replete with

references to domestic abuse and the Jensen I majority took

great pains to explain that it reached its decision by examining

“[t]he content and the circumstances surrounding the letter”

and applied the same reasoning to the voicemails, id., ¶27,

nowhere in the majority opinion, not even in a passing phrase

or fleeting word, did this court acknowledge that Julie was

the victim of domestic abuse. Instead, employing an ill-suited

analogy, the majority compared Julie's letter and voicemails to

Lord Cobham's letter at Sir Walter Raleigh's trial for treason.

Id., ¶29. Drawing a parallel between a 1603 treason trial

—where Cobham, the missing (but still very much alive)

accomplice, wrote a letter maintaining his innocence while

accusing Raleigh—and a 1998 domestic homicide makes for

a particularly inapt analogy; it draws a comparison remote

in time, place, content, and circumstance in every possible

aspect.

Pet-App. 9

State v. Jensen, 396 Wis.2d 196 (2021)

957 N.W.2d 244, 2021 WI 27

IV. POST-JENSEN I

¶49 Post-Jensen I, the United States Supreme Court issued

two decisions that further illuminated the import of assessing

context when courts are determining the primary purpose

of an unavailable witness's hearsay statement, Michigan v.

Bryant, 562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed.2d 93

(2011), and Ohio v. Clark, 576 U.S. 237, 135 S.Ct. 2173, 192

L.Ed.2d 306 (2015). In Bryant, the police found a gunshot

victim at a gas station. 562 U.S. at 349, 131 S.Ct. 1143.

Although the victim was bleeding profusely and was having

trouble speaking, *225 he told police that Bryant shot him

through the back door of Bryant's house. Id. Unfortunately,

the victim died within hours. Id. The Bryant Court decided

that the victim's statement was admissible because its primary

purpose was to help the police resolve an ongoing emergency,

especially in light of the fact that Bryant posed an ongoing

threat to the community at large. Id. at 371-73, 131 S.Ct.

1143. The Court emphasized that determining the primary

purpose of a statement is an objective test and clarified

that an ongoing emergency is only **259 one factor to

be considered. Id. at 360, 366, 131 S.Ct. 1143. The Court

outlined other important factors, including the statements and

actions of both the declarant and the interrogators, and the

formality of the encounter. Id. at 366-67, 131 S.Ct. 1143. The

court noted that victims may have “mixed motives” when

making a statement to the police. Id. at 368, 131 S.Ct. 1143

(“During an ongoing emergency, 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.”).

¶50 Clark, 576 U.S. 237, 135 S.Ct. 2173, involved a different

type of violence in the home: child abuse. In that case,

Clark was accused of abusing his girlfriend's three-year old

son after the victim disclosed the abuse to a teacher who

observed visible injuries on the boy's body. Id. at 240-41, 135

S.Ct. 2173. The statements to the teacher were determined to

be nontestimonial because the teacher's objective in asking

questions was to protect the victim, not to arrest or punish his

abuser. Id. at 247, 135 S.Ct. 2173. The Clark Court reiterated

the importance of context, explaining “[c]ourts must evaluate

challenged statements in context, and part of that context

is the questioner's identity.” Id. at 249, 135 S.Ct. 2173. In

considering “all the relevant circumstances,” including the

child's age, the school *226 setting, the teacher's objective,

and the overarching informality of the situation, the Court

concluded that the primary purpose of the victim's statements

was not to “creat[e] evidence” for Clark's prosecution. Id.

at 246, 135 S.Ct. 2173. Rather, the teacher's questions were

intended to identify the abuser “to protect the victim from

future attacks.” Id. at 247, 135 S.Ct. 2173.

¶51 Subsequently, we interpreted Clark in Reinwand, in

which Joseph Reinwand was convicted of first-degree

intentional homicide for killing his daughter's former partner.

State v. Reinwand, 2019 WI 25, 385 Wis. 2d 700, 924 N.W.2d

184. Reinwand's daughter and the victim were planning to

mediate a custody dispute and in the days leading up to the

mediation, Reinwand threatened to harm or kill the victim

if he continued to seek custody. Id., ¶6. The victim reported

these threats to family and friends, saying he was scared for

his life and that if anything happened to him, people should

look to Reinwand. Id. A short time later, the victim was found

dead in his home. This court looked to four relevant factors

in deciding whether Reinwand's statements were testimonial:

(1) the formality/informality of the situation producing the

out-of-court statement; (2) whether the statement is given

to law enforcement or a non-law enforcement individual;

(3) the age of the declarant; and (4) the context in which

the statement was given.

Id., ¶25 (citing State v. Mattox, 2017 WI 9, ¶32, 373 Wis. 2d

122, 890 N.W.2d 256).

¶52 The Reinwand court concluded that the statements were

nontestimonial because: (1) they were given in informal

situations, primarily inside people's houses and at an Arby's

restaurant; (2) none of the statements were given to law

enforcement or intended *227 for law enforcement; (3)

the age of the victim was irrelevant; and (4) the victim's

statements were made to friends and family and his demeanor

suggested genuine concern because he seemed “concerned,

stressed, agitated ... and genuinely frightened.” Id., ¶¶27-30.

The court concluded that the victim's “demeanor suggests that

he was expressing genuine concern and seeking advice, rather

than attempting to create a substitute for trial testimony.” Id.,

¶30.

**260 V. ASSESSING CONTEXT

¶53 The post-Crawford cases emphasized the importance of

assessing context when courts are determining whether the

hearsay statement of an unavailable witness is testimonial.

The following non-exhaustive list of questions summarizes

Pet-App. 10

State v. Jensen, 396 Wis.2d 196 (2021)

957 N.W.2d 244, 2021 WI 27

the contextual inquiries the United States Supreme Court and

this court made in post-Crawford cases:

• Is there an ongoing emergency? (Davis)

• Do the statements help the police assess whether there is

a potential threat? (Davis)

• Is the victim in immediate danger? (Davis)

• Is the statement a narrative of past events? (Hammon)

• Is the statement related to an ongoing threat to the

community at large? (Bryant)

• What's the declarant's actual statement? (Bryant)

• What are the actions of the declarant? (Bryant)

• What are the actions and statements of the interrogators?

(Bryant)

• Are the interrogators’ intentions to protect the victim or

arrest/prosecute the abuser? (Clark)

*228 • Is the encounter formal (at a police station) or

informal? (Bryant)

• Was the statement given to law enforcement? (Clark)

• Were the statements intended for law enforcement?

(Clark)

• How old is the declarant? (Clark)

• What is the relationship between the declarant and the

suspect? (Clark)

• What was the demeanor of the declarant at the time the

statements were made? (Reinwand)

• Is the statement a prediction of future events? (Reinwand)

(2011) (“[A] domestic violence victim exists in a relationship

defined by long-term, ongoing, powerful, and continuous

abuse ... it is illogical and impractical to attempt to find the

beginning and end of an ‘emergency’ in such a context.”). In

addition, victims of domestic abuse are often afraid to report

acts of violence, or they recant or refuse to cooperate after

initially providing information because they fear retaliation.

Id. at 184-85. Therefore, victims may not make a report or

they may minimize or deny incidents of abuse. It is also

important to understand that no one *229 knows an abuser

better than the abuser's victim. And the most dangerous time

for a victim of domestic abuse is when he or she decides

to leave the relationship. See Lisa A. Goodman & Deborah

Epstein, Listening to Battered Women: A Survivor-Centered

Approach to Advocacy, Mental Health, and Justice 76 (2008)

(“Substantial data show that separation from the batterer is

the time of greatest risk of serious violence and homicide for

battered women and for their children.”).

¶55 Having suggested some contextual questions and

acknowledging the challenges of understanding context in

cases of domestic abuse, I conclude this concurrence by

objectively evaluating the relevant **261 circumstances

under which Julie made her statements, a task the majority

opinion erroneously claims the Jensen I court did. That

evaluation reveals that Julie:

• was a victim of domestic abuse;

• believed there was an ongoing emergency as she feared

her husband was going to kill her;

• perceived herself to be in immediate danger because her

husband was engaging in behavior that did not make

sense to her;

• had significant safety concerns;

• was afraid her death was going to be made to look like

a suicide;

• loved her sons;

VI. CONTEXT IN DOMESTIC ABUSE CASES

¶54 Applying the above considerations to situations of

domestic abuse can be challenging because domestic abuse

rarely takes place in a vacuum. That is, there are often multiple

incidents and the abuse can span the course of days, weeks,

months, or years. See, e.g., Eleanor Simon, Confrontation and

Domestic Violence Post-Davis: Is There and Should There Be

a Doctrinal Exception?, 17 Mich. J. Gender & L. 175, 206

• wanted her sons to know she did not intend to kill herself;

• was making a prediction about her husband's future

behavior;

• was not questioned/interrogated in this case; and

*230 • did not have a formal encounter in a police station.

Pet-App. 11

State v. Jensen, 396 Wis.2d 196 (2021)

957 N.W.2d 244, 2021 WI 27

¶56 When looking at this evidence in context, it is apparent

that Julie was 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. It was under these circumstances that she left the

voicemail messages for Officer Kosman and wrote the letter

which she gave to a neighbor with instructions to give it to

the police should anything happen to her.

¶57 With this context in mind, we must ask: Was Julie making

statements for the future prosecution of her husband for her

murder? Or was she a woman trying to survive ongoing

domestic abuse, fearing and predicting an imminent attempt

on her life, telling her sons that she loved them too much to

commit suicide? This is the voice—Julie's voice—that this

court failed to acknowledge in Jensen I.

¶58 Although the law of the case prohibits this court from

reconsidering the determinations reached by the Jensen I

court, had the Jensen I court actually “objectively evaluat[ed]

the relevant circumstances” surrounding Julie's statements, it

would have recognized the atmosphere of domestic abuse that

suffused the factual background and the relationship at the

center of this case and possibly reached a different conclusion.

¶59 For the foregoing reasons, I concur.

¶60 I am authorized to state that Justice ANNETTE

KINGSLAND ZIEGLER joins this concurrence.

All Citations

396 Wis.2d 196, 957 N.W.2d 244, 2021 WI 27

Footnotes

To avoid confusion—and to remain consistent with previous decisions in this case—we refer to Mark Jensen as “Jensen”

and Julie Jensen as “Julie.”

U.S. Const. amend. VI, cl. 4 (“In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the

witnesses against him ....”).

The Honorable Chad G. Kerkman of the Kenosha County Circuit Court presiding.

State v. Jensen, No. 2018AP1952-CR, unpublished slip op. (Wis. Ct. App. Feb. 26, 2020).

Unless otherwise noted, all references to Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006),

are also references to Hammon v. Indiana, which the Court consolidated with Davis.

We denied Jensen's petition for review regarding Jensen II. See Jensen v. Schwochert, No. 11-C-0803, 2013 WL

6708767, at *5 (E.D. Wis. Dec. 18, 2013), aff'd, Jensen v. Clements, 800 F.3d 892 (7th Cir. 2015).

The circuit court noted, incorrectly, that Davis (and Hammon) was decided after Jensen I. Not only was Davis decided

before Jensen I but in Jensen I we expressly followed Davis.

See

State

v.Jensen

- -- - (Jensen

- - -I), 2007 WI 26, ¶19, 299 Wis.

2d 267, 727 N.W.2d 518.

Courts may also depart from the law of the case in two other situations: when the evidence at a subsequent trial is

“substantially different” than that at the initial trial; and when following the law of the case would result in a “manifest

injustice.” See Stuart I, 262 Wis. 2d 620, ¶ 24, 664 N.W.2d 82 (quoted source omitted). Neither of those situations applies

here.

Even if Schwochert or Clements could establish the law of the case, our conclusion would be the same because both

agreed with our holding in Jensen I that Julie's statements are testimonial hearsay. See Schwochert, 2013 WL 6708767, at

*17 (“Jensen's rights under the Confrontation Clause of the Sixth Amendment were violated when the trial court admitted”

Julie's statements); Clements, 800 F.3d at 908 (adding that “there is no doubt that” admitting Julie's statements violated

“Jensen's rights under the Confrontation Clause”).

Before Crawford, cross-examination was but one method of proving that a testimonial hearsay statement was acceptably

reliable. See Ohio v. Roberts, 448 U.S. 56, 70-73, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Mancusi v. Stubbs, 408 U.S.

204, 216, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972). But Crawford went further, holding that a prior opportunity for meaningful

cross-examination was the only way to show that a testimonial hearsay statement was sufficiently reliable under the

Confrontation Clause. Crawford v. Washington, 541 U.S. 36, 55-56, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

In a 2004 survey of 64 prosecutors’ offices in California, Oregon, and Washington, 63 percent of respondents reported

that Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) had significantly impeded domestic

violence prosecution. Tom Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 750 (2005). Further, 76

Pet-App. 12

State v. Jensen, 396 Wis.2d 196 (2021)

957 N.W.2d 244, 2021 WI 27

percent of respondents indicated that after Crawford their offices were more likely to dismiss domestic violence charges

when the victims refused to cooperate or were unavailable. Id. at 773.

The Davis Court described these statements as “frantic,” 547 U.S. at 827, 126 S.Ct. 2266, a word that connotes a

lack of thought or good judgment. This type of language is emblematic of the obstacles domestic abuse victims face in

effectively conveying the truth of their experiences to institutional gatekeepers. “[D]omestic violence complainants can

find themselves in a double bind. The symptoms of their trauma—the reliable indicators that abuse has in fact occurred—

are perversely wielded against their own credibility in court. [Post-traumatic stress disorder] symptoms can ... contribute

to credibility discounts that may be imposed by police, prosecutors, and judges.” Deborah Epstein & Lisa A. Goodman,

Discounting Women: Doubting Domestic Violence Survivors’ Credibility and Dismissing Their Experiences, 167 U. Penn.

L. Rev. 399, 422 (2019).

End of Document

Government Works.

Pet-App. 13

OFFICE OF THE CLERK

WISCONSIN COURT OF APPEALS

110 EAST MAIN STREET, SUITE 215

P.O. Box 1688

MADISON, WISCONSIN 53701-1688

Telephone (608) 266-1880

TTY: (800) 947-3529

Facsimile (608) 267-0640

Web Site: www.wicourts.gov

DISTRICT II

February 26, 2020

To:

Hon. Chad G. Kerkman

Circuit Court Judge

Kenosha County Courthouse, Br. 8

912 56th St.

Kenosha, WI 53140

Dustin C. Haskell

Assistant State Public Defender

735 N. Water St., Rm. 912

Milwaukee, WI 53203

Aaron R. 0 'Neil

Assistant Attorney General

P.O. Box 7857

Madison, WI 53707-7857

Rebecca Matoska-Mentink

Clerk of Circuit Court

Kenosha County Courthouse

912 56th St.

Kenosha, WI 53140

Jeremy C. Perri

First Asst. State Public Defender

735 N. Water St., Rm. 912

Milwaukee, WI 53203

John Blimling

Assistant Attorney General

P.O. Box 7857

Madison, WI 53707-7857

Michael D. Graveley

District Attorney

912 56th St.

Kenosha, WI 53140-3747

You are hereby notified that the Court has entered the following opinion and order:

2018AP1952-CR

State of Wisconsin v. Mark D. Jensen (L.C. #2002CF314)

Before Reilly, P.J., Gundrum and Davis, JJ.

Summary disposition orders may not be cited in any court of this state as precedent or

authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

Pet-App. 14

No. 2018API952-CR

This case has much history, having already been the subject of one supreme court

decision more than a decade ago, State v. Jensen (Jensen I), 2007 WI 26,299 Wis. 2d 267, 727

N.W.2d 518, a prior decision by this court, State v. Jensen (Jensen JI), 2011 WI App 3,331

Wis. 2d 440, 794 N.W.2d 482, and multiple federal court decisions, Jensen v. Schwocliert,

No. 11-C-0803, unpublished slip op. (E.D. Wis. Dec. 18, 2013), aff'd, Jensen v. Clements, 800

F.3d 892 (7th Cir. 2015), Jensen v. Clements, No. ll-C-803, unpublished slip op. (E.D. Wis.

Nov. 27, 2017), and Jensen v. Pollard, 924 FJd 451 (7th Cir. 2019).

In this current challenge, Mark Jensen appeals from a judgment of the circuit court

convicting him of first-degree intentional homicide, which judgment was entered after the United

States District Court for the Eastern District of Wisconsin granted his petition for a writ of

habeas corpus and ordered Jensen "released from custody unless, within 90 days of the date of

this decision, the State initiates proceedings to retry him."

Jensen v. Schwochert,

No. l l-C-0803, at 55. Because the circuit court entered this judgment without affording Jensen a

new trial (and without otherwise being based upon a plea), he asserts the court erred either by

"unconstitutionally direct[ing] a new judgment against him without a trial or plea, or because the

circuit court re-entered an old, constitutionally infirm conviction that was invalidated by a higher

court." Based upon our review of the briefs and record, we conclude at conference that this case

is appropriate for summary disposition. See WIS. STAT. RULE 809.21 (2017-18).

Because we

agree the circuit court erred in entering judgment against Jensen without affording him a new

trial, we reverse and remand for further proceedings.

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.

Pet-App.

....

No. 2018AP1952-CR

BackgroumP

In 2002, Jensen was charged with first-degree intentional homicide of his wife, Julie, in

connection with her death by poisoning. He filed a motion challenging on Confrontation Clause

grounds the admissibility of a handwritten letter Julie wrote prior to her death. The letter,

bearing Julie's signature, had been in a sealed envelope addressed to "Pleasant Prairie Police

Department, Ron Kosman or Detective Ratzenburg" and given to a neighbor.

Julie had

instructed the neighbor that he should give the envelope to police if anything happened to her.

The letter stated, among other things, that "if anything happens to me, [Jensen] would be my first

suspect" and "I pray I'm wrong [and] nothing happens ... but I am suspicious of [Jensen's]

suspicious behaviors [and] fear for my early demise."

Jensen similarly challenged the admissibility of voicemail messages and other oral

In one of the messages, Julie told Kosman she

statements Julie made to Officer Kosman.

thought Jensen was attempting to kill her and asked that Kosman call her back. Jensen I, 299

Wis. 2d 267, 16; Jensen v. Schwochert, No. ll-C-0803, at 2.

Our supreme court further

described Julie's messages as indicating 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." Jensen I, 299 Wis. 2d

267, 130. The other oral statements at issue relate to Kosman speaking with Julie in person in

response to her voicemail messages. As our supreme court expressed it in Jensen I, in such

Because of the extensive history of this case and the role that history plays in this appeal, we

draw much of the background information from the prior cases.

3 16

Pet-App.

No. 2018AP1952-CR

statements, Julie indicated, among other things, that "if she were found dead, . . . she did not

commit suicide, and Jensen was her first suspect." Id., ,r6.

The circuit court originally ruled that the letter and in-person statements to Kosman were

admissible. After the United States Supreme Court decided Crawford v. Washington, 541 U.S.

36 (2004), however, Jensen moved for reconsideration. Revisiting the issue, the circuit court

concluded the -letter and voicemail messages were testimonial statements and as such were

inadmissible under Crawford.

'The State had conceded the in-person statements were

testimonial.

On appeal to our supreme court, the court observed in Jensen I that the United States

Supreme Court "fundamentally changed the Confrontation Clause analysis" with its decision in

Crawford. Jensen I, 299 Wis. 2d 267, ,Il 4. Prior to Crawford, our supreme court noted,

Confrontation Clause jurisprudence was driven by Ohio v. Roberts, 448 U.S. 56 (1980). As the

Jensen I court expressed it,

Under Roberts, when an out-of-court declarant is unavailable, his

or her statement is admissible if it bears an adequate indicia of

reliability, which could be satisfied if the statement fell within a

firmly rooted hearsay exception or bore particularized guarantees

of trustworthiness. Roberts, 448 U.S. at 66.

Jensen I, 299 Wis. 2d 267, ,rt4.

Constituting a "major shift in Confrontation Clause

jurisprudence," the Crawford Court instead "determined that the Confrontation Clause bars

This evidence was presented at Jensen's preliminary hearing. State v. Jensen (Jensen I), 2007

WI 26, ifif4-7, 299 Wis. 2d 267, 727 N.W.2d 518.

Pet-App.

No. 2018AP1952-CR

admission of an out-of-court-testimonial statement unless the declarant is unavailable and the

defendant has had a prior opportunity to examine the declarant with respect to the statement."

Jensen I, 299 Wis. 2d 267,115 (emphasis added). The Jensen I court recognized that Crawford

"did not spell out a comprehensive definition of what 'testimonial' means" and then identified

indicators from Crawford to aid in a determination of whether a statement is testimonial or

nontestimonial. Jensen I, 299 Wis. 2d 267, 116.

The Jensen I court also recognized that in a·post-Crawford Confrontation Clause case,

Davis v. Washington, 547 U.S. 813 (2006), the Uniteq. States Supreme Court referenced a

"primary purpose" test in holding: "Statements 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." Jensen I, 299

Wis. 2d 267, 119. Ultimately, the court held that "Julie's statements to the police and the letter

are testimonial." Id., 120.

With respect to its holding that the letter and statements by Julie are testimonial, the

Jensen I court discussed the following:

We begin first with the statements Julie made in her letter. The

circuit court concluded that the letter was testimonial as it had no

apparent purpose other than to "bear testimony" and Julie intended

it exclusively for accusatory and prosecutorial purposes.

Furthermore, the circuit court stated, "I can't imagine any other

purpose in sending a letter to the police that is to be opened only in

the event of her death other than to make an accusatory statement

given the contents of this particular letter."

Id., 126. The Jensen I court expressed its agreement with the circuit court's observation, and

added

that

Julie's

letter

"even

referred

5 18

Pet-App.

Jensen

'suspect."'

Id.

No. 2018AP1952-CR

Similar to the circuit court, the Jensen I court stated that

[t]he content and the circumstances surrounding the letter make it

very clear that Julie intended the letter to be used to further

investigate or aid in prosecution in the event of her death.· Rather

than being addressed to a casual acquaintance or friend, the letter

was purposely directed toward law enforcement agents. The letter

also describes Jensen's alleged activities and conduct in a way that

clearly implicates Jensen if "anything happens" to her.

Id., 127.

The Jensen I court noted t];ie similarity between Julie's letter and Lord Cobham's letter

accusing Sir Walter Raleigh of treason, followed by an infamous trial that provided an impetus

for the Confrontation Clause. Id., 129; see also Crawford, 541 U.S. at 44-45. The Jensen I

court stated that Julie's letter was

testimonial in nature as it clearly implicates Jensen in her murder.

If we were to conclude that her letter was nontestimonial, we

would be allowing accusers the right to make statements clearly

intended for prosecutorial purposes without ever having to worry

about being cross-examined or confronted by the accused. We

firmly believe Craw/ord and the Confrontation Clause do not

support such a result.

Jensen I, 299 Wis. 2d 267, 129. Specifically as to the voicemail messages Julie left for Kosman,

the Jensen I court again agreed with the circuit court.

Again, the circuit ~ourt determined that these stateme~ts served no

other purpose than· to bear testimony and were entirely for

Furthermore, Julie's

ac_cusatory and prosecutorial purposes.

voicemail was not made for emergency purposes qr to escape from

a perceived danger. She instead sought to relay information in

order to further the investigation of Jensen's activities. This

distinction convinces us that the voicemails are testimonial. See

Pitts v. State, 280 Ga. 288, 627 S.E.2d 17, 19 (2006) ("Where the

primary purpose of the telephone call is to establish evidentiary

facts, so that an objective person would recognize that the

statement would be used in a future prosecution, then that phone

call 'bears testimony' against the accused and implicates the

concerns of the Confrontation Clause.").

Pet-App.

No. 2018AP1952-CR

Jensen I, 299 Wis. 2d 267, 130. The Jensen I court's ultimate holding on the issue of Julie's

letter and voicemail messages is that they are "testimonial."4 Id., 134.

Despite its determination that Julie's letter and other statements are testimonial, the

Jensen I court did not simply rule them inadmissible because it also held that the doctrine of

"forfeiture by wrongdoing" might apply to this evidence, so it remanded the matter back to the

circuit court to determine whether, by a preponderance of the evidence, Jensen caused Julie's

unavail~bility for. confrontation and thus forfeited his right to confro.nt her. Id., 158. Following

a hearing on remand focused on the forfeiture-by-wrongdoing exception, the circuit court

The Jensen I court noted that the State had conceded that the in-person statements Julie made

to Kosman when he followed up on her voicemails were testimonial. Jensen I, 299 Wis. 2d 267, 111 n.4;

State v. Jensen (Jensen II), 2011 WI App 3, 111 n.4, 331 Wis. 2d 440, 794 N.W.2d 482. In this current

appeal, the State asks us to rule that Julie's. voicemails and in-person statements, along with the letter, are

nontestimonial. · In doing so, the State effectively treats the voicemails and in-person statements as being

of the same nature and character for Confrontation Clause purposes and refers to them collectively as ''the

statements." The State is not incorrect in doing so as Julie's voicemail messages and in-person statements

to Kosman are in fact of the same nature and character for Confrontation Clause purposes in that they

occurred around the same time, related to the same concern that Jensen may have been trying to kill her,

and were made to the same person, who was a law enforcement officer. As the Jensen I court stated with

regard to the voicemail messages:

[T]he circuit court determined that these statements served no other purpose than to bear

testimony and were entirely for accusatory and prosecutorial purposes. Furthermore,

Julie's voicemail was not made for emergency purposes or to escape from a perceived

danger. She instead sought to relay information in order·to further the investigation of

Jensen's activities. This distinction convinces us that the voicemails are testimonial.

(continued)

7 20

Pet-App.

No. 2018AP1952-CR

determined by a preponderance of the evidence that Jensen had caused Julie's unavailability and

thus had forfeited his confrontation right, and it ruled Julie's letter and statements admissible.

The circuit court held a trial at which the letter and other statements were admitted, and Jensen

was found guilty.

Subsequent to the trial, the United States Supreme Court decided Giles v. California, 554

U.S. 353 (2008), which addressed the forfeiture-by-wrongdoing doctrine. On appeal of his

conviction to, this c~~' Jen~en -~hallenged ·the admission of the letter and statements, and

ultimately the guilty verdict against him, based upon Giles' holding regarding the forfetture-bywrongdoing doctrine, which holding conflicted with our supreme court's holding on that issue in

Jensen I. Jensen II, 331 Wis. 2d 440, 122. We assumed, without deciding, that the letter and

statements were erroneously admitted at trial but held that their admission was harmless.

Id., 135.

Jensen also contended in the appeal to us that his due process right to a fair trial was

violated because the judge who presided over his trial was the same judge who previously made

the finding that he had forfeited his Confrontation Clause challenge to the letter and statements

Jensen I, 299 Wis. 2d 267, ,I30. Pursuant to Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246

(1997), and in light of our supreme court's decision·in Jensen I, we conclude we are not at liberty to treat

Julie's in-person statements to Kosman any differently than her voicemail messages to him, and we

conclude that both the messages and in-person statements are testimonial. Furthermore, the State

abandoned its opportunity to argue that the in-person statements are nontestimonial when it conceded in

Jensen I that they were testimonial. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491,

588 N.W.2d 285 (Ct. App. 1998) ("[A]n issue raised in the trial court, out not raised on appeal, is deemed

abandoned."). We further note that it appears the federal courts also determined that both the voicemail

and in-person statements, as well as the letter, were testimonial and that their admission at trial violated

Jensen's Confrontation Clause rights. See Jensen v. Schwochert, No. l 1-C-0803, unpublished slip op. at

18, 28, 54-55 (E.D. Wis. Dec. 18, 2013), affd, Jensen v. Clements, 800 F.3d 892, 896, 908 (7th Cir.

2015).

Pet-App.

No. 2018AP1952-CR

by causing Julie's unavailability. We rejected this contention on the merits and also concluded

he had forfeited it by failing to first raise it in the circuit court. Id., ,r,r94-96. On the merits, we

stated:

Under Wis. STAT. § 901.04, a judge must make preliminary

evidentiary findings such as the finding Judge Schroeder made that

Moreover,

Jensen was guilty of forfeiture by wrongdoing.

Judge Schroeder was ordered by our supreme court to make a

forfeiture by wrongdoing finding. Additionally, Jensen points to

nothing to support his implied contention that a judge who makes

the preliminary finding of forfeiture by wrongdoing must recuse

himself or herself from the trial. Finally, Jensen proffers no

objective evidence of bias. We address this argument no further.

Jensen II, 331 Wis. 2d 440, ,I96 (footnote omitted).

Jensen subsequently filed a petition for review by the Wisconsin Supreme Court, which

petition the court denied. Jensen then filed a habeas petition in federal court. The federal district

court for the Eastern District of Wisconsin ruled that the admission of the testimonial letter and

statements by Julie at trial violated Jensen's rights under the Confrontation Clause and, contrary

to our ruling in Jensen II, was not harmless error, and the court ordered Jensen "released from

custody unless, within 90 days of the date of this decision, the State initiates proceedings to retry

him." Jensen v. Schwochert, No. 11-C-0803, at 55.

The State appealed the federal district court's ruling to the Seventh Circuit Court of

Appeals, and that court affirmed, expressing "[t]hat 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." Jensen v. Clements, 800 F.3d at 908. _The court stated

that the "letter and other accusatory statements [Julie] made to the police in the weeks before her

death regarding her husband should never have been introduced at trial," adding that "[t]he

erroneous admission of Julie's letter and statements to the police had a substantial and injurious

Pet-App.

No. 2018AP1952-CR

influence or effect in determining the jury's verdict." Id. at 895. Upon remand to the state

circuit court, Jensen's conviction was vacated and further proceedings were held.

Despite the Wisconsin Supreme Court's ruling in Jensen I and the federal court rulings

holding that Julie's letter and other statements were testimonial, as the parties prepared for a

retrial, the State asked the circuit court to consider anew the admissibility of the letter and Julie's

other statements and rule them admissible at a retrial. The State asserted, as it does on appeal,

that United States Supreme Court cases decided in 2011, 2012, and 2015 'modified the definition

of what constitutes a "testimonial" statement and that under the revised definition, Julie's letter

and other statements do not qualify.

The circuit court agreed and ruled that the letter and

statements are nontestimonial and could be admitted at trial. The State subsequently filed a

motion to reinstate the original jury verdict without a retrial, and the circuit court did just that,

reinstating the original conviction as well as Jensen's life sentence, explaining that there was no

need for a new trial because the evidence would be "materially the same as the first trial."

Jensen appeals.

Discussion

In this appeal, -Jensen argues that the .. circuit court erred either by "unconstitutionally

direct[ing] a new judgment against him without a trial or plea, or because the circuit court reentered an old, constitutionally infirm conviction that was invalidated by a higher court." We

need not delve into the murky waters of deciding between these two because whichever action

the court in fact took under the law was in error as they are both based on the court's erroneous

Related litigation then followed in federal court, but our ruling is not dependent on those

proceedings.

10 23

Pet-App.

6,.

No. 2018AP1952-CR

ruling that Julie's letter and other statements are nontestimonial and thus not subject to the

Confrontation Clause.

"[T]he Confrontation Clause applies ... to statements that are testimonial in nature," but

does not apply to statements that are nontestimonial. State v. Reinwand, 2019 WI 25, ,r,r22-23,

385 Wis. 2d 700, 924 N.W.2d 184.

Whether a particular statement is testimonial or

nontestimonial is a question of law we review de novo. State v. Deadwiller, 2012 WI App 89,

,r7, 343-Wis. 2d 703, 820 N.W.2d 149.

While our recitation of the procedural history of this case is long, our analysis will be

short. Neither we nor the circuit court are at liberty to decide that the letter and other statements

Julie made to Kosman are nontestimonial. Under Cook v. Cook, 208 Wis. 2d 166, 189, 560

N.W.2d 246 (1997), "[t]he supreme court is the only state court with the power to overrule,

modify or withdraw language from a previous supreme court case." See Jensen II, 331 Wis. 2d

440, ,r21. That is what the circuit court erroneously did and what the State asks us to affirm in

this case.

We will not again detail all that the supreme court said in Jensen I with regard to the

- testimonial -nature of Julie's letter and other statements to Kosman. We will, however, point-out

again that the court stated:

If we were to conclude that her letter was nontestimonial, we

would be allowing accusers the right to make statements clearly

intended for prosecutorial purposes without ever having to worry

about being cross-examined .or confronted by the accused. We

firmly believe Crawford and the Confrontation Clause do not

support such a result.

11 24

Pet-App.

No. 2018APl952-CR

Jensen I, 299 Wis. 2d 267, 129 (emphasis added). The supreme court made its "firmO belie[f]"

abundantly clear, not just in a case with facts very similar to the facts in this case, but in this case

itself, with these same exact facts.

Id. In the end, the court ruled in Jensen I _that "the

statements Julie made to Kosman, including the letter, are testimonial," id., 158, and it did so not

solely based upon the Crawford decision, but upon the Confrontation Clause itself. We are not

at liberty to state otherwise. 6 With that, we must conclude the c4"cuit court erred in entering a

judgment of conviction without a new trial, a new trial which was envisioned by the federal

district court when it returned this case to the circuit court with instructions to "release [Jensen]

froi:n custody unless, within 90 days of the date of this decision, the State initiates proceedings to

retry him." Jensen v. Schwochert, No. 11-C-0803, at 55. We reverse and we remand for a new

trial at which Julie's letter and other statements may not be admitted into evidence.

We have already recognized in Jensen II, almost four years after Jensen I, that we are bound

by our supreme court's declaration in Jensen I that "the statements Julie made to Kosman, including the

letter addressed to the police, are 'testimonial,"' Jensen II, 331 Wis. 2d 440, 127, and we referred to

these statements as testimonial, see id., -U113, 14, 35, 38, 71, 73. Related to our ruling that we are bound

by the Jensen I court's determination that the letter and other statements are testimonial, we specifically

stated:

In order to determine which statements may be analyzed under the broader version of the

forfeiture by wrongdoing analysis, we must first determine which statements are

testimonial and which are not. Fortunately, our supreme court has done so for us in

Jensen, 299 Wis. 2d 267, ,r2. See Livesey v. Copps Corp., 90 Wis. 2d 577, 581, 280

N.W.2d 339 (Ct. App. 1979) (recognizing that "[t]he court of appeals is bound by the

prior decisions of the Wisconsin Suprerµe Court'').

Jensen II, 331 Wis. 2d 440, -U27.

Jensen also argues that if his "current conviction is a re-entry of the old constitutionally infirm

judgment ... this judgment is infected by the same judicial bias that Jensen presented in his direct appeal

in Jensen II." Jensen recognizes that we already answered in Jensen II that he had failed to show

judicial bias, but he acknowledges he is just raising the issue again to preserve it "for review by a federal

habeas court, if necessary." Because we already have ruled that he is entitled to a new trial upon remand

(at which trial the challenged statements may not be admitted) and that he has not shown judicial bias, we

see no need to address this issue further.

12 25

Pet-App.

No. 2018AP1952-CR

Therefore,

IT IS ORDERED that the judgment of the circuit court is summarily reversed pursuant to

WIS. STAT. RULE 809.21.

IT IS FURTHER ORDERED that this case is remanded with directions.

IT IS FURTHER ORDERED that this summary disposition order will not be published.

Sheila T. Reiff

Clerk of Court ofAppeals

Pet-App. 26

FILED

09-18-2017

Clerk of Circuit Court

STATE OF WISCONSIN

CIRCUIT COURT

KENOSHA COUNTY

DA Case No.: FR2000 839

STATE OF WISCONSIN

Plaintiff,

Kenosha County

2002CF000314

Court Case No.: 2002CF000314

vs.

MARK D. JENSEN

DOB: 10/05/1959

Defendant.

ORDER

Hon. Chad Kerkman

For Official Use

The court having carefully considered the briefs filed by the State and the defendant to

reinstate the Defendant’s original conviction and having heard oral argument’s at the hearing

held on 1st day of September, 2017 makes the following findings:

1. On July 13, 2017, the court, applying Ohio V. Clark, Michigan v. Bryant and other

cases decided since Crawford v. Washington and Jensen I as cited by the State in

its briefs, found Julie Jensen’s letter and statements to Officer Kosman to be nontestimonial, not violative of the Defendant’s constitutional confrontation clause, and

admissible under exceptions to the rules against hearsay.

2. As a result, the evidence at a second trial in the case of State v. Mark Jensen would

be materially the same as in the first trial.

3. The federal district court in its clarifying Order of August 18, 2017 held that the State

has complied with its Order by reinstating proceedings to try the Defendant.

4. Because all the evidence at the second trial will be materially the same as at the first

trial, it makes no sense to have a second trial.

5. As the State had previously paraphrased the Supreme Court of the United States:

“There is no constitutional necessity at this point for proceeding with a new trial for

[Jensen] has already been tried to a jury with [the letter and statements] placed

before it and has been found guilty.” Jackson v. Denno, 378 U.S. 368,395, 845

S.Ct. 1774, 12 L.Ed.2d 908 (1964).

Pet-App. 27

09/08/2017

813-1

STATE OF WISCONSIN - VS - Mark D. Jensen

Accordingly, IT IS HEREBY ORDERED:

THE JUDGMENT OF CONVICTION IS REINSTATED.

THE PREVIOUSLY IMPOSED SENTENCE OF LIFE IMPRISONMENT WITHOUT

PAROLE IS REINSTATED.

THE DEFENDANT’S BOND IS REVOKED.

CUSTODY OF THE DEFENDANT IS COMMITTED TO THE CUSTODY OF THE

DEPARTMENT OF CORRRECTIONS FOR CONFINEMENT IN THE WISCONSIN

STATE PRISON FOR THE REMAINDER OF HIS LIFE.

BY THE COURT:

Dated this 18th day of September, 2017

BY THE COURT:

Electronically signed by Judge Chad G. Kerkman, Circuit Court Branch 8

Circuit Court Judge

_____________________________

Judge Chad Kerkman

Kenosha County Circuit Court

Pet-App. 28

09/08/2017

813-2

STATE OF WISCONSIN:

CIRCUIT COURT:

KENOSHA COUNTY:

BRANCH 8

STATE OF WISCONSIN,

Plaintiff,

-vs-

MARK D. JENSEN,

Defendant.

)

CASE NO. 02-CF-314

MOTION HEARING

THE HONORABLE CHAD G. KERKMAN

JUDGE PRESIDING

APPEARANCES

ATTORNEY ANGELINA GABRIELE, Kenosha County

Deputy District Attorney, and ATTORNEY ROBERT JAMBOIS,

Special Prosecutor, appeared on behalf of the State of

Wisconsin.

ATTORNEYS DEBORAH SUSAN VISHNY AND MACKENZIE

RENNER, Assistant State Public Defenders, appeared on

behalf of the defendant who appeared in person.

DATE OF PROCEEDINGS:

September 1, 2017

SHERRY BAUER

COURT REPORTER

Pet-App. 29

THE COURT:

Jensen, 02-CF-314.

I'll call State versus Mark D.

Appearances.

MR. JAMBOIS:

Good morning, Your Honor.

The State of Wisconsin appears by Special Prosecutor

Robert Jambois and Deputy District Attorney Angelina

Gabriele.

MS. VISHNY:

Mr. Jensen appears in person

subject to jurisdictional objections by Attorneys Deja

Vishny and Mackenzie Renner.

THE COURT:

Good morning, Your Honor.

Good morning.

We are here

today for pretrial motions.

We have a jury trial

scheduled for September 25th.

The Court received

correspondence from Attorney Vishny on -- it's dated

August 25th -- about the -- listing all the motions you

want to have heard today.

I really appreciate that.

Before we get to those motions I just want

to make sure that you received my draft of the jury

questionnaire and it was consistent with our

discussions?

MS. VISHNY:

Yes.

THE COURT:

Okay.

Number two, the motion

to seal your motion, I think the State was objecting to

that.

And so, I have unsealed that motion.

MS. VISHNY:

Yeah.

I just want to clarify

something on the record, Judge.

I think that I made my

Pet-App. 30

record in writing why I had sought to seal it.

until the Court had ruled, I had done a motion to seal

the second pleading.

we received notice from the clerk that the second --

the response brief was unsealed, but that the first one

never was.

some kind of error, but I just wanted to point that out

to the Court.

And

I just want to let you know that

So I don't know if that's because there is

THE COURT:

Thank you.

I did look into

that and I was told when documents are eFiled and there

is a request to seal from the attorneys, a petition is

supposed to pop up that the judge is supposed to

review.

I certainly didn't get it.

Maybe it's not true.

decision in my opinion, not an attorney or clerk

decision whether a document is sealed.

MS. VISHNY:

I'm not aware if a petition popped up for you.

That's what I was told.

I don't know.

Yeah.

But that's a judge

I assumed that.

I'm

just letting you know I only got notice on the second

pleading by the defense, not the first.

THE CLERK:

They're both unsealed.

THE COURT:

Right.

They're both unsealed

MS. VISHNY:

Okay.

Thank you.

THE COURT:

All right.

now.

Pet-App. 31

Now getting to the

motions in your list.

conviction filed by the State on August 11th.

responded August 25th.

replied to that as well.

and the briefs.

The motion to reinstate the

Defense

I'm pretty sure the State

I have reviewed the motions

Anything further, Attorney Jambois?

MR. JAMBOIS:

Nothing from the State, Your

Honor.

Court is obligated to re-try the matter, that that's

exactly the only remedy available, just doesn't make

any sense when you consider what if, for example, the

parties had negotiated resolution of this case?

if there was a plea agreement?

foreclosed from accepting a guilty plea on a negotiated

settlement?

I would indicate that the suggestion that this

What

Would the Court be

When the appellate -- when the Federal

District Court sent this matter back with the

conditional writ of habeas corpus, the court sent it

back to this Court.

jurisdiction to do what is necessary in order to

transform an invalid judgment into a valid judgment, as

Justice Scalia has indicated.

we've pursued here is a very typical process in

pretrial litigation.

A Court that has broad

And the process that

The Court is called upon to make all of

these significant, discretionary decisions regarding

Pet-App. 32

the admissibility or the exclusion of evidence.

And

the Court has made those decisions and the decisions

clearly reflect then that the first verdict in this

case was a valid verdict.

alternatively view my motion, as I've indicated in the

brief, as a motion to -- for judgment in accordance

with the verdict, a valid verdict.

you could view it as a motion to reinstate the judgment

of conviction that had been previously vacated.

And so, you could

Or, alternatively,

The Court has authority to do either one.

And the major difference between the two would be is if

you grant the State's motion for judgment in accordance

with the verdict, then you would also need to

resentence the defendant.

reinstate the vacated judgment of conviction, then you

simply reinstate the previously imposed sentence as

well.

If you grant the motion to

Thank you.

THE COURT:

Attorney Vishny.

MS. VISHNY:

Judge, just -- I just want to

clarify the record.

The State did file a responsive

brief which at least I received notice of on

August 28th and the defense also supplemented the

record in terms of facts on August 30th.

in writing so we didn't have to have oral argument.

But I just wanted to make sure the factual record was

Pet-App. 33

We did that

accurate.

THE COURT:

I do have that.

MS. VISHNY:

Thank you very much.

Judge,

I really said everything that I had to say in writing

except for one quote that I think is relevant from

Jensen v. Schwochert, which is this.

is Judge Griesbach at page 15.

And I brought copies in

case anybody wants to see it.

But on December 18,

2013, Judge Griesbach said, "If, as a general matter,

there are other grounds that can constitutionally

support a state's" -- I'm sorry -- "a state court's

ruling that, as rendered, is contrary to clearly

established federal law, the state may seek the same

ruling on the alternative grounds at a new trial in

state court."

The court -- this

So that's exactly what happened here.

The

State sought the same ruling, which is the admission of

the letter, and now we have to have a new trial.

completely disagree with the State's assessment that

this Court has the authority to defy a federal court

order.

you can't.

sought an advisory opinion from Judge Griesbach in my

opinion is wrong.

The Supremacy Clause holds very clearly that

The State's interpretation of when it

But I think we've laid out the arguments

Pet-App. 34

and I'm sure that this Court has read everything, so --

and looked at the case law.

rest on the written arguments that we have made.

it is clear that this Court -- that having a plea

agreement has nothing to do with this.

trial is pending are free to reach plea negotiations at

any time.

doesn't have a right to force a case to trial.

this case is scheduled for trial.

And the State is simply wrong in its assessment that

this Court can simply reinstate the Judgment of

Conviction.

And at this time I will

But

Parties when a

Nobody has a right -- a federal court

But

It has to be tried.

Thank you.

THE COURT:

All right.

Well, I appreciate

the State filing their motion in federal court for

clarification.

guidance.

helpful to me.

fact initiate proceedings to retry Jensen within

90 days of the effective date of the court's order.

a result, Respondent is not required to release Jensen

from his custody.

the court that Jensen is no longer in Respondent's

custody, but is being held awaiting trial in the

Kenosha County Jail.

his custody, Respondent has no power to release him in

That -- I think it does give me some

I think the federal court's decision is

It states on page 5, "The State did in

In fact, the parties have advised

Because Jensen is no longer in

Pet-App. 35

any event, and thus cannot be found in contempt for

failing to do so."

And I agree that the court also went on to

state that they offer no opinion as to whether my

decision that -- that the challenged statements are

non-testimonial and whether the previous conviction can

be constitutionally reinstated without a new trial.

The court -- the court clearly offered no opinion on

that.

not be in contempt if there were no trial because the

State did, in fact, reinitiate proceedings to try the

defendant.

But I also think it's clear that the State would

I made a decision -- an evidentiary

decision -- on Julie Jensen's letter and that decision

was consistent with Judge Schroeder's decision to allow

that evidence to come in into the trial.

think that the evidence in a new trial would be

materially the same as in the first trial.

been no interlocutory appeal.

to be very long.

And so, I

There has

This trial is expected

Six, maybe seven weeks.

And so, the question right now is should

the prior conviction be reinstated along with the

sentence or do we need to have a new trial because we

believe that the federal court ordered us to have a new

trial even though the evidence would be the same.

Pet-App. 36

That doesn't make a whole lot of sense to

me.

as in the first trial and the federal judge says, yes,

the State has complied with our order, they've -- they

had the choice of releasing the defendant or

reinstating proceedings to try the defendant, and it

sounds to me like the federal judge has agreed that the

State has done what they needed to do, 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.

If the evidence is going to be materially the same

So I am going to grant the State's motion

to reinstate the conviction and the sentence.

We are

not going to have a trial on September 25th.

And the

Court of Appeals and the Supreme Court can do as they

will.

MS. VISHNY:

Okay.

MR. JAMBOIS:

Thank you, Your Honor.

prepare an order for the Court's signature.

want to prepare the order.

Unless you

MS. VISHNY:

No.

MR. JAMBOIS:

Well, I wanted to confer

with the Attorney General's Office first.

done as quickly as we can.

I'll

Why don't you prepare

it.

It will be

Certainly no later than

Pet-App. 37

Monday or Tuesday.

MS. VISHNY:

All right.

Before the Court

signs an order, I would ask that the defense be able to

review it.

MR. JAMBOIS:

Of course.

MS. VISHNY:

Monday --

THE COURT:

Five days.

MS. VISHNY:

Five days.

Labor Day.

procedural issues just to be clear.

where this is going.

therefore, the trial is off.

cancel its subpoenas as a result.

Okay.

Yeah.

Monday is

I just want to do just a couple of

Okay.

To federal court.

THE COURT:

We all know

And,

The defense is going to

I don't see how we're going to

have a trial on September 25th.

MS. VISHNY:

Okay.

That's fine.

So we're

going to cancel the subpoenas.

THE COURT:

Yes.

MS. VISHNY:

The other motions are pending

should they need to be heard at a later date.

THE COURT:

Yes.

And, again, thank

you very much for your list.

MS. VISHNY:

Thank you, Your Honor.

MR. JAMBOIS:

Thank you, Your Honor.

MS. VISHNY:

Oh, wait.

Pet-App. 38

I did have one

other matter and that's about where Mr. Jensen is going

to be located.

reinstated, which would mean he would be transported to

Dodge Correctional.

in the custody of Kenosha County for one week so that

his lawyers can easily confer with him.

MR. JAMBOIS:

I know that the sentence has been

I would ask that Mr. Jensen remain

Why don't I do this then.

I'll prepare the order for the Court's signature on

Friday and then --

MS. VISHNY:

No.

MR. JAMBOIS:

Well, he must remain here

We object to that.

until the Court signs an order.

MS. VISHNY:

Okay.

Well, if the Court

signs the order by the end of business Tuesday, I think

that will probably do the trick.

THE COURT:

I thought I understood that

you wanted some time to review the order.

not be signing it on Tuesday if you wanted time.

MS. VISHNY:

So I will

I just want to make sure that

counsel can see him on Tuesday because we're not going

to confer with him here in the courtroom.

fine.

here on Tuesday then.

You can submit it on Tuesday.

So that's

He'll still be

That's all I really cared about.

MR. JAMBOIS:

I wanted time to confer with

the Attorney General's Office.

Pet-App. 39

I might not get that

done by Tuesday.

Friday of next week and that's what the State was

intending to do because, like I said, we need to

consult with the Attorney General's Office about it.

So I was hoping to file the order by

MS. VISHNY:

Let me just say this, Judge.

On May 15th, or whatever date it was in May, in 2016,

Mr. Jambois came to this Court and said he was going to

be filing a motion to readmit the letter and then to

reinstate the conviction.

has planned this action for approximately 15 months at

this juncture.

In other words, the State

I realize that they have conferred with

the Attorney General's Office prior to this and that

this has been a joint venture between the Attorney

General's Office and the prosecutors in this case.

least to some degree there's been some coordination

since the Attorney General's Office went to federal

court.

production of an order here.

I see no reason for further delay in the

The defense is prepared to produce the

order by Tuesday.

Court.

don't see any reason for delay.

That would be consistent with the

In fact, we could even get it done today.

THE COURT:

My normal practice is if a

proposed order is filed with the Court, then I allow

Pet-App. 40

five days for the other party to review it.

want to draft an order, have it filed on Tuesday,

that's fine.

well, that's fine.

give you five days on each order and then I'll sign an

order.

If the State wants to propose an order as

I can take a look at that and I'll

MS. VISHNY:

Okay.

with the Court's procedure.

me, Judge.

So if you

I was not familiar

Thank you for enlightening

THE COURT:

It's just how I normally do

MS. VISHNY:

That's fine.

THE COURT:

All right.

MR. JAMBOIS:

it.

I just needed

to know that.

Thank you, Your Honor.

(End of proceedings.)

Pet-App. 41

STATE OF WISCONSIN )

)

COUNTY OF KENOSHA

)

I, Sherry Bauer, a Registered Merit Reporter in

and for the State of Wisconsin, hereby certify that the

foregoing 13 pages comprise a true, complete, and

correct transcript of the proceedings had at the Motion

Hearing held before the Honorable Chad G. Kerkman,

Branch 8, on September 1, 2017, at the Kenosha County

Courthouse, Kenosha, Wisconsin.

In witness whereof I have hereunto set my hand

this 1st day of September, 2017.

Electronically Signed By

Sherry Bauer

Registered Merit Reporter

Pet-App. 42

Jensen v. Pollard, 141 S.Ct. 165 (Mem) (2020)

207 L.Ed.2d 1100

June 29, 2020

141 S.Ct. 165

Supreme Court of the United States.

Mark D. JENSEN, Petitioner,

William POLLARD.

No. 19-7603.

End of Document

Case below, 924 F.3d 451.

Opinion

Petition for writ of certiorari to the United States Court of

Appeals for the Seventh Circuit denied.

All Citations

141 S.Ct. 165 (Mem), 207 L.Ed.2d 1100

Government Works.

Pet-App. 43

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.

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.

Circuit Judge Michael B. Brennan did not participate in the consideration of the petition

for rehearing.

Pet-App. 44

Jensen v. Pollard, 924 F.3d 451 (2019)

924 F.3d 451

United States Court of Appeals, Seventh Circuit.

Mark D. JENSEN, Petitioner-Appellant,

William POLLARD, Respondent-Appellee.

Attorneys and Law Firms

Attorney,

FEDERAL

Craig

Albee,

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.

No. 17-3639

Argued November 7, 2018

Decided May 15, 2019

Rehearing and Rehearing En

Before Rovner, Sykes, and Barrett, Circuit Judges.

Opinion

Sykes, Circuit Judge.

Banc Denied November 6, 2019*

Synopsis

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,

denied petitioner's motion to enforce conditional writ, and

petitioner appealed.

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.

*452 Appeal from the United States District Court for the

Eastern District of Wisconsin. No. 11-C-803 — William C.

Griesbach, Chief 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. *453 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.

Pet-App. 45

Jensen v. Pollard, 924 F.3d 451 (2019)

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 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 dueprocess 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.

*454 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 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

Pet-App. 46

Jensen v. Pollard, 924 F.3d 451 (2019)

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 postwrit 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

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

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 *455 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 ... 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.”

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 ...

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 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.

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 post-writ

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 *456 direct appeal in state court. Indeed, he must

Pet-App. 47

Jensen v. Pollard, 924 F.3d 451 (2019)

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[.] ...

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.

All Citations

924 F.3d 451

Footnotes

Circuit Judge Michael B. Brennan did not participate in the consideration of the petition for rehearing.

We thus lack jurisdiction to consider Jensen's judicial-bias claim.

End of Document

Government Works.

Pet-App. 48

Jensen v. Clements, Not Reported in Fed. Supp. (2017)

2017 WL 5712690

Only the Westlaw citation is currently available.

United States District Court, E.D. Wisconsin.

Mark D. JENSEN, Petitioner,

Marc CLEMENTS, Respondent.

Case No. 11-C-803

Signed 11/27/2017

Attorneys and Law Firms

Brian T. Fahl, Fahl Law Office LLC, Elm Grove, WI, Craig

W. Albee, Joseph A. Bugni, Federal Defender Services of

Wisconsin Inc., Milwaukee, WI, for Petitioner.

Marguerite M. Moeller, Middleton, WI, Warren D. Weinstein,

Wisconsin Department of Justice Office of the Attorney

General, Madison, WI, for Respondent.

DECISION AND ORDER DENYING MOTION TO

ENFORCE JUDGMENT

William C. Griesbach, Chief Judge

*1 This court granted Petitioner Mark D. Jensen's

application for a writ of habeas corpus on December 18,

2013, on the ground that the Wisconsin Court of Appeals

had unreasonably applied clearly established federal law

in deciding that the admission at his state trial of out-ofcourt statements his deceased wife had made implicating

him in her death, though a violation of Jensen's rights under

the Confrontation Clause, was harmless error. Jensen v.

Schwochert, No. 11-C-803, 2013 WL 6708767 (E.D. Wis.

Dec. 18, 2013), ECF No. 65. The court ordered Jensen

“released from custody unless, within 90 days of the date of

this decision, the State initiates proceedings to retry him.”

Id. at *17. On appeal, during which the order was stayed,

a divided panel of the Seventh Circuit affirmed. Jensen

v. Clements, 800 F.3d 892 (7th Cir. 2015). Respondent's

petitions for reconsideration and en banc review were denied.

After the Seventh Circuit's mandate issued on October 19,

2015 (ECF No. 79), Jensen was returned to the Kenosha

County Jail, and the Kenosha County Circuit Court vacated

his judgment of conviction on December 29, 2015, and set the

matter for a new trial. ECF No 86-1 at 21. In the proceedings

leading up to the trial, the circuit court determined that in light

of recent Supreme Court precedent, the statements at issue

were not testimonial and their admission at trial did not violate

Jensen's Sixth Amendment confrontation right. ECF No. 94-9

at 73–74. The circuit court thereafter determined that its new

ruling on Julie's statements, including her letter and reports

to police, cured the constitutional defect in Jensen's first

trial, and based upon this determination reinstated Jensen's

conviction and sentence. ECF No. 94-11 at 11–12, 35–36.

This matter now returns to this court on Jensen's motion to

enforce judgment, which argues that the State violated this

court's order to release or retry Jensen with the series of

events that resulted in the reinstatement of his conviction and

sentence. ECF No. 93.

There is no dispute that Jensen has the right to challenge the

circuit court's ruling that the out-of-court statements of his

deceased wife are admissible after all and its decision to enter

a judgment of conviction against him for the murder of his

wife based on the earlier verdict, both procedurally and on the

merits. The question presented by the unusual facts of the case

is whether he must first seek review in the appellate courts of

the State of Wisconsin before returning to this court for relief

under 28 U.S.C. § 2254. For the reasons set forth below, I

conclude that he must do so. Jensen's motion will therefore

be denied.

BACKGROUND

Earlier orders by this court and the Seventh Circuit recite

the history of Jensen's case in great detail, so only a brief

summary and discussion of recent procedural developments

is necessary here. See Jensen, 800 F.3d at 895–98; Jensen,

2013 WL 6708767, at *1–5. Julie Jensen was found dead in

the Jensens' home on December 3, 1998. Jensen, 2013 WL

6708767, at *1. Her death was initially treated as a suicide,

but there was no dispute that her death resulted at least in

part from poisoning by ethylene glycol, a chemical used in

antifreeze. Id. Prosecutors eventually charged her husband,

Mark Jensen, with first degree intentional homicide on March

19, 2002. Id. at *3. The case against Jensen relied in part

upon a sealed letter she had given to neighbors and several

statements to police that Julie made in the weeks before her

death expressing her fear that her husband was plotting to kill

her. Id. at *1–2. The admissibility of the letter and statements

Pet-App. 49

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2017 WL 5712690

has been the focal point of litigation in this case over the past

fifteen years.

*2 Before Jensen's trial for Julie's murder, the United

States Supreme Court decided Crawford v. Washington, 541

U.S. 36 (2004), which recast the right protected by the

Sixth Amendment's Confrontation Clause. As a result, the

circuit court determined that Julie's letter and statements

were inadmissible testimonial statements. Jensen, 2013 WL

6708767, at *3. The State sought an interlocutory review of

that decision, and after granting a bypass petition allowing the

case to skip the Wisconsin Court of Appeals, the Wisconsin

Supreme Court reversed the circuit court's decision. State

v. Jensen, 2007 WI 26, ¶ 2, 727 N.W.2d 518. Although

the Wisconsin Supreme Court agreed with the circuit court

that the statements were testimonial, it adopted a broad

“forfeiture by wrongdoing doctrine” and remanded for a

hearing to determine whether Jensen had “lost the right to

object on confrontation grounds to the admissibility of outof-court statements of a declarant whose unavailability the

defendant ... caused.” Id. On remand, the Kenosha County

Circuit Court conducted a ten-day evidentiary hearing and

concluded that Jensen forfeited his confrontation right by

killing Julie and therefore causing her absence from trial.

Jensen, 2013 WL 6708767, at *3. As his defense at the trial

that followed, Jensen attempted to show that Julie committed

suicide and sought to frame him for her death, but the jury—

which saw the letter and Julie's other statements—ultimately

convicted Jensen of first-degree intentional homicide. Id. at

*4–5.

While Jensen's direct appeal to the Wisconsin Court of

Appeals was pending, the Supreme Court decided Giles v.

California, 554 U.S. 353 (2008), which rejected the broad

forfeiture by wrongdoing doctrine adopted by the Wisconsin

Supreme Court in Jensen's case. Nevertheless, the Wisconsin

Court of Appeals affirmed Jensen's conviction on direct

review. State v. Jensen, 2011 WI App 3, ¶ 1, 794 N.W.2d

482. Assuming, without deciding, that the circuit court erred

under Giles by admitting the testimonial letter and statements,

the court of appeals concluded that any error was harmless

beyond a reasonable doubt in light of the weight of the state's

evidence and the strength of its case. Id. ¶ 35. The Wisconsin

Supreme Court denied Jensen's petition for review on June

15, 2011.

On August 24, 2011, Jensen filed a petition for a writ of

habeas corpus under 28 U.S.C. § 2254, and this court issued

its decision granting the petition on December 18, 2013.

Jensen, 2013 WL 6708767. Noting that “[t]he parties [did]

not dispute that both the letter and Julie Jensen's statements

to [a police officer] were testimonial,” this court concluded

that those “erroneously admitted testimonial statements had

a ‘substantial and injurious effect’ on the jury's verdict.” Id.

at *6–7, *10 (quoting Brecht v. Abrahamson, 507 U.S. 619,

622 (1993)). Because the erroneous admission of the letter

and statements therefore was not harmless, the decision by

the Wisconsin Court of Appeals constituted an unreasonable

application of clearly established federal law. Id. at *17. The

court issued the following direction with regard to Jensen:

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 Respondent elects to

appeal, the judgment will be stayed pending disposition of

the appeal.

Id. Respondent appealed, and the Seventh Circuit affirmed,

agreeing that “the improperly admitted letter and accusatory

statements resulted in actual prejudice to Jensen.” Jensen,

800 F.3d at 908. Under this court's order, the 90-day window

for the State to release Jensen or initiate proceedings to retry

him opened when the Seventh Circuit issued its mandate on

October 19, 2015. ECF No. 79.

On December 29, 2015, the Circuit Court of Kenosha County

vacated Jensen's judgment of conviction and reopened

the case. ECF No. 86-1 at 21. That day, the State also

communicated its intent to retry Jensen. Id. In anticipation of

the new trial, Jensen filed a motion on November 29, 2016,

to exclude all of Julie's testimonial statements, including the

letter. ECF No. 94-3 at 97. After two rounds of extensive

briefing and oral argument on the motion,1 the circuit court

found in July 2017 that Julie's letter and statements to

officers were non-testimonial based upon the post-Crawford

evolution of the meaning of “testimonial” in cases such as

Michigan v. Bryant, 562 U.S. 344 (2011), and Ohio v. Clark,

135 S. Ct. 2173 (2015), both decided after Jensen's first trial.

ECF No. 94-9 at 73–74, 96. The circuit court therefore denied

Jensen's motion and concluded that the letter and related

statements would be admissible at Jensen's new trial. ECF No.

94-9 at 96.

*3 The State took two relevant actions in response the

circuit court's decision that Julie's letter and statements would

be admissible at Jensen's second trial. First, Respondent

filed a motion for clarification in this court on August 10,

2017. ECF No. 86. After explaining recent developments

Pet-App. 50

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2017 WL 5712690

in Jensen's case, Respondent informed this court that the

Kenosha County prosecutors intended to move the circuit

court to reinstate Jensen's conviction on the grounds that the

trial court's recent conclusion that the letter and statements

were not testimonial “cure[d] the constitutional error believed

to have existed in the first trial.” Id. at 4. Respondent

sought clarification as to whether reinstatement of Jensen's

conviction under these circumstances would comply with

this court's order 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 5. This court granted

Respondent's motion in an August 18, 2017 order. ECF

No. 90. Recognizing that this court possessed continuing

jurisdiction to assess Respondent's compliance with the

conditional writ of habeas corpus, this court concluded that,

because “[t]he State did in fact initiate proceedings to retry

Jensen within 90 days of the effective date of the court's

order[,] ... Respondent is not required to release Jensen from

his custody.” Id. at 5. The court further observed that because

“Jensen is no longer in Respondent's custody, but is being held

awaiting trial in the Kenosha County Jail[,] ... Respondent has

no power to release him in any event.” Id. at 5–6. However,

the court declined to offer an opinion “as to whether the

circuit court's determination that the challenged statements

are non-testimonial is proper and whether Jensen's previous

conviction can be constitutionally reinstated without a new

trial,” recognizing that addressing either would constitute

improper issuance of an advisory opinion. Id. at 6.

Second, as represented to this court, the State filed a motion

in the Kenosha County Circuit Court on August 11, 2017,

seeking to reinstate Jensen's judgment of conviction and

accompanying life sentence. ECF No. 94-10 at 42–56.2 The

circuit court held a hearing on the motion on September 1,

2017. Id. at 97–100 & ECF No. 94-11 at 1–10. Citing this

court's August 18, 2017 order, the circuit court concluded that

“it's clear that the State would not be in contempt if there were

no trial because the State did, in fact, reinitiate proceedings

to try” Jensen. ECF No. 94-11 at 4. The circuit court

further found that, as a result of its decision to admit Julie's

letter and statements at the upcoming trial, “the evidence

in a new trial would be materially the same as in the first

trial.” Id. Questioning the appropriateness of investing court

time and resources in holding a duplicate trial, the circuit

court granted the State's motion. Id. at 5. The circuit court

entered the new judgment of conviction and life sentence for

Jensen on September 8, 2017. Id. at 11–12. A September 18,

2017 written order briefly elaborated on the circuit court's

reasoning: “There is no constitutional necessity at this point

for proceeding with a new trial for [Jensen] has already

been tried to a jury with [the letter and statements] placed

before it and has been found guilty.” Id. at 35–36 (alterations

in original) (quoting Jackson v. Denno, 378 U.S. 368, 394

(1964)). Returning to this court, Jensen filed his motion to

enforce judgment on September 29, 2017. ECF No. 93.

ANALYSIS

A district court that grants a petition for a writ of habeas

corpus may nonetheless “delay the release of a successful

habeas petitioner in order to provide the State an opportunity

to correct the constitutional violation found by the court.”

Hilton v. Braunskill, 481 U.S. 770, 775 (1987). Consequently,

when a district court issues a conditional writ of habeas

corpus, the court “retains jurisdiction to determine whether a

party has complied with the terms of [the] conditional order.”

Phifer v. Warden, U.S. Penitentiary, Terre Haute, Ind., 53

F.3d 859, 861 (7th Cir. 1995). When a State fails to correct

the constitutional violation within the time established by

the district court, “the consequence ... is always release.”

Wilkinson v. Dotson, 544 U.S. 74, 87 (2005) (Scalia, J.,

concurring). But “[o]nce ... the habeas writ [is] complied

with, ... the district court [loses] jurisdiction over the case.”

Hudson v. Lashbrook, 863 F.3d 652, 656 (7th Cir. 2017).

Jensen first argues that this court's conditional writ was clear:

“if the State failed to retry Jensen without the letter, Jensen

was entitled to release.” Mot. to Enforce J., ECF No. 93

at 18. But that is not what this court's order said. As the

court noted in its Decision and Order Granting Respondent's

Motion for Clarification, the order stated that Jensen was to

be “released from custody unless, within 90 days of the date

of this decision, the State initiates proceedings to retry him.”

ECF No. 90 at 5 (quoting ECF No. 65 at 33) (emphasis added).

Given the complexity and length of the original trial, the court

certainly did not expect the State to retry Jensen within 90

days of the effective date of its order. The original trial lasted

six weeks and involved experts in toxicology, pathology, and

psychiatry. Moreover, cases in which a writ of habeas corpus

is issued frequently do not result in a retrial. The parties are

often able to reach agreement on a disposition that obviates

the need for a new trial. Given this uncertainty over whether

the parties would need to retry the case, and if they did, how

much time they would need to prepare for and complete a

new trial, the court deliberately required only the initiation of

proceedings for a retrial within the time allowed in order for

the State to comply with the writ. And as the court likewise

Pet-App. 51

Jensen v. Clements, Not Reported in Fed. Supp. (2017)

2017 WL 5712690

noted in its clarification order, the State did comply at least

with the letter of the court's conditional writ: “The State did in

fact initiate proceedings to retry Jensen within 90 days of the

effective date of the court's order.” Id. As a result, the court

concluded that the State was not required to release Jensen

from its custody at that time. Id.

*4 The State argues that having already determined that it

complied with the letter of the writ by initiating proceedings

to retry Jensen, the court no longer has jurisdiction over

the original petition: “[W]hen a state meets the terms of

the habeas court's condition, thereby avoiding the writ's

actual issuance, the habeas court does not retain any further

jurisdiction over the matter.” Gentry v. Deuth, 456 F.3d

678, 692 (6th Cir. 2006) (citing Pitchess v. Davis, 421 U.S.

482, 490 (1975) (per curiam)). But surely, a State cannot

claim to have complied with a conditional order for release

under § 2254 by vacating the previous judgment, initiating

proceedings for a new trial, and then, with no further analysis

or development of the record, simply reinstating the same

judgment that was the subject of the previous order. To

be meaningful, a federal court's jurisdiction to determine

whether a party has complied with the terms of its order

allows, indeed requires, the court to inquire into whether the

State's actions constitute a good faith effort to comply with the

substance, as well as the form, of the court's order, or instead

amounts to nothing more than a sham intended to circumvent

the federal court's writ.

Jensen suggests that the State has not acted in good faith.

He argues that rather than use the opportunity afforded by

the conditional writ to retry him, the State has sought to

delay his retrial, defy this court's order, and further violate

his constitutional rights. He contends that the State waited

seventeen months after the federal mandate before submitting

its brief arguing that the letter was not testimonial and

never presented the argument to this court pursuant to Rule

60(b)(6). The State then defied this court's ruling, Jensen

contends, by duping the trial judge into revisiting the settled

issue of whether the letter was testimonial and ruling it

admissible. The State then went even further, Jensen argues,

and convinced the trial judge to take the unprecedented step

of skipping the trial and reinstating his conviction. Mot. to

Enforce J., ECF No. 93 at 7, 27.

Jensen overlooks the fact that it was a state court, not the

prosecutor or other officer of the executive branch of state

government, that ultimately set the trial date, ruled that

the letter was non-testimonial after all, and reinstated the

judgment of conviction. The State court might have been in

error, but to claim that the judge was “duped” and characterize

the court's rulings as the State's deliberate defiance of this

court's order ignores the lengthy briefing on the issues offered

by the parties in the state court proceedings, the independent

analysis undertaken by the trial court, and the respect

due to state courts and state proceedings. As the Seventh

Circuit recently noted in another habeas case challenging

the proceedings in state court following the issuance of a

conditional order of release, “State authorities applying their

own criminal laws are not marionettes controlled by the

federal courts, and the writ of habeas corpus, while a ‘great

writ,’ is not without limit. The writ is directed to the person

detaining another: it is not directed at the state government in

toto.” Hudson, 863 F.3d at 655–56.

The circuit court in this case did not lightly undertake the

task of revisiting an issue that had been seemingly decided

by the Wisconsin Supreme Court more than ten years earlier

in the lengthy procedural history of this case. The question

of whether the letter and related statements were testimonial

under current law was raised by the State in its response to

Jensen's motion in limine seeking to preclude the State from

making any reference to or attempting to admit into evidence

in any manner Julie Jensen's letter. The State filed a 100-page

brief in response, 26 pages of which argued that under the

Supreme Court's more recent decisions in Bryant and Clark,

the letter and related statements to police were not testimonial

statements within the meaning of the Confrontation Clause

of the Sixth Amendment. ECF No. 94-5 at 48–74. As the

State pointed out, it is true that in the years since Jensen's

trial, the United States Supreme Court has issued a number

of decisions that have arguably narrowed the definition of the

kind of “testimonial statements” to which Crawford held the

Confrontation Clause strictly applies. Id. at 52–53.

*5 In Bryant, for example, decided three years after Jensen's

conviction, the Court held that statements by the mortally

wounded victim of a shooting identifying the shooter and

location of the shooting in response to questions put to him

by police officers dispatched to the place to which he had

fled were not testimonial. In reaching this conclusion, the

Court noted that “the most important instances in which

the [Confrontation] Clause restricts the introduction of outof-court statements are those in which state actors are

involved in a formal, out-of-court interrogation of a witness

to obtain evidence for trial.” 562 U.S. at 358. The primary

purpose of the police interrogation in that case, the Court

observed, was to enable police assistance to meet an ongoing

Pet-App. 52

Jensen v. Clements, Not Reported in Fed. Supp. (2017)

2017 WL 5712690

emergency, rather than to gather evidence to prove past events

potentially relevant to later criminal prosecution. The Court

also commented on the informality of the encounter: “the

questioning in this case occurred in an exposed, public area,

prior to the arrival of emergency medical services, and in

a disorganized fashion. All of those facts make this case

distinguishable from the formal station-house interrogation

in Crawford.” Id. at 366. Based on its consideration of these

factors, the Court concluded that the victim's statements to

police were not testimonial and that their admission at trial

did not violate the Confrontation Clause. Id. at 378.

Then in Ohio v. Clark, decided more than seven years

after Jensen's previous conviction, the Court held that a

three-year-old victim's statements to his preschool teachers

identifying the defendant as the person who caused his

injuries were not testimonial. There the Court again reiterated

the importance of the purpose of the interrogation and the

formality surrounding it as important factors to consider in

determining whether the resulting statement was testimonial.

135 S.Ct. at 2179–80. “In the end,” the Court stated, “the

question is whether, in light of all the circumstances, viewed

objectively, the ‘primary purpose’ of the conversation was to

‘creat[e] an out-of-court substitute for trial testimony.’ ” Id.

at 2180 (quoting Bryant, 562 U.S. at 358). In holding that

the child victim's statements were not testimonial, the Court

noted that the interrogation was by teachers, not police, and

for the purpose of protecting the child from further abuse, not

to gather evidence for a prosecution. Id. at 2181.

It was in light of these more recent decisions that the State

argued Julie's letter and related statements to police prior to

her death should not be considered testimonial. The State also

argued in its response to Jensen's motion in limine that under

a well-established exception to the law of the case doctrine,

the court could and should revisit the question of whether

the letter and related statements were testimonial. ECF No.

94-9 at 74–77. That exception applies when controlling legal

authority has arrived at a contrary decision of the law under

which an earlier determination was made. Id. at 74 (citing

State v. Brady, 130 Wis. 2d 443, 448, 388 N.W.2d 151 (1986),

and White v. Murtho, 377 F.2d 428, 431–31(5th Cir. 1967)).

Only after additional and extensive briefing and argument by

both parties did the court render its decision that the law of the

case doctrine did not bar the court from revisiting the issue

and that, under the more recent decisions of the United States

Supreme Court, the letter and related statements to the police

were not testimonial and therefore admissible at trial. ECF

No. 94-9 at 68–74.

In light of the circuit court's conclusion that the letter

and related statements were not testimonial and thus their

admission at trial did not violate the Confrontation Clause,

the State then moved for reinstatement of the judgment

of conviction based on the jury's verdict in the previous

trial. “The defendant is not entitled to a new trial,” the

State argued, “since he has already had a trial by a jury

of his peers which was free of constitutional error.” Br. in

Supp. of Mot. to Reinstate, ECF No. 94-10 at 42. In the

State's view, the determination by the federal courts that the

Wisconsin Court of Appeals had unreasonably applied clearly

established federal law in finding the admission of such

evidence harmless error was not dispositive once the circuit

court found that admission of the same evidence was not error.

Since the original jury trial was not tainted by the erroneous

admission of evidence in violation of Jensen's confrontation

rights, the State argued that the circuit court should reinstate

the previous judgment of conviction, or alternatively, enter a

new judgment of conviction on the jury's verdict. Id. at 51.

The circuit court agreed and granted the State's motion.

*6 Whether the circuit court was free to revisit the issue

at this stage of the proceedings, and if so, whether the letter

and related statements are indeed non-testimonial and thus

admissible under the Confrontation Clause are, to be sure,

important questions that Jensen has every right to challenge.

But his challenge to the circuit court's rulings, at least as an

initial matter, must be by appeal to the Wisconsin appellate

courts. This is because the trial court's reinstatement of the

judgment of conviction represents a new state court judgment

for purposes of § 2254, and a federal court cannot grant relief

from such a judgment “unless it appears ... the applicant has

exhausted the remedies available in the courts of the State.”

28 U.S.C. § 2254(b)(1)(A).

In this respect, the case is similar to Hudson v. Lashbrook,

863 F.3d 652 (7th Cir. 2017). There, a federal district court,

following Lafler v. Cooper, 566 U.S. 156 (2012), held that but

for the ineffective assistance provided by his trial attorney,

the petitioner would have accepted the State of Illinois' plea

offer of twenty years rather than go to trial which, upon

conviction, resulted in a mandatory life term. 863 F.3d at

654. Based upon this determination, the federal court ordered

the State to reoffer the petitioner the original plea deal of

twenty years. In accordance with the federal court's order, the

State extended the offer, which the petitioner accepted, and

then both parties filed a joint motion to vacate the original

conviction and sentence. Noting that she would have rejected

Pet-App. 53

Jensen v. Clements, Not Reported in Fed. Supp. (2017)

2017 WL 5712690

the plea agreement based on the petitioner's criminal history

even if she was considering it for the first time, however, the

state judge refused to accept the agreement and denied the

motion. Id. The petitioner then returned to the federal district

court on a motion to enforce that court's order. The district

court denied the motion on the grounds that the petitioner's

state appeal remained pending and that “the Illinois Appellate

Court should have the first opportunity to both define Lafler's

discretionary factors and in deciding how to resentence or

treat a reoffered plea, and to determine whether the state trial

court operated within the bounds of fair discretion in this

case.” Id. at 655. The Seventh Circuit affirmed, noting that

“[o]nce the state reoffered the plea deal, the habeas writ was

complied with, and the district court lost jurisdiction over the

case.” Id. at 656. Explaining further, the court noted:

The state judge, faced with what she thought was also not

a case or controversy, declined to opine until, finally, she

considered and rejected it. Whether she had jurisdiction,

and whether her merits ruling was proper or improper

are matters of state law, pending on appeal. And it bears

mentioning that at no point was the state judge herself a

party before the federal district judge in this case.

Id.

Similarly, in this case, the state trial judge, who was

not himself a party before the court, concluded that

significant changes in the law concerning a defendant's Sixth

Amendment right to confront the witnesses against him

allowed him to revisit an issue that the Wisconsin Supreme

Court had seemingly decided more than ten years ago when

the case first came before it prior to Jensen's trial. Given

the state supreme court's determination under then-existing

law that the letter and related statements were testimonial,

the State shifted to the alternative theory of admissibility

—forfeiture by wrongdoing—that the supreme court had

approved in the same decision. After the expenditure of

much time and effort, the State succeeded in introducing the

evidence under that theory, resulting in Jensen's conviction,

only to have the broad form of the forfeiture by wrongdoing

exception that the Wisconsin Supreme Court had adopted in

Jensen I rejected by the United States Supreme Court in Giles.

Whether under this unique set of circumstances the state trial

court had the authority to revisit the issue of whether the letter

and related statements were testimonial, as well as whether

the court's determination on the merits that they were not,

are matters of state and federal law of which Jensen is free

to seek review in the Wisconsin Court of appeals. Indeed,

it appears that Jensen has already filed a Notice of Intent

to Seek Post Conviction Relief from the new judgment of

conviction entered against him. See Wisconsin Circuit Court

Access for Kenosha County Case No. 2002CF000314, at

https://wcca.wicourts.gov (last visited Nov. 27, 2017).

*7 The fact that the circuit court characterized its action

as “reinstating” the judgment of conviction, as opposed to

entering a new judgment of conviction on the original verdict,

does not change the result. It remains the case that the original

conviction was vacated and the State initiated proceedings for

a new trial. Only after the trial court later determined that

the letter and statements that were the subject of the previous

harmless error analysis were not testimonial under current

law and thus lawfully admissible did the court decide that the

original trial was free of error and the resulting verdict valid.

It thereupon ordered entry of a judgment of conviction upon

the verdict rendered after the earlier trial, thereby giving rise

to new rights for Jensen to appeal and/or seek post-conviction

relief. It is for the Wisconsin appellate courts to determine, at

least as an initial matter, whether this procedure is lawful and

complies with the Constitution and laws of the United States,

as well as those of the State of Wisconsin.

Finally, the court declines Jensen's request to take up the

due process judicial bias claim raised in his original petition.

This court granted Jensen's original petition based on his

harmless error argument, so it was not necessary to address

his due process argument at that time. Jensen argued that

he was denied due process of law because the judge who

adjudicated his trial was no longer impartial after forming an

opinion as to Jensen's guilt as a consequence of the forfeiture

hearing ordered by the Wisconsin Supreme Court. As already

discussed above, however, Jensen obtained the relief he

sought in his original habeas corpus petition: the Kenosha

County Circuit Court vacated his tainted judgment of

conviction, and the State chose to initiate a new prosecution.

The judgment of conviction resulting from that renewed

prosecution is the one now before the court, meaning that

any remaining objections to Jensen's previous judgment of

conviction are moot. To the extent he believes that bias on the

part of the previous judge infected the jury trial upon which

a different judge entered a new judgment of conviction, he

is free to raise that issue in the appellate courts of Wisconsin

and, if unsuccessful, seek federal relief pursuant to § 2254.

CONCLUSION

For the reasons set forth above, the court concludes that the

State of Wisconsin complied with this court's conditional

Pet-App. 54

Jensen v. Clements, Not Reported in Fed. Supp. (2017)

2017 WL 5712690

order when the State initiated a new prosecution after the

Kenosha County Circuit Court vacated Jensen's life sentence

and judgment of conviction. As a result, the court concludes

that it no longer possesses jurisdiction over Jensen's petition.

Thus, the State now holds Jensen in custody pursuant to a

judgment as to which Jensen has not yet exhausted his state

court remedies. Jensen's motion to enforce judgment (ECF

No. 95) is therefore DENIED.

SO ORDERED this 27th day of November, 2017.

All Citations

Not Reported in Fed. Supp., 2017 WL 5712690

Footnotes

See ECF No. 94-3 at 97–100 & ECF No. 94-4 at 1–9 (Jensen's motion); ECF No. 94-5 at 47–89 (State's response);

ECF No. 94-6 at 70–100, ECF No. 94-7 at 1–100, & ECF No. 94-8 at 1–45 (first motion hearing); ECF No. 94-8 at 47–

71 (Jensen's response brief); ECF No. 94-8 at 75–85 (State's reply); ECF No. 94-8 at 88–89 (Jensen's response letter);

ECF No. 94-8 at 90–95 (State's response letter); ECF No. 94-8 at 97–100, ECF No. 94–9 at 1–100, & ECF No. 94-10

at 1–2 (second motion hearing).

See also ECF No. 94-10 at 69–77 (Jensen's response); id. at 84–94 (State's reply); id. at 95–96 (Jensen's response letter).

End of Document

Government Works.

Pet-App. 55

State v. Jensen, 331 Wis.2d 440 (2010)

794 N.W.2d 482, 2011 WI App 3

KeyCite Yellow Flag - Negative Treatment

Habeas Corpus Granted by Jensen v. Schwochert, E.D.Wis., December 18,

2013

331 Wis.2d 440

Court of Appeals of Wisconsin.

other act evidence that defendant had quizzed his paramour

about her sexual history was properly admitted panorama

evidence;

warrantless search of defendant's home and seizure of

his computer without a warrant did not violate Fourth

Amendment; and

STATE of Wisconsin,

Plaintiff–Respondent,

defendant made no showing by preponderance of evidence

that trial judge was biased.

Mark D. JENSEN, Defendant–Appellant.†

No. 2009AP898–CR.

Submitted on Briefs June 4, 2010.

Opinion Filed Dec. 29, 2010.

Affirmed.

Attorneys and Law Firms

Synopsis

Background: Defendant was charged with intentional

homicide in the first degree of his wife. The Circuit Court,

Kenosha County, Bruce E. Schroeder, J., entered order

excluding wife's letter and voicemail messages to police, and

denied defendant's motion to exclude wife's statements to

neighbor and her son's teacher. On petition to bypass the Court

of Appeals in which State appealed and defendant crossappealed, the Supreme Court, Jon P. Wilcox, J., 299 Wis.2d

267, 727 N.W.2d 518, affirmed in part, reversed in part, and

remanded. On remand, defendant was convicted as charged

following jury trial in the Circuit Court. Defendant appealed.

Holdings: The Court of Appeals, Anderson, J., held that:

wife's non-testimonial statements were not hearsay under rule

which excluded from hearsay statements made by unavailable

witnesses;

any error in admission of hearsay was harmless beyond a

reasonable doubt;

evidence that defendant could have left pornographic photos

around house to harass wife was admissible;

other acts evidence that penis-focused pornography was

found on defendant's home and office computers was properly

admitted panorama evidence;

**486 On behalf of the defendant-appellant, the cause was

submitted on the briefs of Christopher W. Rose and Terry W.

Rose of Rose & Rose, Kenosha, and Michael D. Cicchini of

Cicchini Law Office, LLC, Kenosha.

On behalf of the plaintiff-respondent, the cause was submitted

on the brief of Marguerite M. Moeller, assistant attorney

general, and J.B. Van Hollen, attorney general.

Before BROWN, C.J., NEUBAUER, P.J., and ANDERSON,

Opinion

ANDERSON, J.

*447 ¶ 1 Mark D. Jensen appeals from a judgment of

conviction for the first-degree intentional *448 homicide of

his wife Julie Jensen. Jensen presents many arguments on

appeal, none of which persuade. We affirm.

Background

¶ 2 Paragraphs three through thirteen of this opinion relate

pertinent background facts laid out by our supreme court in

State v. Jensen, 2007 WI 26, 299 Wis.2d 267, 727 N.W.2d

518. We will recite additional facts as they become relevant

to our discussion of the appellate issues.

¶ 3 A criminal complaint charging Jensen with first-degree

intentional homicide in the December 3, 1998 poisoning death

Pet-App. 56

State v. Jensen, 331 Wis.2d 440 (2010)

794 N.W.2d 482, 2011 WI App 3

of his wife Julie was filed in Kenosha county on March 19,

2002. Id., ¶ 3.

¶ 4 At Jensen's preliminary hearing conducted in spring

2002, the State presented testimony from several witnesses,

including Julie's neighbor, Tadeusz Wojt, Officer Ron

Kosman, and Detective Paul Ratzburg. Id., ¶ 4.

¶ 5 Wojt testified that just prior to Julie's death, she gave

him an envelope and told him that if anything happened to

her, Wojt should give the envelope to the police. Id., ¶ 5.

Wojt also stated that during the three weeks prior to Julie's

death, she was upset and scared, and 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. Id., ¶ 5. Julie also allegedly 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 computer pages about poisoning. Id.

¶ 6 Kosman testified that he received two voicemails

approximately two weeks prior to Julie's death. *449 Id., ¶

6. Julie told Kosman in the second voicemail that she thought

Jensen was

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