August 30, 2016
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Federal appeals court listens to arguments in Jensen case


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BY JANINE ANDERSON
janderson@kenoshanews.com


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CHICAGO — “That sounds like a good reason for a new trial,” was one of the last things a federal appeals judge said on Thursday to attorneys arguing the appeal of Mark Jensen’s murder conviction.

The statement, uttered by 7th Circuit Court of Appeals Justice David F. Hamilton, came after about 45 minutes of argument and discussion of the case by attorneys for Jensen and the state of Wisconsin.

The state appealed the case to the 7th Circuit, after a Milwaukee-based federal district judge overturned Jensen’s 2008 conviction for the 1998 death of his wife, Julie Jensen, at their Pleasant Prairie home.

The federal judge said statements Julie Jensen made — including a letter fingering her husband as the culprit were she to die — were improperly used at trial, and that a state appeals court erred when it found the inclusion of the statements was harmless error.

The case was argued Thursday in front of Hamilton, and justices John Daniel Tinder and Ann Claire Williams. Assistant Attorney General Margie Moeller presented the state’s argument. Jensen’s position was argued by Craig Albee, an attorney with Federal Defender Services of Wisconsin, a grant-funded law firm.

Questions from justices

Attorneys come to the appeals court appearance with prepared arguments, but are often interrupted with questions from the justices. The two sides have already outlined their legal theories with briefs submitted to the court in advance, and the argument is a chance to persuasively highlight key points.

“What standard is the Wisconsin appellate court using to find (the statements) harmless?” Hamilton asked Moeller. “I read through a very detailed account of all the state’s evidence. I don’t see any discussion, any engagement with the defense’s evidence,”

Moeller said if the appeals court’s statements are taken “out of context” it looks that way, but that the state’s appeal decision looks at the strength of the state’s case and “whether inadmissible evidence was corroborated by other evidence.”

Moeller said the court looked at whether the same verdict could be reached if Julie Jensen’s statements had not been introduced, and ultimately found that it could have.

‘This was a very close case’

Much of the evidence presented at the trial was circumstantial, and contested, said Albee. Medical examiners gave competing causes of death, and the two sides asked jurors to consider some evidence in completely opposite ways.

Hamilton said he went through the court record, and “I kept looking for evidence that could not be disputed or impeached between these two very dark theories.”

The state said Mark Jensen killed his wife and made it look like a suicide while the defense said Julie Jensen killed herself and then framed her husband for murder.

“This was a very close case,” Albee said. “I think there’s a strong likelihood (without the statements) the verdict could have come back the other way.”

Albee said Julie Jensen’s statements, especially the letter, “permeated the trial.” One medical examiner said “every sentence” in the letter led her to find Julie Jensen’s death was a homicide.

If that is what a medical examiner saw in that document, Albee said, “how powerful would it be to a lay jury?” Jurors deliberated for 30 hours over several days, and the letter was the second piece of evidence they asked to view.

One of the biggest issues with the state appeals process in this case, Albee said, was what the court didn’t consider when looking at admission of the letter.

“They never discussed what would have been the effect of the letter on the jury,” he said.

Hamilton brought up the importance of the statements, particularly the letter, which prosecutors characterized as “make or break” going into the local trial.

“It’s very hard to see how such explosive evidence was harmless,” he said.

Ruling to come

The three-judge panel made no decision Thursday, but has taken the case under advisement and will issue a ruling later.

Moeller asked justices to hold off on making a decision until after the U.S. Supreme Court rules on a different case, which could have bearing on the issues in the Jensen appeal. At issue in the other case is what deference a federal district court should give to a state court’s harmless error determination.

The justices did not say whether they would wait, as Moeller asked, or proceed with deciding the case, as Albee requested.


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