Kenosha man's conviction in wife's poisoning vacated

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Associated Press, staff | December 19, 2013

MILWAUKEE — A federal judge has overturned a Wisconsin man's conviction for first-degree intentional homicide in the 1998 poisoning death of his wife.

Chief U.S. District Judge William Griesbach ordered that Mark Jensen be released from prison within 90 days, according to the Kenosha News.

Jensen, of Pleasant Prairie, was charged in 2002 with poisoning his wife, Julie Jensen, with antifreeze four years earlier.  Jensen appealed his case in state court, then at the federal level. Griesbach found Jensen's constitutional rights were violated during the trial.

The case was held in Walworth County in 2008 because of pretrial publicity in Kenosha County. The trial last over six weeks, and the jury deliberated more than 32 hours over three days.

The case was unusual because Julie Jensen told neighbors and a doctor she believed her husband had never forgiven her for an affair she had years earlier, and that she suspected he wanted to kill her. She told police he was researching poisons on his computer, and she left a letter with a neighbor saying that if she died her husband should be the primary suspect.

A fierce legal debate ensued over whether the letter and statements could be used in court. Jensen's attorneys argued that if the letter and statements were admitted, it would violate Jensen's right to confront his accuser.

The state Supreme Court said a defendant loses the right to confrontation if the defendant has done something to make the witness unavailable to testify. If prosecutors could prove Jensen caused his wife's absence in court, he would lose his right to confrontation and the letter and statements were fair game, it said.

Kenosha County Circuit Judge Bruce E. Schroeder decided the evidence showed Jensen had thus forfeited his right to confrontation. A jury convicted Jensen of first-degree intentional homicide in 2008 and he was sentenced to life in prison.

But the case took another turn months after his conviction when the U.S. Supreme Court clarified how a defendant forfeits the right to confrontation. The high court said a defendant must act with the express intent to keep a witness from testifying — a narrower interpretation than the Wisconsin Supreme Court's view.

Jensen argued on appeal that the U.S. Supreme Court's approach trumps the state, making the letter and statements inadmissible.

The appeals court didn't analyze whether the letter and statements were admissible. The court instead assumed they were wrongly admitted into evidence but ruled the mistake was harmless. Prosecutors had plenty of other evidence to back up the accusations in both the letter and statements, the court ruled.

For instance, Jensen sent emails to his mistress discussing how they could clean up their lives; Jensen's home computer showed a history of Internet searches about poisons; he was bitter about his wife's affair; and he told a co-worker about websites on undetectable poisons, the court said.

Rose, Jensen's attorney, argued the letter was anything but harmless, saying it swayed the jury to convict his client.

"That's what led this case to even be charged," he said. "For the court of appeals to assume the jury paid no heed to the letter defies common sense."

The state has yet to decide if the case will be retried or appealed to a federal court.

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